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Filed 4/5/11 P. v. Porter CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT THE PEOPLE, F057076 Plaintiff and Respondent, (Super. Ct. No. 1219173) v. HOWARD DOUGLAS PORTER, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. Riordan & Horgan, Dennis P. Riordan and Donald M. Horgan, for Defendant and Appellant. Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Defendant Howard Douglas Porter, a pastor in Hickman, was convicted of stealing from, physically abusing, attempting to murder, and then successfully murdering Frank Craig, an elderly man who had entrusted defendant with his money and his dream of building an agricultural museum. On appeal, defendant contends (1) the trial court erred in admitting the autopsy report and testimony of a pathologist other than the one who conducted the autopsy, (2) the trial court erred in refusing to admit evidence of defendant‟s habit of inattentive driving, (3) the trial court erred in admitting expert testimony of an investigating officer regarding the scene of the attempted murder, (4) the trial court erred in admitting evidence of hearsay statements made by Craig, (5) the trial court erred in refusing to instruct the jury on involuntary manslaughter, and (6) the errors were cumulatively prejudicial. We will affirm. PROCEDURAL SUMMARY On September 13, 2007, the Stanislaus County District Attorney charged defendant with first degree murder (Pen. Code, § 187, subd. (a);1 count 1), physically abusing an elder (§ 368, subd. (b)(1); count 2), first degree attempted murder (§§ 187, 664; count 3), and stealing from an elder (§ 368, subd. (e); count 4). As special circumstances on count 1, the information alleged that defendant intentionally committed the murder for the purpose of financial gain (§ 190.2, subd. (a)(1)) and for the purpose of preventing a witness from testifying (§ 190.2, subd. (a)(10)). On count 2, the information further alleged that defendant caused the death of a person 70 years of age or older during the elder abuse (§ 368, subd. (b)(3)(B)). On count 3, the information further alleged that defendant personally inflicted great bodily injury on a person 70 years of age or older during the attempted murder (§ 12022.7, subd. (c)). And on count 4, the information further alleged that defendant stole more than $150,000 during theft (former § 12022.6, subd. (a)(2)). 1 All statutory references are to the Penal Code unless otherwise noted. 2. On August 4, 2008, a jury found defendant guilty on all counts, and found the special circumstance allegations and the other allegations true. The court sentenced defendant as follows: On count 1, life in prison without the possibility of parole; on count 2, a three-year term, plus a seven-year enhancement, stayed pursuant to section 654; on count 3, life without the possibility of parole, plus a five-year enhancement, to be served consecutively; and on count 4, a three-year term, plus a two-year enhancement, to be served consecutively. FACTS The Museum Project Frank E. Craig was born in 1918 and he lived on a ranch on the outskirts of the small town of Hickman. He was a vigorous, hard-working farmer and he still worked his ranch himself. He was a very frugal and modest man who had never married. He ate from his garden, hung his clothes out to dry, and bought only what he needed. He was highly interested in many subjects, was very opinionated, and had a sharp mind. He liked to do things a certain way, did not care for telephone conversations, and was not a regular churchgoer. Craig had many friends and he enjoyed discussing a wide variety of topics. He was old-fashioned and he believed that trust is very important in a friendship. He believed in the importance of a man‟s word. In 1998, Craig inherited over $2 million from his brother and he decided to fulfill his dream of building an agricultural museum, the Central Valley Museum of Agriculture (CVMA; the museum), with exhibits representing life as it was in the past. He wanted people to see how old machinery worked and how things were done in the past. And he wanted to preserve the history of local Hickman families. Craig‟s house and property were full of antique household items and farm equipment that he had collected for the museum. Craig always talked to his friends about his antiques and his dream of building an adobe-walled museum. The museum was everything to him. 3. Defendant was the pastor of Hickman Community Church (the church). He and his wife, Vicki, lived in Hickman and had three grown children: Aaron, who was married to Holly; Kyle, who was married to Shannon; and Monica, who was married to Judah. Defendant also coached wrestling at the local high school. The church was governed by elders, who met once or twice per month, led by defendant. The elders included defendant, Randall Bergman, Gary Kuhlman, Dave Piazza, and a prospective elder, Bryan Henson. In 1999, defendant told the elders that someone was willing to give a large amount of money to the church. Defendant told them about Craig, a nonbeliever and a cranky old man who did not want his money to go to his family or the government. Instead, he had a vision of a community center and museum. Defendant did not really want to be involved, but he thought it might be good for the church. The building could be used by the church for Sunday services. The elders were not interested in the museum, but they believed the community center could benefit the growing church. The church was conducting three services every Sunday and could use a larger facility. On October 27, 1999, Craig started the project by donating $150,000 into a checking account called the Foundation Fund. Later, another $26,000 was added to the fund. Defendant told the elders that Craig was contributing $1.3 million in a checking account for the museum project, and $500,000 to a trust that the church would not use. The elders had sole authority to determine how the museum project money would be spent. Defendant said it would be okay if money went to benefit the church for the ultimate purpose of benefitting the museum. Defendant was the leader of the museum project and he made all the day-to-day decisions regarding the Foundation Fund. He was the conduit of Craig‟s vision; the elders did not speak to Craig about the project. Defendant told the elders that the money was unfettered and could be used to benefit the church. Early in the project, Foundation Fund money was used to purchase property behind the church, upon which the museum would be built. 4. In November 1999, Craig met with an attorney, Mahon Ford. Craig impressed the attorney as very strong-willed, opinionated, intractable, and somewhat gruff. Craig wanted to amend the living trust he had established in 1993. Craig told the attorney he wanted to use all of his money to establish an agricultural museum. Craig asked the attorney to make the church the beneficiary of all his assets, and defendant the executor of his will. The attorney completely disagreed with Craig‟s suggestions, explaining that Craig should make the museum, not the church, his beneficiary. The attorney told him the elders of the church would be making the decisions and, once he died and his money became church property, the church would have no legal obligation to follow his wishes. Craig refused to listen to the attorney and insisted on proceeding. He made it clear he wanted to build the museum, but he thought he knew the best way to do it. So the attorney made the changes that gave all of Craig‟s tangible property to the trust and made defendant the executor of the will.2 The attorney also prepared a power of attorney giving defendant the power to handle Craig‟s financial affairs if two doctors determined he could not handle them himself, and a power of attorney giving defendant the power to make Craig‟s medical decisions if one doctor determined he could not make them himself. The attorney had the impression that Craig was vibrant and vigorous, acted solely on his own desires, and could not be influenced by anyone. Shortly after the Foundation Fund was established, defendant began spending the money for his personal purposes. For example, on December 3, 1999, defendant wrote a check for contracting work at the home of Aaron and Holly Porter with a check written off the Foundation Fund. 2 The attorney testified that a trustee acts as the manager or caretaker of the trust. He or she has a fiduciary duty to represent the settlor or creator of the trust and to look out for that person‟s best interests. An executor handles the decedent‟s affairs and any probate matters that occur. He or she has a fiduciary duty to act in the best interests of the estate, including selling for the best price, and avoiding self-dealing. 5. On December 14, 1999, defendant paid for plumbing work for Aaron and Holly Porter with a $3,074 check written off the Foundation Fund account. On February 1, 2000, defendant purchased a chainsaw and accessories with a $430.05 check written off the Foundation Fund. Lance Justus, co-owner of a lawn mower and power tool store, knew defendant from his frequent visits to his store. Meanwhile, Cathy Bergman, Randall‟s wife, was keeping the books for the museum project. When she realized she was not receiving the bank statements for the Foundation Fund account, she asked defendant about it, and he told her the statements might be going to Craig or somewhere else. She continued to ask defendant about it for a few months, but he did not have a solid answer and did not seem to know. Cathy decided to call the bank to get copies of the statements. When she received them, she saw that some checks were written to a credit card for defendant‟s personal use, and there were several checks written for cash to defendant. Other checks were for construction done on Aaron Porter‟s home. During this period, defendant had moved to La Grange, where he was building a house on about 15 acres with a pond. His three children later moved homes onto the property. Cathy spoke to her husband, Randall. She told him she was concerned because she was not receiving all the statements and could not reconcile the bank statement. They decided to confront defendant and his wife. When Cathy told defendant he had been writing unauthorized checks off the Foundation Fund account, lying about them, and personally spending the money, defendant said, “Yes, you‟re right,” and he apologized. He said he had been collecting the statements at the post office. He explained that Craig approved it and allowed him to do whatever he wished with the money. Cathy told him the money was in a church account and Craig did not have the authority to authorize expenditures from the account. After her conversation with defendant, Cathy spoke to the church elders. The elders oversaw defendant and had authority equal to that held by defendant. The elders 6. sought legal and spiritual counseling, and decided that defendant would be required to personally repay the approximately $15,000 he had appropriated. Cathy typed a letter to Craig, dated May 3, 2000, stating: “A misunderstanding in bookkeeping has occurred and we would like to inform you of it.” The letter did not mention that the misunderstanding was defendant‟s belief that Craig had agreed to allow him to spend the money however he liked. Nor did the letter mention that defendant had hidden the bank statements. The elders and defendant signed the letter and defendant was supposed to give the letter to Craig to sign. A copy of the letter with Craig‟s signature was in the file. After this, defendant was no longer allowed to sign checks out of this account. The Foundation Fund existed for only a very brief period of time. By March 17, 2000, it had been depleted. An account with A.G. Edwards was opened in 2000 to continue the museum project. The account paid some salaries and initial engineering work. It paid half of defendant‟s $60,000 salary, the $36,000 salary of a fundraiser named James TenNapel, a janitor to keep up the grounds, and Cathy Bergman for an extra day of bookkeeping. Defendant also opened two accounts under the names C & P Investments and East Side Youth Fund, into which defendant eventually transferred hundreds of thousands of dollars of Craig‟s money. Defendant presented James TenNapel to the elders. James and defendant were close. James was enamored with defendant‟s abrupt change of lifestyle and he wanted a similar change of career to a more spiritual pursuit. Late in the fall of 1999, James and defendant had spoken about this, and in early 2000, the museum project hired James to help out and later to raise funds. The plan was for James to eventually become a curator and a pastor. In James‟s opinion, the plans for the museum project were “pretty grandiose plans for a little small town.” James had no experience in fundraising or real estate development. Defendant often discussed the progress of the museum project with James. Defendant voiced his dissatisfaction with the elders, and told James to 7. communicate with him only. James had an office in a temporary building that he shared with Gary Kulhman, the elder, and Lonni Ashlock, who was conducting his business ventures. Lonni ran about a dozen limited liability corporations out of the church. Defendant had no knowledge of that work. Lonni did no work related to the museum project. In November 2000, defendant opened post office box 373 under the names of Milton Bridges and C & P Investments. Milton did not go to the post office to obtain the post office box, he never had a key to it, and he never had anything to do with C & P Investments. Milton wanted his son to go to Hughson High School so he could wrestle. When defendant learned that Milton‟s son would be wrestling, he gave Milton the post office box so his son‟s report card could go there. According to the postmaster, defendant came in alone to obtain the post office box. The postmaster had no memory of meeting Milton Bridges. The postmaster gave defendant one key for the box. Milton told an investigator that defendant was the one who initiated the conversation about Milton‟s son wrestling at Hughson High School. Milton was living in Waterford when defendant approached him. The purpose of having Milton‟s name on the post office box was to establish his residency so his son could wrestle there. Milton‟s son‟s high school registration card listed his address as P.O. Box 373 in Hickman. Craig saw his attorney again in September 2000. Craig told the attorney, in effect, that he wanted to create a special power of attorney giving defendant certain powers. The attorney prepared a document that gave defendant the right to manage, operate, and sell all of Craig‟s farm equipment; manage, control, and sell his household furnishings; and manage, control, and sell the rest and residue of his personal property, including his vehicles. The attorney got the impression that Craig was overwhelmed with the amount of tangible property he owned and was trying to relieve himself of some chores. Again, the attorney believed Craig was doing what he wanted without undue influence from 8. anyone. If the attorney had believed otherwise, he would not have allowed Craig to sign the papers. The next week, the attorney received a call from A.G. Edwards‟s attorneys because Craig wanted to grant someone access to his accounts there. The attorney communicated several times with the attorneys from A.G. Edwards, who were concerned about the company‟s liability. Ultimately, the attorney prepared a power of attorney that gave defendant power over the A.G. Edwards account. Defendant was not yet a cotrustee of Craig‟s trust, so this gave him authority over a portion of the trust assets. The attorney made sure Craig understood the ramifications of giving defendant power over his accounts, but Craig did not hesitate. James TenNapel, who was living in Turlock, told defendant he wanted to move to Hickman. In March 2001, James talked about a piece of property right across the street from the church. At that time, he had not raised any money for the museum project. Defendant gave James a gift of $30,000 to help him buy the property. The check was written off Craig‟s trust account and signed by defendant. Defendant signed a gift letter for the bank, stating that the $30,000 was a bona fide gift and James had no obligation to repay it at any time. The money allowed James and his wife to qualify for the home loan. Defendant told James not to talk to Craig about the check. James and his wife wanted to thank Craig, but defendant told them not to. On January 17, 2001, Kent Hancock, a used car salesman, sold Craig‟s old truck on consignment. Kent issued a $9,000 check to Craig, but it was deposited in the C & P Investments account. Kent often saw defendant driving Craig‟s new truck. By June 2001, the elders were questioning James TenNapel‟s performance. In September 2001, he had still not brought in any funds and the elders threatened to fire him. Shortly thereafter, they did. He never produced any funds whatsoever for the museum project. At some point, the elders established the policy that the museum accounts should not be used to pay regular church expenses. The accounts could, however, be used to 9. upgrade the church property to improve the prospect of fundraising for the museum project. The money was used to pave around the church, add wheelchair ramps, buy an $8,000 telephone system, and pay for a $20,000 retreat for those working on the project. In the second or third year of the project, around December 2001, Cathy quit the museum project because she was not comfortable with the way it was going and she thought things were too hard to keep track of. She put all the papers in a box and handed it to defendant. At that point, there was very little money left. Around this time, defendant started referring to the $30,000 he had given James TenNapel as a loan. He asked James to pay it back, which James did not do. In early 2002, the elders decided the church should no longer be involved in the museum project and they divested the church from the project. Defendant told the elders he would continue to work on the project. Some of the property acquired for the museum project was sold, but the church did not receive any of the proceeds. Right before the 2002 collision, defendant told James TenNapel that if Craig were gone, there would be a lot of money available for the project and it would take the pressure off all of them. Things would be better. By March 2002, the cash was gone and defendant‟s personal accounts were overdrawn. The 2002 Collision On March 5, 2002, Ronald Zanker, a farmer who lived in a rural area on Lake Road about three miles west of La Grange, heard a crash. His house, which was the only one in the immediate area, was set off the road about 50 feet and was not visible from the road. There had been about 25 crashes near his house in the 35 years he had lived there. After he heard this particular crash, he did nothing because he had not heard any tires squealing. About five minutes later, a stranger came to his house and reported the crash. Ronald had his mother call 911 and he went out to the crash site. He saw defendant, apparently uninjured, standing at the driver‟s side of the truck, talking to the man who 10. had come to Zanker‟s house. Defendant was not crying and did not seem distraught or shaken up. Craig was in the passenger seat, unable to move and in a lot of pain. Ronald stood by the passenger‟s side of the truck. At no time did Ronald see defendant caring for Craig or consoling him. About 10 minutes later, Nancy Stout, an emergency medical technician (EMT), arrived. She asked Ronald to assist her by holding Craig‟s neck from the back seat. He heard Nancy asking defendant questions as she continued to examine Craig. Defendant was now standing near the passenger door. Defendant told her Craig‟s seat belt was over him, but not latched; Craig did not like to wear seat belts because they were uncomfortable. The seat belt was not on Craig. Ronald observed that the driver‟s airbag had deployed, but the passenger‟s airbag had not. He could see that the airbag switch had been turned off. Nancy asked defendant why it was off and he told her he had had children in the vehicle recently. Ronald checked the roadway for skid marks approaching the oak tree, but found none. When he looked at the tire tracks in the sandy shoulder of the road, he observed that the tracks went straight to the oak tree, without any turning. Ronald testified that there had not been a crash at that particular tree, either before or after this one. Nancy Stout was the first of the emergency personnel to respond. She found a full-sized pickup that had hit a tree with its right front quadrant passenger side. Defendant was out of the truck, wandering around the passenger side. He seemed a little dazed, but perfectly conscious. Nancy asked him if he remembered what happened, and he said he might have fallen asleep and swerved off the road. Craig was in the passenger seat, unconscious and moaning. Nancy noticed the passenger airbag had been turned off with a key. When she pointed that out to defendant, he said he had had a couple of kids in the truck and had forgotten to turn it back on. Craig suffered multiple injuries. Nancy stabilized him until he was removed by helicopter. At about 1:40 p.m., California Highway Patrol (CHP) Officer Timothy Green arrived to investigate the scene. The weather was clear and dry. The speed limit on Lake 11. Road was 55 miles per hour and the lanes were 12 to 15 feet wide. Between the road and the tree were another 12 to 15 feet of plowed dirt with a small berm. The truck had sustained major damage caused by the collision to the right passenger side. The officer determined that the truck was registered to defendant, and that Craig was 83 years old. The officer saw no visible injuries on defendant, but Craig had sustained severe injuries, including two broken legs. The officer spoke to defendant only briefly at the scene before he was transported to the hospital, then conducted his actual interview with him at the hospital at 6:35 p.m. Defendant reported that he was travelling eastbound and he believed he possibly dozed off while driving. He did not mention anything about another vehicle. Defendant‟s story, however, did not match up with the physical evidence at the scene, where Officer Green observed “actual steering input which caused the vehicle to leave the roadway”— in other words, “the vehicle was directed to go there by actual turning [of] the wheel.” The steering input caused the vehicle to go off the roadway. The vehicle did not drift off. When a driver falls asleep, the vehicle continues in the direction it was travelling when the driver fell asleep. In addition, the officer observed that defendant‟s vehicle had left the roadway before reaching the curve in the road. There was a tire track off the right side of the road, showing there had been steering input, from which point the vehicle continued almost in a straight line to the tree. There were no signs of swerving or movement to avoid the tree, and there was no evidence of braking, such as skid marks or sliding dirt tracks. The vehicle was rolling, not sliding. When the officer told defendant that his observations of the scene were inconsistent with his falling asleep, defendant became very vague, then he became agitated by the officer‟s questions. Eventually, defendant explained that there was another vehicle that crossed over the line. He said he was tired and he closed or squinted his eyes. As he reopened them, he saw another vehicle coming over the line toward him. He then tried to drive through the fence or between trees. Defendant had never 12. mentioned the other vehicle before, and Officer Green had seen no evidence of another vehicle at the scene. Defendant‟s Toyota Tundra four-door pickup truck was equipped with seat belts. The driver‟s seat belt showed stretching and clothing fibers due to its use during the collision. The passenger‟s seat belt showed no stretching, indicating it had not been used during the collision. Furthermore, it was in a locked position, either from being stuck or from being trapped in the damage, and thus could not have been used. There was no evidence it had been disabled purposely. The vehicle was also equipped with driver and passenger airbags. The driver‟s airbag had been deployed, but the passenger‟s had not. The airbag switch on the dash had been turned off with the vehicle key. In Officer Green‟s opinion, based on his training and experience, the driver was wearing a seat belt and his airbag deployed, and the passenger was not wearing a seat belt and his airbag was turned off and did not deploy. Craig was treated by Dr. Raymond Cimini in the emergency room. Craig had multiple abrasions and contusions, multiple facial lacerations, a broken pelvis, broken ribs, blood accumulated in the chest cavity (hemothorax), a bruised lung (pulmonary contusion), a crush injury to his arm, a fractured sternum, and two broken legs (femurs). He suffered a lot of pain due to these injuries. Craig also had anemia and low blood pressure due to blood loss from his many broken bones. He received 20 blood transfusions in 15 days. Dr. Cimini opined that a young person in reasonable health would require three to six months to recover from these injuries. The day after the collision, Craig had surgery to repair his broken legs. Several hours later, his heart stopped and he required resuscitation. Within a few days of the collision, defendant told James TenNapel what had happened. Defendant said an oncoming car was coming over the line into his lane. The next thing he knew, he was off the road and into the tree. A week or so later, James brought up the collision and asked defendant directly what had happened. This time, 13. defendant gave him a different story. He did not mention a car crossing into his lane. He saw a car coming, but it did not force him off the road. He did not remember what happened. The next thing he knew, he was off the road and into a tree. On a third occasion, James asked defendant if he had remembered what happened. This time, defendant told him he might have fallen asleep, an account James had heard others say defendant was now giving. Defendant and James did not speak about the collision any further. On March 11, 2002, Carol Stevens, an insurance investigator, met with defendant in a trailer that was on his property in La Grange where he was building his home. Defendant was cooperative. He told the insurance investigator that at the time of the collision, he and Craig were heading to Villa Greens Museum to look at some antique mining buckets. He said Craig was a semi-retired farmer with a 20-acre farm. Defendant had known Craig since he was in high school. Defendant volunteered to the insurance investigator that he had Craig‟s power of attorney. She asked, “So therefore you must be good friends with Mr. Craig?” Defendant answered, “Yes, fairly close friends.” When she asked about seat belts, defendant told her that Craig hated seat belts and had a habit of pulling his shoulder strap down and putting it under his arm because he did not like being pinned with the seat belt. When they got in the truck that day, defendant asked him to buckle up, but he did not see him do so and did not see him pull the strap down. Defendant said he was going eastbound toward La Grange at about 45 to 48 miles per hour. He travelled the road often and knew it fairly well. He was tired because he had been up late the previous night while visiting someone in the hospital. He put his hand up to rub his eyes and when he took his hand away, he saw a white vehicle coming across the double yellow line from taking the turn too fast. The vehicle was 15 to 20 yards away. Defendant responded by veering slightly to the right, intending to drive between two large trees on the right shoulder, through the cattle guard fence, and into the field. When he attempted the maneuver, his wheels went over the small dirt berm, which was 14. 12 to 16 inches high, and jerked the truck to the right, causing him to hit the tree. After he hit the tree, he looked in his rearview mirror and saw the white vehicle leaving the scene. He thought the occupant(s) of the white vehicle would have seen him crash. His airbag deployed and caused him to lose consciousness momentarily. He did not remember hitting the tree. He had turned off the passenger air bag because his daughter- in-law asked him to do so when he had his granddaughter in the front seat. Craig‟s head cracked the windshield. After defendant regained consciousness, he got out of the truck and tried to open Craig‟s door. Craig was only half-conscious and he said, “I‟m hurting pretty good.” At some point, defendant tried to call 911, but his cell phone had no reception. Defendant finally jerked open the door and fell backward as he did. He felt nauseated. A passer-by in a blue car stopped and defendant asked him to go to a nearby farmhouse for help. On March 23, 2002, about three weeks after the collision, the insurance investigator interviewed Craig at a rehabilitation center. He was in a lot of pain and was upset about the collision. When they talked about his insurance coverage, he said, “I hope someone has plenty of money to pay for this.” Craig was very unpleasant; he was “kind of a cro[t]chety old guy.” He was grumpy and mad at the world. He refused to sign a medical authorization due to the condition of his arm, and told her defendant had power of attorney and could sign any necessary forms. Robert Oats, an adjustor for the insurance company that insured defendant‟s truck, was assigned defendant‟s claim. His company had hired the insurance investigator to investigate the case. Defendant‟s truck was determined to be totaled. The insurance company paid the bank the balance of defendant‟s loan, then paid defendant the remaining value of the truck, $3,180. Defendant‟s policy limits were $5,000 per person for medical and $250,000 per person for bodily injury. In their first conversation, on March 22, 2002, defendant told the adjustor that Craig would not file a claim against him. During their communications, 15. defendant informed the adjustor that he had Craig‟s power of attorney. The adjustor testified it was unusual for an insured party to have power of attorney over the party who had suffered great bodily injury. The adjustor had never seen that situation before. When the adjustor informed defendant that Craig told the insurance investigator someone had better have a lot of money to pay for his injuries, defendant told the adjustor that Craig was old and cranky, and would not sue defendant. He told the adjustor that Craig disliked and distrusted attorneys. Based on the adjustor‟s experience, if defendant was negligent and responsible for the collision, the value of Craig‟s claim would have exceeded the $250,000 policy limit. The adjustor discussed the possibility of a third party claim and defendant consistently told him that Craig would never file a claim against him unless he told him to do so. Defendant also told the adjustor that at the time of the collision, Craig was asleep. Defendant did not say he had fallen asleep. At some point, defendant called the adjustor and said he was ready to resolve his claim. On March 28, 2002, defendant‟s insurance company issued a check to Craig for $5,000 to cover his medical expenses. Then, on July 24, 2002, it issued another check to Craig for $25,000, which stated “Full and final settlement of all claims.” The check was endorsed with two signatures, one in Craig‟s name and one in defendant‟s, followed by “P.O.A.” (for power of attorney). The adjustor sent a release form to defendant and it was returned with Craig‟s notarized signature. Because of the power of attorney issue, the adjustor had concerns about settling the case for $25,000. The adjustor never met or spoke to Craig; he dealt only with defendant and the insurance investigator on this claim. After the final settlement and release, the investigation was closed. In May 2002, Craig‟s attorney received a call from defendant, informing him that Craig had been in an accident and defendant did not think that Craig, who was hospitalized, could act as a trustee anymore. Defendant said Craig wanted to name him as cotrustee of his trust. The attorney prepared the appropriate document, but when he and defendant went to the hospital, Craig was sleepy, in pain, and apparently medicated. 16. The attorney refused to allow Craig to sign the document. A week later, however, Craig was mentally alert and he signed the document, which gave defendant and Craig equal power to act independently, with the exception of buying and selling real estate, which required them to act together. The Period Between 2002 and 2004 After the 2002 collision, Craig was hospitalized for about six months and then he was moved to a rehabilitation center for a few more months. When Craig‟s longtime friend, John Veldhuizen, visited him in the hospital, Craig expressed his concerns about the museum project. Craig said defendant told him the foundation had been poured for the museum. Craig asked John to go see if it was actually happening. John agreed and went to the site, but there was no foundation being poured. When he returned, he told Craig there was no foundation or anything else. He told Craig he could take back that power of attorney any time he wanted to, but Craig changed the subject. During the time Craig was in the rehabilitation center, John checked the museum site about five times, and each time returned and told Craig that nothing was happening. He always told Craig he could change his power of attorney, but Craig always changed the subject. When Craig finally came home, he was still bedridden with a catheter and a diaper. His legs and his right arm had completely atrophied, but his mind was still impeccable. A bed was set up for him in the former dining room. Things had been changed at his house. His personal belongings had been moved out of his living room and dining room. His living quarters were emptied out and his belongings had been moved into the bedrooms, the barns, and storage containers on his property. Craig‟s own bedroom had become a storage room. The microwave that he used often was found in the most distant metal storage container on the property. The coffee grinder that he had mounted on the wall and used every day was never found. Items that should not have been outside were in the elements. Craig was furious. Some 17. of the trees on the property had died because they had not been irrigated. Defendant was supposed to have taken care of Craig‟s property while he was in the hospital. Craig knew that defendant had taken his clock and other things, and he was upset. He asked defendant to return them. Defendant had also taken the $4,000 or $5,000 that Craig had hidden in one of his clocks. Defendant told Craig he was keeping the money safe at his house. Tim and Michelle Pittman, who were like family to Craig, met defendant for the first time when Craig came home from the hospital. Craig told Tim he had given defendant the power of attorney to build the museum because Craig considered defendant a responsible person in the community to do the job. Craig had worked with defendant‟s grandfather, watched defendant wrestle when he was in high school, and knew he was the pastor of a local church. For a while, defendant visited Craig three or four times per week, and took Craig to his doctor‟s appointments. But within a month, defendant‟s visits tapered off and Craig would complain that he had not seen defendant for several weeks at a time. He was upset that defendant had stopped coming by. Craig lived only a few miles from the church. At first, defendant brought in Martin, a man in his mid-thirties, to stay with Craig and care for him. Martin had come from Mexico for a church learning mission. He had no experience caring for a disabled person. The day after Craig came home, Tim and Michelle Pittman went to see him. Martin had left Craig outside too long on the previous day and his legs were severely sunburned and blistered. Michelle believed Craig should have been taken to the hospital. At this point, the Pittmans realized Craig was not being cared for properly and they needed to be there. The Pittmans went to Craig‟s house almost every day after work and spent three or four hours with him. On the weekends, they stayed all day. They changed his diapers, bathed him, fed him, and did his laundry. They brought him a hospital bed and a push-button telephone because his hand was now 18. too crippled to use his rotary telephone. As he regained some strength several months later, Tim welded a trapeze bar Craig could use to move himself in the bed. As the need arose, the Pittmans did things to make Craig‟s life easier. When Craig was able to sit up, they brought him a wheelchair. Defendant talked about getting Craig a wheelchair, but he never did it. Michelle spoke to defendant about providing physical therapy for Craig. Defendant arranged for a physical therapist to come to Craig‟s house and Craig started making tremendous progress. The physical therapist came two or three times per week for a few months, but then defendant fired him. Defendant told Craig he would be moving to a nursing home because his insurance would cover the stay and the physical therapy. Craig told defendant he did not want to go, but defendant told him he would get good therapy there. When Craig returned home from the nursing home 30 days later, he did not receive any further physical therapy. Michelle was present during some of the conversations between Craig and defendant. Some were amicable, and some were contentious and argumentative. Defendant had a way of controlling conversations, manipulating things so the other person could not “get a word in edgewise.” Michelle described defendant‟s effect on Craig as “hypnotic manipulation.” She said that Craig himself was aware of the effect that defendant had on him. After several months, Michelle told defendant that Martin needed to be removed. Martin was not taking care of Craig and it was obvious Martin had a drinking problem. And Martin had full use of Craig‟s truck, which infuriated Craig. One evening, Martin left Craig outside when he went to bible study. Neighbors came to feed Craig dinner, as arranged, and Martin was supposed to return to put Craig to bed. But Martin did not return until 2:00 or 2:30 a.m. and Craig remained outside alone and unable to move until then. At this point, Michelle told defendant that Martin had to go. Defendant told her he had been aware that Martin had a drinking problem. 19. After letting Martin go, defendant brought in a young female relative, but she just fed Craig lunch, then left. Michelle continued to come every day to cook dinner. By this time, Craig was able to sit in a wheelchair. He had been unable to sit up by himself for several months. He still could not use his hands, but he could shuffle his feet to move from room to room. Michelle was concerned because no one was staying with Craig at night. She frequently spoke to defendant, telling him to find someone to stay in the house, which he never did. She was very frustrated. The Pittmans were afraid that if foul play was involved in the 2002 collision, defendant might try to burn down the house with Craig in it during the night. They offered to stay with Craig or to take him back to their home, but Craig refused. He said he would be fine and he wanted to stay in his home, where he had lived since the 1950‟s. He was very stubborn about doing what he wanted to do. But Michelle found a teenager, Richard Peterson, to stay with Craig. Richard knew Craig and he helped out around Craig‟s house. The Pittmans taught Richard how to care for Craig and they were very comfortable with the care he provided, but they did continue to bathe Craig, come on two evenings and Sundays, and feed him dinner. Defendant began driving Craig‟s truck, and continued driving it until it was involved in the fatal crash. On October 16, 2002, defendant wrote a check for $928.50 to the tax collector off Craig‟s personal account for the property at 859 I Street in Hickman in the names of defendant and his wife. Craig realized he was receiving only junk mail at his house. He was not getting his bills and other things. He was upset and wanted to know where his important business mail was going. He told defendant to have it returned to him, but it never was. Every time Craig‟s friend, John Wassum, visited, usually on Sundays when the Pittmans were there, Craig would tell him, “I‟m not getting my G. D. mail. I‟m getting nothing but junk mail.” 20. One day, Tony Silveira spoke to defendant when they were passing each other on the road. Tony asked defendant how the museum was going and defendant told him “there wasn‟t going to be a museum.” He said something about competition with another museum. On December 5, 2002, defendant applied for a credit account under the CVMA name at a farm supply company in Waterford, listing both himself and Jerry Morgan as authorized purchasers.3 Defendant signed the application and added “Boss.” Defendant purchased many items with that account, including horse feed, a ladder, a power grinder, a power lawn mower, car oil, herbicide, fence posts, a 100-piece socket set, a boat battery, a trailer hitch, a padlock, and a bolt cutter. Some of the invoices were signed by defendant and some were signed by Jerry Morgan. On January 17, 2003, defendant bought $2,000 worth of trout for the pond on his La Grange property with a check written off the CVMA account. On June 6, 2003, defendant purchased a riding lawn mower and other items totaling $5,033.79 from Lance Justus‟s store. On August 1, 2003, defendant purchased a pump for $613.98. These two checks were written off the CVMA account. Defendant did not explain to Lance what CVMA stood for and did not say anything about museum business. The lawn mower was delivered to defendant‟s residence. Turlock House Movers moved three houses onto defendant‟s property in La Grange between 2002 and 2004. Defendant wrote a $10,000 check on June 4, 2003, and a $6,000 check on October 10, 2004, to Turlock House Movers off the CVMA account. In 2003, Hensley Paving paved a road to the back of defendant‟s house on his property in La Grange. Defendant was billed for $29,938, but he did not pay in full immediately. He said he could not pay for the total bill and would have to make 3 Jerry Morgan had known defendant for many years. He was an elder-in-training. 21. payments. On June 6, 2003, defendant paid $5,000 from the CVMA account and over the course of nine months, he paid the remainder from his personal account. On September 28, 2003, defendant applied for a credit account at a building supply store in the name of CVMA, Inc. at P.O. Box 373, Hickman. Defendant told the bookkeeper, and stated on the application, that he was the president of CVMA and Lonni Ashlock was the vice president. Only defendant was authorized to make purchases on the credit account. Defendant charged over $24,000 on the account between September 2003 and September 2005. Twenty-eight of the orders were made following Craig‟s death. In addition, defendant made other purchases with checks written off the CVMA account, which ranged from less than $100 to over $6,000. Some invoices referred to addresses on defendant‟s property in La Grange and many purchases were delivered to that property, and some referred to his children‟s names. On September 28, 2003, defendant paid for plumbing work at Aaron Porter‟s house on the La Grange property with a $4,575 check written off the CVMA account. On October 6, 2003, defendant paid building permit fees for electrical service for an irrigation pump on defendant‟s property in La Grange with a check written off the CVMA account. In 2003, the church submitted a use permit application to the planning department, specifying a 12,500-square-foot church multipurpose area with a 5,000-square-foot exhibit hall, plus classroom buildings and an amphitheater. Several months after the 2002 collision, Tim Pittman took Craig to view the museum site behind the church on at least five or six occasions. Nothing had been done and Craig was upset. He told Tim that certain things were supposed to have been done and they had not been done. Craig told the Pittmans what he wanted to happen to his property upon his death. Craig owned his ranch and a rental property next to the church. Craig said the property was never to be sold and the profits from renting it would be used to support the 22. museum‟s upkeep. Similarly, all of Craig‟s money and personal belongings were to go to the museum. It was not his intent that defendant benefit personally. In fact, Craig told Michelle that defendant was not getting anything for the museum project. About four or five months before his death, Craig heard that the property next to the church had been sold. He was furious and in disbelief. Craig also felt strongly that he did not want his ranch sold to the nursery adjacent to his property. He did not like the nursery because he believed the farm land was not being used as it should because the nursery spread gravel on top of the soil and grew potted plants on top of the gravel. In 2003, Randall Bergman spoke to defendant about forming a new board of directors for the museum project to replace the elders. Defendant said he had created a board, and he named the people on the board. Defendant told Randall that the museum project was hung up by permits and water issues. During the period between the summer of 2002 and early 2004, defendant spoke to James TenNapel on several occasions about Craig‟s future health. Defendant reiterated the following sentiment: “If the old man was not around anymore, this would all be a lot easier and would be taken care of.” James had suspicions about defendant after the 2002 collision, which he expressed to his wife and Jerry Morgan. During the last few months of his life, Craig talked about the museum almost every day. He wanted to proceed, but nothing was getting done. Craig‟s feelings about defendant were changing. He told the Pittmans that he wanted to remove defendant from control over the project. He was angry and disappointed. He said he had been a fool. He was devastated that nothing was getting done and he was growing impatient. He started looking at different contractors to get the project done. He told the Pittmans “[h]e was going to pull the plug on [defendant] and hire a contractor to do the job.” He said he was going to “cut [defendant] out” of the project. Michelle told Craig he should call his attorney and legally make the change, and Craig also talked about calling the attorney. 23. Craig told the Pittmans he wanted them to have his ranch. He was very serious about it and they all spoke about the Pittmans moving into the house and living with Craig. They discussed modifications they would make to the house to improve Craig‟s accessibility. Craig realized that his museum dream might not be realized. He was afraid of what was going to happen to his land; he was afraid it would be sold to the nursery. He saw that the Pittmans cared for and worked his land and he wanted them to have it. Michelle told Craig that if this was what he wanted, he needed to talk to his attorney and change things. Craig said he would tell defendant about his changed plans. During this time, Craig sent defendant messages through Richard Peterson asking that defendant call him. Craig was angry that defendant was not responding. Allan Craig, Craig‟s nephew who had visited Craig every two weeks during the period between 2002 and 2004, knew that Craig was afraid. About six or eight weeks before his death, Craig told Allan, “Someone is going to burn me out.” He was already missing some guns. Allan thought Craig had decided he had made a mistake. Paul Harvey visited Craig at least once per month. Their last visit was about 10 or 12 days before Craig‟s death. Craig was very upset because nothing was happening on the museum project. He said that things were bad. Paul asked him what was wrong, and Craig answered that defendant was taking all of his money. He said he was going to confront defendant and he was going to revoke the trust. Paul suggested Craig call his lawyer or the sheriff, but Craig said, “No. I got myself into this mess, I‟ll get myself out of it.” Craig made one request of Paul. He pointed his finger at Paul and said, “If I die for any reason except in my bed, you make sure justice is done. It will be up to you, Mr. Harvey.” Henry Whitney was married to Craig‟s niece, the daughter of Craig‟s sister, Mary Gibbons. Henry had known Craig for 50 years. Craig had spoken to Henry about the museum project many times, starting in approximately 2001. The last time the Whitneys saw Craig was one week before his death. Craig was very excited and energetic because 24. his physical condition had improved so much. He was proud that he could lift his right arm and he could walk across the room. Craig told Henry that he was very disappointed in the museum project. He said, “Nothing is happening in my museum project.” He expressed frustration with defendant. He said, “[Defendant] spent all my money building his house up there at La Grange and he hasn‟t done anything about my museum.” Craig was very upset about defendant‟s compound in La Grange. Craig told Henry he was afraid all of his money was gone, but he was going to confront defendant about the project and make changes in his relationship with defendant. Craig said, “I think all my money is gone and I may not be able to get it back. But I want to get it back and I‟m going to make a change. [¶] … [¶] [W]hatever is left, I want to get it back.” Every time Craig talked to Henry about his frustration with the museum project, Henry suggested that he do something different. And when Craig told him about his concerns and fears of defendant, Henry told him to call the police, but Craig asked Henry not to say anything to anyone about his fears. Henry respected Craig‟s privacy and did not call the police himself. Craig was a very independent and private person. According to Henry, Craig and his sister, Mary, were on good terms. The whole family was delighted that Craig‟s dream would be realized. The Whitneys did not know Craig had cut Mary out of his will until Craig‟s death. At the time of Craig‟s death at age 85, he was still bound to a wheelchair. He was completely disabled and could do nothing to care for his property. But he was gaining strength and could transfer himself from his bed to the wheelchair and to the toilet. He was making so much progress that the Pittmans expected him to start walking with a walker fairly soon. He remained mentally alert and aware. He had a good mind and was interested in things. Michelle had not seen defendant at Craig‟s house for over three months. On April 21, 2004, the day before the fatal crash, James TenNapel was in his field that bordered on the canal when he saw Craig‟s truck travelling southwest on the south 25. canal bank.4 He saw one person in the truck. The truck was travelling as fast as possible without going off the road. James estimated the truck‟s speed to be at least 50 miles per hour. He could not believe how fast the truck was going. He and his coworker thought someone had stolen Craig‟s truck. He considered the possibility that the truck would end up in the canal. That evening, the elders held a routine meeting. They decided the museum project should be put on hold because Craig‟s family had brought litigation over defendant‟s position as Craig‟s caregiver. Also, defendant requested a leave from the pulpit to go to Mexico, but the elders decided defendant would not be going to Mexico at that time. When Bryan Henson opposed defendant‟s request, defendant said to him, “You know, Bryan, he‟s an old man. He‟s not going to live forever, and for all you know, he could be dead tomorrow.” He also said, “[A]nd when he dies, we don‟t have to do the museum. We don‟t have to put it up.” Bryan was taken aback and did not respond. When defendant said, “Things would be easier if [Craig] were dead,” one of the elders said something to the effect of, “You didn‟t mean that. Don‟t joke about that.” Gary Kuhlman responded that defendant should be careful and that was not a good thing to say. Jokes were made regarding possible demise scenarios, including, “You mean, [defendant], like a car crash?” People were laughing and snickering. Defendant did not respond. At the time, Bryan trusted defendant and did not believe he was going to kill Craig. Similarly, Randall Bergman did not take the statement as a threat. The 2004 Fatal Collision On April 22, 2004, James TenNapel and his coworker saw Craig‟s truck on the north canal bank, travelling southwest at a “pretty good rate of speed,” although not as fast as the day before. James explained that if 20 miles per hour was a safe speed, then 4 As the witnesses did, we use canal bank to refer to the dirt roadway alongside the canals. 26. the truck was going between 30 and 40 miles per hour. There were two people in the truck. José Vasquez was irrigating an orchard. When he was waiting in his truck facing south, in the direction of the canal, he saw defendant about 50 feet away, walking toward him. Defendant was dripping wet and exhausted. He said he needed help. He explained that he and his buddy had fallen into the canal and his buddy had not made it all the way out yet. Defendant and José started walking toward the canal at an average pace. They walked about half the orchard‟s length to reach the canal. When they crossed the footbridge, José realized Craig was still in the canal in the southeast corner of the canal and the footbridge, right by a house. Craig was purple. José called 911. José and defendant pulled Craig up onto the bank. Within about two or three minutes of arriving at the canal bank, defendant started CPR. He pumped Craig‟s chest for two or three minutes and tried mouth-to-mouth resuscitation a few times. Paramedics arrived about 10 minutes after José‟s 911 call. During the entire incident, José never saw any response from Craig. When defendant stopped CPR, he had a worried, shocked look on his face. José had driven on the canal bank that day and did not remember seeing any rocks. Gregory Mattes, a volunteer firefighter and EMT, was dispatched to the Ceres Main Canal and Swanson Road. He arrived within a few minutes of receiving the call and just as the paramedics were arriving. He saw Craig on the ground and defendant standing next to him. Craig was very pale and he was not breathing. He appeared to be dead. Defendant showed no emotion and did not behave in the manner typical of that type of situation. Gregory had never seen a person in defendant‟s position expressing no emotion of any kind. Defendant stood by and watched while Gregory administered CPR to Craig. José Vasquez was standing off to the side, distraught. This case stood out in Gregory‟s mind because it was the only case in his career where the person involved had shown no emotion or shock whatsoever. 27. Randall Bergman received a call from the church secretary that defendant had been in an accident. Randall lived just a few miles from the canal, so he drove to the site. He saw Craig‟s truck in the canal. He spoke to defendant and tried to console him. Defendant was cold and wet. He was very disturbed. Defendant said Craig wanted to look at some orchards and they were driving on the canal bank. Defendant saw some rocks and the next thing he knew he was in the canal. Gary Kuhlman also went to the canal. Defendant told him that he and Craig were driving along the canal, talking about a particular piece of paper. The paper fell to the floor and defendant reached down to get it. He turned the wheel a little, the tire caught a rock and then the edge of the canal, and the truck went into the canal. Defendant seemed exhausted and very distraught. He seemed not to be able to believe what had happened. Gary took defendant to the hospital to identify Craig‟s body. John Veldhuizen drove to scene. He was familiar with the canal bank where the crash occurred and knew that large rocks were not often on the canal bank. Tony Silveira arrived and he saw Craig‟s pickup truck in the canal. Tony was familiar with the canal bank and did not recall any large rocks on it. He had driven on the canal banks a lot and he had never seen any rocks on it. He thought the canal bank had just been scraped. Tim Pittman arrived as the officers were conducting an investigation. Tim saw four or five rocks piled on the canal bank, although there were no other rocks on the canal bank as far as he could see in either direction. When Michelle heard the news, she was packing up dinner to take to Craig. CHP Officer Daniel Crooker was trained in collision investigation and had investigated about 1,000 collisions. He arrived at the scene at about 4:18 p.m. Two sheriff‟s patrol vehicles were already there. Defendant was sitting on a wooden box at the footbridge. Some family members and José Vasquez were also present. Defendant told Officer Crooker he was driving westbound on the north bank of the canal. He 28. observed some large rocks on the canal bank. His right tires drove over the rocks and bumped his steering wheel to the right. He steered to the left to reposition the vehicle back into the center of the canal bank and the next thing he knew, he was in the canal. The truck‟s cab started filling with water immediately because his window was down. He got out of the truck and walked over the bed to the passenger side. He tried to open the passenger door, but it was locked. He returned to the driver‟s side, swam through, and rolled down the passenger window. He went back outside, walked behind the bed, and returned to the passenger side. He reached in and tried to release Craig‟s seat belt, but he could not unfasten it. He went back to the driver‟s side, got into the truck, and released Craig‟s seat belt. He exited the truck again, went back over the bed, and removed Craig from the passenger side window. Defendant swam while dragging Craig with his head above water to the southwest corner of the canal and the footbridge. After speaking with defendant, Officer Crooker looked at the scene. He saw a relatively clean dirt bank with four rocks on it. There were no other similar rocks in the region. He saw two fresh tire track marks, but no evidence the track marks had been veered off by the rocks. One rock had a black tire smudge mark with striations from the tread pattern on the edge of the tire. The right front tire of the vehicle had struck two of the four rocks. The two dislodged rocks were lined up in a straight line roughly parallel to the canal bank. There was no indication that the vehicle was pushed in any direction by the rocks. After the track marks passed by the rocks, they followed the canal‟s gradual curve to the right without deviation, then after about 100 feet, the tracks made a sudden and abrupt turn to the left and they terminated at the concrete lip of the canal. The vehicle moved exactly along the canal‟s curvature after hitting the rocks. In total, the truck travelled between 131 and 143 feet after hitting the rocks before it entered the canal, which would have taken about three seconds if the vehicle was going 35 miles per hour. The pickup truck was submerged in the canal, facing southeast. Officer Crooker collected the rocks as evidence. He noticed that the dirt on the rocks was courser, 29. grainier, and darker than the fine, light dirt on the canal bank. The dirt on the four rocks was similar. Officer Crooker did not see any footprints around any of the rocks. After examining the scene, Officer Crooker decided the physical evidence did not match defendant‟s recitation of the facts. There was no movement of the vehicle to the right after travelling over the rocks and no indication of loss of control before or after the left turn. The tracks were crisp, clear, and aligned, and when they veered off to the left, they were smudged, as could happen during the slight sliding of a left turn on a dirt road. Four tire tracks could be seen going into the canal because, during a turn, the rear tires track to the inside of the front tires. There was no sign of braking. If defendant had braked in the loose dirt, the tires probably would have locked up or grabbed intermittently and caused a smeared tire tread pattern. Based on defendant‟s statements, José‟s statements, and José‟s 911 call, Officer Crooker determined that the fatal collision occurred at 2:55 p.m. Ray Mendonca, the canal rider for the Turlock Irrigation District, followed the release of water every day from the Turlock Lake reservoir down into the canals and to the ditch tenders. He spent most of his days on the canal banks. To maintain the canal at the same level, he had to be at certain locations at certain times every day. Because the water was scheduled for use, he tried to reach his locations within a five-minute window. He travelled the canal bank where the fatal collision occurred three to four times per day. On that day, he was in that area between 11:00 and 11:15 a.m., driving west on the north canal bank. Later in the day, he was returning to check things when he saw the commotion surrounding the collision. He was told that defendant said he had hit some rocks on the canal bank. A detective showed Ray the rocks, now in the patrol vehicle. Part of Ray‟s job was maintaining the canal banks and removing obstacles, including rocks. There had been no rocks on the bank when he travelled that area that morning. He absolutely would have noticed them. Ray had seen rocks on canal banks in the past, but he had never seen rocks of that size in that area. Rocks like those were typically found 30. upstream, about five miles east of Hickman, whereas the site of the collision was more than a mile west of Hickman. When he was travelling the canal bank that day, he did not notice rocks anywhere west of Hickman. There might have been rocks flattened into the soil, but no rocks sitting on top of the ground. David Paradis, an emergency room physician, was working at Memorial Hospital when Craig was brought in at 3:39 p.m. He was dead on arrival. He was blue and he had no pulse, blood pressure, corneal reflex, spontaneous respirations, or spontaneous movements. He had vomit in his airway, which was consistent with a drowning death. In the process of drowning and ingesting water, the body reflexively causes vomiting. Dr. Paradis concluded that Craig died from suffocation secondary to drowning, which he based on the scenario provided to him by the paramedics that Craig had been submerged for 10 minutes, and based on Craig‟s condition on arrival. The morning after the fatal collision, CHP Sergeant Richard Ahlborn, a collision reconstructionist, investigated the scene. Ahlborn examined the tire tracks, following them from a point prior to their left turn into the canal. He saw no evidence of fishtailing, braking, or loss of control. If there had been braking, he would have seen evidence of it. Near the canal edge, there were four tire tracks due to the vehicle‟s turn. Ahlborn watched as a large backhoe removed Craig‟s truck from the canal. A wheelchair was in the back of the truck. Ahlborn saw no indication that anything, such as a person‟s head, had struck the windshield on the passenger side. No airbags had been deployed. Robert Lawrence, the coroner‟s office pathologist, maintained his own pathology practice in Madera County and San Joaquin County. He employed and supervised Dr. Schmunk, who conducted Craig‟s autopsy. Dr. Lawrence‟s practice used a computer system to maintain its records. The pathologist who performed an autopsy would dictate the report during the autopsy, and the dictation would be transcribed and signed within a few days. The reports were generated in the regular course of business and Dr. Lawrence was the custodian of the records. 31. Dr. Lawrence identified the autopsy report finalized and signed by Dr. Schmunk on May 19, 2004. The report was consistent with the preparation of typical autopsy reports and consistent with the steps that a well-qualified pathologist would take when conducting an autopsy. The autopsy appeared to be thorough and complete. At the time of the autopsy on April 23, 2004, Craig was 85 years old. He was five feet six inches tall and weighed approximately 190 pounds. Externally, Craig appeared to have minor blunt force injuries and abrasions, but no major trauma or fractures. When Dr. Schmunk opened Craig‟s body cavity, he found more extensive bruising in the chest area, fractured ribs on both sides, a fractured sternum, and scalp bruises. The rib fractures indicated minor blunt force, but they were survivable. The sternal fracture resulted from a severe blow, but was probably not fatal in itself. These fractures had occurred within 24 hours before death, and they could have happened when the truck hit the water. The bruising over the surface of the brain evidenced a strong blow or impact to the head that might have caused unconsciousness. Craig also had fluid and congestion in his lungs, which was consistent with drowning. Craig‟s abrasions were consistent with bumping against concrete. Dr. Lawrence explained that during a drowning, when a person inhales water, the airway goes into spasm, so there may not be much water inhaled into the lungs or swallowed into the stomach. As the oxygen is cut off, the heart begins to fail and fluid starts oozing out of the bloodstream into the lungs and air passages. Frothy white fluid builds up in the lungs and the person loses consciousness and eventually suffers irreversible brain damage. Several minutes of oxygen deprivation are required to drown. Thus, from the point the airway is cut off, five to 10 minutes of oxygen deprivation would lead to irreversible brain damage. If the water is very cold, it might take 15 to 20 minutes. But in general, and in that area, it would take five to 10 minutes. Craig‟s lungs did not contain the frothy white fluid, but they did contain fluid and were congested, which was consistent with drowning, although it did not necessarily 32. prove it. Dr. Schmunk concluded Craig‟s death was caused by fresh water drowning due to being submerged, plus the blunt force injuries. His primary cause of death was drowning. Dr. Lawrence believed Dr. Schmunk‟s conclusion that Craig died of fresh water drowning was supported by the facts in his report. The autopsy report stated that Detectives Mark Copeland and Priscilla Woods, and Peggy McNally, an identification technician, were witnesses to the autopsy. Defendant’s April 23, 2004 Interview Detective Mark Copeland, also a deputy coroner, investigated Craig‟s death. On April 23, 2004, Detective Copeland went to the church to speak to defendant. The recorded interview was played for the jury. In the interview, defendant stated that on the day of Craig‟s death, he went by the post office, then picked Craig up at about 2:30 p.m. Defendant loaded Craig in the truck, then put the wheelchair in the truck‟s bed. Defendant believed that Craig put his seat belt on. The truck was registered to Craig, but defendant had been driving it for the last three years. They were going to Turlock to look at a vehicle, and then they were going to go by the barber‟s, get some milk, and stop at the bank. As they were leaving, Craig said, “Hey, let‟s go by Carl Hartman‟s place.” Carl was an old friend who had recently died. So they turned south on Merriam Road toward the canal and “drove on by there because Carl had taken out all of his walnuts. And … [Craig] wanted to look at the place and that dead-ends into the canal…. [W]e didn‟t have any plan at that time[;] I just turned right [(west) on the canal bank] to go down to Swanson [Road],” which was “the nearest place to get back on the paved road.” Meanwhile, Craig was opening the mail defendant had picked up. They expected Craig would be getting some rebates on his property tax, and he had gotten a check in the mail. Craig was holding the check and talking about it right before they went into the canal. Defendant estimated he was driving 30 or 35 miles per hour on the canal bank. He never came out of third gear. He did not think he was going over 40 miles per hour. Defendant asked Craig how much the check was for and Craig handed it to him. Defendant looked 33. at the check, flipped it over, told Craig it was a check from DMV, and handed it back to him. At that point, the front right tire hit two objects quickly. The truck hit one rock, “jolted and then it hit again and just that fast [they] were in the canal.” After hitting the rock, the truck jerked to the right, and defendant tried to pull the truck to the right a little. When he hit the second rock, the truck “sent [him] to the left and that fast [they] were in the canal.” He lost control, but he did not know if he fishtailed. His left front tire went over the bank and he tried to crank the truck back up. The truck went into the canal front first. Defendant‟s window was down, so the water came in on his side. The water was up to his waist when he told Craig to stay there and he would come around to get him. Defendant unfastened his own seat belt, crawled out his window, held onto the truck, and stepped across the truck‟s bed, which then began to sink. He jumped into the water on Craig‟s side and tried to open the door, but the water pressure prevented him from opening it. By now, the water was up to Craig‟s chin and he was holding his head up. He appeared to be conscious, but he did not say anything. He looked scared. Defendant grabbed the windshield wipers and pulled himself back over to his side of the truck. He went back in his window, rolled down Craig‟s window, and swam out. The water filled the truck. Defendant got some air, then came back down and reached in. He grabbed Craig behind his back and tried to pull him out, but he could not get him to move. Defendant put his head in and realized Craig‟s seat belt was still fastened, so he reached in and unfastened it. He pulled it back out of his way and started pulling Craig out through the window. Once he got Craig‟s upper body out, he took Craig by the arms and pulled him the rest of the way out. Defendant had to go up for air twice during the process. Defendant put his left arm around Craig, keeping his head above water, and paddled with his right arm toward the north side of the canal. He realized he was tired, so he switched arms and was pointed in a more southerly direction. They hit a cement pillar near the angled wall by the footbridge where there was a device that water went into and flowed over. He struggled to get around the falls and keep Craig above water. Craig hit 34. the wall. Defendant twisted his knee and his back was really sore. He did everything he could to get around the falls. Defendant saw a blue Blazer driving south on Swanson Road over the bridge and he called out, but the driver could not see or hear him. Defendant and Craig were in the water about 10 minutes fighting against the walls and trying to get out. When they got to the side of the embankment, defendant got out and tried to pull Craig out. He got him almost all the way up, but could not get him to the top to start CPR. Craig was not sliding back down, so defendant looked up and saw a dark grey pickup truck parked on the side of the road with the driver‟s door open. Defendant thought about the house directly behind him, but he knew the occupant and figured he was probably at work. The house was probably closer than the truck, but he did not know if a dog was at the house, so he decided to go toward the truck. He did not have a lot of time to think and he was thinking about the country house and the dog. When he saw the truck, he thought someone must be there. Defendant tried to run, but he was tired, and after 50 or 75 yards, he could see someone was inside the truck. He yelled, but the occupant did not get out until defendant was 10 or 15 feet away. Defendant told the man he needed his help, they had been in a wreck in the canal, and he could not get Craig all the way out of the canal. The man came with him and flipped open his cell phone to call 911. Defendant told him to help pull Craig onto the bank so he could do CPR. The man seemed a little spooked, but defendant told him to pull him by the wrist. After doing so, the man spoke to someone on the cell phone. Defendant started CPR on Craig and continued for 15 to 20 minutes until the ambulance arrived. While defendant was doing CPR, Craig never had a pulse. The man stayed on the cell phone the entire time. He seemed nervous and stayed about 15 to 20 yards from defendant. The man sounded like he was giving directions to someone on the phone. When the ambulance arrived, the medical personnel took over. 35. When defendant looked at the scene, he saw the large rocks on the canal bank. They looked as though they had been brought in from the field and dumped off or thrown there. Defendant told Detective Copeland that Craig had left him everything. The money originally was a little over $1 million. Craig spent almost $500,000 buying the property. Craig‟s house and property was worth about $300,000. He also had property behind the church, worth about $400,000, but that belonged to the church. Craig‟s savings accounts contained about $250,000. His checking account contained about $5,000 or $10,000. Defendant wrote checks for Craig off this account. Craig drew a $400 pension and a $700 social security check. They paid Richard $1,200 per month, plus Craig bought him a vehicle. Defendant explained that he shied away from being Craig‟s trustee for about a year. He kept putting Craig off because he had worked for Craig as a young man. He worked hard and was paid poorly. He liked Craig, but he was a big gossip. He could be mean and ornery. Defendant thought maybe one reason Craig chose defendant as trustee was he thought it would make him closer to God. But defendant told Craig being close to him was not going to make him close to God. Before the 2002 collision, Craig would come to town and show up for church on a Sunday night once a month. But, in defendant‟s opinion, Craig was not a good, or at least a strong, Christian. Craig brought up the museum in 1999 and put $175,000 in an account. The museum project bought land and other things with this money. Defendant had an architect draw up plans, but Craig was upset with the $7 million bid on the plans. That was when Craig revealed he had $1.2 million, plus some property. At that point, it was clear the plans needed to be scaled back. Defendant explained that the money also went toward paying salaries, including James TenNapel‟s and half of his own. The CVMA group or committee consisted of defendant, Lonni Ashlock, Jerry Morgan, and an assistant. James TenNapel‟s fundraising efforts came up dry. 36. Craig did not get upset because nothing was being built. Defendant would explain things to him and he would be fine. Craig would get frustrated once in a while but that was his nature. He might say he wished he had never even started the project. Defendant did not directly answer the question of whether anyone mentioned that Craig was recently going to pull out of the project. As things stood, defendant was in charge of the estate and everything went to him. Nothing went to Craig‟s family. Defendant explained that Craig disliked a lot of people. Things went in one ear and out the other. He could change his opinion two days later. After the 2002 collision, Craig wanted defendant to be able to pay his bills from his checking account when he was in the hospital. Defendant said Craig gave him the money in the trust of his own free will. Defendant did not take it from him or manipulate it from him. Defendant said that many people could substantiate that. Detective Copeland told defendant there was a lot of speculation, especially by the family, because there had been two collisions. Defendant denied causing Craig‟s death in any way. Defendant explained that he thought he would be able to save him. Craig was “pretty special” to him. He had changed Craig‟s diapers, fed him, and taken him all over the world. He “wrestled [with] it, it‟s God putting us together for [defendant] to talk to [Craig]. [Then defendant came] to really love him.” Defendant was responsible for Craig and he loved him. Defendant denied causing either collision and he denied deliberately intending for Craig to die. Defendant spent a lot of time with Craig in vehicles, probably more than he spent with his wife. He said he was telling the truth. Detective Copeland concluded the interview. Other Events After the 2004 Fatal Collision On April 27, 2004, Donnie Nichols, a mechanical collision investigator for the CHP, examined Craig‟s blue five-speed manual Chevy truck that had gone into the canal. He checked the systems and found nothing defective. The steering and braking systems 37. worked properly. He observed that the tires all had adequate tread. He concluded that there was nothing mechanical that would have caused the driver to have any type of driving problem. Officer Green was contacted about the 2002 collision. He immediately remembered it because of defendant‟s demeanor and his responses to his questions. Nancy Stout, the EMT from the 2002 collision, read an article in the newspaper, in which defendant said another car had caused him to swerve off the road during the 2002 collision. This was not what defendant had told Nancy, so she called the deputy sheriff that was listed in the paper and ultimately spoke to the district attorney. After Craig died, Martin moved into Craig‟s house. Four or five days after Craig‟s death, John Veldhuizen observed Martin trying to cut down Craig‟s apricot tree right along the roadway. John went to defendant‟s office and told him the tree was being cut down. John said, “I think, you know, you need all the positive support you can get at this point, and I would think cutting down that tree is not going to help any.” Defendant‟s demeanor was very calm. Allan Craig went by Craig‟s house the day before Craig‟s funeral to see how it looked. There was a white pickup truck with a big trailer being loaded with things. Allan wanted to receive Craig‟s grandfather clock that Craig‟s brother had built, but he never did. Michelle Pittman had told defendant that she wanted to speak at Craig‟s funeral. Defendant said it would be fine and others also wanted to speak. A week or so later, defendant conducted Craig‟s funeral and led the service. Defendant eulogized Craig, and no one else spoke at the funeral. Defendant showed no emotion. Michelle was not given the opportunity to speak and she was very upset. She did not think it was appropriate for defendant to be giving Craig‟s eulogy. At the funeral, defendant said that Craig had been born again, had become a member of the church, had accepted Jesus Christ as his Lord and Savior, and was going 38. to heaven. Henry Whitney, a former minister, and Craig had often talked about religion over the years because they found their different views an interesting subject. During none of those conversations did Craig give any indication that he planned to convert. It was quite the opposite. Henry and Craig spoke about religion during their last visit and Craig did not mention that he had converted. After the reception at the church, family and friends gathered at Craig‟s house. Defendant was dividing up Craig‟s belongings. Craig‟s twin sister asked for their mother‟s clock, but defendant told her he had the clock at his house. When someone asked for the family silver that Craig had promised, defendant said he had taken it to his house. He also had taken Craig‟s war memorabilia. At some point after the funeral, defendant told Michelle Pittman what had happened the day of the fatal crash. He picked up Craig to go to Turlock to check on something Craig had loaned someone. Defendant took a route through the country on the canal bank because Craig wanted to see some property where the orchards had been removed. After Turlock, they were going to buy some milk and return home. Michelle knew that Craig did not need milk because she was the person who always brought him milk, as Craig was aware. Michelle spoke to defendant about Craig‟s memorial plaque. In the 1980‟s, Craig had had the plaque made with his and his brother‟s names. The date of Craig‟s death had not been filled in. It stated “19--” because Craig assumed he would die in the 1900‟s. Craig had asked Michelle to make sure the date was fixed after his death. When Michelle spoke to defendant about it, he told her he was taking care of everything. But just days before Michelle‟s testimony, she had seen the plaque and it remained unchanged. A few weeks after Craig‟s death, some of Craig‟s friends and family met at John Wassum‟s house to discuss what had happened. In attendance were about 12 people, including the Wassums and their daughter, the Pittmans, the Whitneys, John Veldhuizen, 39. Les Orr, Jim Orr, Jim Bennett, and Richard Peterson. Defendant was not invited and he did not attend. Henry Whitney approached law enforcement with information regarding the case. He also spoke to the newspaper and was featured on a television show. He believed law enforcement was not following through and he tried to encourage their progress. At some point, John Wassum asked defendant and his wife if there was enough money to finish Craig‟s project. They responded that there was plenty of money to finish the project. After that, John passed by the church regularly and never saw anything more than a baseball diamond fence, which might not even have been part of the museum project. Tim Pittman returned to Craig‟s ranch to find that some trees had been chopped down. Tim became so upset that he had to leave. Craig‟s life and dream were his trees, garden, antiques, and museum. Timothy Frantz, the owner of the nursery adjacent to Craig‟s ranch, had wanted for years to purchase Craig‟s property to expand the nursery. About 10 years before Craig‟s death, Timothy spoke to Craig about buying his property, but he was not willing to sell. In approximately the summer of 2003, when Craig was still alive, Timothy spoke to defendant when he was out irrigating Craig‟s property. Defendant told Timothy he would have the first opportunity to buy the property. About two weeks after Craig died, Timothy called defendant and they made an appointment to meet on the property. They arranged a selling price of $415,000. Timothy took over the property on December 1, 2004, and demolished Craig‟s house. The property became part of the nursery. When Tim Pittman returned to Craig‟s ranch, the whole thing was gone. The house, the barns, and all the antique tractors and other farm equipment were gone. Craig had owned 15 or 20 tractors alone. But now only a power pole and a well remained. Craig had given Tim a large metal lathe, worth a few thousand dollars, but that was gone too. Defendant did give him a tractor and some of Craig‟s belongings. Defendant was in 40. charge of dividing up Craig‟s belongings and he alone made the decisions regarding who got what. The church did not receive any assets from Craig‟s estate after his death. When Craig died, Randall Bergman was not aware that the church was the beneficiary of Craig‟s estate. On September 29, 2004, defendant wrote a check to Kenneth Nickles, his childhood friend, for $6,500 off the CVMA account because Kenneth was broke and going through a divorce. On December 19, 2004, defendant wrote him another check off the CVMA account for $2,000. Kenneth believed he paid the $2,000 back. On December 7, 2004, defendant paid $18,000 for a tree chipper with a check written off the CVMA account. On January 2, 2005, defendant paid a friend $600 for defendant‟s portion of San Francisco Giants baseball box seat season tickets. The check was written off the CVMA account. On January 6, 2005, defendant paid for the $3,000 deposit on the installation of an electric entry gate, customized with the word Rivendell, for his property in La Grange with a check drawn off the CVMA account. The total price for the gate was $6,570. On January 13, 2005, defendant paid $1,000 for rock to be applied to the gate posts with a check written off the CVMA account. In January 2005, defendant paid for paving at his property in La Grange with a check written off the CVMA account. The same paving company also did a paving job at the church, which defendant paid for with four checks written off his personal account in March and May 2005. In October 2005, defendant stepped down as pastor, but he was still active in the church. On November 30, 2005, after a newspaper article revealed to the elders that “there was reproach on [their] church,” the elders met with defendant and his wife about “some 41. deceptions that [the elders] had experienced” regarding the museum project. At this time, defendant was still at the church but was no longer the pastor. The elders had prepared pages of accusations and they wanted to confront defendant directly about things he had said were done, but were not. One issue was that defendant had not obtained a federal taxpayer identification number several months before, as he had stated, but he had applied for it the same day he produced it. Defendant admitted he had lied about getting the number. Another issue was that defendant had not given Craig, and gotten signed, a letter informing him that the church was divesting itself from the museum project. Randall said he did not believe defendant presented the letter to Craig. Another issue was that defendant had not actually formed a board of directors. Defendant admitted there was no board of directors and there was no letter signed by Craig. Defendant had been spending time in Mexico starting new churches and teaching Mexicans to be pastors. The elders felt defendant was not qualified to conduct the ministry in Mexico that he had been trying to develop. The elders told defendant he could not continue his ministry in Mexico under the auspices of the church. By May 2006, defendant‟s son, Aaron Porter, was the church‟s pastor. One day, Cathy spoke to an investigator from the district attorney‟s office, and the next day Aaron fired her. Daniel Ray, a forensic accountant, was a certified fraud examiner and a former FBI special agent. He analyzed the records in this case and tracked the movement of Craig‟s money. The accountant summarized that Craig‟s assets were originally worth about $1.5 million and defendant ultimately took and/or benefitted from about $821,000. This amount did not include the money that went to the church, or to third parties not clearly tied to defendant. There were four accounts in Craig‟s name, from which money was moved to other accounts, such as defendant‟s personal accounts, his East Side Youth Fund, his C & P Investments account, the church‟s account, the CVMA account, and 42. Aaron and Holly‟s account. In addition, money was taken as cash, and was also given to third parties for the benefit of defendant. At the time of trial, Craig‟s two sisters had filed a civil suit. Investigator Mike Hermosa went to defendant‟s property in La Grange. The property contained four houses belonging to defendant and his relatives. The entrance to the property had a rock wall and an electronic iron gate bearing the word Rivendell, as in Tolkien‟s novels. Outside the property were four mailboxes for the homes inside Rivendell. DEFENSE EVIDENCE Defendant Defendant testified on his own behalf. At the time of trial, he was 57 years old. As a young person, he was involved in wrestling. He had been very successful as a wrestler and then as a coach. He was the coach at Hughson High School on and off from 1988 to 2006. He started attending the church in the early 1980‟s. Later, he went to bible school, then in 1988, returned to Hickman when the church‟s pastor was stepping down. At that time, the church consisted of only 10 people. In October 2005, defendant stepped down. Defendant met Craig when he was in eighth grade. Craig worked with defendant‟s grandfather. Sometimes defendant would do odd jobs at Craig‟s property. In the summer of 1998, after Craig‟s brother had died, Craig started showing up at defendant‟s house at least twice a month. They would also see each other at sporting events and around town. Craig did not attend church regularly. In 1998, Craig started talking about his desire to build a museum. He felt that the church had been in the community for over 100 years and it would be the right organization to help him fulfill his dream. He said he wanted defendant to oversee the project and make sure it was taken care of in the future. Defendant said he had no background, but Craig thought defendant could do the job. Defendant told him he had to 43. get through the wrestling season and they could talk about it later. Craig began to change defendant‟s mind about the museum project. Craig told him it could be more than just a museum, which defendant was not interested in. They talked about helping the community and working with the needy and the young. Craig was a generous person and he responded well. Defendant would not have gotten involved without these aspects. They also discussed benefits to the church, such as the multipurpose building that could be used by the church on Sundays. At that time, the church had grown to the point that they were holding four services each Sunday. At one point, the church grew to 650 people. The population of Hickman was only 450. Eventually, the church trained pastors and established churches in local towns to accommodate those communities. Defendant and Craig wrote down some ideas about the museum project and approached the elders. The elders would have total control over the project. Defendant was an elder, but he had the same vote as the others. First, defendant proposed the museum to the elders and they talked about it for about four months. Defendant returned to Craig with the elders‟ ideas. Eventually, the elders decided they would buy the property behind the church and build Craig‟s museum along with a community center, ball field, amphitheater, and park. Craig attended part of one or two elders‟ meetings. He was present during a discussion regarding how something good for the museum project would be good for the church, and how the two tied together. Defendant and Craig discussed other properties, but settled on the property behind the church. They had plans drawn up, which included future construction that the church would pay for. The exhibit hall would house old furniture. Craig wanted an adobe building with a copper roof. He and defendant took trips to investigate materials. When they spoke about money, Craig would tell him that money would not be a problem. The museum project was funded by a series of checks from Craig. The original Foundation Fund was started with about $170,000. Either defendant or Cathy Bergman would write checks off the account. The elders had the ultimate authority over the 44. money. Craig would release a certain amount of money and keep the rest in the trust. The church would spend money for museum project needs. Defendant would spend money on the museum project, on Craig, and on himself. He discussed the expenditures with Craig and got his approval. For example, Craig agreed to loan Aaron money to help with his house. At some point, Cathy Bergman brought to the elders‟ attention some of defendant‟s spending of $15,000 of the museum project money, and the elders began to question things defendant had done for himself, his family, and Craig. As a result, someone else took over the checkwriting. The letter was dated May 3, 2000. It was signed by Gary Kuhlman, Dave Piazza, Randall Bergman, and defendant. Defendant took it to Craig on May 4, 2000 and he signed it. Defendant presented the letter to Craig, Craig signed it, and defendant returned it to the elders. Craig had been aware of defendant‟s spending. Defendant testifed that “[a]fter the incident with the $15,000, when we had the lost statement, supposedly, and we had worked out what was going to happen, [Craig] made contact with A.G. Edwards and he split off pretty close to [$]600,000 for the board to oversee” for the museum project, and he put about $250,000 in the trust, and they formed C & P Investments, East Side Youth Fund, and CVMA for “museum or travels.” Defendant sold his home and bought the La Grange property with the proceeds. When he told Craig he needed help, Craig loaned him $80,000. Defendant took the money as he needed it, not in one lump sum. Defendant was supposed to repay the loan $100 per month. But in the first month, Craig owed defendant some money, so he told him to forget it, and “then [he] basically just forgot all [the] payments from that point on.” Defendant and Craig got involved in some real estate ventures together because the stock market was not doing well. They owned some rental properties. 45. After the engineering company got involved, a lot of things changed. They learned that they could not call the building a museum, but the project could move forward if it was connected to the church. So they called it an exhibit hall. They also decided to cease functioning as the CVMA corporation and instead used the church and its elder board. On March 21, 2000, the Waterford newspaper published an article, which Craig hung over his stove. Defendant took Craig on trips. Travelling was just as important to Craig as the museum project. They would look at museums to get ideas for the museum project. They would go wherever Craig wanted to go, including Europe. Craig was a World War II veteran and he wanted to see the American bases. They also went to Michigan for a tractor show, and to Mexico to see defendant‟s work there. Craig was friendly most of the time and he enjoyed a lot of things. They had a pleasant time together. Defendant “would pull some cash out to take with [them]” and he would also use his credit card on the trips. At some point, the elders decided that museum project money could be used to benefit the church. This was discussed between the board of elders and Craig. Around the summer of 2000, the church began to have concerns about the cost of the project. By this time, defendant knew how much money Craig had. Defendant learned from the architect that the project was going to cost more than originally thought. They made a three-phase plan, hired James TenNapel to raise funds, and hoped their stocks would continue to increase. James had close relationships at Foster Farms. The church paid him $36,000 per year, starting in January or February 2000. Craig had money in the stock market at A.G. Edwards. but defendant had no experience with stocks. Defendant approached Craig with the prospect of scaling back the plans. At first, he was upset, but he conceded when he was shown the costs. The adobe brick was too expensive, so a brick façade was proposed. Craig did not want to give up on the adobe. 46. In November 2005, the elders prepared a booklet of its accounting decisions. They asked defendant to take the booklet and a letter to Craig, have him sign the letter, and return it. Craig looked at the letter, crumpled it up, and threw it in the fireplace. He kept the booklet, but said he was not going to do any signing. Defendant had no reason for Craig not to sign the letter. Defendant testified that he was “in way over [his] head” as a money manager. He rated himself as a terrible money manager on this project. He knew that neither he nor Craig had ever balanced a checkbook. If he could do it over, he would not have made loans to his children, even though they paid back every penny; he would not have made loans to himself; and he would have created more documentation and had Craig sign more things. Defendant explained that the September 8, 2000 power of attorney gave him the power to buy or sell equipment, machinery, or tools; to control Craig‟s machinery and household items; and the right to the rest of Craig‟s personal property, including his vehicles. The September 13, 2000 special power of attorney gave him the power to withdraw or distribute assets to give away or buy assets as he saw fit. But he still talked everything over with Craig. Defendant was told his status as a cotrustee of Craig‟s trust gave him equal standing with Craig. He could act at any time without Craig. Craig told him he could move funds and make decisions without Craig‟s signature. Nevertheless, he still discussed everything with Craig. Craig was aware of all the loans defendant made. The May 2000 loan defendant made to himself and Aaron was documented and signed by Craig and the elders. In January 2001, the elders were talking about downsizing the museum project. The plans had been approved, but the costs were too high. At the same time, defendant was moving to La Grange, which took a lot of his time. Craig would accompany defendant to La Grange to see the progress. Meanwhile, the stock market was falling and James TenNapel had not done anything to raise money. He had not raised one penny. The elders terminated him. 47. In 2001, defendant learned that a competing agricultural museum was going to be built nearby. Defendant told Tony Silveira he did not know if Craig‟s museum would be built. Defendant was discouraged and he thought they would need to change their direction even more. At the end of 2001, the elders decided to withdraw their involvement. They still had control over the land, but they washed their hands of the direct responsibility of the project, which defendant then took over. On March 5, 2002, the day of the 2002 collision, defendant and Craig were driving to La Grange to go to defendant‟s house and a community museum with old mining buckets. Defendant was driving his Toyota Tundra pickup truck. Craig was alert until they got into the hills, at which point, he dozed off. He would wake up and say something occasionally. As defendant made a turn, he “put [his] hand up and [he] yawned and rubbed [his] left eye, and as [he] took [his] hand down, a little white car was coming around, coming in a western direction, and it was out over the line, and [defendant] veered just slightly to the right. And [he] saw the wire fence and the trees and [he] thought [he] could go through the trees and—but there was a berm there, and when [they] hit the berm, then the passenger front seat hit that oak tree.” He saw the white car go past him and leave the scene of the collision. When he told the insurance investigator about a rearview mirror, he was referring to the white car‟s rearview mirror; defendant did not have time to look in his rearview mirror before the impact. He thought the other car‟s driver must have seen the collision as they drove off on the straightaway. Defendant‟s airbag deployed and he was unconscious for a little while. He did not remember getting out of the truck or walking around it. The first thing he remembered was standing by Craig‟s door. He tried to open it, but it would not open completely. He wondered if the door was hung up with the seat belt somehow. He pulled on the door with both hands, it opened, and he rolled backward. He sat there for a moment, got up, and asked Craig if he was hurt. Craig told him twice that he was hurt and he was 48. “hurting pretty bad.” Defendant thought he unbuckled Craig‟s seat belt and then someone else was there. Actually, defendant remembered touching the seat belt when the door was open only a few inches, but he could not determine how it was configured. He explained: “Well, there was just a strap there somewhere by the door. I couldn‟t tell how it was configured completely. I don‟t know if it was partly around him or just up-and- down strap or—I remember touching it. [¶] … [¶] That‟s it.” He did not remember seeing the EMT, Nancy Stout. He did remember sitting on the dirt berm, then later talking to one of the paramedics as they were putting him on the board and into the ambulance. He went to the hospital and had a CAT scan. Defendant realized the passenger airbag in his truck was turned off. The previous Friday afternoon, he had transported his grandchildren, either two or three of them, in the truck. To turn off the passenger airbag, his truck required that the ignition key be inserted into the airbag switch. Then it could be turned to on or off. His daughter-in-law was very particular, so he would put the key in the ignition and she would verify that the airbag was turned off. It was always her practice to do that. On this occasion, she again made sure the airbag was turned off. She put the small children in the back and the baby in front. Defendant did not realize that the airbag had not been turned back on until the collision. Craig spent three weeks in the hospital, then months in the rehabilitation facility. He went home in July 2002. Defendant offered to have Craig live at his house, but Craig wanted to go home. Defendant arranged to have Martin stay with Craig. Defendant also brought in two girls to do breakfast and dinner several days per week. Martin and the two girls had all cared for Craig after his knee replacement in fall 2001. Defendant usually brought lunch. The ladies at the church made the lunch, but defendant would show up, maybe shower Craig, empty his bag, visit, and eat lunch with him. Defendant showered Craig on Tuesdays, Wednesdays, and Fridays. Defendant took Craig to “99.9 percent of all of his doctor appointments,” which were about twice per month. 49. Martin was working with an affiliated Spanish-speaking church. Defendant had caught Martin drinking once in the past and defendant “got onto him about that.” Then, in December 2002, Martin came home late one night and Craig knew he had been drinking. Defendant talked to Craig and they laid off Martin. A sunburn played no part in Martin‟s termination. Craig never had a sunburn because, although he would sit outside for six hours, he would be under big shade trees and, on the sunniest day, the spot would get only 30 to 45 minutes of direct sun. When defendant showered Craig, he never saw a sunburn. Shortly after Craig came home, he was discouraged. Jeff Porter was working at Craig‟s when Craig made some comments about wishing he was dead. Jeff notified defendant and defendant spoke to Craig about it. He told Craig he was going to remove all the guns from the house and put them in storage. Defendant went through the house and looked for guns and poisonous substances. Later, defendant returned one of the guns to Craig, a .38-caliber nickel-plated revolver. By that time, Craig‟s spirits were much better. In June 2002, defendant wrote the county to extend the use permit and allow modification of the project. The elders were still the board, they were just less involved. Defendant continued to brief the elders on the project. The elders‟ meeting minutes of April 24, 2002, about one and one-half months after the 2002 collision, mentioned that defendant was tired from working on the museum project with Craig. He felt he was unequally yoked with a nonbeliever. He and Craig were working on the project alone. Defendant was telling the elders that he was worn out. Defendant did not tell Craig that the museum‟s foundation had been poured. Instead, they talked about leveling and grading the foundation pad so construction could start at a later time. Craig asked defendant once if the foundation had been poured and defendant told him it had not. The foundation was not poured while Craig was alive. 50. After terminating Martin in December 2002, defendant brought in a young boy, Richard, to stay with Craig. Craig knew and liked Richard. Richard‟s presence eliminated the need for other people to prepare meals for Craig. Craig and defendant discussed selling some of the property to the church secretary and to the school. The elders made the ultimate decision to sell it. They tried to do projects that did not involve building. They did the grading and excavating, put in a sprinkler system, put up a cyclone fence, and planted trees. Defendant bought a 40-by-80-foot metal building that arrived in components. It sat out from May or June until September, at which time it was moved into the storage building. Some of the strapping may have rusted, but the building was in good shape. Most of the work on the baseball park occurred after Craig‟s death. In 2003 and 2004, the museum project was not defendant‟s only concern. He had the personal care of Craig, the church, the six other pastors, the congregation, the wrestling at Hughson High School, the Bible college in Mexico, the battered women‟s shelters, the orphanages, the drug rehabilitation programs, and the marriage conferences. He was very involved in the Mexican ministry, spending about 10 days per month in Mexico. Defendant recalled an elders meeting during which some comments were made, but he did not believe it occurred the day before the fatal collision. And the topic was not reflected in the minutes of that meeting. He thought the comments occurred at the meeting where they were concerned about defendant‟s busy schedule. At that meeting, he told the elders: “Do I quit coaching wrestling? Look how many people are here as a result of the wrestling ministry I‟ve been involved in. Do I quit going to Mexico? Look how important that is to the church. I can‟t quit the museum. I‟ve made a commitment to that. And I said something like, and I have to take care of Mr. Craig. I‟m sure when he passes away, I mean, that would be a lot easier, but what do you do?” He did not make this comment with any malice toward Craig. 51. On April 22, 2004, the day of the fatal collision, defendant and Craig were going to talk to a man in Turlock about a piece of Craig‟s equipment he might have sold. They planned to pick up some milk and stop at the bank on the way home. Defendant picked up Craig at about 2:30 p.m. It was wrestling season, so defendant was seeing Craig twice per week. Defendant thought he had seen Craig the previous week. Defendant loaded Craig into the truck, they exchanged a few friendly words, picked up the mail, and drove off. Craig wanted defendant to turn on Merriam Road so they could go by Mr. Hartman‟s property. The walnut trees had been removed and Craig wanted to look at the ground. And defendant wanted to see the water level because he would be irrigating in five or six days. So, they took Merriam Road, then turned right on the canal bank to see the water level. They planned to turn right on Swanson Road to head toward Turlock. As defendant drove, Craig began to open his mail. Craig thought one piece of mail was a rebate check from the government for property tax and he was upset that the government would send him a $6 check. Defendant asked him what it was and he reached over, took the paper, and looked at it. He told Craig, “This is not from the government. This is from the DMV.” He said, “[Craig], this is not for your property tax.” Craig said, “How do you know? How do you know? What is it?” Defendant handed it back to Craig, pointed at it, and said, “See that? It says it‟s from DMV.” Defendant did not remember how fast he was driving. He had given different estimates in the past, but he was going faster than he should have been. At that moment, they hit the first rock with the right front tire and the truck “kind of jolted a little bit this way, and then no sooner than [they] hit the first one and [they] just almost immediately … hit the second one and the [truck] kind of jolted again.” Defendant‟s hand moved a little bit, probably due to the play in the steering wheel, and he threw out his arm to block Craig. Defendant looked back and then they were in the canal. Craig used an expletive. Defendant told him, “Stay right there. I‟m going to come get you out.” Water was up to the window. Defendant got out and hopped into the truck‟s bed, and it started to sink 52. much faster. He stepped across, hopped off, and tried to open Craig‟s door. Craig‟s window was open three or four inches, so defendant could not reach in. Craig held his chin up over the water and he looked scared. Defendant climbed over the hood of the truck and swam into the truck from the driver‟s side, rolled down Craig‟s window, and swam through. Defendant put his left arm behind Craig and pulled him with his right arm, but he would not move. Defendant tried again, then realized Craig‟s seat belt was fastened. Defendant reached across and unfastened it. He pulled Craig‟s head out carefully, then the rest of him followed smoothly. Defendant came up, cradled Craig in his left arm, and started swimming with his right arm. Feeling tired, he changed arms and turned around. At that point, they slammed into one of the cement pillars with the force from the water. Craig‟s face, neck, chest, and right arm slammed into the pillar as he rolled into it. Craig‟s legs went around to the right side and defendant tried to pull him up and balance him, but his face had swung around again and was touching the south side of the cement pillar. Defendant reached across to see if he could reach the other cement pillar, but he could not. Defendant squatted down and put the cement pillar between his legs, and placed Craig on his lap. He put his right arm around him, leaned back, and pushed off with his legs. He took a few strokes with his left arm and they slammed into the cement pillar next to them. From there, defendant did the same procedure to get Craig around that, but it was easier because there were some boards. He put his feet against the boards and inched along until they passed the drop. They approached another drop and he pulled them past it. At that point, defendant could reach the top of the canal and pull them to the edge. He climbed out and tried to pull Craig out. He got him out, but not up to the flat ground where he could start CPR. Defendant looked around and saw a pickup truck with the door open. He turned around and saw Randy and Alana‟s house to the south, but there were no vehicles in the driveway and he thought the house was still under construction. He thought about Travis‟s house, but he had dogs and was about as far as the truck, so he ran to the truck and yelled for help. A 53. young man, José Vasquez, stepped out. Defendant asked if he would help him. He said he and his friend had a wreck in the canal and he was in bad shape. He asked José to call 911, which he did. Defendant tried to run back, but he was completely exhausted, so he walked briskly. Defendant thought José‟s truck was not as far north as José had described. He was in the middle of the “check,” irrigating, which meant he was about 30 to 35 yards closer. José helped defendant pull Craig up to the flat ground. Defendant tilted Craig‟s head back, checked for obstructions, and pulled out his top dentures. Defendant compressed his chest about five times with one to one and one-half inches of compression. By the second compression, a lot of water came out of Craig‟s mouth. Defendant covered Craig‟s nose and gave him four breaths, then did 15 compressions to two breaths. Defendant had undergone a lot of CPR training. He continued the CPR until the paramedics came. He told them he had never gotten a pulse. As he watched the paramedics working on Craig, he prayed for him. Later, Gary Kuhlman drove defendant to the hospital to see Craig. Defendant did not know for sure, but he was afraid that Craig was dead. After Craig‟s death, defendant did not quit the museum project. The elders wanted him to complete it. He kept working with the county to get the plans submitted and complete the project. On June 8, 2004, he met with the county to try to get permission to move an old schoolhouse onto the property and put up the metal building, working around the water problem they were having. In March 2005, a driveway and small parking lot were paved. A sprinkler system was set up for the ball park, but the well did not have enough pressure to support it. Defendant and the elders were under a tremendous amount of pressure due to some vicious articles full of lies published in the Modesto Bee. And, in late 2004 or early 2005, Henry Whitney filed four civil lawsuits over Craig‟s property and money. On October 25, 2005, defendant stepped down as pastor of the church, but he intended to 54. continue working on the museum project and trying to raise money for his ministries in Mexico. In November 2005, the elders decided not to move the old schoolhouse onto the property. They decided to end the project for the time being and they told defendant he would not continue to work on the project. They decided to wait until the other matters were resolved. Defendant and Craig were opposites in many ways and, in the beginning, defendant did not want to get involved in the museum project. But the more time they spent together, the more defendant enjoyed him and liked him as a friend. Defendant said he probably spent as much time with Craig as with his wife. He enjoyed spending time with Craig. Craig was his friend. Craig was not very expressive about his feelings toward defendant, but on one occasion, he did something that meant a lot to defendant. In December 2003, when defendant stopped by to see Craig, Craig asked him to get a small box from a drawer. It contained Craig‟s dog tags from the war. He said he wanted defendant to have them. Defendant testified that he did not ever try to murder Craig. He felt “very bad and very sad that some of [his] actions contributed to his injury and his death. But [he] loved Frank Craig very much.” He continued to pursue the museum project after Craig‟s death because he had made a commitment to Craig and he needed to fulfill that commitment. Defendant’s Cross-Examination On cross-examination, defendant stated that he was not aware of any of Craig‟s money that he had used for his own personal use. Defendant had known since 2000 that the church was the beneficiary of Craig‟s estate. Defendant said the proceeds from selling Craig‟s property had gone “[p]laces” that he could not remember. Although the defense accounting expert had testified that defendant had used about $167,000 of Craig‟s money, defendant explained that the accountant did not know where the money went after defendant got it. Defendant explained that he bought investment properties for C & P Investments, and his relatives lived on those properties. At first, they were 55. supposed to pay rent, but then they did repairs, so Craig told defendant to “skip the rent.” Defendant paid them for materials they bought. Defendant did not know how much money from Craig‟s accounts had gone into his personal accounts. It might have been more than $20,000. Defendant denied hiding bank statements and denied telling the Bergmans or the elders that he had done so. He probably did do something improper with one of the bank statements when he went into the church to write some letters and saw the bank statement, and he took it to Craig‟s. After they opened it, he left the statement with Craig. At some later point, Cathy Bergman asked defendant if he had seen the statement and he said he did not know for sure. He went back to Craig‟s, but Craig had destroyed it. Defendant told Cathy what had happened. Defendant did not think Cathy had referred to more than one bank statement. At about this time, defendant opened the C & P Investments account, which he and Craig used to buy houses. Defendant did not remember telling the elders that Craig wanted to speak only with him and not with them. He did not think he said that. Craig never told defendant why he had chosen him to lead the museum project. Defendant was not Craig‟s only friend. Craig had a lot of friends. Craig signed the first accounting letter, but defendant never told the elders that he had. He told them he took it to Craig, explained it to him, and he looked through it. The second accounting letter Craig tore up or threw in the fire. The elders were always the museum project‟s board of directors. Defendant never had a different board. The elders talked about getting a different board, but defendant told them he already had a board. He never told the elders that other people were on the board. Only part of the first $15,000 of the CVMA money went to defendant‟s benefit. All the cash defendant took from the CVMA account was for the benefit of a “plethora of possibilities.” Craig approved of every transaction. They usually spoke once per week about things that had been done. Craig approved of defendant‟s purchase of the metal 56. building, which was not on the church property in November 2006. He could not remember if the metal building was on his La Grange property. When Craig saw the statements for the C & P Investments account and saw that there was no money left, he would not get upset, but he would ask defendant what was going on. When the prosecutor asked whether it was a big deal to Craig that his money was not going to the museum, defendant answered, “Depend on what it was going to.” Craig was not satisfied with every transaction, but he was not dissatisfied. He knew about every transaction. He probably questioned things at times, but defendant could not remember which things. Defendant had no recollection of any transaction at all that Craig had ever challenged. From month to month, defendant and Craig tried to remember which expenses were defendant‟s and which were Craig‟s. Defendant owed Craig about $40,000 when he died. Defendant thought he had paid it back, but he was not sure. He had not seen “the books” in a long time. When the prosecutor asked him if there were any books, he answered, “I don‟t know. There used to be checkbooks and things like that.” But he did not think there was a log of how much he owed Craig and how much he owed the museum project. Defendant stated that Craig was of sound mind at the end of his life. He did not have mental troubles and did not really show the mental decay sometimes seen in the elderly. He was getting better physically, but he was not able to move around much. Defendant bought the La Grange property for $160,000, then got a construction loan for $170,000 to build his house. His wife named the property Rivendell and ordered the gate. Museum project funds paid $5,000 for the rock entry after Craig died. The elders did not vote to give him the $5,000 because “[t]hey didn‟t need to.” That was the checkbook defendant had, so he decided CVMA should pay for it, but he repaid it. Defendant mowed his own lawn on the La Grange property. He used a push mower most of the time, but a riding lawn mower was later available from the museum. 57. Defendant‟s property in La Grange had been sold, apparently while defendant was in jail, but he did not know if it sold for $900,000. He had no idea how the profits had been used. Defendant explained that he obtained the post office box by himself. He thought he added Milton Bridges‟s name later. Craig did not want his name on the box, but he could get the mail from the box simply by asking for it. Defendant had one key to the box, which he would leave with Craig from time to time. Defendant did not know if, at the time of the 2002 collision, he had bounced a check on his personal account. He never paid attention to that. He did not worry about running out of money. When the prosecutor brought up defendant‟s testimony that he saw the white car leave the scene of the 2002 collision, defendant said, “I was thinking about that. [¶] … [¶] I saw it go by me, so it obviously was leaving.” But he did not see it after it passed him because there would not have been time. He explained that he did not have time to brake before hitting the tree. He did not remember if he had his cell phone, and he did not remember an officer testifying that defendant stated he had tried to call numerous people from his cell phone. He did not remember unlatching Craig‟s seat belt and he did not testify that he had done so. He did not remember telling Nancy Stout that Craig fell asleep. He did not remember telling her or anyone else that he fell asleep while driving, but he would not have lied about it. When defendant spoke to Officer Green at the hospital, defendant was “still pretty rum-dummy”— “[p]retty shaken up.” He had a bad headache and his vision was still kind of blurry. Defendant identified photographs of a dashboard similar to that in the Toyota Tundra he drove in the 2002 collision. The photographs showed the airbag switch that required a key. When defendant took his grandchildren in the truck, his daughter-in-law would choose where the children would sit and he would lift them into place. She would buckle them. 58. Defendant probably did not know his insurance policy limit was $25,000. He did not “make [the] call” that $25,000 was a fair settlement for Craig‟s serious injuries after the 2002 collision. He did not really think about whether it was a fair settlement. Craig thought it was more than fair and there was no reason for defendant to think otherwise. Defendant did not tell Detective Copeland that he was going to get everything Craig owned, and he did not tell him he was Craig‟s beneficiary, which was not true. When defendant brought the modified, down-scaled museum plan to Craig, he did not refuse it. They had a lot of discussions about it and Craig eventually told him to go forward with the new plan. Defendant did move forward, but they had a water problem and nothing could be built. They installed a sprinkler system, a fence, and a well. They built a lot of things. Defendant denied that as of March 2002 there was essentially no money left in the project. He thought there was money in some of the accounts, but he could not remember which ones. It was Craig‟s decision to sell part of the museum property to the school. He wanted to make it available to the school as a parking lot. He was “tired of it being small.” The school‟s parking lot had become important to him. At that point, the museum plans were scaled down and they would not need that property. The Pittmans never told defendant that Craig had been sunburned. Craig could not have been outside at that time of year. When the prosecutor reminded defendant this occurred in July, defendant repeated that the Pittmans never mentioned a sunburn. After Craig died, defendant obtained a letter, dated May 2001, that defendant said Craig had typed on his old typewriter. The letter had been in Craig‟s desk drawer. Defendant could not remember why Craig had written it. Defendant was not aware that anyone had seen the letter. Defendant could not remember when he first saw the letter. It was written “[t]o whom it may concern.” It stated that Craig had bought a home at 859 I St. in Hickman in March 2001. He rented it to Howard Porter (defendant‟s father) for $100 per month. In the case of defendant‟s death, Howard could have “all rents 59. applied to the purchase of this property.” The property‟s value was $80,000. Howard would make his payment to CVMA Community Center. Craig‟s signature was in the space on the very bottom of the page and not near any of the text and not on a line. Defendant did not know why Craig signed the letter the way he did. Sometimes Craig signed on a line and sometimes he just signed anywhere. Craig loaned defendant money and defendant had paid back some of it. Defendant did not know how much he had not paid back. He did not know if he had declared that additional income on his income tax because his wife took care of that. Craig gave defendant $55,000 as a gift to build his private community in La Grange. Defendant would write the checks. When defendant gave James TenNapel the $30,000 loan, James had not raised any money in the 13 months since he had been hired. Defendant signed the gift letter saying the $30,000 was a bona fide gift, but that was not true. Nobody told defendant it was improper to sign the letter. He did not give it much thought. Craig told him to sign the gift letter and get the project on the way. Craig did not like James, but he also did not like banks. Defendant had tried many times to get the $30,000 loan back from James TenNapel, even after Craig‟s death. Defendant was the person who introduced James to the elders and he voted to hire him. Defendant did not know how much money from Craig‟s accounts he had given his son, Kyle. He had absolutely no idea, but it was probably more than $10,000. Each time defendant gave Kyle or Aaron money, he got permission from Craig. He did it multiple times. Sometimes the money was a loan and sometimes a gift. Kyle and Aaron paid back the loans. Defendant would tell Craig about the amount and Craig would keep track of it in his head. On the day of the fatal collision, defendant picked up Craig and they stopped for the mail. Defendant did not see the rocks on the canal bank before he hit them. Defendant put his arm out to block Craig and then they were in the canal; that was all 60. defendant remembered. He did not know how fast he was driving, but he was not driving at an unsafe speed. He had driven 60 miles per hour on the canal bank before. It could be done, but it was not advisable. The rocks “aided” the collision. Whoever left the rocks there was partially responsible for the collision, and Craig was partly responsible. Defendant did not know if Craig was conscious when they hit the water. Craig spoke an expletive as they “kind of went off,” and those were his last words. When the prosecutor asked defendant how long Craig was fully submerged before defendant pulled him out, defendant answered, “I never thought about that before. Not very long, but a little while.” First he estimated it was less than one minute. Then he said it might have been more. He did not know. It seemed to happen quickly. He first went to Craig‟s side, but could not open his door. Then he went over the hood, which was now submerged, back to his side. He went through his open window, reached across, and rolled down Craig‟s window. At this point, the truck was submerged. Defendant swam past Craig and exited the passenger window. He reached his left arm under Craig‟s right arm and tried to pull Craig‟s head and torso toward him with his right arm, but Craig would not move because his seat belt was still fastened. Defendant‟s head and chest were already inside the truck, so he reached across and punched the button to unfasten the seat belt. Then he pulled Craig out the passenger window. When defendant was swimming with Craig, he thought Craig was breathing. Defendant did not remember Craig having any facial or head injuries at that time. Craig was facing downstream or toward the other canal wall as defendant swam with him. At some point, Craig‟s head “whack[ed] against the cement” with some force. When that happened, Craig‟s legs went around the far side of the cement pillar and his feet were hanging over the drop. Defendant tried to reposition Craig and center his body on the cement pillar. Defendant did not know when the other side of Craig‟s head hit the cement, but it could have happened when defendant was trying to reposition Craig. Defendant was eventually able to pull Craig out partially, so that his torso was out of the water. Defendant was surprised he could not lift Craig, 61. although doing so was more like lifting a bale of hay than performing a wrestling maneuver. Defendant thought Craig was not breathing at this point, but he did not check. Defendant suffered a scrape to his arm from the cement pillar, a sore knee, and a sore back. Defendant was aware that almost immediately after Craig‟s death, there was concern among Craig‟s family about what had happened. Defendant‟s wife sent a letter a few days later with deepest condolences. Defendant did not send the letter. He signed it, but his wife sent it. Defendant was not “overly familiar” with the letter. He probably did not read it before sending it. He jotted some notes down, his wife wrote the letter, and he signed it. That was always their practice. The letter incorrectly stated that defendant pulled Craig out through defendant‟s side of the truck. When the letter said “my side,” defendant was referring to the side of the truck he was on at the time, which was the passenger side. The letter said that José Vasquez “ran over with me and helped me pull [Craig] the rest of the way out into the road,” but defendant ran to José and they walked as fast as they could back. The letter said that hitting the rocks “caused the pickup to swerve out to the left and we plunged in to the Ceres Main Canal,” but it did not happen exactly like that. Defendant did not review the letter before he sent it out. Sometimes his wife would handle this sort of thing. She would write a letter, he would sign it, and it would go out. The inaccuracies in the letter were his wife‟s fault. Craig gave defendant the $55,000, and hundreds of other gifts, but no other checks that defendant could remember “off the top of [his] head.” When the prosecutor asked defendant if Craig had been saved a few weeks before his death, defendant asked, “From what?” The prosecutor said, “Saved as a born-again Christian.” Defendant said he did not know about that; only God would know Craig‟s heart. Craig‟s behavior and some things he said suggested he was a nonbeliever. Defendant did not know if that had changed, but he hoped so. Defendant denied telling people at Craig‟s funeral that Craig had been saved. 62. Defendant thought he had taken care of putting the year of Craig‟s death on his memorial plaque. He thought he and Craig had that done before Craig died. Or, defendant took care of it in the summer of 2006, asking to have the date put on it. He did not remember the person he talked to about it. Defendant knew Aaron had been arrested for possession of crack cocaine, but he did not know he had been indicted. In January 2005, defendant opened an account with $85,000 of Craig‟s money. He could not remember how long it was before he was bouncing checks on that account. He did not remember bouncing any checks. He did not remember if there was any money in that account in December 2005. In 2005, the elders stopped the museum project and told defendant he could not proceed. At the time of trial, defendant had not decided the museum was not going to be built. Further Examination of Defendant—The Next Day On redirect examination, the next day of trial, defendant explained that after the 2002 collision, he told the officer that he was sleepy, not sleeping. He rubbed his eyes because he was tired. The letter his wife wrote after the 2002 collision contained inaccuracies and “a couple of little confusing spots there.” It was defendant‟s fault that the letter went out. He signed it, but he did not proofread it. The loans to defendant‟s children were paid back in full. In his opinion, his children overpaid. He also believed he paid back his own loans, although perhaps not entirely. His intent was to pay back the money he took for personal use. There was no further discussion of the May 2000 letter and that situation, or the topic of getting another board, until November 2005. The last thing was the accounting defendant was supposed to take to Craig, a complete rundown of every expenditure they had made. The elders wanted Craig to say he had looked at it and was aware of everything that had happened. Defendant reported back to the elders two or three times 63. about what Craig said and how he reacted. Defendant never forbade the elders from speaking to Craig. Defendant retained everything that Craig wanted to go into the museum. He did not have the items in his home. Defendant stated that Aaron was employed as a police officer in Alabama. Before defendant‟s arrest, Aaron would not have touched drugs or alcohol. Craig and defendant thought loaning money to James TenNapel would “move him along a little quicker.” His inaction was the subject of more than 12 elders‟ meetings. On recross-examination, defendant did not know if his memory had improved since the previous day. He denied testifying that the letter that was sent out was his wife‟s fault. But he admitted he had not taken the blame. Defendant testified that he did remember telling Officer Green that he was sleepy. He explained, “Well, I don‟t want to—I have an idea of what I might have said, but—a vague idea, but I don‟t remember specifically. But I do remember telling him I was sleepy.” Defendant denied telling Officer Green about the white car only after the officer told him he had not fallen asleep while driving. Other Defense Witnesses Dave Piazza testified the elders determined that Craig‟s $1.3 million should be used to build a multipurpose facility for a museum and for use by the church and the community. And they had discussions about physical improvements for the church itself. It would be part of the larger facility and they wanted everything to look good. Also, the elders made plans for paid personnel. Within the first six or seven months, they realized the plan would require more money than Craig had donated. They talked about seeking additional donations from businesses such as Foster Farms and Gallo, and they hired James TenNapel to pursue those funds. In the elders meetings, defendant would relay communications from Craig. The elders did not speak to Craig. In the minutes dated February 9, 2000, the elders decided that only $3,500 could be spent weekly, and any 64. amount over that required approval by the elders. The elders had the ultimate authority over the funds. The CVMA money started dwindling because of the stock market, and the elders decided to remove the money from the stock market. On cross-examination, Dave Piazza explained that the elders confronted defendant on a number of lies, and he admitted he had lied about the money, the accounting, and the board. Defendant proposed the plan with 42,000 square feet of buildings that would have cost more than Craig had donated. The elders discussed downsizing the plan, but it did not happen. According to defendant, Craig originally talked to defendant about building just the museum, then the plan developed into a multipurpose building for the community. The church acquired some land, then sold some of it and the money was returned to the museum project, which was run by defendant. Dave was not told that $30,000 of Craig‟s money was used to move James TenNapel to Hickman. The elders had no control over Craig‟s trust accounts or any accounts other than the CVMA account. The church did not receive any proceeds from the sale of Craig‟s property. On redirect examination, Dave Piazza explained that the church had outgrown its facility and was sending people away on Sundays. The elders felt that Craig‟s donation was something God was bringing them to obtain a larger facility. The elder board was not interested in pursuing just a museum. The board believed that the buildings would benefit both the museum project and the church. On recross-examination, Dave stated that the CVMA money was not meant to be used to move Aaron Porter‟s house to La Grange, to purchase trout for defendant‟s pond, or to augment defendant‟s personal accounts. Defendant told the elders that enriching the church was an appropriate use of Craig‟s money. Jerry Morgan testified that the elders were concerned that too much of defendant‟s time had been consumed by Craig and the museum project. Jerry heard defendant say something to the effect that maybe it would be better if Craig were not around. Jerry took 65. it as a flippant type of statement that everyone says. He thought defendant was trying to relieve the tension. Someone said it was not very funny and the subject was changed. Jerry testified that the church had an account at the farm supply store. The church used weed killer on the softball field, and they constructed an irrigation system. On cross-examination, Jerry explained he had known defendant for more than 30 years. He started as the church custodian and he eventually became an elder, after six years of training. When he started attending the church in 1989, there were 30 or 35 attendees. By the late 1990‟s and early 2000, there were at least 450 attendees. Jerry thought defendant was a good pastor. He was the spiritual leader and the shepherd of the flock. People were accountable to him. He was Jerry‟s boss and source of income. Defendant was one of the most influential people in Jerry‟s life. Jerry had seen Craig come to church a few times before the 2002 collision. Jerry rarely spoke to Craig and he never spoke to him about the museum project. About a week before the fatal collision, Jerry saw defendant and Craig together in Frank‟s truck. They were circling the church and heading out. The truck was about 50 feet away. It was moving and the driver‟s side was nearest to Jerry so he had to look through the truck past the driver to see the passenger. At the time of Craig‟s death, there was no foundation, no building, no museum, but most of the softball field fence was up. Jerry was paid extra to supervise the work on the softball field. Defendant gave Jerry the idea that the softball field was part of the museum project, and he saw it in the plans. Defendant paid Jerry with a $500 check written off the East Side Youth Fund on October 12, 2004, and a $2,800 check written off the CVMA account on January 13, 2005. These checks were for Jerry‟s work on the softball field, which was never finished and had never been used. In another check written off the East Side Youth Fund, defendant reimbursed Jerry for baseball tickets for visiting pastors. 66. Jerry had defendant‟s permission to purchase things at the farm supply store for the museum project. Orders signed by Jerry included items that were not needed by the museum project. Jerry also testified that the church had a gardener and he had not seen a lawn mower at the church. Jerry believed defendant‟s comment at the elders‟ meeting was done in bad taste, but everyone does things in bad taste. Some people laughed at the comment, and then it was over. Defendant made the comment in response to the elders‟ frustration that defendant was too busy. He told the elders that he was busy taking care of Craig. The next day, when Craig died, Jerry did not think back to the comment defendant had made. Stacey Carlson handled the purchase of the property behind the church and she recommended Ernie Yoshino, an architect. Stacey described the lengthy procedure of submitting plans and getting them approved. She hoped the county would allow a gravel parking lot, but it required a fully landscaped parking lot, which the project could not afford. Stacey knew the project, as approved, could not be built. James TenNapel was supposed to go out and recruit donors. Stacey proposed a smaller project. Defendant said he presented her drawings to Craig, and Craig refused. On cross-examination, Stacey testified that she did not want to get involved in the project without knowing that Craig had enough money to pay for it. She got her information through defendant. Craig had made it very clear he wanted a museum; he never said he wanted a big church. It was not Craig‟s dream to build a church and a Sunday school, but defendant told Stacey about Craig‟s wishes. Stacey would not have done anything against Craig‟s wishes. When Stacey told defendant they had to plan a church because of the zoning, defendant told her it was okay with Craig. Defendant originally told Stacey that they had $1.4 million available to build the museum project. But then they spent $500,000 acquiring property, and about $100,000 in architectural and engineering fees. And Craig required that they set aside $300,000 to draw interest to sustain the completed property‟s maintenance. This left only $500,000 to build the 67. project. When they sold some property, the idea was for the money to help build the project. It was not to benefit defendant. Ernie Yoshino, the architect, was asked by defendant to prepare plans for the museum project. Defendant told him approximately $1 million was going toward the project. The architect presented various plans to the committee and ultimately drew up the final plans, which were presented at trial. After the preliminary plans were drawn, the architect estimated the project would cost $2.2 million. The plans showed a multipurpose room containing a basketball court, which would also be used for church services, an exhibit hall for the museum, several offices, and a large foyer. On cross-examination, the architect explained that he was paid $10,000 for the plans. Defendant was his primary contact and he never met Craig. In 2000, building a 10,000-square-foot exhibit hall would have cost about $1 million. When the architect told defendant the proposed project would cost about $2.2 million to build, they talked about scaling down the project and also about the possibility that the church would help fund the remaining $1 million. The offices and conference room were for the church staff. On redirect examination, the architect believed it would be more difficult to get zoning approval to build a museum than a church-related project. William York, a tax accountant, was an elder at the church. He prepared James TenNapel‟s tax return. James‟s loan company had asked him for a gift letter regarding the $30,000 from defendant. William advised James that the letter would be fraudulent because James had told him the $30,000 was a loan. James responded that he knew it was a loan and he would pay it back, but this was what the bank needed for him to get his house. On cross-examination, William said James TenNapel told him the $30,000 was from defendant, Craig, and CVMA. William believed that CVMA had loaned James TenNapel the $30,000. 68. Agnes and Joseph Dias, Vicki Porter‟s parents, lived 75 feet from defendant and Vicki in Hickman. Agnes would see Craig arrive at defendant‟s house, maybe once per week. If defendant was not there, Craig would wait for him. On cross-examination, Agnes explained that she and her husband also moved up to La Grange in 2001. Defendant paid the Diases $1,000 per month to work around and maintain the property. On August 5, 2004, defendant paid Agnes $300 from the East Side Youth Fund. She could not remember the reason. On December 16, 2004, defendant wrote her a $2,000 check. On March 20, 2005, defendant wrote a check to Joseph Dias. Agnes believed defendant had bought Joseph a chair for Christmas. Holly Porter, Aaron Porter‟s wife, was knowledgeable about installing child car seats. She was trained and taught lessons on the use of car seats. When defendant took Holly‟s baby somewhere, Holly would install her car seat in his truck because she was a very compulsive young mother. She would put it in the front seat because she wanted the baby next to defendant. She would turn off the airbag switch on the dashboard. She could not remember when this occurred before the 2002 collision. She said, “I can‟t remember exactly. I know it was—I can‟t—I don‟t know for sure. I just know it was the times when—the year that [defendant] had been taking [the oldest granddaughter] fishing and—by herself, him and … the oldest granddaughter.” When she heard about the 2002 collision, she thought, “[O]h, my gosh, that‟s me that turned that off…. And so it was my negligence to not turn it back on. I feel bad about that.” On cross-examination, Holly said she knew it was safer for a child to be seated in the back seat of the truck, but she wanted everyone to have a fun trip. Defendant liked to sing to “his babies” in the truck. Holly had put the car seat in defendant‟s truck at least three times. The airbag switch was a simple on-off dial, similar to an air conditioning dial. The dial said passenger airbag on or off. It was that easy. Defendant and Vicki had keys to the truck; Holly did not. Holly believed she never turned the airbag switch back on after removing the car seat. 69. Holly denied that defendant paid for her and Aaron to move a house to the La Grange property. They used the proceeds of the house they sold in Hickman. But they did receive checks from defendant and they were not employed on the museum project. Holly never spoke to defendant about the museum project. She explained that they borrowed money from defendant to fix up their house, then repaid him when they qualified for their mortgage, which occurs later when a house is moved. On redirect examination, Holly reiterated that she remembered the simple airbag switch; she did not remember using a key to turn off the airbag. She also did not remember whether the key needed to be in the ignition for her to turn off the airbag. Despite defense counsel‟s repeated questions, Holly maintained that she did not remember ever putting a key in the switch to turn it off or on. In fact, she knew that she did not put a key in it. On recross-examination, Holly explained that the airbag switch was near the center of the dash. A passenger could reach straight out with her left hand and touch the switch. On further redirect examination, Holly stated that she and Aaron paid back between $30,000 and $40,000 to defendant. On further recross-examination, Holly explained that they purchased some of the subdivided property in La Grange from defendant. Aaron was making between $24,000 and $35,000 as an assistant pastor at the church. Jeff Porter, defendant‟s nephew, worked on Craig‟s property from 1999 to 2003 when he was about 17 to 20 years old. He did outdoor jobs, such as gardening and moving Craig‟s antiques around, during the summers and on weekends. After the 2002 collision, Jeff saw defendant visit Craig and make him meals. Both Jeff and defendant irrigated Craig‟s property. When Craig came home, he was depressed and expressed a desire to commit suicide. Jeff called defendant and they went through Craig‟s house and removed anything he might use to kill himself. When Craig was in the rehabilitation 70. facility, Craig gave Jeff an old truck, which Jeff‟s father worked on. They kept it on their driveway. Craig later asked for the truck back. On cross-examination, Jeff testified that Craig trusted defendant and would consult him. When Jeff worked for Craig, defendant arranged it and paid him $10 per hour. On May 1, 2001 and on December 18, 2001, defendant wrote checks to Jeff off the C & P Investments account. Gary Porter, defendant‟s younger brother and Jeff Porter‟s father, stated that after Jeff got Craig‟s old truck, Gary went to the rehabilitation facility when Craig was recuperating from his earlier knee replacement and had Craig sign the pink slip. Gary thanked him for the truck and told him they would try to get it fixed up and running. Craig said he hoped Jeff would enjoy the truck. Jeff had the old truck for about a year. On cross-examination, Gary explained that Craig later asked defendant for his truck. Gary had no idea why. Craig reimbursed Gary for the more than $2,000 he had put into the truck. Defendant delivered a check from Craig. The September 23, 2003 check was written off the CVMA account and signed by defendant. Cory Borges knew defendant as a wrestling coach and pastor. After the 2002 collision, defendant gave Cory a job at Craig‟s property, cleaning up the inside and outside of the house. When they arrived, there were things everywhere inside the house and they could not move Craig‟s bed around. So, Cory and another wrestler cleaned the inside of Craig‟s house. They were told to move things into unoccupied rooms. Martin told them what to keep and what to throw away. Cory did not want to speak to Craig because he was ornery, but Craig did not voice any objections. When they finished, the house was accessible for Craig. On cross-examination, Cory testified that defendant was a very influential person in his life as both his coach and his pastor. Cory could not explain why defendant had written him a $40 check on December 24, 2004 off the CVMA account. Cory did not think he had cleaned up Craig‟s house before Craig came home from the rehabilitation 71. facility. He did not move Craig‟s mother‟s antique clock or his mother‟s silver to defendant‟s house. Cory did other odd jobs for defendant and he stayed with defendant sometimes during the wrestling season. Defendant would give Cory money for his wrestling expenses. For example, defendant wrote a $100 check to Cory off the East Side Youth Fund on July 16, 2003,with a notation of Nationals. And defendant wrote another check for $1,565 to the California USA Wrestling off the East Side Youth Fund on July 8, 2003, with a notation of Cory Borges and Billy Murphy. Cory explained that defendant paid for them to go to North Dakota for a tournament because they had worked for him. Richard Peterson moved in with Craig in 2003, when Richard was 19 years old. He met Craig in 2001 through a neighbor, John Veldhuizen. Richard‟s duties included general caretaking of Craig and his property. He was paid $30 per day, sometimes by Craig and sometimes by defendant. Defendant had nothing to do with Craig‟s day-to-day care. The Pittmans came over frequently to help. Craig had a pickup truck that defendant drove. Because Richard needed a vehicle to care for Craig, Craig bought him a used Jeep and Richard paid him for it each month. Before Craig died, his condition had improved a lot. He was working to gain strength. Twice a day he would walk through the house with the walker for exercise. He was encouraged that he was making progress. As always, his mental acuity was very sharp. He had a very good mind. Craig kept cash in a dresser drawer and he also kept about $3,000 in a grandfather clock. At one point, Craig sent Richard to get the money from the clock, but it was gone. Craig was very upset. Later, defendant told Craig and Richard that he had taken the money for safekeeping when Martin was living with Craig. Craig was also very irritated that he was not getting his mail. He received his phone bill, electric bill, and junk mail, but everything else was delivered to a post office box in Hickman. Craig had Richard take him to the post office twice to speak to the postmaster. Craig was extremely upset when the postmaster refused to give him the mail because his name was not on the box. 72. Richard explained that Craig‟s dream was to build a farm equipment museum. His original plan did not include the church facilities, which were added to the plan later. The museum was very important to Craig and he talked to Richard about it a lot. Richard described the relationship between Craig and defendant as friendly, but Craig became irritated and upset with defendant because of the museum‟s lack of progress. Richard heard Craig and defendant talking about it many times. Defendant would usually tell Craig that there were permits and things that took a lot of time. Richard took Craig to the museum site about six times. On one occasion, Craig was very angry to see building materials—steel beams and siding that had started to rust—sitting on an empty field where the museum was supposed to be. He said, “Here [are] these things out here, God damn it[.] … We paid all this money for these and here they are out in the rain and getting rusty.” He was very upset and he swore about it a lot. When Richard first started living with Craig, defendant would visit once or twice a week, but his visits gradually tapered off to every couple of weeks and then to every couple of months. After around January 2004, defendant quit coming. Craig was very irritated and upset. He would send Richard to the church to talk to defendant and try to get him to come over. Or he would call the church and ask defendant to stop by. Defendant would say that he was busy and could not come at that time. Craig was extremely upset that defendant would not come over. Craig complained a lot to Richard about defendant‟s failure to visit. He was irritated that defendant was right there at the church a few miles away and he could not stop by. Starting in late 2003, Craig told Richard he wanted to take more control over things. He felt he did not really know what was going on with the project. Craig owned a rental house right next door to the church. He rented it to someone working at the church. When Craig heard that the house had been sold, he expressed disbelief. He was confused and upset. He made Richard drive him to the house so he could speak to the person living there. 73. During the entire time that Richard lived with Craig, defendant drove Craig somewhere only one time—the day of the fatal crash. About one week earlier, Craig had Richard go to the church and ask defendant to come over. When Richard returned and told Craig that defendant was busy and could not come, Craig was very mad. He called defendant and asked him why he was not coming over and told him it had been so long since he had visited. Craig yelled at defendant, “Why aren‟t you coming over?” Craig wanted to talk about the museum. By the end of the conversation, they had agreed that defendant would come to visit Craig. On the day of the crash, Richard was aware that defendant was coming over. While Richard and Craig ate lunch, Craig was excited and happy about seeing defendant and being able to talk to him. Richard was not present when defendant came to pick up Craig. Craig did not like seat belts because they were uncomfortable, but Richard usually made him wear them, which he did grudgingly. But he would not wear his seat belt if they were just driving to town. On April 22, 2004, at 3:24 p.m., Officer Gaarde, a deputy sheriff, was dispatched to the Ceres Main Canal on Swanson Road for a possible drowning. When he arrived, paramedics were giving Craig first aid, but he was not moving. Officer Gaarde interviewed defendant, who appeared calm and uninjured. Defendant told Officer Gaarde that he and Craig were driving to Turlock on the canal bank when he lost control on a curve and entered the canal. The pickup truck started filling up with water quickly. After about two minutes, defendant was able to get Craig out of the passenger side. The canal was full and moving swiftly. They floated down to the weir by the bridge at Swanson Road. Defendant was able to get the attention of a farm worker, who helped him pull Craig out of the water. Officer Gaarde testified that there were at least three thoroughfares to reach Turlock from Hickman, on which the speed limit was 55 miles per hour. 74. Detective Copeland reexamined his report regarding James TenNapel‟s statement to him. James said he saw Craig‟s blue truck on the canal bank two weeks before, one day before, and on the day of the fatal collision. He estimated that on both the day before and the day of the fatal collision, the truck was going about 40 to 50 miles per hour. He did not say it was travelling at a slower speed on the day of the collision. Regarding José Vasquez‟s statement, Detective Copeland testified that José said he had seen the same rocks that the CHP took from the canal bank at 5:00 a.m. that morning. The day after the fatal collision, Detective Copeland took photographs of rocks he saw about one-half mile east of the site. Some were on the canal bank and a lot were along the side it. Tony Gloekler, a collision reconstructionist, opined that the cause of the fatal collision was that defendant was going too fast and the truck went off the edge of the canal and into the water. The four tracks at the edge of the canal indicated to him the truck was sliding slightly sideways (in a yaw) as it was going forward toward the canal. Gloekler calculated that the truck‟s speed was between 53 and 62 miles per hour, which was too fast for the curved dirt road. In his opinion, people often underestimate their speed in retrospect. When the truck was pulled from the water, Gloekler noticed that the right front wheel was turned to the right, as if the driver had been making a right turn. This was consistent with Gloekler‟s opinion that the vehicle was travelling the right-hand curve at a speed that was too high, then went off the embankment. On cross-examination, Gloekler stated that a driver could create the four tire tracks without losing control if he turned and hit the accelerator. He said some drivers would be able to maintain control and some would not. Gloekler believed the truck was turning sharply to the right and beginning to yaw as it continued toward the canal. Gloekler relied on the collision report, but he made some of his own measurements at the scene. None of the documented tire tracks indicated that the truck turned right at any point 75. before it turned left into the canal. Gloekler did not know how much the truck turned to the right before the left turn. Gloekler reported that the rocks could have caused a momentary bounce in the truck and could have caused an incipient loss of control. The truck entered the canal about 132 feet beyond the rocks. The rocks could not have caused the vehicle to turn 132 feet later. The farther they were from the turn, the less likely it was that they affected the motion of the truck. Gloekler did not think the rocks could have caused the truck to go into the canal, but they could have caused a momentary loss of control. If the rocks caused the tires to come off the ground slightly while the truck was cornering, the rear of the truck might have drifted to the left. The truck‟s tires could have bounced when they hit the rocks and then come back down on the other side of the rocks. If defendant responded with steering input, he could have lost control. After the left turn, the tire tracks showed superimposition and loss of control. The photographs were not clear enough to determine whether any loss of control occurred before the turn. Gloekler explained that leading up to the point where the truck launched off the embankment, there were two distinct superimposed tracks when the truck took a sharp left steering maneuver. The canal bank had a three-degree slope to the side and the berm at the edge of the canal had a 13- to 15-degree slope. As the tires hit the berm, the suspension became loaded. Depending on the speed, the suspension might have assisted with the launch. The truck launched off the edge of the canal bank, then travelled 90 to 126 feet through the air before hitting the water. Gloekler opined that the truck would have taken a maximum of two seconds to sink to the bottom of the canal after the water started coming in the window. Gloekler did not know what gear the truck was in when it was removed from the canal. The steering wheel was turned to the right. In general, when a driver loses control while turning right on a dirt surface, the rear of the vehicle will drift to the left. When a vehicle begins to yaw, its nose is pointing 76. one way and the vehicle is going another. Many people would perceive this as being out of control. Gloekler estimated he had testified as a police officer for the prosecution countless times. But he had testified as a collision reconstructionist for the prosecution only five or 10 times because usually an officer is used as the expert. Actually, he might had testified for the prosecution just once, not five or 10 times. On redirect examination, Gloekler testified that he had seen no report that indicated anyone had determined what gear the truck was in. The reports also did not mention that the truck had been dropped at least once while it was being removed from the canal. Gloekler explained that a photograph of the tire track, rock, and divot suggested a superimposition of tire tracks because the track was too wide for a single tire. The officers at the scene could have taken several simple, common steps to preserve information and determine whether the tracks were superimposed. For example, they could have used paint marks on the tracks in multiple positions, they could have laid a tape measure across the tracks, and they could have measured the width of the truck‟s tire. Given the information Gloekler had, he was comfortable with his conclusion that defendant was going 53 to 62 miles per hour. Gerald Deller, an expert in the field of certified public accounting, was retained by defendant to determine how much defendant benefitted from the financial transactions in this case. Deller identified three categories or entities for his analysis: Craig, CVMA, East Side Youth, and C & P Investments. East Side Youth was an entity set up to support athletic activity. It received about $10,000 in donations from the general public. C & P Investments was a joint venture between defendant and Craig. Craig‟s assets were valued at about $2.1 million. Deller determined that defendant used $145,000 of Craig‟s money for his own benefit prior to Craig‟s death. 77. On cross-examination, Deller agreed that movement of money between many accounts, and the withdrawal of large amounts of cash are clues that someone is engaged in fraud. Richard Abbott, a Baptist minister in Colorado, hired James TenNapel as an assistant pastor on September 1, 2005, and fired him on July 3, 2006. James refused to comply with Richard‟s authority and three times he became physically violent with Richard and tried to push him into a fight. He made a good first impression, but he lied to the church leadership from the beginning. He was bellicose and deceitful. Patricia Fisher, a board certified forensic document examiner, examined four exhibits to determine whether Craig had signed the documents. She compared them to Craig‟s known signatures and determined that he had signed all four exhibits. On cross-examination, the prosecutor asked the document examiner about the accounting letter dated May 3, 2000, which was a photocopy, not an original. She agreed that it would be possible to forge a photocopied document. As for the allegedly typewritten documents that Craig had signed at the very bottom of the page, the document examiner could not determine whether the typing or the signature was present first. She stated that, based on her experience, this manner of signing a letter was unusual. Normally, people sign close to the end of the text. Andrea Avila, defendant‟s niece, testified that she removed the items from a storage unit on defendant‟s property and, at the direction of Vicki Porter, she photographed all the items. Included was a set of silverware, grandfather clocks, and other household items. Rebuttal Evidence Dennis Burrell, the postmaster in Hickman, testified that Craig would not have had access to the post office box because his name was not on it. Michael Varat, a collision reconstructionist, had experience with vehicles entering water. He was hired in this case to examine the calculations of the defense expert, 78. Gloekler. Varat determined he needed more information than he could glean from Gloekler‟s work, so he visited the scene and took further measurements. From all his measurements and the photographs of the tire tracks, he performed a photogrammetric analysis. He determined that the truck‟s stick shift was in neutral, but he assumed it had popped into neutral when the truck was pulled from the canal. When he examined the tire tracks in the photographs, he saw no evidence of braking. Varat agreed with Gloekler‟s radius of the curvature: Varat found 650 feet and Gloekler found 655 feet. Varat found no evidence of loss of control prior to the left turn; in fact, he found the opposite. The truck was steered to the left, with a 100-foot-radius curve, to enter the canal. Varat found no evidence that the rocks contributed to the steering of the truck to the left. The tire tracks at the rocks showed no sliding. The truck was tracking and leaving tread imprints in the dirt. The left turn was a separate event. There was some sliding and a definite left turn into the canal. Varat determined that the maximum speed that could be maintained on the canal bank‟s curve was very fast— 60-something miles per hour. A vehicle travelling at this critical speed would very likely crash. The truck, however, was travelling at a speed less than this maximum speed because the tires were tracking, there was no sliding, and there was no evidence of loss of control. When the truck hit the rocks, the truck was probably going 30 to 40 miles per hour. When the truck turned, it went into a yaw and the tracks became scrubbed. It was a hard turn and the tires were sliding. The truck‟s speed as it entered the canal was no more than 28 miles per hour. Any faster and the truck would not have made the turn. Varat disagreed with Gloekler‟s conclusion that the dirt berm launched the truck into the air. He explained that the berm was soft dirt and the tire tracks went right through it, and any bump that remained was absorbed by the truck‟s suspension. He explained that roadway speed bumps, regardless of how fast they are hit, do not launch vehicles 100 feet into the air. Varat believed the truck‟s trajectory was shorter than what Gloekler calculated. 79. Varat disagreed with Gloekler‟s explanation that vehicles tend to sink pretty quickly when they hit water. Varat explained that vehicles actually float until the air inside is displaced with water. In the experiments he had conducted, the vehicles floated for 15 seconds. Once the water starts rushing into a vehicle, it will sink rather rapidly. The resting place of Craig‟s truck indicated that it had landed in the water and had enough time to rotate and end up in a sideways orientation. Varat estimated that the truck took 15 or more seconds to sink. In Varat‟s field, it was reasonable to rely on officers‟ descriptions of tire tracks, depending on the officers‟ expertise and experience looking at vehicle crashes. People in Varat‟s field had to rely on officers‟ impressions all the time. Daniel Ray reviewed the work of the defense expert, Deller. In Ray‟s opinion, Deller inappropriately eliminated defendant‟s credit line and some portion of the $85,000 Washington Mutual account from his analysis. Although this case was time-consuming, it was far from the most challenging Ray had worked on, which was Deller‟s assessment of the case. Deller created financial statements that were both meaningless and inaccurate. He called certain amounts loans when they were clearly not loans. He viewed bank accounts as entities. Ray discussed his disagreements with Deller‟s analysis in detail. In Ray‟s opinion, which was based on his 25 years of skill, training, and expertise, defendant‟s actions appeared to be a very deliberate movement of money between accounts. There was nothing haphazard or inadvertent about it. It appeared to be a very deliberate, well thought-out scheme that included a pattern of $1,200 deposits into Craig‟s bank account. Ray still believed that defendant personally benefitted from about $820,000 of Craig‟s money. Michelle Pittman testified that Craig was interested and inquisitive about religion, but he never told her that he accepted Christ. At Craig‟s funeral, defendant stated that Craig had become a Christian and had given himself to the Lord. 80. When Craig returned from the rehabilitation facility, he told the Pittmans that defendant had taken the guns out of the house before he got home. He also said the family silver and his mother‟s clock were missing when he got home. Michelle spoke to defendant about the items and he said he removed them because they were valuable and he was afraid someone would come in and steal them. Michelle had never seen Craig type. After Craig‟s death, defendant and Vicki told Michelle that one of the upstairs bedrooms of the old schoolhouse would be designated for Craig‟s things. A bedroom downstairs would honor the Foster Farms family that had donated the old schoolhouse. People would be able to stay in the bedrooms. A few weeks after Craig‟s death, defendant had people come to Craig‟s house. Defendant told Michelle they were there to acquire some antiques. If they found something they were interested in, they would make a large donation to the museum. Dave Piazza testified that the elders spoke to defendant about the bank statements that Cathy Bergman had reported as missing from the Foundation Fund. Defendant told the elders he had kept the statements. In 2005, he again acknowledged hiding the bank statements in 2000. At some point prior to 2004, defendant told the elders he had obtained a replacement board for CVMA. After Craig died, defendant did not come to the elders to ask whether the money could go into C & P Investments. The elders were not aware of that account. DISCUSSION I. Coroner’s Hearsay Testimony Defendant contends that admission of the autopsy report and the testimony of a coroner, Dr. Lawrence, who did not personally conduct the autopsy, violated defendant‟s right to confrontation as defined by the United States Supreme Court in Crawford v. 81. Washington (2004) 541 U.S. 36 (Crawford) and Melendez-Diaz v. Massachusetts (2009) ___ U.S. ___ [129 S.Ct. 2527] (Melendez-Diaz). We conclude any error was harmless.5 “The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, [citation], provides that „[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.‟” (Melendez-Diaz, supra, 129 S.Ct. at p. 2531.) In Crawford, the United States Supreme Court held that the Confrontation Clause guarantees a defendant‟s right to confront those who bear witness against him. (Melendez-Diaz, supra, at p. 2531.) “A witness‟s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross- examination.” (Ibid.) In People v. Geier (2007) 41 Cal.4th 555 (Geier), the California Supreme Court determined that scientific evidence such as DNA expert testimony and laboratory reports are admissible despite the limitations the confrontation clause places on conventional evidence. (Id. at pp. 596-607.) Recently, the California Supreme Court has granted at least six petitions of review to address the following issue: “How does the decision of the United States Supreme Court in [Melendez-Diaz] affect this court‟s decision in [Geier]?” (People v. Rutterschmidt, review granted Dec. 2, 2009, S176213; People v. Dungo, review granted Dec. 2, 2009, S176886; People v. Lopez, review granted Dec. 2, 2009, S177046; People v. Gutierrez, review granted Dec. 2, 2009, S176620; People v. Benitez (2010) 182 Cal.App.4th 194, review granted May 12, 2010, S181137; People v. Bowman (2010) 182 Cal.App.4th 1616, 1618, review granted June 9, 2010, S182172.) 5 The People claim that defendant forfeited this issue by failing to raise the constitutional objection during trial. We need not reach this issue in light of our conclusion that any error was harmless. 82. In this case, we need not weigh in on the legal issue of whether admission of the autopsy report or Dr. Lawrence‟s testimony explaining the report violated defendant‟s Sixth Amendment rights because we conclude any error in admitting the evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) As we have detailed in the fact section, the autopsy was conducted by Dr. Schmunk, who also wrote the autopsy report. Dr. Lawrence, a colleague of Dr. Schmunk, testified at trial. Dr. Lawrence explained the injuries identified by Dr. Schmunk, and the cause of death found by Dr. Schmunk. In addition, Dr. Lawrence gave his opinions regarding how Craig‟s injuries might have been caused and whether they were consistent with certain scenarios. Finally, Dr. Lawrence explained the process of drowning in general. Defendant asserts that after Dr. Lawrence testified regarding Craig‟s injuries described in the autopsy report, the prosecutor placed great emphasis on them, suggesting that defendant had intentionally caused the blunt force injuries because defendant spent one minute extricating Craig, who had no facial or head injuries at that point but ended up with a cut on his nose, a head injury, and other blunt trauma. The injuries described in the autopsy report, however, did not prejudice defendant because they were independently established by, and entirely consistent with, defendant‟s own version of the events. According to defendant, Craig spoke an expletive as they drove off the canal bank and into the canal. Defendant did not know if Craig was conscious when they hit the water, but he also testified that Craig was holding his chin above the water and looking scared as defendant worked to remove him. Defendant estimated that Craig was fully submerged for a period he described as less than one minute or longer before defendant extricated him. Defendant thought Craig was still breathing when defendant was swimming with him, but Craig was no longer speaking. Defendant did not remember any facial or head injuries on Craig at that time, suggesting Craig did not sustain his injuries 83. during the crash. As defendant and Craig approached the footbridge, Craig‟s face, neck, chest, and right arm “slammed” into a cement pillar as he rolled into it. His head “whack[ed] against the cement” with some force. Craig‟s legs were pulled around the pillar and, as defendant tried to pull him up and balance him, Craig‟s face swung around and was against the cement pillar again. Defendant struggled to reach the next cement pillar, pushing off from the last and taking a few strokes. As he did, they “slammed” into the next cement pillar. Defendant and Craig were in the water about 10 minutes fighting against the walls and trying to get out. Eventually, defendant pulled Craig most of the way out of the water. At this point, defendant thought Craig was not breathing, although he did not check. After getting help from José Vasquez, defendant performed CPR, including chest compressions, on Craig. Thus, under defendant‟s scenario, Craig‟s injuries were most likely caused when his head and body hit the cement pillars. Craig‟s repeated and forceful contacts with the cement pillars explained both his abrasions and the blunt force injuries to his head and body, including the head injury that might have rendered him unconscious. According to defendant, after these events, which may have lasted 10 minutes, Craig no longer appeared to be breathing. As for Craig‟s cracked ribs and sternum, they could be explained by the impact with the cement pillars and/or the chest compressions administered by defendant and the paramedics. We also note that Craig‟s external injuries were established independently by the autopsy photographs. We disagree that the autopsy report in any way suggested that defendant purposefully inflicted Craig‟s injuries, despite the prosecutor‟s suggestion that “[s]omething bad” happened to Craig in the time between his extrication from the truck and his death. The prosecutor said, “What happened? Don‟t know. Something bad.” Even defendant‟s story supported the conclusion that something bad happened to Craig between his extrication and his death—he was drowning. 84. Second, the autopsy report‟s conclusion that defendant died of drowning (and Dr. Lawrence‟s recitation of it) did not prejudice defendant because it was supported by independent evidence. Evidence of drowning was provided by the ER physician, Dr. Paradis, who testified that he concluded Craig had died of suffocation due to drowning, and by defendant himself, who explained that Craig coughed up a lot of water when defendant began CPR. Lastly, defendant challenges Dr. Lawrence‟s testimony that, based on the temperature of the water in the area, it would take five to 10 minutes for a person to drown. The prosecutor later suggested that if defendant extricated Craig in one or two minutes, then he must have intentionally kept Craig under water long enough to drown him. Dr. Lawrence‟s testimony on this subject, however, had nothing to do with the autopsy report, but rather was based on his own experience or knowledge. Nothing in the autopsy report supported his opinion. It is therefore inconsequential that Dr. Lawrence‟s opinion was detrimental to defendant‟s case. Furthermore, defendant‟s scenario suggested Frank had been in the water more than 10 minutes.6 Admission of the autopsy report and Dr. Lawrence‟s testimony regarding it were harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) II. Evidence of Defendant’s Bad Driving Habit Defendant asserts that the trial court erred by refusing to admit evidence of defendant‟s habitual bad driving under Evidence Code section 1105. We see no abuse of discretion. Evidence Code section 1105 permits the admission of habit evidence “„to prove conduct on a specified occasion in conformity with the habit .…‟” (See People v. 6 We also note that the ER physician, Dr. Paradis, stated that the paramedics reported a scenario, which they could have gotten only from defendant, that Craig had been submerged for 10 minutes. 85. Hughes (2002) 27 Cal.4th 287, 337.) The hallmark of habit evidence is that it shows a regular, consistent, nearly automatic response to a repeated situation akin to the situation at issue in the case. (Cal. Law Revision Com. com., reprinted at 29B pt. 3B West‟s Ann. Evid. Code (2009 ed.) foll. § 1105 at p. 336 [habit or custom is “a regular response to a repeated specific situation”]; People v. Memro (1985) 38 Cal.3d 658, 681, overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2 [habit or custom may be established by evidence of “repeated instances of similar conduct”]; People v. Memro, supra, at p. 681, fn. 22, quoting 2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 33.8, p. 1267 [ “„“Habit” means a person‟s regular or consistent response to a repeated situation‟”]; Bowen v. Ryan (2008) 163 Cal.App.4th 916, 926 [“Custom or habit involves a consistent, semiautomatic response to a repeated situation”; evidence that dentist mistreated other patients in addition to plaintiff not sufficient because “conduct, occurring in different circumstances, toward nine of some 45,000 patients, does not qualify as custom or habit”]; see People v. McPeters (1992) 2 Cal.4th 1148, 1166, 1178 [victim‟s “regular conduct under certain specified conditions” of segregating cash in envelopes for special purchases for personal items such as clothing constituted “„evidence of repeated instances of similar conduct‟” sufficient to constitute a habit], superceded by statute on another ground as noted in People v. Wallace (2008) 44 Cal.4th 1032, 1087; People v. Webb (1993) 6 Cal.4th 494, 529 [regular observation, over course of six months, of victim placing money in jars and envelopes showed victim‟s habit of storing money in that manner].) There must be an adequate sample of uniform responses, although specific standards for determining adequacy do not exist. (2 Jefferson, Cal. Evidence Benchbook (4th ed. 2009) § 35.65, p. 852.) The 1982 edition of Jefferson noted the distinction between a daily rider of a bus testifying that the driver “habitually” failed to observe a stop sign (which establishes habit), as opposed to testimony of observations only on “„many occasions‟” (which is inadequate to establish a habit, though adequate to rebut a 86. proffered habit). (2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 33.8, pp. 1270- 1271.) Furthermore, the evidence “must not be too remote in time or space from the time and place of the specified occurrence.” (Webb v. Van Noort (1966) 239 Cal.App.2d 472, 478.) “The question whether habit evidence is admissible is essentially one of threshold relevancy [citation]; it is addressed to the sound discretion of the trial court. [Citation.]” (People v. McPeters, supra, 2 Cal.4th at p. 1178.) In this case, defendant hoped to offer evidence that he had a habit of physically turning toward passengers in his car when they spoke to him or handed him something, thereby disengaging himself from the process of looking forward while driving. At an Evidence Code section 402 hearing, defense counsel presented five witnesses, as follows. John Hixenbaugh had known defendant for about 20 years. He rode with defendant within the month before the fatal collision as they drove to a fishing hole. As they conversed, defendant would turn and look at John. John was scared and he kept telling defendant to watch the road. John said, “[Defendant], pay attention to the road. We‟re going over this cliff.” Defendant responded, “Oh, I‟m okay.” John offered to drive. When he got back, he told his wife he did not think he could ride with defendant anymore. On cross-examination, John stated he had ridden with defendant between five and 20 times, starting 10 years ago. John did not remember if defendant had behaved this way on previous occasions. John agreed that defendant was sometimes a careless driver. John was serious about not wanting to ride with defendant again because he was a bad driver, but John did not refuse to ride with him. Staci Dias, defendant‟s sister-in-law, testified that in 2002, she and her husband rode with defendant and Vicki from Hickman to Modesto. Staci was sitting behind Defendant. Defendant kept turning in his seat, looking back, and talking to her and her husband. Defendant was driving on and off the shoulder. Staci yelled, “Oh.” Vicki 87. Porter tapped the dashboard and said, “Okay, let‟s pay attention to the road.” On cross- examination, Staci stated that was the only time she rode with defendant. He was very comfortable and casual behind the wheel. There was not much traffic on that occasion and defendant seemed to get the message after Vicki tapped the dashboard. He did not behave this way on the return trip, which was less stressful for Staci. Annette Machado, defendant‟s other sister-in-law, testified that in 1989, she rode with defendant and Vicki on a canal bank. Annette was riding in the bed of the pickup truck. The window between the cab and the bed was open. Annette had had a bad day, so defendant was trying to cheer her up by singing. He turned his body and looked back at her. The truck veered toward the edge of the canal and both Annette and Vicki were getting nervous. Vicki told defendant to stop and pay attention. She told him he was scaring Annette. Finally, Annette told defendant to stop. She said, “You‟re scaring me. Just pay attention. I don‟t want to hear your song.” On cross-examination, Annette testified that she had ridden with defendant countless times over the past 25 years, but that was the time that was pronounced in her mind. Defendant cared about her, but he was easily distracted. Defendant would always talk to and look at his passengers when he drove. She did ride with defendant again after the 1989 event, probably every six months or year when she visited Hickman, which amounted to about 12 times. Kenneth Nickles, a retired UPS driver, usually drove when he was with defendant because defendant was a terrible driver. If Kenneth asked him a question while he was driving, defendant would look at him, concentrate, and answer the question. Meanwhile, if the road turned, he would keep going straight. This happened twice when Kenneth was with defendant in Mexico, and once when they were on a fishing trip. On cross- examination, Kenneth testified he had been in the vehicle while defendant was driving dozens of times, but these three incidents were the only times that Kenneth got excited and was concerned they would get in a collision because of defendant‟s carelessness. 88. Kenneth told defendant he was concerned about his driving. The many other times, the trips were less eventful. Joseph Dias, defendant‟s father-in-law, testified that in 1990, he went on a fishing trip with defendant. As defendant drove, he asked Joseph to find his fishing license. Joseph looked for it, but defendant turned around and started helping Joseph look. He was not paying attention to the road and they hit a boulder. In 1998, they went on a hunting trip. Joseph pushed in the cigarette lighter and when it popped out, it landed on the floorboard. Joseph was reaching around for it and defendant turned around and started helping him. He drove into a dirt embankment. In 1969, defendant was driving a tractor and Joseph was following him. Defendant was turning around and making funny faces at Joseph. He went off the road and hit the side of a pole with the tractor. On several occasions, Joseph drove because he thought it was safer. On cross-examination, Joseph stated he had ridden with defendant 400 to 500 times in the last 40 years and sometimes defendant would be careless. He was a generally inattentive driver. He would look at something and not pay attention to where he was going. Joseph would remind him and he would pay attention for a while. Joseph did not believe he ever let his grandchildren ride with defendant. Defense counsel explained to the court: “The habit that we‟re demonstrating is the habit of [defendant] in focusing entirely in his conversation, turning his body physically to the person he‟s conversing with, whether they be in the passenger seat or in … a couple of instances, all the way to the back seat area, and thereby totally diverting his attention and his eyesight from the road.” After hearing argument, the court stated: “Well, it‟s clear that under [Evidence Code section] 1105, habit and custom refer to a consistent response to a repeated situation. Also a person‟s character trait refers to a person‟s general disposition of or propensity to engage in certain types of conduct. The latter is not admissible. 89. “And the question before the Court is whether any of these witnesses really have demonstrated to the satisfaction of the Court that there is any type of habit involved here. [¶] … [¶] “I find nothing within Mr. Joseph Dias‟[s] testimony that he testified to that the Court would consider to be the habit which is in question. And I specifically asked at the outset what that was, and the habit was the defendant‟s directing himself to people inside the car and turning and the defendant disengaging from his driving. “While Mr. Dias certainly testified to incidents of careless driving, none of that testimony rises to the level of habit under [Evidence Code section] 1105. Therefore, his testimony will not be allowed in that regard. “Mr. Nickles specifically recalled that on three occasions in the course of having driven with the defendant dozens of times, him—of the defendant turning and looking at him, and as a result making unsafe—or as a result driving unsafely and scaring him. “Again, three specific instances over dozens of times of driving with him in the Court‟s mind does not rise to the level of habit for purposes of Evidence Code [section] 1105. Accordingly, he will not be allowed to testify as to that evidence. “Annette Machado referred to a single incident in 1989. She believes that maybe she drove with the defendant approximately a dozen times over the course of 15 years or so. It was unclear whether she drove with him after 1989. On one occasion she said she did and one occasion she said she didn‟t. “Her testimony was that on the one incident in 1989, she was in the bed of a pickup truck. There was a split window and he was singing to her to make her feel better because she was having a bad day or week. “Again, the Court concludes that that is not habit evidence because it‟s not a consistent response to a similar situation. “Staci Dias had testified as to a single isolated incident in 2000, and she was in the back seat of the vehicle in which the defendant was driving, and he looked back to talk to her and was causing her concern. She‟s only been with him driving the one occasion, my notes indicate. [¶] Does anybody disagree with that? [¶] … [¶] 90. “All right. That again, a single isolated event does not in this Court‟s mind rise to the level of a habit for purposes of Evidence Code [section] 1105, and she will not be allowed to testify as to that incident. “That leaves [us with] John Hixenbaugh. His testimony was that he had driven with the defendant initially five to six times, but it could have been five to 15 to 20 times. He relayed a specific incident which he thought was within a month of the April 22nd, 2004, collision, and they were going to a fishing hole somewhere on or near the Stanislaus River and they were driving on a canal bank-type road. The defendant would talk to him and would turn to him as he was talking and kept looking over at him, and that caused him to [swerve] back and forth. “Again, an isolated one incident in five to as many as 20 times having ridden with the defendant does not rise to the level of a habit. Therefore, his testimony in that regard will not be permitted. “So based on the—all of the above, none of these witnesses are going to be allowed to testify as to so-called habit evidence because there is no habit. “And so that it‟s clear, the Court considers habit as a regular response to a repeated specific situation, and there simply is no evidence presented by any of these witnesses that constitute habit. “In addition, if the Court has discretion under [Evidence Code section] 352 in addition to the [Evidence Code section] 1105 ruling, the Court would conclude that under 352, the probative value of this evidence would be far outweighed by its potential prejudice and undue consumption of time.” For the reasons so well stated by the trial court, we see no abuse of discretion in its conclusion that the offers of proof did not indicate repeated instances of similar conduct that were sufficiently regular or consistent to constitute a habit. The trial court did not abuse its discretion by disallowing the evidence. III. Traffic Collision Expert Testimony Defendant argues that the trial court erred in admitting testimony from CHP Officer Green regarding the 2002 collision, including his comment that “actual steering input,” rather than a drifting off, caused defendant‟s truck to leave the roadway. 91. Defendant contends Officer Green did not qualify as an expert on collision reconstruction. We see no abuse of discretion. We begin by setting forth the statutory basis for the testimony of an expert at trial. “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates….” (Evid. Code, § 720, subd. (a).) The testimony of a witness testifying as an expert is “limited to such an opinion as is: [¶] (a) [r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) [b]ased on a matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness ….” (Evid. Code, § 801.) “[T]he determinative issue in each case must be whether the witness has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth, and „no hard and fast rule can be laid down which would be applicable in every circumstance.‟” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38.) “Where a witness has disclosed sufficient knowledge, the question of the degree of knowledge goes more to the weight of the evidence than its admissibility.” (Ibid.) No particular educational background is required to testify as an expert. A university degree is “not indispensable to expertise. [Citation.] It is the function of a trial court to determine the qualifications of an expert, and the degree of his knowledge is a matter which affects the weight of his testimony, not its admissibility.” (People v. Stuller (1970) 10 Cal.App.3d 582, 597.) We review the trial court‟s admission of expert testimony for abuse of discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1222.) We may find error only if the witness “„clearly lacks qualification as an expert.‟” (People v. Hogan (1982) 31 Cal.3d 815, 852, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.) 92. Police and highway patrol officers routinely testify to their expert opinions regarding vehicle dynamics. “„[H]ighway patrol officers, garagemen, automobile mechanics and others with similar special experience [i.e., experts] may testify on various matters in issue in automobile accident cases.‟” (Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1616, quoting 1 Witkin, Cal. Evidence (3d ed. 1986) Opinion Evidence, § 500, p. 472.) “„[A] traffic officer who has spent years investigating accidents in which he has been required to render official reports not only as to the facts of the accidents but also as to his opinion as to their causes, including his opinion, when necessary, as to the point of impact, is an expert. Necessarily, in this field, much must be left to the common sense and discretion of the trial court.‟” (People v. Haeussler (1953) 41 Cal.2d 252, 260, superseded by statute as stated in De Woody v. Superior Court (1970) 8 Cal.App.3d 52, 56-57.) In Haeussler, the officer‟s qualifications as a witness included “many years of experience in investigating traffic accidents and reporting their causes to his superiors. He based his opinion upon an inspection of skid and gouge marks on the pavement and the location of oil, broken glass, parts of the vehicles, and other debris. The trial court was justified in concluding that a determination, from these indicia, as to the point of impact might properly be made by an expert.” (People v. Haeussler, supra, at p. 261.) In this case, the prosecutor presented Officer Green as a traffic collision expert, not an accident reconstruction expert, to “testify based on his qualifications to things that are above and beyond [w]hat the average witness would know with regards to steering input, leaving the roadway early, things that are basic to many traffic collisions.” The prosecutor argued that Officer Green could make an observation regarding affirmative steering. Officer Green had been a CHP officer for 19 years, during which he had investigated thousands of collisions. During voir dire, he testified that he had no formal training in physics or collision reconstruction, other than what he received as part of the 93. CHP academy training, which included training in documenting a scene, physical evidence to look for, examination of damage, and collection of evidence. The court determined that Officer Green‟s expertise went to the weight of his testimony and not its admissibility, but the court agreed that Officer Green did not qualify as an accident reconstruction expert. The court concluded it would allow the testimony, limited to traffic collision expertise, and rule on a question-by-question basis. As the trial court properly concluded, any question of Officer Green‟s degree of knowledge went more to the weight of the evidence than its admissibility (Mann v. Cracchiolo, supra, 38 Cal.3d at p. 38), and the jury was properly instructed in this regard.7 Officer Green did not “„clearly lack qualification as an expert‟” (People v. Hogan, supra, 31 Cal.3d at p. 852). On the contrary, he had investigated thousands of collisions as a trained officer and was capable of examining tire tracks leading to a collision and determining their angle of departure from the roadway and whether they showed a mere drifting off the roadway or an active attempt to steer the vehicle. We find no abuse of discretion in allowing his testimony. We also note that similar opinion evidence, albeit lay opinion, was received from Ronald Zanker, the resident living near the crash site, who found no skid marks approaching the tree, and observed that the tracks went straight to the oak tree without any turning. 7 The jury was instructed: “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.” (CALCRIM No. 332) 94. IV. Craig’s Hearsay Statements Defendant contends various statements Craig made to his friends and relatives were improperly admitted, without limitation, under the state of mind exception to the hearsay rule (Evid. Code, § 1250, subd. (a)) because they were statements of memory or belief to prove the fact remembered or believed (id., subd. (b)). We see no merit in any of his claims. Hearsay is evidence of an extrajudicial statement “offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Under the state-of-mind exception to the hearsay rule, “evidence of a statement of the declarant‟s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant‟s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.” (Id., § 1250, subd. (a).) But this statute “does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.” (Id., subd. (b).) If, on the other hand, the statement is offered for some purpose other than proving the fact stated therein, it is not hearsay. (People v. Bolden (1996) 44 Cal.App.4th 707, 714.) Thus, a statement that does not declare a mental state, but is merely circumstantial evidence of that state of mind is not hearsay because it is not offered for the truth of the matter stated. Rather, whether the statement is true or not, the fact that the statement was made is relevant to determination of the declarant‟s state of mind when that state of mind is at issue, as it was in this case. (People v. Ortiz (1995) 38 Cal.App.4th 377, 389.) Such evidence does not run afoul of the hearsay rule, for “„“no assertive or testimonial use is sought to be made of it.”‟” (People v. Duran (1976) 16 Cal.3d 282, 295.) 95. We review the admission or exclusion of evidence for abuse of discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 821 [admissibility of evidence turning on state of mind exception to hearsay rule subject to abuse of discretion standard].) A. Craig’s Statements Regarding the Museum Project and His Money Craig‟s statements that nothing was happening on his museum project, that things that were supposed to have been done had not been done, that defendant had spent all of Craig‟s money on his own property in La Grange, and that things were bad and defendant was taking Craig‟s money were not offered to prove their truth—that nothing was actually happening on the museum project and that defendant was actually taking Craig‟s money. There was abundant admissible evidence of that. Instead, the statements were offered as circumstantial evidence to prove Craig‟s state of mind—that he was realizing that nothing was happening on the museum project and that defendant was taking his money, which was relevant to show Craig‟s feeling of betrayal, his intent to remove defendant from the project, his actions to replace or confront defendant, and defendant‟s motive to kill him. In other words, these statements were not hearsay. Craig‟s statements to the effect that he was afraid or upset that all his money was gone and that he intended to confront defendant were declarations of Craig‟s state of mind and his intent under Evidence Code section 1250, subdivision (a), both relevant to Craig‟s actions and defendant‟s motive to kill him. B. Craig’s Statements Regarding the Pouring of the Foundation John Veldhuizen testified (1) that Craig stated that defendant told him the museum‟s foundation was being poured, (2) that Craig asked John to go to the site and see what was happening, (3) that John went to the site and discovered the foundation had not been poured, and (4) that John returned to Craig and told him nothing had been done. Defendant asserts that Craig‟s statement of what defendant said to him, statement (1), described a past event within the meaning of Evidence Code section 1250, subdivision (b). As defendant acknowledges, defendant‟s statement to Craig that the 96. museum‟s foundation was being poured, the statement within statement (1), was admissible as a statement by a party. (Id., § 1220; People v. Horning (2004) 34 Cal.4th 871, 898, fn. 5 [“section 1220 covers all statements of a party, whether or not they might otherwise be characterized as admissions”].) Craig‟s statement to John that defendant had made this statement to him, statement (1), and Craig‟s request that John visit the site, statement (2), were both offered as circumstantial evidence of Craig‟s state of mind to show that Craig suspected defendant of lying to him about the progress and that he decided to investigate. John‟s report to Craig, statement (4), was also offered as circumstantial evidence of Craig‟s state of mind to show that Craig was aware that no progress had been made on the museum and that he knew defendant had lied to him. C. Craig’s Statement Regarding His Memorial Plaque Michelle Pitman testified that Craig wanted her to fill in the date of his death on his memorial plaque after he died. She told defendant of Craig‟s wishes and defendant said he would take care of it, but the date was never added. Defendant explains that Craig‟s statement to Michelle would have been admissible under the state of mind exception, if only it had been relevant. Defendant also argues the evidence was extremely prejudicial under Evidence Code section 352 because it implied that he was “utterly callous” toward Craig, “even in death”—an explanation that, in our opinion, very aptly explains the relevance of the evidence. (People v. Coddington (2000) 23 Cal.4th 529, 588, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [the type of prejudice Evid. Code, § 352 was meant to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence].) Defendant finally claims there was no foundational showing that defendant knew what needed to be done or that he did not pursue the task, but Michelle testified that she informed defendant of what needed to be done. Furthermore, defendant himself testified that he knew what needed to be done and he pursued the task. 97. The trial court did not abuse its discretion by admitting these statements by Craig. We note that many similar hearsay statements were admitted without objection. Furthermore, “[e]ven assuming that defendant is correct in noting that the evidence should only have been admitted for a limited purpose, the trial court had no sua sponte duty to give a limiting instruction. „When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.‟ (Evid. Code, § 355.) However, as [the Supreme Court] has noted, „absent a request by defendant, the trial court has no sua sponte duty to give a limiting instruction.‟ [Citations.]” (People v. Smith (2007) 40 Cal.4th 483, 516.) Here, defendant made no such request. V. Involuntary Manslaughter Instruction Defendant maintains that the trial court was required to instruct with a theory of negligent homicide, such as involuntary manslaughter or vehicular manslaughter. He asserts that involuntary manslaughter is a lesser included offense of murder, and he argues that public policy required the trial court to instruct on manslaughter because People v. Sanchez (2001) 24 Cal.4th 983 (Sanchez), disapproved on another point in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229, upon which the trial court relied, “did not address whether instruction on vehicular manslaughter would be impermissible in a case such as this one.” We conclude the trial court did not err. A court must instruct the jury sua sponte on any lesser included offense when there is substantial evidence from which a reasonable jury could conclude the defendant committed the lesser, but not the greater, offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) “On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.” (Ibid.) “[T]he existence of „any evidence, no matter how weak‟ will not justify instructions on a lesser included offense, but such instructions 98. are required whenever evidence that the defendant is guilty only of the lesser offense is „substantial enough to merit consideration‟ by the jury. [Citations.]” (Ibid.) A lesser included offense is necessarily included in a greater offense if the greater offense cannot be committed without also committing the lesser. (People v. Birks (1998) 19 Cal.4th 108, 117.) Manslaughter is generally a lesser included offense of murder. (Sanchez, supra, 24 Cal.4th at pp. 989-990, & cases cited therein.) In Sanchez, the Supreme Court held gross vehicular manslaughter while intoxicated (§ 191.5) is not a lesser included offense of murder because “[g]ross vehicular manslaughter while intoxicated requires proof of elements that need not be proved when the charge is murder, namely, use of a vehicle and intoxication. Specifically, section 191.5 requires proof that the homicide was committed „in the driving of a vehicle‟ and that the driving was in violation of specified Vehicle Code provisions prohibiting driving while intoxicated.” (Sanchez, supra, 24 Cal.4th at p. 989.) As in Sanchez, use of a vehicle is a required element of vehicular manslaughter, which is not an element of murder, and therefore vehicular manslaughter is not a lesser included offense of murder Relying on People v. Ochoa (1998) 19 Cal.4th 353, defendant asserts that involuntary manslaughter is a lesser included offense of murder. But Ochoa did not involve a vehicular death. (Id. at pp. 380-381.) Section 192, subdivision (b) states that involuntary manslaughter does not apply to vehicular deaths: “Involuntary [manslaughter occurs] in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.” (Italics added.) In any event, overwhelming evidence established that defendant had previously tried to kill Craig and intended to kill him when he finally did—that is, that he committed murder, not involuntary manslaughter. In 2002, he intentionally steered Craig‟s side of a truck into a tree, and in 2004, he intentionally steered a truck into a canal. Defendant 99. claimed the collisions were accidents, but both scenes showed evidence that the truck had been steered into the target. Defendant claimed he was not driving at an unsafe speed on the canal bank and that he drove into the canal because he hit the rocks, but his tire tracks showed that the truck continued straight past the rocks and turned into the canal at a later point. Moreover, evidence of defendant‟s financial motives further supported the murder finding. There was simply no substantial evidence that defendant was guilty of involuntary manslaughter and not murder. In other words, a reasonable jury could not have been persuaded that defendant committed involuntary manslaughter rather than murder. Accordingly, even if vehicular manslaughter is considered to be a lesser included offense of murder, the court was not required to instruct on it in this case. VI. Cumulative Error Finally, defendant asserts that even if the foregoing claims of error do not amount to reversible error individually, their cumulative effect does. Because we have found either no error or harmless error in each instance, defendant‟s contention that he prejudicially suffered from the cumulative effect of errors must fail. DISPOSITION The judgment is affirmed. _____________________ Kane, J. WE CONCUR: _____________________ Levy, Acting P.J. _____________________ Poochigian, J. 100.
"Filed Porter CA NOT TO BE PUBLISHED IN THE OFFICIAL"