People v. Hill CA4/3

Filed 11/5/13 P. v. Hill CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G046249

v. (Super. Ct. No. 09CF1955)

CURTIS JAMES HILL, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Thomas
M. Goethals, Judge. Affirmed.
Marleigh A. Kopas, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and
A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
 Appellant Curtis James Hill stands convicted of special circumstances
murder for causing the death of Cecil Warren in the course of a robbery. Although
Warren did not die until nearly four years after the robbery, the jury determined he did so
as a result of the injuries appellant inflicted on him during that crime. Appellant contends
his trial was unfair because the prosecution introduced statements that were taken in
violation of his Miranda rights,1 his attorney negligently allowed the jury to hear about
other crimes he may have committed, and the state’s expert medical witnesses referenced
the findings of a nontestifying physician in rendering their opinions as to the cause of
Warren’s death. Appellant also contends cumulative error compels reversal and
California’s special circumstances law is unconstitutional. Finding appellant’s
contentions unmeritorious, we affirm the judgment.
FACTS
On November 11, 2003, Henry Stoltenberg woke up at around 4:00 a.m.
and went for his usual morning walk in Huntington Beach. On past walks at that time of
day, he had seen Cecil Warren doing grounds work at the Union Bank on Beach
Boulevard. However, when Stoltenberg reached the bank that morning, Warren was
lying in the fetal position in the parking lot, a few feet from his van. Warren’s face was
bloody and swollen, and when Stoltenberg asked him what happened, he said, “I’ve been
mugged.” Warren seemed to be going in and out of consciousness, so Stoltenberg called
911.
Warren was still coherent when the police and paramedics arrived at the
scene. He said he had been “jumped” and “beaten up” and also revealed he had a history
of heart problems. Although he did not appear to be in cardiac arrest, the paramedics
considered Warren’s situation to be serious and transported him to the hospital. After
arriving there, Warren took a turn for the worse; he was less coherent and appeared to be

1 See Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

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having difficulty staying focused and oriented. Eventually, he slipped into a coma and
had to be placed on life support.
In investigating the incident, Huntington Beach Police Officer Mark
Wersching reviewed surveillance tape from businesses in the area and discovered
appellant and John McKinney patronized a Mobile gas station near the bank at about 4:15
on the morning in question. Wersching also learned appellant and McKinney lived in
close proximity to the bank.
On November 21, 2003, 10 days after the incident occurred, Wersching and
a team of officers executed a search warrant at appellant’s apartment. During the search,
appellant agreed to speak with Wersching and was interviewed in a bedroom in the
presence of a second police officer. The officers did not read appellant his Miranda
rights before commencing the interview, which was tape recorded. But they did tell
appellant he was not under arrest.
Explaining what he did the night before Warren was assaulted, appellant
said he and McKinney went out drinking. They were dropped off in the early morning
hours by the Union Bank and spotted a van in the parking lot of the bank. Because the
van was open and they did not see anyone around the vehicle, they decided to go “fuck
around” with it. As they were poking around inside the van, an “old man,” Warren,
appeared and asked them what they were doing. Appellant punched Warren in the face,
and when he fell to the ground, he searched his pockets and took his wallet. Then he
kicked Warren in the head and fled the scene with McKinney.
As part of his investigation, Wersching also interviewed appellant’s boss,
Asaf Ahmad. Ahmad said that when he picked up appellant for work on the morning
Warren was assaulted, appellant talked about “jacking someone.”
The investigation also revealed that appellant’s DNA profile matched the
DNA profile of a hair that was found on the right rear pocket of Warren’s jeans. The
odds of such a match occurring randomly were estimated to be about one in a trillion.

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 Appellant and McKinney were originally charged with assault and robbery.
Although appellant pled guilty to the charges and was sentenced to prison, that was not
the end of his legal woes. On September 22, 2007, nearly four years after the original
crimes, Warren passed away at the age of 81. Warren’s death prompted the prosecution
to file new charges against appellant and McKinney. The prosecution charged them with
first degree felony murder for causing Warren’s death in the course of a robbery and a
burglary. (Pen. Code, §§ 187, subd. (a), 189.) The prosecution also alleged as special
circumstances that they murdered Warren while they were engaged in the commission of
a robbery and a burglary. (Pen. Code, § 190.2, subd. (a)(17)(A) & (G).)
Appellant and McKinney were tried separately.2 At appellant’s trial, the
prosecution elected not to present any evidence regarding his prior guilty plea. Thus, it
was required to prove appellant’s guilt independent of earlier proceedings.
Before trial, appellant moved to suppress his confession on the grounds it
was involuntarily rendered and not preceded by Miranda warnings. The trial court
denied the motion, but at appellant’s request, it did order the prosecution to redact his
confession so as to eliminate any references to his prior criminal activity.
At trial, the state called two expert medical witnesses to testify about the
cause of Warren’s death. The first was Dr. Aruna Singhania, the forensic pathologist
who conducted Warren’s autopsy, and the second was Dr. Singhania’s supervisor,
Anthony Juguilon, M.D., who is the Chief Forensic Pathologist for Orange County.
During their testimony, these experts explained that, in forming their opinions about the
case, they relied on multiple sources of information, including a report prepared by
neuropathologist John Andrews, M.D. Dr. Andrews did not testify at trial, nor was his
report admitted into evidence.

2 McKinney has a separate appeal pending in this court that raises issues that are unrelated to those
put forth by appellant.

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 Based on all the information they acquired, Dr. Singhania and Dr. Juguilon
determined Warren died of bronchopneumonia. They surmised Warren’s feeding tube,
which was part of his life support system, caused an infection which led to pneumonia in
his lungs, and eventually that caused his major organs to shut down. As for why Warren
had to be placed on life support in the first place, Drs. Singhania and Juguilon believed he
suffered blunt force trauma to the head. Due to that trauma, Warren could not breathe on
his own and required a feeding tube and ventilator to stay alive, which led to him
contracting the fatal bronchopneumonia.
Trial was by jury. Defense counsel did not call any witnesses on
appellant’s behalf, but in closing argument, he argued appellant was not guilty of special
circumstances murder because in attacking Warren, he did not commit the underlying
crimes of robbery or burglary. Defense counsel also argued the prosecution failed to
prove appellant’s actions were the cause of Warren’s death.
The jury disagreed. Although it found the burglary-murder special
circumstance allegation not true, it convicted appellant of first degree murder and found
the robbery-murder special circumstance allegation true. Thereupon, the trial court
sentenced appellant to life in prison without parole.
I
As he did at trial, appellant contends the court should have suppressed his
confession because it was involuntarily rendered and obtained in violation of Miranda.
We disagree.
The admissibility of appellant’s confession was litigated both at the
preliminary hearing and at an Evidence Code section 402 hearing before trial. The
central issue was whether appellant was in custody at the time he was interviewed,
thereby requiring the detectives to read him his Miranda rights. (See Oregon v.
Mathiason (1977) 429 U.S. 492, 495 [“Miranda warnings are required only where there
has been such a restriction on a person’s freedom as to render him ‘in custody.’”].)

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 At the preliminary hearing, Wersching testified regarding the circumstances
under which the interview took place. He said that a week and half after Warren was
assaulted, he and about 10 other police officers went to appellant’s apartment to serve a
search warrant and look for evidence of the crime. The officers were in uniform and
wearing “raid vests” when they arrived at the apartment.
Wersching knocked and gave notice at the door, and when the officers
gained entrance, they had their guns drawn. Inside, they discovered appellant and his
wife and their baby, along with two other adults and two children. Appellant was
contacted in an upstairs bedroom. At gunpoint, he was ordered to walk downstairs into
the living room. He was then searched and ordered to sit on the couch with the other
occupants of the apartment, who had been rounded up in a similar fashion. Asked at the
preliminary hearing if appellant was handcuffed during that time, Wersching testified, “I
don’t believe any of the occupants were handcuffed at that point.”
Wersching explained that once all of the occupants were searched and
seated, the officers put away their weapons because the apartment had been secured.
This was about five minutes post-entry, according to Wersching. After that, some of the
officers remained in the living room along with the occupants and some of the officers
began searching the apartment. Wersching and his partner Mike Nakama turned their
attention to appellant.
Wersching asked appellant if he would speak with him upstairs, and
appellant agreed to do so. Wersching and Nakama then escorted appellant upstairs into
one of the bedrooms. The officers did not have their weapons drawn, nor did they make
any threats or promises to appellant. Appellant sat on the bed, next to Wersching, and
Nakama sat in front of appellant on a chair. The door to the bedroom remained open at all
times. Asked if Nakama was “stationed in a way that he was between [appellant] and the
door,” Wersching said Nakama was “closer to the closet.”

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 Still, Wersching was not worried about appellant going anywhere, as made
clear by the following exchange:
“Q. [Defense counsel]: Was there concern [appellant] might get up and
walk out?
A. [Wersching]: No, I wasn’t concerned [about] that.
Q. Well, this was – the search was ongoing, [appellant] was detained at
this point, was he not?
A. He was.
Q. Did you tell him that?
A. Yes.
Q. Okay. What did you tell him about that?
A. I told him that he was not under arrest and that we were not going to be
taking him to jail tonight.
Q. But you also said he wasn’t free to leave; is that correct?
A. No, I didn’t tell him that.
Q. In your mind he [wasn’t] but you didn’t tell him that, you’re saying?
A. Yes.”
Testifying further, Wersching said appellant was not advised of his Miranda
rights before the interview began. He estimated the search of appellant’s apartment lasted
about an hour and a half, and appellant’s interview lasted “approximately an hour, maybe
a little longer.” Wersching also said the entire interview was tape recorded, and at no time
was appellant ever questioned off the record.
The contents of the tape were transcribed and made available to the court.
The transcript shows the officers started out the interview by obtaining general
background information from appellant. Wersching then told appellant he and Nakama
wanted to ask him some questions about a robbery and assault that had occurred in the
area. He also told appellant a judge had determined there was probable cause to search his

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apartment. However, Wersching assured appellant “you’re not under arrest” and “I’m not
arresting you tonight. You’re gonna sleep here with your wife and baby tonight.” After
appellant made a reference to one of his roommates, Wersching reiterated to him, “I’m not
taking you to jail. You’re not under arrest, okay? Do you understand that?” Appellant
replied, “Yes.”
At that point, the officers questioned appellant about where he was and who
he was with on the night before Warren was assaulted. The nature of the questioning was
conversational, and appellant answered most of the questions with little prodding. He was
unable to provide some details, which he attributed to the fact he had been drinking that
night, but he was able to provide a fairly detailed account as to how he, McKinney and his
friend Anna spent the night gallivanting about. In fact, a considerable amount of the
interview is devoted to this subject.
In describing events, appellant initially claimed Anna dropped him off along
with McKinney around 6:00 a.m. Then they “kicked it” in McKinney’s garage for a while
before appellant eventually went home. Appellant did not say anything about Warren or
incriminate himself in any fashion up to that point in the interview.
Skeptical of appellant’s story, Wersching asked him if he was sure about the
time he and McKinney got dropped off, and appellant said he really couldn’t remember.
Then Wersching informed appellant that surveillance camera footage showed him and
McKinney entering the Mobile station around 4:00 a.m. on the morning in question.
Appellant told Wersching he couldn’t remember going to the Mobile station, “But now
that you said you seen me on [the surveillance tape], then I guess I did.” Appellant added,
“[M]y mind was gone” from the drinking. “I’m not sure what exact time[] it was.”
At that point, Nakama turned up the heat on appellant, and the following
exchange took place:
“Q. [Nakama]: We’ve talked to a lot of people, we have a lot of facts,
okay? We know that you were in the gas station, the Mobile gas station . . .

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 A. [Appellant]: Mm hm.
Q. . . . with [McKinney], okay? You know that we’ve talked to a lot of
people. You know that we hit [McKinney’s] pad with a search warrant.
A. Mm hm.
Q. We talked to his whole family, okay. We know that you guys left the
Mobile gas station around 4:20.
A. Mm hm.
Q. Okay. The clerk up there saw you guys walking outside. You were
walking southbound on Beach Boulevard.
A. Mm hm.
Q. Okay? All we’re trying to find out is what happened when you guys
walked down that way, okay?
A. Mm hm.
Q. We have an idea what happened but you and [McKinney] were walking
that way in that area.
A. Mm hm.
Q. You’re not responsible for everything that every one does. You’re
responsible for yourself.
A. Mm.
Q. Okay? But you need to tell us about what you saw that night because
it’s very important. Do you understand what I’m saying?
A. Mm hm.
Q. We’ve been doing this a long time. We know what’s going on. You
know what’s going on. We don’t need to play any cat and mouse games here.
A. Mm hm.
Q. We want the truth. That’s all. Okay. We haven’t been unreasonable
with you.

9
 A. Mm hm.
Q. We told you you’re not under arrest, okay. But we need to have the
truth because here’s the problem we have. You know Detective Wersching here, he’s
trying to get facts, he’s trying to get statements from you, okay.
A. Mm hm.
Q. If, if you start telling us things that we know are lies, it bothers us.
A. Mm hm.
Q. Okay? We feel like you’re trying to hide something. But you may be
scared only because you don’t want to say what you seen happen. Okay? I’m not trying
to put the blame on you[] or anything.
A. Mm hm.
Q. You’re not responsible for what every one does, right?
A. Right.
Q. Maybe someone did something you didn’t like. I wouldn’t like that if
somebody did something. Okay? But if you lie about it and you don’t tell us about it,
what are we supposed to think? You know what I mean?
A. Mm hm.
Q. It’s obvious everyone around this whole neighborhood knows what’s
going on. . . . Just tell us what happened when you guys were walking away from the
Mobile station. Did somebody act like a fool and do something?
A. Yeah.
Q. They sure did, right?
A. Yeah.
Q. You know that. Just tell us about it. That’s all. You’re memory’s real
good. I commend you for your memory. You gave us a lot of details . . . about what
happened. You can remember blow by blow where you were, where you drove, who you

10
were with. You told us all that. But when we talk about the critical time, its gets fuzzy.
That’s pretty obvious, right?
A. Yeah.
Q. We’re not stupid.
A. I’ll tell it straight up right now.”
Appellant proceeded to explain how the confrontation with Warren
transpired. He said that when he first entered Warren’s van, he grabbed hold of an
edging tool. Asked by Wersching what he intended to do with the tool, appellant said,
“Nothing, I was just being stupid.” He also said McKinney was looking around inside
the van. When Warren appeared and asked them what they were doing, he got nervous
and slugged him in the face, causing him to fall. As to why he hit Warren, appellant
explained, “I got like nervous. And when I get nervous and I’m drunk, I start getting like
paranoid” to the point “where I don’t think about shit, I just do it.” “And that’s the only
thing that came to my mind was hitting him.”
Continuing his story, appellant said that after he hit Warren, he reached
down and took his wallet. Then he kicked Warren in the head and he and McKinney took
off running. They went to McKinney’s place, divvied up the money and burned the
wallet. Then appellant went home and slept for a couple of hours. He said that when he
went in to work later that morning, he told a couple of people he had “robbed somebody
last night.”
As the interview was winding down, the officers obtained a DNA sample
from appellant and engaged him in small talk about his work and family. At appellant’s
request, they also allowed his wife to come upstairs so he could talk to her about the
situation. Appellant was concerned that one his roommates was going to “beat him up”
after the police left, so the officers allowed him to leave the apartment with his wife and
baby. However, once they were outside, they arrested appellant on a misdemeanor
warrant.

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 During the preliminary hearing, defense counsel objected to the admission
of appellant’s statements on the grounds the detectives did not read him his Miranda
rights prior to questioning. The magistrate said it was a “close call” but ultimately
determined appellant’s statements were admissible because he was not in custody at the
time he was interviewed.
Before trial, appellant renewed his Miranda objection. He also argued his
interview statements should be suppressed because they were involuntarily rendered in
violation of his due process rights. At a hearing on the issue, the parties agreed to let the
trial court consider the preliminary hearing transcript as part of the factual basis for the
motion. They also submitted appellant’s interview for the court’s consideration.
Regarding the preliminary hearing transcript, the court was troubled by what
it described as an “ambiguity in the record.” Particularly, the court was having difficulty
figuring out what it considered to be a key factor in the case, i.e., whether Wersching ever
told appellant he was detained. At the court’s invitation, the prosecution called Wersching
to the stand in the hopes of clarifying that issue.
Wersching testified that upon entering appellant’s apartment, he first made
contact with appellant as he was being escorted down the stairs by other officers.
Wersching testified he could not remember if appellant was handcuffed when he was taken
into the living room, searched and told to sit down with the others. After appellant agreed
to speak with him, they walked upstairs and entered one of the bedrooms, along with
Officer Nakama. Wersching testified appellant walked back up the stairs and entered the
bedroom on his own free will. Describing appellant’s demeanor as cooperative,
Wersching said he was not handcuffed or restrained in any fashion at that time.
Turning to the detention issue, Wersching testified he had reviewed the
portion of his preliminary hearing testimony where he said he had told appellant he was
detained. Asked if he presently had any independent recollection of telling that to
appellant or saying anything to him about whether he was free to leave, Wersching

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testified “no.” He said the only thing he could recall telling appellant in that regard is
what is on the tape recording. That is, telling appellant that he was not under arrest and
that he would be able to sleep in his own bed that night. Wersching said there was no
other conversation about appellant’s freedom of movement other than what’s on the tape,
and he never told appellant he could not leave. Wersching said the only time appellant’s
movement was restricted and he was told what to do was when the officers initially
entered the apartment and secured the premises.
On cross-examination, defense counsel came back to Wersching’s
preliminary hearing testimony. He asked Wersching if he was being truthful when he
previously testified he had told appellant he was detained. Wersching said he was being
truthful at that time, but he could not presently remember telling that to appellant.
In argument to the court, defense counsel argued the circumstances
surrounding appellant’s interrogation could not have been “more overbearing” and
clearly supported the conclusion appellant was in custody at the time he was interviewed.
He said that, based on Wersching’s preliminary hearing testimony, Wersching must have
told appellant he was detained before he turned on the tape recorder because “it’s not on
the transcript.” He argued that, all things considered, there was a “de facto arrest” or the
“functional equivalent of an arrest for Miranda purposes.”
The trial court disagreed. With respect to Wersching’s preliminary hearing
testimony about telling appellant he was detained, the judge stated, “The way I interpret
that . . . in the context of what I’ve now read and heard is that when the officers came in
initially before the [apartment] had been secured and before [appellant] was taken
upstairs for a conversation, . . . before the tape [recorder] was on, everyone inside the
[apartment] was told that they were being detained.”
The trial court presumed this created an intrusive and intimidating situation
for the occupants. But, even assuming the police handcuffed appellant when they
initially contacted him and ordered him to come downstairs, the court found appellant

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was no longer in handcuffs when Wersching asked him if he would be willing to talk.
And since the request was posed as a question, as opposed to a command, appellant
would have reasonably understood that he had an option in terms of speaking with
Wersching.
Continuing its analysis, the judge stated, “Walking up those stairs, it is still
an intrusive situation. I don’t want to say coercive; I’m not going to go that far. But it’s
an intrusive, intimidating situation. Had [Wersching] not continued to defuse the
situation by specifically telling [appellant] . . . he was not under arrest and he would not
be arrested no matter what he said during that conversation, my ruling might be
otherwise. [¶] But considering all of the [circumstances] . . . I find that this was a non-
custodial interview. Therefore, Miranda warnings were not required[.]”
The trial judge also rejected appellant’s claim his statements were
involuntarily rendered. In so doing, the judge said he was “struck by the noncoervice
[and] non-intimidating nature of the conversation.” “The officers [gave appellant] plenty
of opportunity to say whatever he want[ed] to say. It [was] not intimidating. I don’t find
it coercive. I don’t find any evidence that the officers in some way over[bore]
[appellant’s] free will and created an involuntary situation.” The judge therefore denied
appellant’s motion to suppress the statements he made during the interview.
Our analysis begins with United States Supreme Court’s landmark ruling in
Miranda, supra, 384 U.S. 436. In that case, the United States Supreme Court established
“concrete constitutional guidelines” for police officers to follow when they are
questioning a suspect who “has been taken into custody or otherwise deprived of his
freedom of action in any significant way.” (Id. at pp. 442, 444, fn. omitted.) The court
ruled that, under those circumstances, the suspect must be advised he “has the right to
remain silent, that anything he says can be used against him in a court of law, that he has
the right to the presence of an attorney, and that if he cannot afford an attorney one will
be appointed for him prior to any questioning if he so desires.” (Id. at p. 479.)

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 These so-called “Miranda warnings” have “become embedded in routine
police practice to the point where [they] have become part of our national culture.
[Citation.]” (Dickerson v. United States (2000) 530 U.S. 428, 435, 443, italics omitted.)
Although sometimes described as “‘prophylactic’” in nature (id. at pp. 437-438, quoting
New York v. Quarles (1984) 467 U.S. 649, 653), they are constitutionally required to
safeguard a suspect’s Fifth Amendment right against self-incrimination. (Id., at p. 444
[the Miranda decision created a federal “constitutional rule” that may not be superseded
by Congress].)
Still, the police are not required to administer Miranda warnings to every
person they interview. Indeed, the United States Supreme Court has repeatedly held that,
unless a suspect is “in custody” at the time he is questioned, the Miranda ruling does not
come into play. (Yarborough v. Alvarado (2004) 541 U.S. 652, 660-663 [reviewing the
“clearly established law” in this area].) So, what are the key elements that courts look to
in determining whether a suspect has been placed in “custody” for Miranda purposes?
“‘Two discrete inquiries are essential to the determination: first, what were
the circumstances surrounding the interrogation; and second, given those circumstances,
would a reasonable person have felt he or she was not at liberty to terminate the
interrogation and leave. Once the scene is set and the players’ lines and actions are
reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was
there a formal arrest or restraint on freedom of movement of the degree associated with a
formal arrest.’ [Citation.]” (Yarborough v. Alvarado, supra, 541 U.S. at p. 663.) In
examining these issues, we must defer to the trial court’s factual findings that are
supported by substantial evidence, but we independently examine the legal question of
whether the defendant was in custody when he was questioned by the police. (Thompson
v. Keohane (1995) 516 U.S. 99, 112-113; People v. Cunningham (2001) 25 Cal.4th 926,
992.)

15
 It is undisputed that when the police entered appellant’s apartment to
execute the search warrant, they did so with a considerable amount of force and authority.
At least 10 uniformed officers wearing raid vests were involved in the search, and when
they went inside, they had their weapons drawn and ordered the occupants into the living
room area, where they were searched and seated. It also appears the occupants, including
appellant, may have been handcuffed momentarily during this initial phase of the search,
which according to Wersching, lasted about five minutes.
However, “[h]andcuffing a suspect does not necessarily dictate a finding of
custody. [Citation.]” (United States v. Booth (1981) 669 F.2d 1231, 1236; accord People
v. Pilster (2006) 138 Cal.App.4th 1395, 1404-1405 [recognizing this principle but finding
the defendant in that case was in custody since he “remained in handcuffs when the
investigating officer interrogated him.”].) In executing a search warrant, “[s]trong but
reasonable measures to insure the safety of the officers or the public can be taken without
necessarily compelling a finding that the suspect was in custody. [Citation.] The officers
may take reasonable steps to maintain the status quo. [Citation.]” (Ibid.)
The situation during the officers’ initial entry into appellant’s apartment
was no doubt forceful and intimidating, and no reasonable person would have felt free to
leave during this phase of the search. But the measures utilized by the officers were
reasonable considering the fact they were investigating a violent crime and there were a
large number of people inside the apartment.
After the premises were secured, the officers put away their weapons and
the next phase of the search took place. While some of the officers stayed in the living
room to keep an eye on the seated occupants, other officers began searching the
apartment for evidence. That’s when Wersching asked appellant if he would be willing
to speak with him. When appellant said yes, Wersching and Nakama walked with him
upstairs into one of the bedrooms. According to Wersching, he and Nakama “escorted”
appellant up the stairs, but they did not force or restrain him in any fashion; rather,

16
appellant made his way into the bedroom of his own free will. The fact Wersching asked,
as opposed to commanded, appellant to speak with him, and appellant voluntarily
acquiesced to this request, supports the conclusion he was not in custody at this time.
(Oregon v. Mathiason, supra, 429 U.S. 492; People v. Linton (2013) 56 Cal.4th 1146,
1167.)
It is also significant that Wersching repeatedly told appellant he was not
under arrest and he would be spending the night at home with his family. This signaled
to appellant he was not under compulsion to speak with the officers. (United States v.
Salvo (6th Cir. 1998) 133 F.3d 943, 951; People v. Linton, supra, 56 Cal.4th at p. 1167.)
The officers did not go the additional step of telling appellant he was free not to speak
with them, but they did not tell appellant he could not leave either. And the fact they had
asked him if he would talk to them implied his freedom to refuse. Assuming Wersching
did tell appellant he was “detained,” as he testified at the preliminary hearing, the record
supports the trial court’s finding this statement was made during the initial security sweep
of the apartment, when the officers gathered up all of the occupants and took them into
the living room area to be searched and seated. Had appellant been interrogated then and
there, there would be little question that Miranda’s custody requirement would have been
met.
But he wasn’t. Instead, the officers obtained his permission to speak with
him and then escorted him to a room in a separate part of the house. As appellant points
out, this had the effect of isolating him from his family. However, it also distanced him
from his angry roommate, which likely eased appellant’s mind to some extent. Before
interrogating appellant, the officers also repeatedly told appellant he was not under arrest,
which appellant expressly acknowledged, and explained why they wanted to talk to him.
They were in close proximity to appellant, and the interview itself turned out to be rather
lengthy, yet the door remained open and it appears appellant’s path to it remained largely
unobstructed.

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 These circumstances support the conclusion appellant was not in custody at
the time he was interviewed. Indeed, California decisional law is clear that Miranda
warnings are not required every time the police initially use weapons or other force to
detain a suspect: “‘For Miranda purposes, . . . the crucial consideration is the degree of
coercive restraint to which a reasonable citizen believes he is subject at the time of
questioning. Police officers may sufficiently attenuate an initial display of force, used to
effect [a detention], so that no Miranda warnings are required when questions are
asked.’” (People v. Thomas (2011) 51 Cal.4th 449, 478, quoting People v. Taylor (1986)
178 Cal.App.3d 217, 230.)
As to the attenuation issue, it is noteworthy that appellant was only
detained for a brief period of time at the outset of the search. Wersching estimated it only
took about five minutes for the officers to obtain control over the premises, at which time
they freed appellant of any physical restraint and asked him if he would be willing to
speak with them. The officers’ initial show of force was forceful and direct, to be sure,
but the tenor of the encounter changed significantly after they secured the apartment.
And by the time the officers actually got around to questioning appellant, he was neither
formally arrested nor restrained to a degree associated with a formal arrest. (See In re
Joseph R. (1998) 65 Cal.App.4th 954, 958 [although the defendant was initially
handcuffed in the back of a police car, he was not in custody for Miranda purposes when
he was later questioned because his initial detention lasted only about five minutes, which
the court characterized as being “extremely short”].)
In arguing otherwise, appellant relies on two cases from the Ninth Circuit
Court of Appeals, United States v. Craighead (9th Cir. 2008) 539 F.3d 1073 (Craighead)
and United States v. Kim (9th Cir. 2002) 292 F.3d 969 (Kim). But these decisions are
factually distinguishable from the present case.
In Craighead, the defendant was directed into and questioned inside a
storage room in the back of his house while officers from three different law enforcement

18
agencies searched his residence for evidence of child pornography. (Craighead, supra,
539 F.3d at pp. 1077-1079.) Although the defendant was informed by an FBI agent that
he was free to leave, any statements he made would be voluntary, and he would not be
arrested at the conclusion of the interview, the Ninth Circuit found this meant very little
in terms of the custody issue because the circumstances were unclear as to whether the
FBI agent was speaking for all of the agencies that were present during the search. (Id. at
p. 1085.) Moreover, there was evidence that when the defendant was interviewed, “the
door was closed behind him” and a detective was “leaning with his back to the door in
such a way as to block [defendant’s] exit from the room.” (Id. at p. 1086.) These factors
were pivotal to the Ninth Circuit’s determination the defendant was in custody for
Miranda purposes during the interview. (Id. at p. 1088.)
Here, in contrast, only one law enforcement agency was involved in the
search. At the outset of the interview, Wersching and Nakama made it clear they were
both from the Huntington Beach Police Department, and appellant never expressed any
confusion as to who was in charge or what was going on. In addition, after appellant
agreed to be interviewed, the officers left the bedroom door open while they questioned
him. These circumstances, which were absent in Craighead, militate against a finding of
custody.
The fact the officers asked appellant if he would be willing to speak with
them and were respectful to him during the interview also sets this case apart from Kim.
In that case, the officers told the defendant to “shut up” and ordered her to speak English,
even though her native language was Korean and they knew she did not speak English
very well. (Kim, supra, 292 F.3d at pp. 971-975.) And, unlike the situation here, they
did not tell the defendant she was not under arrest before they questioned here. In fact,
there was no evidence that the defendant in Kim ever acquiesced to being interviewed.
(Ibid.)

19
 In our case, there was no language issue, appellant was asked and agreed to
be interviewed, and he was informed and acknowledged he was not under arrest. He was
also told that no matter what he said, he would be spending the night with his family at
the apartment. Although not dispositive, it appears appellant actually believed this
because at the end of the interview he expressed concern about what his roommate was
going to do to him after the police left the apartment. Appellant apparently did not think
he was going to be arrested, even after he confessed to assaulting Warren.
Regardless of appellant’s subjective beliefs, the objective circumstances
surrounding the interview were not so coercive as to lead a reasonable person to believe
appellant was restrained to a degree associated with a formal arrest. Therefore, he was
not in custody during the interview, and the police were not required to read him his
Miranda rights.
Appellant also contends his confession should have been excluded because
it was obtained in violation of his right to due process. “The due process test takes into
consideration ‘the totality of all the surrounding circumstances — both the characteristics
of the accused and the details of the interrogation.’ [Citations.]” (Dickerson v. United
States, supra, 530 U.S. at p. 434.) If the record shows the defendant’s will was overborne
by the circumstances surrounding the interrogation such that his confession was coerced
or compelled, it cannot be used against him. (Ibid.)
Like the trial court, in reading the transcript of appellant’s interview we are
struck by the fact that in interrogating appellant, Wersching and Nakama took a polite
and professional tone from the very beginning. They allowed appellant to tell his story in
his own words and permitted the interview to unfold in a slow-paced, conversational
manner. Although appellant had difficulty remembering everything that happened on the
night in question, he did not show hesitancy in answering the officers’ questions. Thus,
there was no need for the officers to exert pressure on him. It wasn’t until after the
midpoint of the interview that they confronted appellant with the surveillance tape and

20
urged him to come clean. They strongly implored appellant to tell the truth and claimed
they already had a pretty good idea what happened, but they did not induce his confession
by threat or promise, nor did they accuse him of anything. In fact, when appellant asked
what was going to happen to him in terms of his case, they said they didn’t know because
it was out of their hands.
The totality of the circumstances convince us appellant was not speaking
against his will but rather voluntarily confessed to his involvement in the crimes with
which he was charged. Accordingly, the trial court properly allowed his confession to be
introduced into evidence at his trial.
II
Appellant also contends his attorney was ineffective for failing to ensure
the jury did not hear anything about other crimes he may have committed. We do not
believe appellant’s attorney was ineffective in this regard.
In order to succeed on a claim of ineffective assistance of counsel, a
defendant must show counsel’s performance was objectively unreasonable under
prevailing professional norms. (People v. Lucas (1995) 12 Cal.4th 415, 436.) The
defendant must also affirmatively establish prejudice. (Strickland v. Washington (1984)
466 U.S. 668, 687.) To do this, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Id. at p. 694.) “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Ibid.) Under this standard, the
defendant “must carry his burden of proving prejudice as a ‘demonstrable reality,’ not
simply speculation as to the effect of the errors or omissions of counsel.” (People v.
Williams (1988) 44 Cal.3d 883, 937.)
Appellant claims his attorney was remiss for failing to prevent the jury
from hearing about other crimes he may have committed. The issue about other crimes
surfaced in light of the fact that, during his interview with Wersching and Nakama,

21
appellant admitted he had previously been involved in gang activity and committed other
robberies. However, at defense counsel’s request, the trial court ordered the prosecutor to
redact this information from the tape and the transcript of the interview. Specifically, the
court told the prosecutor, “I don’t want to hear anything about the prior alleged robberies
or any gang activity in the People’s case-in-chief.” The court also ordered the prosecutor
to meet and confer with defense counsel to ensure he was content with the redactions.
After the redactions were made, defense counsel agreed they were
satisfactory. However, toward the end of the trial, after the interview tape had already
been played for the jury, defense counsel told the court there was a reference to
appellant’s prior criminal activity that should have been redacted from the tape. That
reference also appeared in the transcript of the interview, which the jurors were given
when the tape was played for them.
The reference came up toward the end of the interview, after appellant had
already confessed to assaulting Warren. Nakama asked appellant, “And have you, have
you . . . It sounds like you . . . mainly jack people on the street. Is that correct?”
Appellant answered, “Yeah.”
In bringing this issue to the court’s attention, defense counsel stated, “I
missed [the reference] in my review, just to concede that. I don’t think it was done
maliciously but it was in there[.]” The court said it was a “close call” as to whether the
reference violated its pretrial ruling to omit reference to appellant’s prior criminal
activity. However, “in abundance of caution” the court ordered the prosecutor to redact
the reference on the tape and the transcript. The newly-redacted versions of the tape and
transcripts were made available to the jury during its deliberations, but there is nothing in
the record to suggest the jury actually asked to review them in deciding the case.
Appellant argues his attorney should have pressed the issue further and
moved for a mistrial because the reference rendered his trial unfair. Characterizing the
reference as “improper propensity evidence,” he asserts the “jury more than likely was

22
biased against him upon learning that he engaged in other robberies . . . .” However, the
jury didn’t hear any evidence about any other robberies. In fact, the wording of the
challenged statement makes it hard to figure out exactly what appellant admitted to.
In assessing prejudice, it is also significant that the single, fleeting
reference to “jack[ing]” was made during the course of a lengthy taped interview that
focused not on appellant’s past behavior, but his actions in the present case. At no point
did the prosecution ever attempt to use the reference to denigrate appellant’s character or
prove he was prone to criminal behavior. As a matter of fact, after the tape was played,
the reference was never alluded to by either party while the jury was present. Under
these circumstances, it is not reasonably likely the reference affected the verdict.
Because the reference does not undermine our confidence in the verdict, reversal is not
required.
III
Next, appellant asserts the trial court erred in allowing expert medical
witnesses Singhania and Juguilon to rely on Dr. Andrew’s pathology report in forming
their opinions about the cause of Warren’s death. Given that Dr. Andrews did not testify
at trial, appellant contends the experts’ reliance on his report allowed the jury to hear
prejudicial hearsay evidence and violated his right to confront witnesses. We do not
believe that was the case.
As we stated in the facts above, Dr. Singhania and Dr. Juguilon relied on
several sources of information in forming their opinions in this case. In order to properly
analyze appellant’s claims, we must thoroughly examine not only what they relied on, but
how they conveyed their opinions and how the jury was told to assess their testimony.
As the physician who conducted Warren’s autopsy, Dr. Singhania testified
to the physical condition of Warren’s body. She stated Warren had signs of heart disease,
diabetes and chronic obstructive pulmonary diseases (COPD). In addition, he had a scab
on the right side of his forehead and a scar on his left cheek below his eye. The scar was

23
consistent with craniofacial injury or trauma of some sort. However, Dr. Singhania did
not detect any signs of injury to Warren’s skull.
With respect to Warren’s brain, Dr. Singhania said she removed the organ
from his skull and examined it externally only. Not seeing any abnormalities, she sent
Warren’s brain to Dr. Andrews, who, as a neuropathologist, specializes in the central
nervous system. Whereas Dr. Singhania only conducted a gross external examination of
Warren’s brain, Dr. Andrew’s examination involved both an exterior and microscopic
examination of that organ.
Dr. Singhania testified it is customary for her to rely on information from
other people in forming her opinions about forensic matters. She said that in this case,
she reviewed a “brief investigation report” as well as some of Warren’s medical records
prior to conducting his autopsy. She also testified she had “been briefed” about the
circumstances of Warren’s death, including the fact he had suffered blunt force trauma to
the head. Dr. Singhania opined that trauma is what landed Warren on life support and led
to his eventual death.
Dr. Singhania stated that in addition to the investigation report and medical
records she received, she also relied on Dr. Andrew’s report in determining the cause of
Warren’s death. Particularly, she relied on Dr. Andrew’s finding that Warren had
“chronic sequelae,” i.e., scarring, on his brain, which is indicative of blunt force trauma
to the head. Speaking to the effect of that trauma, Dr. Singhania testified “that’s why
[Warren was] not able to breathe by himself [and] . . . was on a life support. And that’s
how I put the cause of death.”
During her testimony, Dr. Singhania admitted that when she receives
information from other sources during the autopsy process, her lack of first-hand
knowledge about the information precludes her from knowing if it is actually accurate
and correct. However, she can effectively verify the information she receives by
comparing it to her own observations and findings. When asked if her findings were

24
consistent with the finding that Warren had “post chronic sequelae of blunt force trauma
to the brain,” Dr. Singhania answered, “That’s correct.”
Like Dr. Singhania, Dr. Juguilon testified he relied on a variety of
information in forming his opinions about the cause of Warren’s death. While he did not
receive any information from the police, he did review Warren’s medical records, Dr.
Singhania’s autopsy report and the autopsy photos. He also considered Dr. Andrew’s
pathology report.
Dr. Juguilon testified that, as a neuropathologist, Dr. Andrews would have
training “above and beyond” the typical forensic pathologist. He also said it was
common to “send out certain items such as the brain to a neuropathologist for a consult
and report on that particular organ.” Dr. Andrews’ report indicated Warren suffered from
DAI, diffuse axonal injury. Dr. Juguilon explained DAI is a widespread brain injury that
often follows severe head injuries. In diagramming what the injury looks like for the
jury, he said it occurs when axons separate from the body of a nerve cell. When there is
evidence of this separation over a large portion of the brain, it signifies diffuse axonal
damage or DAI. The injury causes irreversible damage to the nerve cells and cessation of
normal nervous system function, often resulting in unconsciousness or lengthy coma. It
also necessitates the need for life support in many cases.
Dr. Juguilon testified DAI can only be caused by “severe blunt head
trauma,” such as a hit or kick to the head. In his opinion, Warren suffered blunt force
trauma to the head, which triggered a coma and the need for life support. Warren’s
feeding tube then caused an infection, which led to the pneumonia, which was the
ultimate cause of his death. However, Dr. Juguilon believed blunt head trauma was the
direct cause of Warren’s death because it set in motion the chain of events that led to his
demise. While Dr. Juguilon acknowledged Warren’s other ailments, such as heart
disease and diabetes, may have been contributing factors to his death, he did not believe
they were an intervening or independent cause of death.

25
 On cross-examination, Dr. Juguilon admitted he was not present when Dr.
Singhania performed Warren’s autopsy or when Dr. Andrews examined Warren’s brain.
Nor did he speak with them about their findings. He said he arrived at his opinions about
the case independently after examining all the information that was provided to him.
During the course of Dr. Singhania and Dr. Juguilon’s testimony, defense
counsel repeatedly objected to the fact they relied on hearsay evidence in forming their
opinions about the case. Although the trial court overruled defense counsel’s objections,
it told the jurors, during both Dr. Singhania’s and Dr. Juguilon’s testimony, that they
could not consider this hearsay evidence for its substantive truth. Rather, they could only
consider it for the limited purpose of evaluating the basis of the experts’ opinions. The
court also told the jurors they were free to disregard the opinion of an expert, and if they
did not believe the basis for the expert’s opinion was reliable, they could consider that in
evaluating the expert’s testimony.
In this regard, the court told the jury, “[I]f an expert witness gives opinions
and to some degree they are based on hearsay information . . ., you can look behind the
opinion to see whether or not you think the hearsay upon which [the expert] relied was
based on fact. And if you find that the hearsay was not based on fact, then you may find
that affects the weight to which you give the opinion[.]” At another point, the court told
the jurors that, in evaluating the believability of an expert opinion, they should consider
“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.”
Appellant contends that, by allowing Drs. Singhania and Juguilon to testify
about the contents of Dr. Andrew’s report, the trial court violated both state and federal
law. Under the state rules of evidence, “[a]n expert may generally base his opinion on
any ‘matter’ known to him, including hearsay not otherwise admissible which may
‘reasonably . . . be relied upon’ for that purpose. (Evid. Code, § 801, subd. (b); In re
Fields (1990) 51 Cal.3d 1063, 1070 [].) On direct examination, the expert may explain

26
the reasons for his opinions, including the matters he considered in forming them.
However, prejudice may arise if, ‘“under the guise of reasons,”’ the expert’s detailed
explanation ‘“[brings] before the jury incompetent hearsay evidence.”’ [Citation.]”
(People v. Montiel (1993) 5 Cal.4th 877, 918.)
To guard against this eventuality, the trial court ‘“has considerable
discretion to control the form in which the expert is questioned . . . .’ [Citation] A trial
court also has discretion ‘to weigh the probative value of inadmissible evidence relied
upon by an expert witness . . . against the risk that the jury might improperly consider it
as independent proof of the facts recited therein.’ [Citation.] This is because a witness’s
on-the-record recitation of sources relied on for an expert opinion does not transform
inadmissible matter into ‘independent proof’ of any fact. [Citations.]” (People v.
Gardeley (1996) 14 Cal.4th 605, 618.)
In this case, it is clear the trial court was aware of its responsibility to
balance the “jury’s need for information sufficient to evaluate an expert opinion” against
appellant’s “interest in avoiding substantive use of unreliable hearsay[.]” (People v.
Montiel, supra, 5 Cal.4th at p. 919.) It repeatedly admonished the jury that, while experts
may rely on hearsay in forming their opinions, and while the jury could consider the
reliability of that hearsay in evaluating the experts’ opinions, the jury could not consider
the hearsay for the truth of the matter asserted therein.
At one point, the court did tell the jurors to consider whether the
information on which the experts relied was “true and accurate.” But that was in the
context of explaining to the jury how they should go about evaluating the experts’
opinions, so it is unlikely the jurors considered that information as substantive evidence,
especially when they were repeatedly instructed not to do so. Viewing the instructions as
a whole, we are convinced they adequately informed the jury of the limited purpose for
which the information in Dr. Andrew’s report was offered. We believe the court
exercised its discretion admirably in handling this delicate issue.

27
 Given that Dr. Andrews did not testify at trial, appellant argues the experts’
reference to his findings also violated his federal constitutional right to confront
witnesses. (U.S. Const., 6th Amend.) In so arguing, appellant relies on Crawford v.
Washington (2004) 541 U.S. 36 (Crawford) and its progeny, which have established the
Sixth Amendment’s Confrontation Clause prohibits testimonial hearsay unless the
declarant is unavailable and the defendant had a prior opportunity for cross-examination.
(Id. at pp. 53-54; see also Davis v. Washington (2006) 547 U.S. 813; Melendez-Diaz v.
Massachusetts (2009) 557 U.S. 305; Michigan v. Bryant (2011) 562 U.S. __ [131 S.Ct.
1143]; Bullcoming v. New Mexico (2011) 564 U.S. __ [131 S.Ct. 2705]; Williams v.
Illinois (2012) 567 U.S. __ [132 S.Ct. 2221].)
Dr. Andrews was not shown to be unavailable, nor did appellant have an
opportunity to cross-examine him before trial. However, in Crawford, the high court
stated the Confrontation Clause “does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter asserted. [Citation.]” (Crawford,
supra, 541 U.S. at p. 59, fn. 9; see also Williams v. Illinois, supra, 567 U.S. at p. __ [132
S.Ct. at p. ____] (plur.opn.) [admission of out-of-court statements contained in lab report
did not violate the Confrontation Clause because they were not offered for their truth];
compare People v. Lopez (2012) 55 Cal.4th 569 [Confrontation Clause potentially
implicated where prosecution relied on nontestifying declarant’s lab report to prove the
truth of its contents].) Because the information contained in Dr. Andrew’s report was not
offered for its truth, but simply to establish the basis for Dr. Singhania’s and Dr.
Juguilon’s expert opinions, its admission did not violate appellant’s confrontation rights.
Even if the information in Dr. Andrew’s report had been admitted for its
truth, the result would be the same. That’s because the information that Drs. Singhania
and Juguilon relied on and revealed to the jury was limited to Dr. Andrew’s objective
findings regarding the condition of Warren’s brain. To wit, they relied on Dr. Andrew’s
personal observations that Warren’s brain had signs of chronic sequelae and DAI. As

28
defense counsel emphasized in closing argument, at no point did they ever mention Dr.
Andrew’s opinion regarding the cause of Warren’s death, or even whether or not Dr.
Andrews had actually reached on opinion on that issue.
In People v. Dungo (2012) 55 Cal.4th 608 (Dungo), the California Supreme
Court addressed a very similar situation. As in our case, a forensic pathologist was
allowed to give his expert opinion on the cause of the victim’s death based on “objective
facts about the condition of the victim’s body as recorded in the autopsy report” of a
nontestifying pathologist. (Id. at p. 612.) Also like our case, the expert was allowed to
refer to those objective facts in explaining the basis for his opinion, but the autopsy report
itself was not admitted into evidence. (Ibid.) In determining whether the jury’s exposure
to the information in the autopsy report violated the defendant’s Sixth Amendment rights,
the Dungo court explained that an out-of-court statement must possess “two critical
components” to be testimonial: “First, . . . the statement must be made with some degree
of formality or solemnity. Second, . . . its primary purpose [must] pertain[] in some
fashion to a criminal prosecution.” (Id. at p. 619.)
The hearsay information at issue in Dungo possessed neither of those
qualities. Contrasting objective observations about the condition of the victim’s body
with subjective conclusions about the cause of death, the Supreme Court ruled statements
in the former category lack the requisite formality or solemnity to be testimonial.
(Dungo, supra, 55 Cal.4th at pp. 619-620.) Moreover, because autopsies are conducted
not only to facilitate criminal investigations, but also to provide information relevant to
civil proceedings, insurance claims and other issues, it cannot be said that their primary
purpose pertains to criminal prosecution. (Id. at pp. 620-621.) Therefore, Dungo
concluded the expert’s reliance on the objective facts contained in the autopsy report did
not violate the defendant’s right to confront the pathologist who prepared the report. (Id.
at p. 621.)

29
 Appellant contends Dungo was wrongly decided, but the California
Supreme Court recently affirmed its holding in People v. Edwards (2013) 57 Cal.4th 658
(Edwards).) In Edwards, the court reiterated that “[a]utopsy statements that simply
record anatomical and physiological observations” are distinct from “statements of the
autopsy physician’s expert conclusion as to the cause of death. [Citation.]” (Id. at p.
706.) Without deciding whether statements in the latter category are testimonial,
Edwards held it was permissible for an expert witness to recount the autopsy doctor’s
findings that the victim’s nose was fractured, the injury to her ear was “‘incisional,’” she
had residue from adhesive tape around her mouth, and her vagina had signs of trauma.
(Id. at pp. 707-708.) Distinguishing those findings from forensic opinions about the
cause of death, the court determined it was permissible for the expert to rely on them
because they merely reflected the autopsy doctor’s “medical observations of objective
fact.” (Id. at p. 708.)
Under the authority of Edwards and Dungo, Dr. Singhania and Dr. Juguilon
were properly allowed to rely on Dr. Andrew’s report in giving their opinions about the
cause of Warren’s death. Unlike the autopsy reports in those cases, Dr. Andrew’s report
was based on a microscopic examination of the victim, as opposed to a mere visual
examination. However, while the method of his analysis was more detailed than the
autopsy doctors’ methods in Edwards and Dungo, his report was similar to theirs in that it
merely reflected objective facts about the victim’s body. In particular, his finding of
“chronic sequelae” reflected the fact Warren had scarring on his brain, and his finding of
DAI reflected the fact Warren had nerve cell damage over a large portion of his brain.
Those findings are akin to the findings of exterior cuts, fractures and trauma that were at
issue in Edwards and Dungo. Therefore, Drs. Singhania and Juguilon were entitled to
mention them in giving their opinions about Warren’s death. Because they only

30
referenced Dr. Andrew’s factual findings, as opposed to his opinion on the cause of
death, their testimony did not violate appellant’s confrontation rights.3
IV
Appellant contends the cumulative effect of the errors that occurred at his
trial rendered his trial unfair. But the only error that occurred was the failure to redact the
reference to “jack[ing] people” on the interview tape and transcript, which, as we’ve
explained, does not undermine our confidence in the verdict. The absence of multiple
trial errors renders the cumulative error doctrine inapt. (People v. Bennett (2009) 45
Cal.4th 577, 618.)
V
Lastly, appellant claims the robbery-murder special circumstance statute is
unconstitutional because it authorizes death or life without parole under virtually the
same circumstances which justify a finding of felony murder. (See Romano v. Oklahoma
(1994) 512 U.S. 1, 7 [capital sentencing scheme must genuinely narrow class of people
eligible for death penalty].) However, as appellant recognizes, our Supreme Court “has
consistently rejected the claim that the statutory special circumstances, including the
felony-murder special circumstance, do not adequately narrow the class of persons
subject to the death penalty.” (People v. Pollock (2004) 32 Cal.4th 1153, 1195, citations
omitted.) Appellant also acknowledges that, as a matter of stare decisis, we are
powerless to rule otherwise. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d

3 Appellant notes that, in her opening argument, the prosecutor claimed, “The evidence will show
that a conclusion was reached by all — Dr. Singhania, Dr. Andrews, Dr. Juguilon — that . . . Warren died as a result
of the injuries he suffered as a result of the robbery and assault . . . .” (Italics added.) However, as it turned out, the
evidence did not reveal Dr. Andrew’s opinion on the cause of Warren’s death. That does not change our take on the
confrontation issue. In its preliminary instructions to the jurors, the trial court told them nothing the attorneys say,
including their opening statements, is evidence. We presume the jurors heeded this instruction and convicted
appellant based on the evidence adduced at trial, as opposed to the arguments of counsel. (People v. Morales (2001)
25 Cal.4th 34, 47.) We do not believe “the prosecutor’s isolated mischaracterization of the evidence in her opening
argument misled the jury.” (People v. Sanchez (1995) 12 Cal.4th 1, 70.)

31
450, 455.) As he raises the issue solely to preserve it for federal review, we will leave it
at that.
DISPOSITION
The judgment is affirmed.

BEDSWORTH, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

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