P. v. Anderson 12/31/08 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D050432

Case Date: 04/30/2009

Preview:Filed 12/31/08; pub. & mod. order 1/27/09 (see end of opn.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. ELI JORDAN ANDERSON, Defendant and Appellant.

D050432

(Super. Ct. No. SCE262419)

APPEAL from a judgment of the Superior Court of San Diego County, Allan J. Preckel, Judge. Affirmed. In June 2006 the San Diego County District Attorney charged Eli Jordan Anderson with felony hit and run resulting in death, under Vehicle Code1 section 20001, subdivisions (a) and (b)(2). In the first trial in October 2006 the jury was unable to reach a verdict, voting seven-to-five in favor of acquitting Anderson, and the court declared a mistrial. In December 2006 a second trial commenced and the jury found Anderson guilty.

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All further statutory references are to the Vehicle Code unless otherwise specified.

In February 2007 the court sentenced Anderson to 365 days in county jail, stayed that sentence pending appeal, and gave him five years' probation. The court also ordered Anderson to pay the victim's family $34,092.02 in restitution. On appeal, Anderson asserts the court committed prejudicial error by (1) excluding evidence the victim was suicidal and expert testimony on "fight or flight" syndrome, which the court had allowed him to present in the first trial; (2) refusing his proposed instructions on constructive knowledge; (3) failing to sua sponte give a unanimity instruction; (4) instructing the jury under CALCRIM No. 2140; (5) refusing to allow him reopen his case following closing arguments; and (6) ordering restitution as a condition of probation. We affirm. FACTUAL AND PROCEDURAL BACKGROUND A. People's Case In July 2005 Anderson, who was 18 years old at the time, was working as a production assistant filming commercials in Los Angeles. On the Fourth of July weekend, he drove home to San Diego County. On the evening of July 1 he socialized with some friends. He had a video camera with him and documented the evening's events. Although some of his friends were drinking, there was no evidence presented at trial that he drank or took any drugs that evening. A little after midnight Anderson left his friends and began driving to his girlfriend's house in Lakeside. He drove east on Fletcher Parkway, near the Parkway Plaza shopping mall, in the fourth of five traffic lanes. He observed no other cars on the 2

road or pedestrians nearby. He reached down to change the radio station on his car stereo and took his eyes off the road for between five and 10 seconds. He heard a bang, followed by his windshield shattering and glass getting in his hair, eyebrows and mouth. Anderson testified he did not know what happened to cause his windshield to shatter. Based upon recent media accounts of rocks being thrown at cars, he thought an unknown person had thrown a rock through his windshield. Feeling fearful and confused, Anderson called his girlfriend, Jenin. He told her he was going to look at his car, and he pulled into the parking lot at one end of the mall. Anderson recorded on his video camera his inspection of the car and noted there was blood at the top of the windshield and significant damage to his car. He realized he had struck an animal or a person. According to Anderson, he then drove slowly along the parking lot fronting Fletcher Parkway, looking onto the road to see what he might have collided with. He did not see any evidence of a collision or what he may have hit. He testified he could see through or around hedges separating the parking lot from Fletcher Parkway. However, he admitted he did not drive along the portion of the roadway where the accident occurred, there were places where he could not see through the hedges, and he did not leave his vehicle to take a closer look. Anderson left the mall, drove onto the freeway and called Jenin to tell her he was driving to her home in Lakeside. Jenin told him it was unsafe to drive with a shattered windshield and to pull off the freeway at a restaurant called Janet's Cafe, which the two frequented. 3

Anderson's friend, Ian Tanner, showed up at the cafe, followed by Jenin. Anderson and Jenin then drove to her house in Jenin's vehicle. Gregory Gilbride was driving with two friends down Fletcher Parkway after midnight on the morning of July 2, 2005, when he saw a man lying across the fifth lane of traffic, who he assumed was a "drunken bum."2 Gilbride pulled into the mall parking lot to render assistance. He testified he needed to walk through the hedges on the edge of the parking lot to see the body. As Gilbride approached, he saw blood and "a mangled body." The man was grunting and trying to get up, but he could only lift himself a few inches before collapsing again. Gilbride diverted traffic around the victim until police arrived. During that time he did not observe any vehicles driving around the mall parking lot. Gilbride's 911 call was placed at 12:35 a.m., and police officers arrived within a few minutes. Officers determined the critically injured man was Robert Milligan. Paramedics arrived and they transported Milligan to the hospital, where he subsequently died from his injuries. He had massive head and face injuries as well as chest damage. Jenin testified that after she and Anderson arrived at her house, she and her brother, Andy Kunz, drove in his truck back to the scene of the accident to learn what had happened. As they approached the scene they were stopped by a police officer. Jenin asked the officer what had happened, and he responded that a pedestrian was hit by a car.

2 Gilbride was ruled unavailable for the second trial, and his testimony from the first trial was read to the jury.

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Jenin asked if it was a male or female. Jenin then told the officer that she "just wanted to know because [she] was looking for [her] mom." They then drove to Janet's Cafe, where she saw the blood on Anderson's shattered windshield. When Jenin and Kunz returned to their home they reported the news to Anderson. According to Jenin, he appeared "shocked" and stated he wanted to immediately turn himself in. However, Jenin's father suggested he wait until an attorney could be contacted. Anderson's father, Michael Anderson, was also contacted and he arrived a short time later. Anderson never contacted police. On the evening of July 2, 2005, an anonymous male caller provided police with the first name of the driver who collided with Milligan. The next day, another anonymous caller informed police that the vehicle involved in the incident was located in the parking lot where Janet's Cafe was located. When officers arrived at the scene they found Anderson's car and traced its registration to Anderson's parents. They also discovered Anderson's camcorder in the front passenger seat. Evidence technician Julie Palos examined the vehicle. She found hair and blood samples imbedded in the windshield. Crime lab technician Michelle Hassler determined the DNA in the blood samples taken from the windshield matched Milligan's DNA. Detective John Pearsley was the lead investigator on the case. He matched debris from the collision scene to Anderson's car. An examination of the videotape from Anderson's car revealed Anderson was the driver of the vehicle that struck Milligan. Based upon the injuries Milligan suffered to the right side of his body, a prominent scuff mark on the right side of his shoe, and his resting place in the fifth lane of traffic, 5

Detective Pearsley opined Milligan was running from the median toward the sidewalk when he was struck. He testified that the significant damage to the inside of Milligan's left leg, which reflected the point of impact, could not have happened if Milligan were walking northbound. Detective Pearsley also stated that the scuff mark on the ball of Milligan's right shoe indicated his weight was on his right foot at the time he was struck. He also testified Milligan's resting place in the southern-most lane of traffic indicated he was headed, probably running, in a southerly direction at the time of impact because his forward momentum would continue the same direction after impact. B. Defense Case Anderson presented the testimony of Dr. Harry Bonnell, a forensic pathologist. Based upon his examination of the evidence, he opined one could not tell from the evidence which way Milligan was moving across the street when Anderson struck him or whether Milligan was walking, running or tripped at the time of impact. San Diego Police Officer Stephen McDonald testified that on May 27, 2005, there was a series of incidents involving rocks thrown at cars in various locations around San Diego. In one of the incidents, a passenger in a car struck by a rock was fatally injured when the rock came through the windshield. As part of his investigation of the incidents, he notified the press and asked them to appeal to the public for help in locating the assailants.

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DISCUSSION I. EVIDENTIARY RULINGS Anderson asserts that his state and federal constitutional rights were violated when the court excluded (1) evidence that the victim committed suicide, and (2) and expert testimony on "flight or fight" syndrome. We reject this contention. A. Background 1. First trial At the first trial in this matter, Anderson was allowed to present, over the objection of the People, evidence that Milligan may have committed suicide. The court3 found the evidence relevant to whether Anderson knew he had struck someone. In allowing such evidence, the court stated, "It is a question of fact for the jury to determine whether or not the defendant knew he was in an accident . . . ." The court reached that decision after taking the matter under submission, and cited 11 different cases in support of the ruling. The court found that evidence Milligan might have jumped or flung himself from the right side of Anderson's car, contrary to the People's theory Milligan was merely jaywalking and Anderson must have known he hit a person because he was traveling from the center of the street across Anderson's line of sight, was also relevant to the issue of whether he knew he had hit a person.

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The Honorable Christine K. Goldsmith. 7

The court then held an Evidence Code section 4024 hearing to determine the admissibility of the expert testimony of Dr. Thomas Streed on fight or flight syndrome. Dr. Streed testified that fight or flight syndrome is a person's response to a perceived threat, when that person acts without thinking. At the conclusion of the hearing, the court ruled that Anderson could present this evidence as relevant to Anderson's "intent, the knowledge element . . . ." At the trial evidence was received to support Anderson's claim that Milligan committed suicide by jumping in front of his car. A friend of Milligan's, James Ribley, testified that the day before his death, he was very depressed about something and told Ribley "he wanted to kill himself." He also testified concerning Milligan's mental health issues, which included Milligan asking Ribley one time after he was released from San Diego County Mental Health Services (County Mental Health) if Ribley was his father, and on another occasion expressing the belief that Adolph Hitler was his father. In the weeks before his death, Milligan talked to Ribley on 10 to 15 occasions about dying. Rex Wells, another friend of Milligan's, testified that two days before the incident Milligan told him he "might as well run in front of a car on the freeway." He also told Wells he was searching for his birth mother and that he had to find his German heritage. He testified that on three separate occasions within the two months prior to his death,

4 Evidence Code section 402, subdivision (b) provides: "The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests." 8

Milligan had talked for over an hour about ending his life. When Milligan was with him two days before his death, he observed Milligan take a wooden pallet out of the back of his truck and write something on it. After Milligan's death it was discovered the writing said, "I don't have hopes and dreams . . . plans and schemes and don't have much reason to live." Mental health records indicated Milligan was taken to County Mental Health two to four weeks before his death. The medical examiner that conducted the autopsy on Milligan concluded his death was likely the result of a suicide. Anderson's pathologist expert, Dr. Bonnell, also opined the victim had committed suicide. He also opined the note left on the pallet in the back of Milligan's truck was a suicide note. With regard to the fight or flight syndrome expert testimony, Dr. Streed testified that it would have caused Anderson to have no control over his reaction to being struck in the windshield, and he would perceive a need to flee from the perceived danger. The first trial resulted in a hung jury, the jury voting seven to five in favor of acquittal. The court then declared a mistrial. 2. Retrial At the retrial defense counsel made an offer of proof that this same evidence would be presented on behalf of Anderson in support of his defense that he did not know he had struck a person and did not willfully fail to stop and render aid. However, the court5 excluded evidence of Milligan's alleged suicidal thoughts and Dr. Streed's

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The Honorable Allan J. Preckel 9

proposed testimony concerning fight or flight syndrome, finding the evidence was irrelevant and inadmissible under Evidence Code section 352. With regard to the evidence Milligan was suicidal, the court stated: "It is the court's position and determination that the legal bedrock underlying certain of the court's evidentiary rulings in this case is and should be as follows: [

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