People v. Richey CA3 ( 2021 )

Filed 2/17/21 P. v. Richey CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C089145
Plaintiff and Respondent, (Super. Ct. No. 16FE023867)
v.
LARRY RAY RICHEY,
Defendant and Appellant.
Defendant Larry Ray Richey punched 85-year-old Lawrence Windham multiple
times after he parked close to defendant’s car at a gas station. Windham died five hours
later from a heart attack. The pathologist that performed the autopsy of Windham
testified he died from a heart attack precipitated by defendant’s attack. Defendant was
found guilty of elder abuse likely to produce great bodily injury or death (Pen. Code,
1
§ 368, subd. (b)(1))1 and battery with serious bodily injury (§ 243, subd. (d)), with the
special allegation for the elder abuse charge that defendant personally inflicted great
bodily injury on the victim who was 70 years of age and older (§ 12022.7, subd. (c)).
On appeal, defendant argues the pathologist’s causation testimony was irrelevant
because he was not charged with the death of Windham, and it was also speculative
because he could not say defendant’s attack definitively caused Windham’s death. He
asserts the admission of the testimony, and the prosecutor’s arguments discussing the
testimony, violated his rights to due process and a fair trial. We will affirm.
BACKGROUND
Trial Testimony
At trial, three witnesses from the gas station testified to seeing aspects of
defendant’s confrontation with the victim and him punching the victim on the head
multiple times. The video of the incident from the gas station’s surveillance camera was
also played for the jury.
Windham’s wife testified he was at the gas station after he dropped her off at the
grocery store. She said he complained his chest and right cheek hurt, just under his eye,
after the incident, none of which he complained of beforehand. She testified she did not
hear him say his jaw was hurting but she told a police detective a few days after the
incident Windham told her his jaw hurt and the jaw pain was not caused by the punch.
Windham’s wife also said though Windham had gone to the dentist office after the
incident, he was late and had to reschedule for the following day. She showered when
they returned home and afterwards found Windham unresponsive in his recliner. She
called 911 and when the paramedics arrived, they unsuccessfully tried to revive him and
took him to the hospital where he was pronounced dead.
1 Undesignated statutory references are to the Penal Code.
2
Dr. Brian Nagao, a forensic pathologist with the Sacramento County Coroner’s
Office, testified regarding the cause of Windham’s death. He was offered as an expert
based on him having performed about a thousand autopsies while working both with
Sacramento County and as a pathology fellow at the Miami Dade Medical Examiner’s
Office. He had also testified in court as an expert about 25 times.2 Dr. Nagao testified
Windham had a bruise on the bridge of his nose, bruising on the inside of both eyelids, a
skin tear on the left side, bruising to the upper lip, and a bruise in the right upper back of
the scalp. Windham also had a lower jaw fracture, about an inch above his chin on both
the left and right side. Hemorrhaging of the soft tissue surrounding the jaw indicated the
injury was inflicted while Windham was still alive. This type of fracture likely caused
Windham pain, but it is also possible Windham did not know his jaw was fractured.
Dr. Nagao concluded Windham’s death was caused by “atherosclerotic and
hypertensive cardiovascular disease, following blunt-force injuries of the head.” He
explained this meant Windham had significant heart issues contributing to a sudden
cardiac death; someone with Windham’s heart conditions could die from sudden cardiac
arrest without any excitement. But Dr. Nagao opined the blunt-force injuries suffered
shortly before Windham’s death from defendant’s attack, and mainly the pain from the
fractured jaw, precipitated the cardiac arrest. This was based on a review of the
surveillance video, the autopsy results, and the lack of evidence for any other source of
trauma in the five hours between defendant’s attack and Windham’s death. Dr. Nagao
did not think the paramedics that tried to resuscitate Windham could have broken
Windham’s jaw because he was dead before they arrived and he could not find any
2 The trial court did not explicitly accept Dr. Nagao as an expert. The court asked
the defense whether it would like to voir dire Dr. Nagao and counsel responded he would
do it at cross-examination. The defense did not voir dire Dr. Nagao and defendant does
not challenge Dr. Nagao as an expert on appeal.
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incidences of a fractured jaw from intubation in the medical literature. However, Dr.
Nagao could not definitively say defendant’s punches caused the broken jaw.
Jury Instructions
The jury instruction for the elder abuse charge, CALCRIM No. 830, required
finding defendant “caused . . . Windham to suffer or be injured or be endangered under
circumstances or conditions likely to produce great bodily harm or death.” It concluded
stating an “elder does not need to actually suffer great bodily harm or death. But if an
elder does suffer great bodily harm or death, you may consider that fact, along with all
the other evidence, in deciding whether the defendant committed the offense.” The court
included a modified version of CALCRIM No. 240 for the causation element: “An act
causes injury, that is the fractured mandible, if the injury is the direct, natural, and
probable consequence of the act, and the injury would not have happened without the act.
. . . [¶] There may be more than one cause of injury. An act causes injury only if it is a
substantial factor in causing the injury.”
The parties and the court had an extensive discussion regarding inclusion of
CALCRIM No. 240. The prosecutor did not want the instruction because there was no
evidence of an alternative cause of Windham’s broken jaw other than defendant’s punch.
The prosecutor also requested adding CALCRIM No. 620, paragraph (C)’s vulnerable
victim instruction, which would have required the jury to find defendant was a substantial
factor in causing Windham’s “death.”
The trial court decided it had to include a causation instruction if requested. And
since the defense is arguing defendant did not cause the broken jaw, causation is at issue.
The court also denied the prosecutor’s request to use the vulnerable victim paragraph
because it thought it would be confusing to the jury who may think they had to decide,
“did the punch ultimately cause his death or did his heart condition cause his death,
because the element is great bodily harm or death and that’s how the crime is charged,”
which could make them focus “on his dying, not on the punch in the jaw.” The
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prosecutor noted, “I think the Court understands that the actual fact of his death and the
coroner’s opinion about it is really only relevant to the last paragraph of the instruction
on elder abuse” but “they don’t have to find that he caused the death.” The court agreed
Windham’s death is “something they can consider, but they’re going to try to say, well,
did he cause the death of . . . Windham. And they don’t need to do that.” The court
added to the CALCRIM No. 240 instruction “that is the fractured mandible” to clarify
death is “not necessarily the injury that the People are focused on, which is the fractured
mandible, which is the great bodily injury, and that is the People’s theory.”
The prosecutor focused on the last paragraph for the elder abuse charge in his
closing argument stating defendant could be found guilty regardless if substantial bodily
injury or death occurred because what mattered was that “it’s circumstances likely to
cause, not actually causing. . . . [¶] . . . [¶] But the end of this instruction 830 is very
important. It says if the victim actually does suffer great bodily injury or actually does
die as a result of what the defendant did, you can consider those facts heavily in relation
to your evaluation of this charge.” This was important because, the prosecutor argued,
Windham actually “suffered great bodily injury and died as a result of [defendant’s]
punch.”
Sentencing
The jury found defendant guilty of both counts and found true the special
allegation for the elder abuse charge. At sentencing, the trial court denied probation and
considered the mitigating and aggregating factors, including that the “testimony at trial
was clear and believed by the jury that the victim’s injuries at the hands of the defendant
precipitated the fatal cardiac arrest. [¶] The jury found that the defendant inflicted
unjustifiable physical pain on . . . Windham likely to produce great bodily injury or
death.” The court sentenced defendant to the middle term of three years on the elder
abuse count and five years for the great bodily injury enhancement. The court imposed
and stayed the middle term of three years for battery with serious bodily injury.
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DISCUSSION
Defendant argues Dr. Nagao’s testimony linking Windham’s death to defendant’s
assault was irrelevant because the prosecution did not charge defendant with Windham’s
death. This testimony was also speculative because he could not definitively say the
punch caused Windham’s fractured jaw. This evidence, and the prosecutor’s arguments
that defendant caused Windham’s death, were therefore more prejudicial than probative
and violated defendant’s rights to due process and a fair trial. Defendant further asserts
he suffered ineffective assistance of counsel because his trial counsel failed to object to
Dr. Nagao’s testimony and the prosecutor’s argument.
Preliminarily, defendant forfeited his challenge to relevance and admissibility of
Dr. Nagao’s causation testimony by not objecting at trial. (Evid. Code, § 353; People v.
Doolin (2009) 45 Cal.4th 390, 433.) Still, we address the merits of defendant’s claim
because he asserts the waiver results in ineffective assistance of counsel. “A defendant
claiming ineffective assistance of counsel under the federal or state Constitutions must
show both deficient performance under an objective standard of professional
reasonableness and prejudice under a test of reasonable probability of a different
outcome.” (People v. Osband (1996) 13 Cal.4th 622, 664.)
Defendant did not suffer ineffective assistance of counsel because Dr. Nagao’s
causal testimony, and the prosecutor’s arguments tying defendant to Windham’s death,
was relevant, highly probative, and not improperly speculative. (People v. Kipp (1998)
18 Cal.4th 349, 377 [failure to assert a meritless position does not demonstrate ineffective
assistance of counsel].)
I
Dr. Nagao’s Testimony Was Relevant
Relevant evidence is evidence “having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.) “No evidence is admissible except relevant evidence.” (Evid. Code,
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§ 350.) But relevant evidence may nonetheless be excluded under Evidence Code section
352 if the probative value of the evidence is outweighed by its prejudicial effect. (People
v. Ewoldt (1994) 7 Cal.4th 380, 404.) As the California Supreme Court has explained,
“ ‘The prejudice which exclusion of evidence under Evidence Code section 352 is
designed to avoid is not the prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence. “[A]ll evidence which tends to prove guilt is
prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is
‘prejudicial.’ The ‘prejudice’ referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues. In applying section 352,
‘prejudicial’ is not synonymous with ‘damaging.’ ” ’ ” (People v. Gionis (1995)
9 Cal.4th 1196, 1214, italics omitted.)
Whether defendant caused Windham’s death was not only relevant, but a central
issue in the case. Defendant was charged with, and found guilty of, inflicting harm on an
elder “under circumstances or conditions likely to produce great bodily harm or death.”
(§ 368, subd. (b)(1), italics added.) To establish this, the jury was entitled to consider
whether great bodily harm or death did occur. Though defendant was not directly
charged with killing Windham, it was an underlying consideration of the elder abuse
count as detailed in the jury instruction permitting consideration of death. The
prosecutor’s arguments echoed the jury instruction on this count emphasizing to the jury
they could consider if bodily harm or death did occur in order to find the circumstances
were likely to produce great bodily harm or death, even if such finding was not necessary
for a conviction. The jury found this to be the case. As the court summarized during
sentencing, the jury believed Windham’s “injuries at the hands of the defendant
precipitated the fatal cardiac arrest” leading them to find he inflicted unjustifiable
physical pain “likely to produce great bodily injury or death.”
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Defendant’s reliance on the trial court refusing the prosecution’s jury instruction is
misplaced. The trial court did not find the prosecution could not link defendant’s assault
to Windham’s death. Instead, it was concerned the proposed instruction may lead the
jury to believe they had to necessarily find defendant killed Windham to convict him of
elder abuse. The court agreed with the prosecution the jury could consider Windham’s
death, but it found they did not have to find a causal link with Windham’s death to find
the assault would likely cause great bodily harm or death. Consequently, the court
ensured the focus of the instruction was the mandible injury but not to the exclusion of
evidence establishing that defendant’s punches resulted in Windham’s death.
The central relevance of this evidence renders it highly probative, and defendant’s
arguments for a countervailing prejudicial effect are unavailing. Any prejudice from the
evidence defendant caused Windham death is the type of prejudice that tends to prove
defendant’s guilt. Again, the jury found defendant was responsible for Windham’s death
in finding him guilty of elder abuse. This type of prejudice is not the emotionally
charged evidence that could bias the jury against defendant with little bearing on relevant
issues.
Dr. Nagao’s testimony linking defendant’s assault to Windham’s death was
therefore relevant in establishing the elder abuse charge and defendant’s counsel’s failure
to object to it did not render ineffective assistance.
II
Dr. Nagao’s Testimony Was Not Speculative
Expert witnesses are permitted to testify on the subject of their expertise. (Evid.
Code, § 720.) A medical expert “ ‘is qualified “to give an opinion of the cause of a
particular injury on the basis of the expert’s deduction from the appearance of the injury
itself.” [Citation.] Such a diagnosis need not be based on certainty, but may be based on
probability; the lack of absolute scientific certainty does not deprive the opinion of
evidentiary value.’ ” (Ramona v. Superior Court (1997) 57 Cal.App.4th 107, 121.)
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Dr. Nagao’s opinion on the cause of Windham’s death was plainly within his
expertise as a forensic pathologist who had performed roughly a thousand prior autopsies.
Dr. Nagao’s opinion was also supported by the available evidence, including the
surveillance video and the injuries discovered during the autopsy, and by the lack of any
evidence there was another possible cause during the five hours from defendant’s assault
and Windham’s death, including the paramedics. The nature of Windham’s heart
rendered it possible for him to have died without any excitement, and Dr. Nagao could
not definitively say defendant’s punches caused Windham’s fractured jaw. But his
conclusion did not need to be based on certainty to provide evidentiary value. (See
People v. Mendoza (2000) 24 Cal.4th 130, 177 [doctor who had performed over 2,500
autopsies “was qualified to testify to the nature of the wounds shown” in a photograph].)
Defendant therefore did not suffer ineffective assistance of counsel by his counsel failing
to object to this proper expert testimony.
DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
RAYE, P. J.
/s/
RENNER, J.
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