People v. Lopez CA4/1 ( 2021 )

Filed 9/20/21 P. v. Lopez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077199
Plaintiff and Respondent,
v. (Super. Ct. No. SCD274893)
HENRY ELVIS LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Steven E. Stone, Judge. Affirmed.
Charles M. Sevilla for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal and Collette C. Cavalier, Deputy Attorneys General, for Respondent
This heartbreaking case concerns the death of two young children who
perished in the middle of the night in a house fire. After investigators
concluded that the deaths were caused by the negligence of their intoxicated
father Henry Lopez, the District Attorney charged him with involuntary
manslaughter, felony child abuse, and recklessly causing a fire that resulted
in the deaths of his seven-year-old daughter and ten-year-old son. Following
a five-day trial, a jury convicted Lopez of all counts. Thereafter, the court
sentenced Lopez to 12 years and eight months in state prison.
Lopez challenges the convictions on several grounds. He asserts
(1) insufficient evidence supports the convictions on the issue of causation;
(2) the opinions of two prosecution expert witnesses were based on false
evidence; (3) the trial court improperly admitted video of an experiment
conducted by one of the prosecution experts; (4) the court erred by refusing an
instruction Lopez requested concerning alleged flaws in the prosecution
experts’ testimony; (5) the court erred by failing to allow additional
investigation of alleged juror misconduct; and (6) the court erred by allowing
inflammatory testimony by Lopez’s ex-wife, the deceased minors’ mother. In
addition, Lopez contends that even if these errors individually do not require
reversal, cumulatively they do. As we shall discuss, we reject each of Lopez’s
appellate contentions and affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Case
Lopez was married to Nikia L., the mother of the minor victims, in
2007. The couple’s son Cristos was born the same year and their daughter
Isabella was born three years later. By 2015, Lopez and Nikia were
experiencing marital problems and Lopez was drinking heavily. The same
year, Nikia was diagnosed with breast cancer. Lopez attended Alcoholics
Anonymous meetings and told Nikia that his drinking stemmed from post-
traumatic stress after his time in Marine bootcamp and because he had been
molested as a child. Nikia also suffered several miscarriages that strained
the couple’s relationship and that Nikia testified intensified Lopez’s alcohol
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abuse. The couple separated in 2016 and thereafter shared custody of the
children.
On Friday, October 27, 2017, while the children were in Lopez’s care,
he took them to a Halloween carnival at their school. They all returned to
Lopez’s townhome around 8:00 p.m. Cell phone and Facebook records showed
Lopez and his girlfriend, Laneisha Y., were texting and messaging over the
subsequent few hours and were engaged in a heated argument. At one point
Lopez sent a message telling Laneisha he was cancelling his plans to drive to
Ontario, where Laneisha lived, with the children the next morning to attend
a family party. Laneisha blocked Lopez’s angry texts. Lopez’s last message
to Laneisha that night was sent around midnight.
Around 3:00 a.m. a driver passing by the townhome saw flames coming
from the balcony. The passerby stopped his car, got out, and ran toward the
fire. He heard banging and a man yelling, and called 911. Around the same
time, Lopez’s next-door neighbor was awakened by banging and yelling. The
neighbor also called 911 and while on the phone with the dispatcher began to
smell smoke. She then saw flames coming from Lopez’s balcony. Firefighters
arrived shortly after and saw the balcony engulfed in flames.
The first firefighter to enter the home noticed blood on the front door
and a shattered window next to the door. The firefighter reached through the
broken window to open the locked door. The first floor of the townhome was
clear, so the firefighter and his partner moved up the stairs. The first
firefighter discovered Lopez lying unconscious near the top of the stairs. The
firefighters carried Lopez outside and medical personnel provided him
oxygen. Lopez was incoherent and unable to respond to their questions.
The smoke on the second floor of the townhome was thick, limiting
visibility to just a foot above the floor. A third firefighter entered the
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townhome and found Cristos on the second floor just inside Lopez’s bedroom,
lying face down with his legs curled under him. The firefighter carried the
boy outside and placed him on a stretcher. A fire captain searched for
additional victims and found Isabella lying on the bottom bunk of bunkbeds
in Cristo’s bedroom. The captain carried Isabella outside and handed her to
another firefighter who laid the girl down next to Lopez. Isabella was
unresponsive and emergency personnel began cardiopulmonary resuscitation.
Both children perished the night of the fire. Isabella died from smoke
inhalation. Over 80% of Cristo’s body was burned. The medical examiner
determined his death was caused by burns and smoke inhalation. Lopez was
severely burned and suffered inhalation injury. He was placed in a coma and
kept on a ventilator in the intensive care unit until November 9, 2017. He
was released from the hospital on November 15, 2017.
Lopez’s blood was drawn and collected at 4:52 a.m. in the immediate
hours following the fire. Testing showed that at that time of the blood draw,
Lopez had a blood alcohol concentration of 0.229 percent. Using a retrograde
extrapolation, a police criminologist determined that Lopez’s blood alcohol
concentration at 3:15 a.m. would have been between 0.244 to 0.259 percent,
three times the legal limit for driving.
After the fire, the San Diego Metro Arson Strike Team (MAST) sent fire
engineer Wayne Whitney to determine the origin and cause of the fire.1
1 MAST is the fire department “unit tasked with investigating fires and
explosion[s] in the City of San Diego proper. It consists of members of the
fire department, police department, and ATF.” Whitney stated when MAST
is called to a fire, two fire department employees respond, “[t]he fire engineer,
which was [Whitney in this case], and a fire captain …. The fire engineer’s
responsibilities, once at the scene, are to conduct … a scene exam, take
photos, [and] document [the] scene. And ultimately [make] a determination
and expert opinion as to what caused the fire.”
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Whitney testified at trial that he evaluated the damage patterns in the
townhome to find where the fire originated. Whitney explained he also
identified all potential ignition sources and eliminated those that could be
excluded as the cause of the fire.
During his investigation, Whitney first noted smoke damage, but no
fire damage, in the children’s bedrooms near Lopez’s master bedroom. He
then examined the master bedroom where the majority of smoke and fire
damage was located. Based on his observations, Whitney determined the fire
originated in the master bedroom at or near the upper right hand corner of
Lopez’s four poster bed. The fire completely consumed portions of the
mattress and box spring, as well as parts of the headboard and bed frame.
The floor and the metal bed frame underneath the bed were relatively intact,
indicating the fire started on top of, rather than underneath, the bed. There
was a latex or polyurethane mattress topper on the bed, which Whitney
testified poses a high risk of fire danger once ignited.
Whitney found no evidence that the fire originated on the exterior
balcony attached to Lopez’s bedroom. Whitney also eliminated potential
electrical causes of the fire through his examination of all of the outlets in the
room and related wiring. A folded cell phone charging cord, which Lopez’s
girlfriend identified as one that she purchased for him, was plugged into an
outlet on top of a bar away from the bed, but with no device attached to the
charging cord. Whitney opined that if the cord or an attached phone had
caused the fire, he would have expected to find an attached device (or its
remnants) or damage to the cord, and would also have expected to see
evidence of damage at the end of the cord or to the insulation covering the
wires. Because the cord was not damaged, Whitney eliminated it as the
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origination point for the fire. A cup containing wax and a candle found on the
dresser were also both eliminated as potential causes.
Simultaneously with Whitney’s investigation, the San Diego police
initiated a homicide investigation. Police sergeant Christopher Leahy was
assigned to the case. When he visited Lopez’s townhome he observed the
broken window and shattered glass next to the front door. He found blood on
the glass and a five-gallon water jug just inside the house. Blood was also
smeared on the wall near Cristo’s bedroom. Leahy also found holes in the
drywall near Cristo’s room. Leahy visited an unconscious Lopez in the
hospital, and saw he had a large laceration with stiches on his right hand and
arm. Testing later confirmed that the blood in the house and on the broken
glass was Lopez’s. Although Leahy was initially concerned that an intruder
might have entered the home and intentionally set the fire, after his
investigation he concluded Lopez had likely shattered the window, lacerating
his arm, and then gone back upstairs for the children.
Leahy also discovered two empty 24-ounce cans of beer in the garbage
container under the kitchen sink, and an empty bottle of gin downstairs.
Two empty American Spirit cigarette packages—the brand Lopez smoked—
were found in a garbage can in the garage along with a drinking glass filled
with cigarette butts, an empty matchbook, an empty bottle of whiskey, an
empty bottle of wine with cigarette butts and ashes inside, and another
empty gin bottle. Investigators also found a glass marijuana pipe, a lighter,
and a cigar cutter in the home. A burned glass cup, similar to the cup filled
with cigarette butts found in the garage, and a partially melted plastic
whiskey bottle were found on the floor near Lopez’s charred bed.
During trial, Nikia testified that Lopez had not been a smoker during
their relationship, but had started smoking after they separated. She had
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seen cigarettes in his house and had also witnessed Lopez smoking
marijuana in his bed in early 2017. Laneisha also testified that Lopez was a
smoker and he smoked regularly on the balcony of his bedroom; she
estimated he smoked two or three cigarettes a night. Laneisha testified that
she had never seen Lopez smoke inside his home. Laneisha stated that it
was Lopez’s practice to put out his cigarettes on the floor of the balcony or on
a metal patio table, and that he did not keep an ashtray on the balcony.
Phone records introduced at trial showed that Lopez’s cell phone was
stationary in the area of the townhome from 7:29 p.m. the evening of the fire
until it stopped transmitting. The phone was in use until around 1:00 a.m.,
and stopped transmitting sometime between that time and 5:30 a.m. Lopez’s
cell phone was never recovered.
On November 21, 2017, Lopez was interviewed at his attorney’s office
by police homicide detective Daniel Burow. The interview was recorded and
played for the jury in its entirety. Lopez told Burow he was asleep in bed
when he awoke to black smoke in his room and felt the heat from the fire.
Lopez said he got up and yelled for the children, then went to their rooms and
broke out the window in his son’s room. Lopez recalled that he wanted to
toss Cristos and Isabella outside to safety. Although she had her own room,
Isabella sometimes slept in the bottom bunk in Cristos’s room, and Cristos
slept in the top bunk. Lopez thought both of them were in Cristos’s room that
night.
Lopez told Burow he saw smoke rushing to the top of the room when he
awoke. He got up, screaming for the children, and went to his son’s room.
When the detective explained that the downstairs window was broken, Lopez
said he thought he had broken the window in his son’s room. He said he “did
[his] hardest to get the hell out of there, and to get them out.” Lopez told
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Burow he was “in a panic” and “halfway conscious” and was not moving as
fast as he normally would, possibly from smoke inhalation. He remembered
feeling lethargic and disoriented. Lopez told Burow that he believed he had
succeeded in getting his children out of the house until he was awake in the
hospital and his sister told him the children had died in the fire.
When Burow questioned Lopez about the cause of the fire, Lopez said
he did not know how it started. His only guess was a candle in a glass jar on
his dresser that he might have lit that night. He thought he would have put
the candle out before going to sleep, but said he had “slept hard” that night.
Lopez also told the detective he had just been laid off from his job, was late on
his mortgage, and had not slept “for days.” When Burow questioned Lopez
about his smoking habits, Lopez initially said he was not a regular smoker
and smoked only when he was stressed and never when his children were
home because they both were asthmatic.
Lopez denied smoking the night of the fire, and said when he did smoke
it was outside on the balcony and not inside his room. Lopez estimated he
typically smoked two cigarettes a day. His practice was to smoke on the
balcony at a table and chairs, and he usually smoked at night. He told Burow
he smoked American Spirit cigarettes in a blue box and that he used an old
drinking glass to collect the ashes and cigarette butts. Lopez denied
intentionally setting the fire. He explained that the night of the fire, he had
been arguing with Laneisha through text messages.
When Burow told Lopez the candle had been ruled out as the cause,
and that the fire started near the bed, Lopez reiterated that he never smoked
while his son was there, but that if he had been smoking and did not
remember, it would have been outside on the patio. Burow explained to
Lopez that electrical causes had also been ruled out and that the fire
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investigators suspected a cigarette caused the fire. When Burow suggested
there were cigarettes in a cup inside the bedroom, Lopez said the cup would
have been outside on the balcony.
Burow asked Lopez if it was possible that he did not put his cigarette
out outside, but instead dropped it inside after falling asleep since he had
been sleep-deprived. The detective also said Lopez’s burns suggested the fire
started in the bed with Lopez. Lopez said it was possible that he had a
cigarette outside, but that he would not have had a cigarette inside and fallen
asleep with it in his hand. Lopez believed that if he had smoked that night, it
would have been outside. Lopez also said the only way smoking materials
would have been in his room was if he was cleaning up the cigarette butts
from the balcony and brought the cup with his discarded butts into his room.
Lopez admitted he had smoked in his garage once, but otherwise maintained
he never smoked inside the home. Lopez told Burow that the smoke and
carbon monoxide detector for his bedroom was not working at the time of the
fire because its battery had died, and Lopez had yet to replace it.
When Burow again told Lopez that the fire originated around where
Lopez was asleep in his bed, Lopez responded, “That would’ve been probably
a—maybe one of the cigarettes that I … If I had smoked that night, maybe
the cigarette wasn’t all the way out, I don’t know, you know?” Lopez repeated
that he did not remember smoking the night of the fire and that he would not
have smoked if his son was there. When Burow asked if Lopez remembered
drinking that night, Lopez was adamant he did not drink. He said he had
two beers with dinner the previous night, but did not drink before or after the
Halloween carnival.
Lopez told Burow he had his phone with him in bed while he was
texting Laneisha. Lopez said he used the 10-foot charging cord Laneisha
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gave him to charge his phone at night, and usually slept with his phone
under his pillow or occasionally laid it on the floor near his bed. He thought
the phone would have been under his pillow that night so he would hear the
alarm to get up early to drive to Ontario.
When Burow asked Lopez about his use of marijuana, Lopez said he
used it occasionally for insomnia, but that he was not smoking marijuana
that night. When the detective asked if it was possible Lopez did not
remember things because he had been drinking, Lopez again denied drinking
and also denied taking any sleep aids. Lopez said he did not know how the
fire started, “but it’s not unlikely, again, that I would’ve cleaned up and then
kind of put stuff here, because when it wasn’t a lot of butts, I would take it to
the toilet and flush them.” Lopez then stated “it’s not unlikely for me to just
put that glass that I had with all those butts in there, and then you know,
put it in a bag, and then douse it under the water sink, and just … throw it in
the trash.” Lopez also admitted it was possible that he put the glass with
cigarette butts on the floor by the bed or underneath the bed where the
children could not see it, intending to douse the cigarette butts with water
and dispose of them in the trash, but he did not remember doing so that
night. The last thing he remembered that night was texting Laneisha.
When Burow explained that blood drawn when Lopez arrived at the
hospital showed alcohol in his system, Lopez again said he did not remember
drinking that night, but it was possible. On repeated questioning by Burow,
Lopez maintained that he had no recollection of drinking the night of the fire.
He agreed it was possible that if he had a couple of drinks and was smoking,
he forgot about his cigarette or put it out in the cup under the bed, igniting
the fire, but Lopez had no recollection of this happening.
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At the end of the MAST and police investigations, Whitney reached the
conclusion that the probable cause of the fire was discarded smoking
materials that ignited Lopez’s bedding.2 At trial, in support of this theory,
Whitney pointed to the empty packs of American Spirit cigarettes found in
the house, the empty plastic bottle of whiskey, the cup of cigarette butts and
discarded cigarette materials, and loose cigarette butts that were found in a
trashcan in the garage. In particular, Whitney noted the cup and the
whiskey bottle in the trash were similar to the fire damaged cup and bottle
found in the bedroom. Whitney thought that Lopez’s statement that he had a
pattern of putting cigarettes into a cup to throw away later also supported his
opinion that the fire was caused by smoking, even though there was no
evidence of smoking materials in close proximity to the area of origin.
Whitney also noted Nikia’s statement that she had seen Lopez smoke inside
the home on a previous occasion.
Whitney further testified about experiments he conducted after the
preliminary hearing, when he learned he had incorrectly assumed that the
cigarettes Lopez smoked were unfiltered. To determine if it was possible for
cigarette filters to be completely consumed by the fire, Whitney ignited a
cigarette with a torch. Whitney observed that the cigarette filter continued to
burn even after the flame was removed, leaving just ashes, and concluded a
lit cigarette on the bed could have been consumed by the fire with only
unidentifiable debris remaining. A second demonstration showed a lit
cigarette continued to burn on its own for more than 21 minutes. Video-
recordings of the experiments were played for the jury.
2 Whitney did not listen to Lopez’s recorded interview. Rather, Burow
relayed to Whitney what Lopez told him during the interview.
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The prosecution also called the investigator for the homeowners
insurance company, Thomas Derby, who examined the home on November 7,
2017, after the MAST and police officials had concluded their investigations
of the premises. Like Whitney, Derby concluded based on the pattern of
burning that the fire originated at the upper right corner of the bed, with the
fire consuming the mattress, box spring, and the side rail in that area. Derby
also found no damage to the electrical outlets and related wiring.
Derby testified he saw an ashtray with cigarette butts and cigar butts
on a vanity against the wall in front of the bed. He took a photograph of the
ashtray but did not have it with him at trial and had not been questioned
about it earlier. He saw the discarded beer cans and whiskey bottle
downstairs in the kitchen trashcan. He hypothesized the fire resulted from
drinking and smoking in bed. He ruled out all other possible causes of the
fire.
Finally, the prosecution introduced the testimony of a fire research
engineer for the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives
(ATF), Jonathan Butta. Butta conducted a series of tests to determine
whether common bedding materials ignited when exposed to cigarettes. He
concluded “in the right scenario, cotton bedding materials are susceptible to
ignition via – via a lit cigarette. So, therefore, it is possible that a lit
cigarette could ignite materials consistent with bedding.” Butta also testified
that 50% of all-cotton bedding materials tested resulted in smoldering
combustion, and four percent in flaming combustion. Butta stated that in
some scenarios—for example where fans were added, the ventilation was
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changed, or the bedding material samples were crumpled—the probability of
ignition increased significantly.3
B. Defense Case
Lopez’s defense was that the prosecution could not prove beyond a
reasonable doubt that the fire was ignited by a cigarette in his bed because it
was possible the fire was started by Lopez’s cell phone malfunctioning. Lopez
called a private fire investigator, Robert Rowe, to testify. Rowe told the jury
the experiments Whitney conducted failed to adequately recreate the
conditions of the fire at Lopez’s home, and that the experiments were not an
adequate method of testing whether the cigarette would have been totally
consumed in the fire. Rowe also criticized the conclusions reached by
Whitney and Derby and suggested smoking should have been ruled out as a
possible cause of the fire because no smoking materials were found in the
area of origin, and because Lopez had denied smoking in his bedroom.4
Rowe further suggested the investigators inadequately explored the
plausibility of Lopez’s iPhone as a potential cause for the fire. Rowe did not
offer an opinion as to the cause of the fire but said that the iPhone was a
more likely cause than discarded smoking materials. Rowe did agree that if a
phone charging cord caused the fire, it would have been damaged.
3 A ceiling fan partially destroyed in the fire and suppression efforts had
hung above Lopez’s bed.
4 Rowe did concede on cross-examination that cigarette filters are not
recovered in every instance in which a fire is started by a cigarette.
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C. Verdict and Sentencing
After trial, the jury convicted Lopez of two counts of felony child abuse
(Pen. Code, § 273a, subd. (a)5), unlawfully causing a fire resulting in great
bodily injury (§ 452, subd. (a)), and two counts of involuntary manslaughter
(§ 192, subd. (b)). As to the child abuse counts, the jury found that Lopez
willfully caused or permitted a child to be injured or harmed resulting in
death within the meaning of section 12022.95. The jury also found Lopez
caused injury to more than one victim. (§ 452.1, subd. (a)(3).) Thereafter, the
trial court sentenced Lopez to a determinate term of twelve years eight
months in state prison. Lopez filed a timely notice of appeal.
DISCUSSION
I
Sufficiency of Causation Evidence
Lopez first asserts insufficient evidence supports the jury’s finding that
a cigarette ignited his bedding, causing the fire. Lopez argues that the expert
opinions of Derby and Whitney were “so weak, flawed and unreliable as to
not constitute sufficient evidence.” The Attorney General responds that the
testimony of Whitney, Derby, and Butta constituted sufficient evidence to
support the finding.
A
Legal Standards
For the felony child endangerment (§ 273a) convictions, the jury was
required to find the prosecution proved beyond a reasonable doubt that
(1) Lopez, while having care or custody of the children, willfully caused or
permitted the children to be placed in a situation where their person or
health was endangered; (2) Lopez caused or permitted the children to suffer
5 Subsequent undesignated statutory references are to the Penal Code.
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or be injured or be endangered under circumstances likely to produce great
bodily harm or death; and (3) Lopez was criminally negligent when he caused
or permitted the children to suffer or be injured or endangered. For the
conviction for unlawfully causing a fire resulting in great bodily injury (§ 452,
subd. (a)), the jury was required to find Lopez recklessly set fire or burned or
caused to be burned any structure, and that the fire caused great bodily
injury to another person. Finally, for the involuntary manslaughter (§ 192,
subd. (b)) convictions, the jury was required to find Lopez owed a legal duty
to his children, he failed to perform that duty, the failure was criminally
negligent, and the failure caused the deaths of the children.
In assessing the sufficiency of the evidence supporting a criminal
conviction, this court must determine whether any rational jury “could have
found the essential elements of the crime beyond a reasonable doubt.”
(Jackson v. Virginia (1979) 443 U.S. 307, 319; accord People v. Mendoza
(2011) 52 Cal.4th 1056, 1068‒1069.) “Further, ‘the appellate court presumes
in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ ” (People v. Catlin (2001) 26 Cal.4th
81, 139.) “When the circumstances reasonably justify the jury’s findings, a
reviewing court’s opinion that the circumstances might also be reasonably
reconciled with contrary findings does not warrant reversal of the judgment.”
(Mendoza, at p. 1069.)
“We neither reweigh the evidence nor reevaluate the credibility of
witnesses.” (People v. Jennings (2010) 50 Cal.4th 616, 638.) “Resolution of
conflicts and inconsistences in the testimony is the exclusive province of the
trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “Moreover,
unless the testimony is physically impossible or inherently improbable,
testimony of a single witness is sufficient to support a conviction.” (Ibid.)
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B
Analysis
Lopez argues insufficient evidence supported the jury’s causation
finding because the opinions of the prosecutions’ experts were based on
falsities. Specifically, he asserts that because Whitney never listened to
Lopez’s interview with police, Whitney wrongly believed that Lopez told
Burow he had a pattern and practice of smoking in his bedroom. Further,
Lopez argues that Whitney’s opinion that smoking ignited the fire was not
supported by sufficient evidence because Whitney was not aware until the
preliminary hearing that Lopez often kept his iPhone 6 under his pillow at
night and the iPhone was never recovered. Finally, Lopez argues that the
experiment Whitney conducted to determine if the cigarette filter would have
been consumed in the fire was so flawed that it is entitled to no evidentiary
weight.
Similarly, Lopez argues that Derby’s testimony was unreliable because
Derby was not aware that “there were no cigarettes in the house be they
butts, ash tray, or entire cigarettes” or that the cup of cigarette butts that
Derby noted in the bedroom had been moved there by investigators prior to
Derby’s examination of the room. (Italics omitted.) Lopez also argues
Derby’s opinion was unreliable because he was not aware until trial that
Lopez sometimes kept his cell phone under his pillow and it was not
recovered after the fire.
Under Evidence Code section 801 an expert may offer any opinion so
long as it is “[r]elated to a subject that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact,” and is
“[b]ased on matter (including [the expert’s] special knowledge, skill,
experience, training, and education) perceived by or personally known to the
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witness … that is of a type that reasonably may be relied upon by an expert
in forming an opinion upon the subject to which [the expert’s] testimony
relates[.]” (Evid. Code, § 801, subds. (a)‒(b).) Further, an expert’s opinion
based on assumptions of fact must have evidentiary support. (People v.
Wright (2016) 4 Cal.App.5th 537, 546 (Wright).) Thus, an expert’s opinion on
an issue of ultimate fact, like causation, is admissible and may constitute
sufficient evidence to sustain a conviction if it is based on an adequate factual
foundation. (People v. $47,050 (1993) 17 Cal.App.4th 1319, 1325.)
An expert in fire causation “may identify a causative force by a process
of eliminating other causes.” (People v. Sundlee (1977) 70 Cal.App.3d 477,
484; see also George v. Bekins Van & Storage Co. (1949) 33.Cal.2d 834, 844
[fire investigator’s opinion that “fire was caused by careless smoking was
reached by a process of elimination of other possible causes.”].) The “strength
of [the expert’s] assumptions affects the weight rather than the admissibility
of his opinion.” (Sundlee, at pp. 484‒485.) The weight given the opinion,
therefore, is a question for the trier of fact.
1. Whitney
Here, Whitney’s ultimate opinion that a discarded cigarette caused the
deadly fire, and not a malfunction in Lopez’s iPhone, was supported by his
testimony concerning the facts of his investigation and additional evidence
concerning Lopez’s smoking and drinking habits. On direct examination,
Whitney explained the basis for his expertise (including almost a decade as a
fire investigator and involvement in over a thousand fire investigations with
the San Diego Fire Department), the basics of fire dynamics, and the method
he used to conduct cause and origin fire investigations. Whitney then
carefully described the methodology he used in this case to determine where
the fire originated. He explained that once at the scene, he began examining
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the townhouse, taking pictures of the electrical services and smoke and fire
damage as he moved closer to the fire’s origin, which he ultimately concluded
was Lopez’s bed.
Based on the location of damage, Whitney determined that the fire had
not originated on the balcony outside the bedroom. He described the severity
of the damage within the bedroom, particularly near the right hand side of
the top of the bed. Whitney explained the fire destroyed the ceiling above the
bed, causing a ceiling fan above to fall, and charred the roof rafters above the
fan, indicating to Whitney that the fire had raged so hot that the smoke
reached the point of flaming.6 Whitney’s photographs, which were
introduced into evidence, showed the severity of damage to the bed itself,
with the most damage to the upper right corner, including the complete
consumption of the mattress, box spring, and wooden bedframe in that
location. Whitney testified that he eliminated other potential causes of the
fire, explaining that he ruled out the existence of any accelerant that would
indicate arson, electrical causes, and a burning candle.
Whitney thoroughly explained the basis for his opinion that the fire
was caused by discarded smoking material that ignited highly flammable
bedding material.7 He noted the empty pack of American Spirit cigarettes
found in a trashcan in the garage along with an empty plastic bottle of
Canadian Mist whiskey and the glass cup filled with cigarette butts, as well
as other smoking materials found elsewhere in the townhome. He also
6 Because of the lack of other damage to the ceiling fan’s bulbs and
electrical components, Whitney ruled the fan out as the cause of the fire.
7 Whitney explained that the type of foam topper on Lopez’s bed burns
violently and is referred to in the fire services world as “puffy gasoline
polyurethane foam” because “once ignited, it produces a lot of energy similar
to pools of gasoline[.]”
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testified that the cup filled with cigarette butts and the whiskey bottle found
in the trash were similar to the fire-damaged bottle and cup found in the
bedroom, supporting an inference that Lopez was drinking and smoking in
his room or on the balcony the night of the fire. Whitney agreed no cigarette
butts were found in the area of origin of the fire, but he concluded it was
possible the filter from the cigarette that started the fire would have been
completely consumed, as well as any cigarette remnants that might have
been in the glass cup. Whitney also relied on Lopez’s ex-wife’s statement that
she had seen Lopez smoke inside the home.
These facts underlying Whitney’s opinion were not, as Lopez argues,
“speculative, remote or conjectural” such that his opinion carried no
evidentiary value. Rather, the inferences Whitney drew to conclude the fire
was caused by a discarded cigarette were based on evidence of Lopez’s
smoking habits, the level of his intoxication that evening, the statement of
Lopez’s ex-wife that she had previously seen Lopez smoke inside, and
Whitney’s thorough investigation of the fire damaged townhome. The fact
that Lopez presented an alternative theory of causation did not erase the
reasoned and supported conclusion drawn by Whitney.
In addition, Whitney was methodically cross-examined by Lopez’s
defense counsel on his theory of causation and on the possibility that the fire
was started by Lopez’s iPhone malfunctioning. Unlike Derby, discussed
below, Whitney was aware of the disappearance of Lopez’s cell phone prior to
trial, which he had considered but which did not change his conclusion that
the probable cause of the fire was a discarded cigarette.
In addition, defense counsel suggested to Whitney that the
investigation was tainted by confirmation or expectation bias, contrary to
National Fire Protection Association (NFPA) guidelines, and that the
19
investigators should have requested an outside agency to conduct more
rigorous testing and analysis. Whitney rejected the suggestion his conclusion
was the product of expectation bias and explained that under NFPA
guidelines, “probable” meant that there was a greater than 50 percent
probability of causation.
On cross-examination, Whitney also reiterated his position that his
conclusion was based on the presence of cigarettes in the house, witness
statements that there was a history of smoking in the house, Lopez’s
admission that he regularly smoked on the balcony outside his bedroom,
Whitney’s knowledge based on his training and experience that the bed and
bedding materials can be ignited by cigarettes, the glass found near the bed
that matched the cup in the garage that held discarded cigarette butts, and
Lopez’s statements that he routinely put cigarettes in a cup and brought
them inside off the balcony to discard.
Contrary to Lopez’s characterization of Whitney’s testimony that he
was mistakenly told Lopez had a practice of smoking in bed, Whitney stated
that detective Burow told him that “the defendant had a past practice and
pattern and history of putting cigarettes in a cup next to his bed[.]” This
statement was not an exact recounting of one of the various statements Lopez
made to Burow, but it was a fair summary of the statements Lopez made
during the interview. Lopez said he smoked half of two cigarettes a night on
his balcony, and he would pinch the cigarettes out into an old candle holder
or a glass then douse the cigarettes with his spit to make sure they were out.
Lopez also told the detective that it was normal for him to bring the make-
shift ashtray into his room, sometimes flushing the butts down the toilet, so
that his son would not find them. Lopez did not want the children to know he
smoked and also liked to keep the balcony tidy. Lopez also agreed it was
20
possible he put the glass cup for cigarette butts under his bed that night
(though he was also clear that he had no recollection of doing so). Whitney’s
inexact summary of Lopez’s statement to Burow does not amount to false
evidence.
2. Derby
Derby’s investigation on behalf of the homeowners insurance company
took place after both Whitney and the police had investigated the townhome.
As Lopez emphasizes in his briefing, Derby found the cup of cigarette butts
and liquor bottle in the bedroom, but it had been moved there from elsewhere
in the townhome by the earlier investigators who placed it next to the
charred cup and similar melted liquor bottle for comparison. This scene,
which altered the room as it existed immediately after the fire and
suppression efforts, was illustrated by a photograph that Whitney took after
the items were moved and that was presented to the jury.
Lopez argues Derby improperly relied on this photograph to conclude
Lopez was smoking in his room and therefore caused the fire. We agree with
Lopez that if the proximity of the unburned cup of cigarettes and liquor bottle
alone was the basis for Derby’s ultimate opinion, it would be conjectural and
insufficient. However, Derby’s testimony shows the basis of his opinion was
not this narrow. When asked if he found a source of ignition in the bedroom,
Derby stated “I found an ashtray that had cigarette butts and, I believe, cigar
butts. [This] indicated to me that there’s a possible smoker in that room.”
Derby continued “I then went downstairs to the kitchen and started
looking in the trash receptacles and found a plastic container for a Canadian
whiskey that was empty. I believe there was a couple of beer cans also. So I
hypothesized that there’s a possibility that the person could have been
drinking and smoking at the time of the fire.” Derby then stated that “based
21
on the area of origin and the lack of any other causes, I formed an opinion
that there’s a possibility that the fire could have been caused by smoking
material.” Finally, Derby stated he ruled out any other cause of the fire,
“accidental, electrical, shorting of wiring or appliances.”
As with Whitney, Lopez’s counsel also drew out the flaws in Derby’s
investigation in his cross-examination. Derby testified explicitly he was not
aware the ashtray cup filled with butts had been moved into the room or that
Lopez told the police he had left his phone under his pillow that night. The
jury heard for themselves the limited amount of investigation that Derby
conducted before reaching his final conclusion and could credit (or discredit)
the testimony accordingly.
3. Additional Evidence
ATF engineer Jonathan Butta testified he conducted two types of
experiments to determine whether a lit or smoldering cigarette could ignite
cotton bedding. Based on those experiments, Butta opined that “cotton
bedding materials are susceptible to ignition via … a lit cigarette” in 50% of
the tests he conducted, and the rate increased to 92% when an overhead fan
was in use. As discussed, Nikia testified that she had witnessed Lopez
smoking inside the home. Lopez himself admitted to smoking daily on his
balcony and the blood tests revealed he was extremely intoxicated during the
fire.
C
Conclusion
Lopez’s argument amounts to a request to reweigh the evidence, a task
for which this court lacks authority. (See People v. Clark (2016) 63 Cal.4th
522, 625‒626 [“ ‘We “must accept logical inferences that the jury might have
drawn from the circumstantial evidence. [Citation]” [Citation.] “Although it
22
is the jury’s duty to acquit a defendant if it finds the circumstantial evidence
susceptible of two reasonable interpretations, one of which suggests guilt and
the other innocence, it is the jury, not the appellate court that must be
convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]”
[Citation.] Where the circumstances reasonably justify the trier of fact’s
findings, a reviewing court’s conclusion the circumstances might also
reasonably be reconciled with a contrary finding does not warrant the
judgment’s reversal.’ ”].) The fact that Derby did not have access to all of the
facts surrounding the fire unquestionably limited the value to be placed on
his testimony, but it did not make the testimony inadmissible or completely
devoid of value. (See People v. Maury (2003) 30 Cal.4th 342, 403 [“Conflicts
and even testimony which is subject to justifiable suspicion do not justify
reversal of a judgment, for it is the exclusive province of the [trier of fact] to
determine the credibility of a witness and the truth or falsity of the facts
upon which a determination depends.”].)
The jury was made aware Derby did not know about the missing
iPhone or how the unburned ashtray filled with cigarette butts got into the
bedroom after the fire.8 Likewise, because they heard Lopez’s entire
interview with Burow, the jurors could judge for themselves whether
Whitney’s ultimate opinion on causation was corrupted by Burow’s
summarization of the interview. Contrary to Lopez’s assertions, the
limitations of the opinions of the prosecutions’ experts were put before the
members of the jury. On the other side of the ledger, the evidence supporting
the defense theory was relatively weak. The evidence in support of the
8 We note that the photograph of the scene makes clear that the
unburned glass, cigarette butts, and liquor bottle were not present during the
fire. Unlike every other material in the bedroom in the photograph, the
items had no smoke or fire damage on them.
23
iPhone malfunctioning was limited to Lopez’s equivocal statement to Burow
that he sometimes kept the phone under his pillow. Lopez, however, was
badly discredited in the interview, during which he lied about his
consumption of alcohol the night of the fire.
In sum, it was the jury’s role to judge the strength of the expert’s
opinions, not this court’s. Whitney’s opinion that the fire was caused by
discarded smoking materials, in conjunction with all of the evidence
underlying that opinion, was sufficient to support the jury’s finding that
Lopez caused the fire by way of a discarded cigarette and that he was too
intoxicated to save his children.9 (Wright, supra, 4 Cal.App.5th at p. 545.)
II
The Prosecution’s Expert Testimony Was Not Based on False Evidence
Recasting his prior argument, Lopez next contends he is entitled to a
new trial because the prosecution’s case was based on false evidence. He
argues that reversal under section 1473, subdivision (b)(1) is appropriate
because the prosecution introduced “[f]alse evidence that is substantially
material or probative on the issue of guilt” in the form of: (1) Derby’s reliance
on the fact that the glass cup containing cigarette butts that was found in the
trash was placed in the bedroom and (2) Whitney’s reliance on Burow’s
statement to him that Lopez routinely placed an ashtray under his bed.
Similarly, Lopez asserts the prosecutor committed prejudicial error by
“adducing the false evidence by Derby and Whitney.” (Underscoring
omitted.)
9 Lopez asserts that because there were two equally viable theories of
causation, the jury was required to entertain reasonable doubt and thus his
convictions cannot stand. This argument is not well-taken and runs contrary
to the standard of review this court is bound to apply. (See Clark, supra, 63
Cal.4th at pp. 625–626.)
24
The Attorney General responds that section 1473, subdivision (b)(1) is
not applicable outside the context of habeas corpus and, even if applicable,
does not support reversal here because the expert testimony at issue did not
constitute false evidence. With respect to the alleged prosecutorial error, the
Attorney General argues the issue was forfeited by defense counsel’s failure
to raise it. Further, he argues the claim also lacks merit because the
evidence at issue was immaterial.
We decline the parties’ invitation to determine whether the standards
set forth in section 1473, subdivision (b)(1) apply in the context of direct
appeal because we agree with the Attorney General that no false evidence
was presented to the jury in this case. Additionally, the alleged false
evidence was not material.
“ ‘ “Under well-established principles of due process, the prosecution
cannot present evidence it knows is false and must correct any falsity of
which it is aware in the evidence it presents[.]” ’ ” (People v. Charles (2015)
61 Cal.4th 308, 328.) Here, the inaccuracy in what detective Burow told
Whitney about Lopez’s smoking habits was nullified by the prosecutor
playing the entirety of Burow’s interview of Lopez for the jury. To the extent
that Whitney was inaccurate or mistaken in his testimony about Lopez’s
habits with respect to disposing of his balcony ashtray, the jurors heard for
themselves what Lopez actually told Burow.
Further, Whitney’s testimony was clear that he relied on what Burow
told him about his interview with Lopez, and that he had not been provided
with the recording or a transcript of the interview. As discussed, any
inconsistency in what Whitney recalled did not amount to false evidence,
especially where Whitney was thoroughly cross-examined about the
shortcomings in his testimony on direct examination and where the jurors
25
could evaluate for themselves whether Lopez’s statements supported
Whitney’s opinion. (See People v. Vines (2011) 51 Cal.4th 830, 874 [“Mere
inconsistencies between a witness’s testimony and her prior statements do
not prove the falsity of the testimony.”].)
Likewise, with respect to Derby’s testimony about the location of the
unburned glass filled with cigarette butts, Derby’s testimony showed only
that he was unsure of where the glass came from. When asked by the
prosecutor if he saw any sources of ignition when he first examined the
bedroom, Derby responded he “didn’t see anything in particular because of
the fact that the room had been overhauled prior to [his] examination.”
When next asked if he found “any sources of ignition within the room,” Derby
responded that he found “within the room … an ashtray” with cigarette butts
inside that indicated to him “that there is a possible smoker in that room.”
Neither this question, nor Derby’s answer, however, showed that Derby
understood the cup to be in the room at the time of the fire. Rather, the
photographs of the cup, which showed it was untouched by smoke or fire,
suggested it was not. Lopez’s counsel cross-examined Derby extensively on
this point resulting in Derby stating he agreed that no ashtray or cigarette
butts were recovered from the bedroom during the MAST and police
investigations. This testimony was not false evidence.
For the same reasons, the alleged false evidence was also not material
as required for a successful petition for habeas corpus under section 1473,
subdivision (b)(1). “Section 1473, subdivision (b)(1) provides that a writ of
habeas corpus may be prosecuted if ‘[f]alse evidence that is substantially
material or probative on the issue of guilt or punishment was introduced
against a person at any hearing or trial relating to his incarceration ....’
False evidence is ‘substantially material or probative’ (ibid.) ‘if there is a
26
“reasonable probability” that, had it not been introduced, the result would
have been different. [Citation.]’ ” (In re Roberts (2003) 29 Cal.4th 726, 741–
742.)
Both Whitney and Derby were thoroughly cross-examined about the
bases for their opinions and, as discussed, the jury heard Lopez’s full
interview by Detective Burow. Any misleading effect of Derby’s statements
about the location of the unburned glass filled with cigarette butts at the
time of the fire was corrected by the testimony of the crime scene investigator
who took the stand immediately after Derby. The investigator stated
explicitly that no ashtray or other cigarettes were found in Lopez’s room
during his investigation. This fact was also repeatedly emphasized by
Lopez’s counsel.
In addition, the jury was explicitly instructed to consider the opinions
of the experts, but that they were “not required to accept them as true or
correct.” The instruction, based on CALCRIM No. 332, stated “[t]he meaning
and importance of any opinion are for you [the jury] to decide” and “[i]n
evaluating the believability of an expert witness, follow the instructions
about the believability of witnesses generally. In addition, consider the
expert's knowledge, skill, experience, training, and education, the reasons the
expert gave for any opinion, and the facts or information on which the expert
relied in reaching that opinion. You must decide whether information on
which the expert relied was true and accurate. You may disregard any
opinion that you find unbelievable, unreasonable, or unsupported by the
27
evidence.” The jury was also instructed on evaluating conflicting evidence.10
Given these facts, we hold there is no “reasonable probability” the result
would have been different without the “false evidence” alleged by Lopez on
appeal. (In re Figueroa (2018) 4 Cal.5th 576, 589.)
III
Admissibility of Whitney’s Experiment
Lopez next asserts the court abused its discretion by admitting the
video and related testimony of the experiment Whitney conducted prior to
trial to show that a cigarette filter could have been consumed by the fire.
More specifically, Lopez argues there was insufficient foundation provided to
admit the evidence and the experiment was not scientific or sufficiently
similar to the conditions of the actual fire. The Attorney General responds
that there was no abuse of discretion, and any alleged error was harmless.
A
Additional Background
Before trial, the prosecution moved to admit a video recording of
Whitney’s experiments. Lopez’s counsel objected to the evidence, asserting it
was not scientific and instead an improper attempt by Whitney to
rehabilitate himself after testifying at the preliminary hearing that the
cigarettes that started the fire were not filtered. The court conducted a
pretrial hearing to determine the admissibility of the evidence. At the
hearing, Whitney testified about his extensive fire investigation experience
and the experiments he conducted after the preliminary hearing. Whitney
10 The instruction, patterned on CALCRIM No. 318, stated: “You have
heard evidence of statements that witnesses made before the trial. If you
decide that the witnesses made those statements, you may use those
statements in two ways: [¶] 1. To evaluate whether the witness’s testimony in
court is believable; [¶] AND [¶] 2. As evidence that the information in those
earlier statements were true.”
28
explained that he lit an American Spirit cigarette to see if it would continue
to burn to the filter if unattended. Whitney also applied an open flame to the
cigarettes, from a propane plumber’s torch and a barbecue lighter, to
determine if the filter would be consumed if exposed to flame. Whitney
stated the heat intensity or heat energy applied in the experiment to the
cigarette would be less than if the cigarette were on a burning bed.
At the conclusion of the hearing, over the defense’s objection, the court
ruled videos of the experiments were admissible. The court noted that the
defense’s criticisms were properly addressed to the weight of the evidence,
not its admissibility. The court further stated that the conditions of the
experiment were substantially similar to those of the fire, and that the
evidence would assist the trier of fact and not mislead them or consume
undue time. During the prosecutor’s direct examination of Whitney, the
video of the torch burning the cigarette filter was played for the jury.
29
B
Legal Standards
“ ‘ “Under Evidence Code section 352, the trial court has wide discretion
to admit or reject experimental evidence. We reverse decisions to admit or
exclude such evidence only when the trial court has clearly abused its
discretion.” ’ (People v. Jones (2011) 51 Cal.4th 346, 375–376.) Before
experimental evidence may be admitted, the proponent must establish that
the experiment is relevant, was ‘ “ ‘conducted under substantially similar
conditions as those of the actual occurrence,’ ” ’ and will not mislead or
confuse the jury or take undue time.” (People v. Peterson (2020) 10 Cal.5th
409, 460.) “The party need not, however, show that the conditions were
absolutely identical.” (Jones, at p. 375.)
With respect to the sufficiency of the foundation of the evidence, under
“Evidence Code section 403, subdivision (a) … ‘[t]he proponent of the
proffered evidence has the burden of producing evidence as to the existence of
the preliminary fact, and the proffered evidence is inadmissible unless the
court finds that there is evidence sufficient to sustain a finding of the
existence of the preliminary fact, when … [t]he relevance of the proffered
evidence depends on the existence of the preliminary fact[.]’ ” (People v.
Marshall (1996) 13 Cal.4th 799, 832.) “In other words, the trial court must
determine whether the evidence is sufficient to permit the jury to find the
preliminary fact true by a preponderance of the evidence [citation], even if
the court personally would disagree [citation].” (Id. at pp. 832–833.) We will
not disturb the trial court’s evidentiary ruling “except on a showing the trial
court exercised its discretion in an arbitrary, capricious, or patently absurd
manner that resulted in a manifest miscarriage of justice.” (People v.
Rodriguez (1999) 20 Cal.4th 1, 9–10.)
30
C
Analysis
We do not agree with Lopez that the court’s decision to allow the video
recordings of Whitney’s experiments to be shown to the jury was an abuse of
its discretion. The videos showing the filter of the cigarette being consumed
by the flame of the propane torch and lighter were relevant to show that
there would not be physical remnants of the filter of the cigarette that started
the fire. The conditions were obviously not identical to the fire, but were
substantially similar to the conditions the cigarette would have been
subjected to during the event. Lopez criticizes the experiments because
during trial Whitney could not recall the temperature of the flames from the
torch and lighter, or how those temperatures would compare to the fire.11
Whitney explained, however, that it was not the temperature that
mattered most in determining what level of destruction occurred but rather
the amount of energy being released by the fire as it burns through the fuel
source. Whitney stated that the fuel of the bedding and mattress would
produce a greater amount of energy, or heat flux, than the torch or lighter,
even though the temperature of the orange flames that might exist was lower
than the blue flames of the torch.12
To support his argument that the experiments performed by Whitney
should not have been admitted into evidence, Lopez relies primarily on two
cases, People v. Coleman (1988) 46 Cal.3d 749 (Coleman) and People v.
11 Whitney conceded that a blue flame’s temperature could measure 3600
degrees Fahrenheit, while an orange or yellow flame would measure 1800
degrees.
12 Lopez’s expert, Rowe, also conceded that filters or other remnants of
cigarettes were not always found in fires started by cigarettes.
31
Skinner (1954) 123 Cal.App.2d 741 (Skinner). Neither case shows the trial
court here abused its discretion. In Coleman, an automatic appeal from a
death sentence imposed after a first-degree murder conviction, the defendant
challenged the admission of “hemostick” evidence. The device detects the
presence of blood and was used by a crime scene investigator to determine if
there was blood at the scene of the murder. (Coleman, at p. 774.)
The investigator testified about his use of the device, and the defendant
challenged the testimony, asserting the prosecutor had failed to establish the
device was reliable. (Coleman, supra, 46 Cal.3d at p. 774.) The Supreme
Court agreed the prosecution had failed to provide a proper foundation for the
evidence because the investigator “was not an expert on blood or blood tests,
nor did he otherwise have a scientific basis on which to testify as to the
reliability of the test.” (Id. at p. 775.) Indeed, the investigator indicated he
did not know how the device worked. (Id. at p. 774.) Further, “[n]o
alternative or supplemental basis for admission of the test was presented,
such as prior appellate court decisions allowing use of such a test or extensive
scientific literature supporting the test.” (Id. at p. 775.)
In contrast, Whitney was a highly qualified fire investigator and
explained in detail the basis for his experiments. He described how the
conditions that would be expected in the bedroom fire compared to and
differed from his application of a direct flame to the cigarette filter. And
Whitney was thoroughly cross-examined about the experiment, giving the
members of the jury the ability to judge the results of the relatively simple
experiment for themselves.
Skinner also does not support Lopez’s position. The issue before the
Court of Appeal there was the trial court’s denial of a request for the defense
expert in an arson case to perform several experiments in the presence of the
32
jury. (Skinner, supra, 123 Cal.App.2d at pp. 750–752.) The experiments
were meant to recreate the conditions of the fire in an apartment house that
killed eight people to show the defendant’s confession to intentionally setting
the fire was not reliable. The trial court found the conditions of the
experiments—which included lighting curtains on fire to demonstrate that
they would smolder and not “go poof” as the defendant confessed and
dropping a sealed glass mayonnaise jar filled with water to replicate a jar of
paint thinner involved in the fire’s ignition—were not sufficiently similar to
those of the actual fire. The trial court found that conducting the
experiments in front of the jury “would have unduly emphasized the
inconsistencies of the appellant’s story without first establishing similar
conditions.” (Id. at p. 752.) The court, however, did permit the expert to
testify about the experiments. The Court of Appeal held this decision was not
outside the bounds of the court’s discretion, which had “a wide range within
which to swing[.]” (Ibid.)
Like Skinner, the court’s decision here permitting the jury to view the
video of the experiment, and hear Whitney’s related testimony, was not
without logic and fell within the court’s wide discretion.
33
IV
Instructional Error
Lopez next asserts the trial court erred by refusing Lopez’s requested
adverse inference jury instruction concerning the alleged flaws in the
prosecution’s expert testimony. The Attorney General responds there was no
error because the rejected instruction was both argumentative and
duplicative of other instructions.
A
Additional Background
At trial, the defense requested a proposed instruction stating:
The defense has presented evidence that the prosecution’s
investigation of this case has been negligent, or purposefully
distorted, or not done in good faith. For example there has been
testimony about the investigators being told about a missing cell
phone that had been charging under the pillow specifically where
the origin of the fire occurred. The Fire Investigator Wayne
Whitney reached his conclusion about discarded smoking
materials prior to knowing that a cell phone had been charging
there (testifying to that effect at the preliminary hearing and
during the jury trial), although this information had purportedly
been provided to him by the investigator taking Mr. Lopez[’s]
statement. With respect to any items of evidence or statements
by the investigator as to the finding of the investigation, the
probative value of that evidence depends on the circumstances in
which it was [or was not] obtained [tested or not tested].
If the circumstances raise a reasonable belief of bad faith, fraud
or negligence, you may consider that in determining the
credibility of the witnesses and the weight, if any, that you chose
to give that evidence.
Remember, under the instructions I have given you, if the
evidence permits two reasonable interpretations, you must adopt
that interpretation that favors the defendant.
34
During the jury instruction conference, Lopez’s counsel argued the
instruction was necessary because of the deficiencies in the fire investigation.
In response, the trial court asked if the same concepts were contained in the
proposed instructions modeled on CALCRIM Nos. 225 and 226. The court
also asked Lopez’s counsel to provide authority for the instruction and
indicated it seemed more appropriate as part of a closing argument, not a
jury instruction. Lopez’s counsel did not provide any authority, instead
arguing the instruction was proper because of the flawed nature of Whitney’s
testimony and his expectation bias that the fire was caused by a discarded
cigarette.
The prosecutor argued there was no legal basis for the instruction and
that the issues were adequately represented by three other proposed
instructions modeled on CALCRIM Nos. 222, 225, and 226. Defense counsel
responded that the proposed instruction was necessary to sanction the
prosecution for “having had an investigation that was botched as badly as
this” and to challenge the credibility of the investigation generally. The court
rejected the defense position. The court stated the defense was free to
challenge the credibility of the investigation to the jury, but found that the
legal points in the proposed instruction were adequately covered by other
instructions.
B
Legal Standards
“A trial court has a duty to instruct on general principles of law that
are ‘closely and openly connected to the facts before the court and that are
necessary for the jury’s understanding of the case.’ ” (People v. Moye (2009)
47 Cal.4th 537, 554.) In addition, a “criminal defendant is entitled, on
request, to an instruction ‘pinpointing’ the theory of his defense. (People v.
35
Wright (1988) 45 Cal.3d 1126, 1137; People v. Sears (1970) 2 Cal.3d 180,
190.)” (People v. Wharton (1991) 53 Cal.3d 522, 570.) “[H]owever,
instructions that attempt to relate particular facts to a legal issue are
generally objectionable as argumentative [citation], and the effect of certain
facts on identified theories ‘is best left to argument by counsel, cross-
examination of the witnesses, and expert testimony where appropriate.’ ”
(Ibid.)
We review a claim of instructional error de novo. (People v. Mitchell
(2019) 7 Cal.5th 561, 579.) “In reviewing any claim of instructional error, we
must consider the jury instructions as a whole, and not judge a single jury
instruction in artificial isolation out of the context of the charge and the
entire trial record.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.)
“There is no error in a trial court’s failing or refusing to instruct on one
matter, unless the remaining instructions, considered as a whole, fail to cover
the material issues raised at trial. As long as the trial court has correctly
instructed the jury on all matters pertinent to the case, there is no error. The
failure to give an instruction on an essential issue, or the giving of erroneous
instructions, may be cured if the essential material is covered by other correct
instructions properly given.” (Id. at p. 277.)
C
Analysis
As the Attorney General points out, Lopez relies on decisional law that
supports the use of an adverse inference jury instruction as a sanction where
the government has destroyed or failed to produce evidence. (See, e.g., Kyles
v. Whitely (1995) 514 U.S. 419, 446, fn. 15 [granting a new trial on a petition
for habeas corpus where material evidence was suppressed by the
prosecution, and noting generally that the “probative force of evidence
36
depends on the circumstances in which it was obtained” and “indications of
conscientious police work will enhance probative force and slovenly work will
diminish it.”]; United States v. Sager (9th Cir. 2000) 227 F.3d 1138, 1145
[error for judge to instruct “the jury not to ‘grade’ the investigation”
conducted by the postal investigators in a mail theft case]; United States v.
Sivilla (9th Cir. 2013) 714 F.3d 1168, 1173 [reversing conviction where
prosecution negligently destroyed exculpatory evidence and court failed to
give a remedial jury instruction]; People v. Wimberly (1992) 5 Cal.App.4th
773, 791–792 [concerning destruction of evidence]; People v. Sassounian
(1986) 182 Cal.App.3d 361, 395 [same]; People v. Zamora (1980) 28 Cal.3d 88,
96 [intentional suppression of material evidence].) These cases do not
provide a basis for the instruction at issue here because there is no indication
the prosecution or investigators withheld or destroyed evidence.
As discussed in the preceding sections, the thoroughness of Whitney’s
and Derby’s investigations was explored extensively on cross-examination
and the asserted flaws in their theories were set forth clearly for the jury.
Unlike the cases cited by Lopez, material facts were not withheld from the
finder of fact and the record does not support the instruction’s assertion that
“the prosecution’s investigation of this case [was] negligent, or purposefully
distorted, or not done in good faith.” This aspect of the proposed instruction
was argumentative and invasive of the jury’s role to evaluate the evidence
and determine the value of the experts’ opinions. (See People v. Roberts
(1992) 2 Cal.4th 271, 314 [“ ‘instructions that attempt to relate particular
facts to a legal issue are generally objectionable as argumentative [citation],
and the effect of certain facts on identified theories “is best left to argument
by counsel, cross-examination of the witnesses, and expert testimony where
appropriate” ’ ”].)
37
Further, the proposed instruction was duplicative of CALCRIM
No. 226, the standard instruction addressing witness credibility, and
CALCRIM No. 224, which like Lopez’s proposed instruction, told the jury: “If
you can draw two or more reasonable conclusions from the circumstantial
evidence, and one of those reasonable conclusions points to innocence and
another to guilt, you must accept the one that points to innocence.”
Additionally, and significantly, the jury was specifically advised on how to
evaluate expert testimony. CALCRIM No. 332 instructed the jury:
“Witnesses were allowed to testify as experts and to give opinions. You must
consider the opinions, but you are not required to accept them as true or
correct. The meaning and importance of any opinion are for you to decide. In
evaluating the believability of an expert witness, follow the instructions
about the believability of witnesses generally. In addition, consider the
expert’s knowledge, skill, experience, training, and education, the reasons the
expert gave for any opinion, and the facts or information on which the expert
relied in reaching that opinion. You must decide whether information on
which the expert relied was true and accurate. You may disregard any
opinion that you find unbelievable, unreasonable, or unsupported by the
evidence.” (Italics added.) These instructions adequately told the jury how to
evaluate the testimony of Whitney and Derby. Therefore, Lopez’s proposed
instruction was duplicative and the trial court properly rejected it.
V
Denial of Additional Questioning About Alleged Juror Misconduct
Lopez asserts that the court erred by refusing his request to pose
additional questions to an excused juror who alleged misconduct by other
jurors. The Attorney General responds the court did not abuse its discretion
38
by denying the requested hearing because it appropriately determined the
juror declaration that formed the basis for Lopez’s request was not credible.
A
Additional Background
After the verdicts were reached, Lopez filed a motion for new trial
based, in part, on allegations of juror misconduct that were contained in a
declaration by a juror who was excused during deliberations (former Juror
No. 4) and defense counsel’s interview of the same juror. The prosecution
opposed the motion, asserting the evidence on which the motion was based
was inadmissible and, even if properly admitted, did not establish misconduct
or prejudice.
At the hearing on the motion, former Juror No. 4 was present and
available to testify. Defense counsel argued a new trial was warranted based
on statements in Juror No. 4’s declaration (1) that another juror had failed to
disclose that she was or had been employed by a fire department and (2) that
other jurors had written notes to the judge during deliberations, but had
signed them from former Juror No. 4. The prosecutor responded there was no
misconduct with respect to the juror who was employed by a fire department
because she had not been asked about her employment in voir dire and there
was no allegation that she had withheld any information. With respect to the
allegedly forged jury notes, the prosecutor asserted the issue was moot
because Juror No. 4 had been excused by the parties’ stipulation and was not
part of the jury that rendered the verdict, and there was no actual
misconduct alleged with respect to the notes.
The court, as an initial matter, determined it would not take additional
testimony from the excused juror because there was no dispute that she
would testify in accordance with her declaration. The court then found the
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declaration was not credible based on the court’s prior evaluation of the
allegations that the juror had made during trial and that were repeated in
the declaration. The court also found the declaration was otherwise not
credible, in particular since it asserted “issues” with eight of the eleven other
jurors. The court denied the motion both on credibility grounds, and its
agreement with the prosecutor’s analysis that there was no misconduct
alleged in the declaration.
B
Legal Standards & Analysis
Lopez does not directly challenge the court’s denial of his motion for a
new trial. Rather, he argues the trial court’s denial of his request for
additional questioning of former Juror No. 4 was a prejudicial error. Lopez
asserts that because there were no conflicting declarations, he made a
sufficient showing to obtain an evidentiary hearing, and the trial court’s
“sweeping pronouncement that the juror was not credible” was not supported
by the record. These claims lack merit.
“The trial court has the discretion to conduct an evidentiary hearing to
determine the truth or falsity of allegations of jury misconduct, and to permit
the parties to call jurors to testify at such a hearing. [Citation.] Defendant is
not, however, entitled to an evidentiary hearing as a matter of right. Such a
hearing should be held only when the court concludes an evidentiary hearing
is ‘necessary to resolve material, disputed issues of fact.’ [Citation.] ‘The
hearing should not be used as a “fishing expedition” to search for possible
misconduct, but should be held only when the defense has come forward with
evidence demonstrating a strong possibility that prejudicial misconduct has
occurred. Even upon such a showing, an evidentiary hearing will generally
be unnecessary unless the parties’ evidence presents a material conflict that
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can only be resolved at such a hearing.’ ” (People v. Avila (2006) 38 Cal.4th
491, 604.)
“ ‘The power to judge the credibility of witnesses and to resolve conflicts
in the testimony is vested in the trial court….’ [Citation.] ‘It is an
established principle that the credibility of witnesses and the weight to be
given their testimony are matters within the sole province of the trier of
fact….’ [Citation.] ‘A trier of fact may accept such witnesses as he wishes
and reject others.’ [Citation.] ‘Where there is conflicting testimony,
reviewing courts recognize that the trier of the facts has the better
opportunity to judge the credibility of witnesses. In such a case the trial
court’s findings of fact, to the extent that they rest upon an evaluation of
credibility, should be regarded as conclusive on appeal.’ [Citation.] ‘[S]o long
as the trier of fact does not act arbitrarily and has a rational ground for doing
so, it may reject the testimony of a witness even though the witness is
uncontradicted. [Citations.] Consequently, the testimony of a witness which
has been rejected by the trier of fact cannot be credited on appeal unless, in
view of the whole record, it is clear, positive, and of such a nature that it
cannot rationally be disbelieved.’ ” (People v. Hamlin (2009) 170 Cal.App.4th
1412, 1463–1464.)
The trial court’s determination that former Juror No. 4 was not
credible, and no further evidentiary hearing was warranted, was far from
arbitrary. The record shows that during deliberations the excused juror
submitted notes alleging misconduct by other jurors. The court inquired into
each of the excused juror’s allegations, directly questioning the other jurors,
and found no misconduct. Later during deliberations, the court received a
note alleging Juror No. 4 would not follow the law or the court’s instructions.
Thereafter, defense counsel and the prosecutor stipulated to the dismissal of
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Juror No. 4. Both attorneys stated they wanted her replaced; in fact, defense
counsel stated “the court actually has a duty at this point and time ... to
remove this juror and replace her with an alternate.”13 These prior
interactions provided ample evidence in support of the court’s credibility
determination. It is not our role to second guess this finding. The court’s
decision not to allow questioning of former Juror No. 4 was not an abuse of
discretion. (See, e.g., People v. McNally (2015) 236 Cal.App.4th 1419, 1430–
1431 [court’s denial of request for juror’s identifying information to
investigate alleged juror misconduct based on the statements of a
“disgruntled ex-juror who violated the court’s instructions” was not error].)
VI
Nikia’s Testimony That She Had a Double Mastectomy
Lopez contends that because the crimes involved the death of his two
innocent children, the testimony of his ex-wife concerning his escalating
drinking during their marriage after she was diagnosed with breast cancer
was unduly prejudicial. Specifically, he objects to the admission of Nikia’s
statement that Lopez told her “he just couldn’t handle it. ‘You know, one day
I come home and my wife has breasts, and the next day she doesn’t,’ because
I had chose[n] to have a double mastectomy instead of taking the four tumors
out.”
“The trial court enjoys broad discretion in determining the relevance of
evidence and in assessing whether concerns of undue prejudice, confusion, or
consumption of time substantially outweigh the probative value of particular
evidence. [Citation.] ‘The exercise of discretion is not grounds for reversal
unless “ ‘the court exercised its discretion in an arbitrary, capricious or
13 The court replaced the juror and instructed the newly constituted jury
to begin deliberations anew.
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patently absurd manner that resulted in a manifest miscarriage of
justice.’ ” ’ ” (Clark, supra, 63 Cal.4th at p. 572.)
“ ‘ “The ‘prejudice’ referred to in … 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.’ ” [Citation.]’ …
[E]vidence should be excluded as unduly prejudicial when it is of such nature
as to inflame the emotions of the jury, motivating them to use the
information, not to logically evaluate the point upon which it is relevant, but
to reward or punish one side because of the jurors’ emotional reaction.”
(People v. Scott (2011) 52 Cal.4th 452, 491.)
The statement at issue was made after the prosecutor asked Nikia
about Lopez’s increased drinking. She told the jury that Lopez’s drinking
had gotten out of control after she had suffered a series of six miscarriages.
In response to the prosecutor’s next question, “Can you tell me more about
that, it escalating from that point,” Nikia gave the response that Lopez now
challenges—that Lopez told her “one day I come home and my wife has
breasts, and the next day she doesn’t.” After the statement, the court
overruled defense counsel’s objection and motion to strike the statement on
the grounds it was unduly prejudicial.
The court did not abuse its discretion by denying the motion to strike.
Nikia had already testified that Lopez had a habit of heavy drinking, and
that he had difficulty dealing with the miscarriages and Nikia’s subsequent
diagnosis of breast cancer, and that his drinking intensified after. The
evidence was relevant to show Lopez’s history of drinking in response to
stress. In particular, the prosecution’s case was built on the fact that Lopez
had drunk to the point of severe intoxication the night of the fire because of
43
the stress in his life at the time, including the fight with Laneisha
immediately preceding the fire, his recent layoff, and days of insomnia as a
result. The court’s decision to deny the motion to strike was well within its
discretion.
VII
Cumulative Error
Finally, Lopez contends that the cumulative effect of the alleged errors
deprived him of his federal due process right to a fair trial. “Under the
cumulative error doctrine, the reviewing court must ‘review each allegation
and assess the cumulative effect of any errors to see if it is reasonably
probable the jury would have reached a result more favorable to defendant in
their absence.’ ” (People v. Williams (2009) 170 Cal.App.4th 587, 646.) “The
‘litmus test’ for cumulative error ‘is whether defendant received due process
and a fair trial.’ ” (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) Finding
no errors, Lopez’s claim of cumulative error also fails.
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DISPOSITION
The judgment of conviction is affirmed.
McCONNELL, P. J.
WE CONCUR:
GUERRERO, J.
DO, J.
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