P. v. Luster 5/2/08 CA2/8

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State: California

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

Docket No: B194825

Case Date: 07/30/2008

Preview:Filed 5/2/08 P. v. Luster CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. RICKEY GLEN LUSTER, Defendant and Appellant.

B194825 (Los Angeles County Super. Ct. No. GA057712)

APPEAL from a judgment of the Superior Court of Los Angeles County. Rafael A. Ongkeko, Judge. Affirmed. Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________ INTRODUCTION A jury convicted appellant Rickey Glen Luster of the second degree murder of his

wife, who was found beaten, strangled, and naked on the floor of their home. Luster challenges his conviction on the grounds of instructional error, ineffective assistance of counsel, and violation of the Confrontation Clause. First, he contends that CALCRIM No. 220 misstates the reasonable doubt standard and dilutes the prosecution's burden of proof. Second, he argues that CALCRIM Nos. 375 and 852 prevented the jury from considering for the defense theory of the case the victim's conduct in an earlier domestic violence incident. He also asserts that these instructions erroneously told the jury that the preponderance of evidence standard applied to the defense's use of the prior incident. Third, Luster contends that CALCRIM No. 852 violated due process by permitting the jury to convict him based on propensity evidence alone. Fourth, he argues that his trial attorney mishandled his objections to the prosecution's introduction of the victim's earlier statements to police. His lawyer, Luster says, should have argued that a 911 call showed the victim's later statements to police to be insufficiently trustworthy for the hearsay exception of Evidence Code section 1370, subdivision (a) to apply. Finally, Luster challenges the trial court's ruling that he forfeited by wrongdoing his Confrontation Clause objection to the admission of the victim's statements to the police during the earlier domestic violence incident. We conclude that CALCRIM No. 220 properly articulates the reasonable doubt standard. The use of CALCRIM Nos. 375 and 852 did not prevent the jury from considering the victim's conduct in the prior incident to support the defense's arguments, nor did it mislead the jury about how to apply the preponderance of evidence standard. The instructions plainly were limited in their application to the prosecution's use of the prior incident evidence. Nor did CALCRIM No. 852 allow the jury to convict Luster based on propensity evidence; the instruction explicitly told jurors that evidence of prior domestic violence was insufficient to prove guilt and that proof beyond a reasonable doubt of each element of an offense was required. Defense counsel's failure to give the court the recording of the victim's 911 call during the earlier domestic violence incident and to argue that Evidence Code section 1370 did not apply was not prejudicial and

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therefore did not constitute ineffective assistance of counsel. The 911 recording did not cast doubt on the trustworthiness of the victim's statements to police on that prior occasion. Finally, the trial court correctly held that, by murdering the victim, Luster forfeited his Confrontation Clause objection to the admission of her earlier statements to the police. BACKGROUND AND PROCEDURAL HISTORY On June 10, 2004, Luster called his mother and said that his wife, Barbara Luster, had stabbed him. Luster's daughter LaTreta Luster was at her grandmother's home with her children when Luster called.1 LaTreta took the phone and spoke to her father. He was angry with LaTreta and her husband because they owed him for electrical work he had done for them. LaTreta asked to talk to Barbara. Barbara said she stabbed Luster because she was "tired of what happened" in an altercation about a year earlier. LaTreta took her children and Luster's mother to the house Luster and Barbara shared. She performed first aid on both her father, who had a bloody wound on his chest, and Barbara, who had a small cut "on her eye" and a bruise on the side of her face. Although Barbara had sounded alert on the telephone, she seemed weak and she mumbled, as if she had been "knocked out" and "was coming to." She sat on the couch as LaTreta helped her father pack some things to move out. LaTreta saw some blood on the wall "on the way to the bathroom." Her father was agitated and cursed at her. At some point, LaTreta saw him take a "handful" of pills he said were Zoloft. Eventually, everyone except Barbara left the house, with Luster following LaTreta in his own car. However, Luster turned his car around at some point. LaTreta drove on to her grandmother's house because her grandmother claimed she was having a heart attack.

About 5:00 p.m. the same day, Luster borrowed a mobile phone from Jaime Raigoza, who was outside a neighboring house. Raigoza heard Luster say that his wife

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For clarity, we refer to Barbara Luster and LaTreta Luster by their first names. 3

was lying on the floor, he thought she might be dead, and he did not know what to do. Luster appeared to have bloodstains on his shirt. Raigoza told Luster he should call the police. Just then, a police patrol car drove down the street and Raigoza flagged it down. Luster spoke to the police, then went back into his house. Raigoza told the police officer what he had heard Luster say. Also at about 5:00 p.m., Los Angeles County Sheriff's Deputy Eric Sandoval drove to the Luster home to check on Luster and Barbara. A telephone call from Dr. Robert Model, Luster's psychologist, prompted this welfare check. Model had become concerned because Luster missed his 4:00 p.m. appointment. Luster and Barbara had called Model earlier that day; Luster said he was moving out of the house and Barbara said she was concerned about Luster. When Sandoval arrived, he saw Luster walking outside the house. Luster was wearing a blue jersey that appeared to be bloodstained and wet. Sandoval asked Luster if he was Rickey Luster and Luster said yes. He said his wife was taking a bath. Luster would not stand still; he went back in the house and closed the door. He did not answer when deputies knocked. Sandoval and another sheriff's deputy walked around the house and went in through an open kitchen door. Luster was gone, but the deputies found Barbara lying on the living room floor. Her face was bloody and swollen, and she was not moving or breathing. A fire extinguisher lay near her body. The water was running in the bathtub and the house was flooded. Barbara was taken to the hospital, where she was pronounced dead. An autopsy determined that Barbara died from asphyxia due to strangulation. Her nonfatal wounds included a black right eye, swollen and split lips, a bruised and fractured sternum, multiple broken ribs with bruising, bruises on her left forearm and right hand, and deep scalp bruises, all caused by blunt force trauma.

Luster was arrested at a motel two days later. He spontaneously told the arresting officers that it was his own blood deputies had seen on his shirt when they came to his

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house, and that his wife had stabbed him. Luster later gave detectives a post admonition statement that was recorded and played at trial. He insisted that Barbara took "a lot of pills and stuff she had" and fell to the floor. He denied touching her except slapping her face repeatedly in an attempt to revive her when she was "acting dead." Deputy Steven French testified that on June 29, 2003, he and his partner responded to a "family disturbance call" at the Luster home. French saw Luster on the porch, "staggering back and forth." Luster told French that he and his wife had been arguing about his drinking. Luster said his wife walked toward him during the argument, so he pushed her to the ground to make her leave him alone. Luster had a small cut on the top of his head. When asked what happened, Luster said, " `I think the bitch did it. I don't know.' " Luster said he and his wife had consumed two bottles of wine. French and his partner entered the home and found Barbara, crying and intoxicated. The inside of the house "looked as if somebody had been in a fight in the house. The items on the walls were knocked to the side. . . . Things had been thrown about and strewn on the floor." The bedroom mirror was cracked and lying on its side, off of the dresser. French asked Barbara whether she had been drinking; she said she had been drinking with Luster. She also said she and Luster had argued about Luster's drinking. She told French that, during the argument, Luster grabbed her by both shoulders and shoved her against the mirror that sat atop the dresser. She said the mirror broke when she hit it and the glass cut her left shoulder. French saw a bleeding cut on Barbara's left shoulder. Barbara told French that Luster had thrown the things French had seen on the bedroom floor. Barbara also told French that Luster grabbed her neck, threw her to the ground, got on top of her, and put his left knee on her chest to hold her down. French saw a scratch on Barbara's neck. Barbara declined medical treatment. The deputies took photographs of Barbara's injuries, the broken mirror, and the disarray inside the Luster home. These photographs were introduced at trial. LaTreta testified that Barbara had once told her that she would "take no shit from

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any man" and would "fuck them up." Luster testified that he and Barbara both had mental health issues and that there were some problems with their marriage. But, he said, the only time there was violence was in the June 2003 incident: Barbara pushed him into a glass, and he cut his head. It was mutual combat. Luster initially told the police officers what Barbara had done, but after further consideration he recanted because he did not want her to go to jail. On June 10, 2004, Luster was upset. He wanted to move out because he believed Barbara was being unfaithful. He bought and drank liquor and took some pills. He saw Barbara with a bottle of pills, but did not see her take any. As Luster was packing to move out, Barbara stabbed him with a kitchen knife. She then left the house, and he called his mother to ask her to get him out of there. Barbara came back and Luster told her his mother was coming. Barbara had an object in her hand that appeared to be wood and metal, and she hit herself with it near her right eye, causing a gash. She had tried to hurt herself before and had attempted suicide. Luster took a nap until his daughter arrived. He remembered "fussing at" his daughter about electrical work she had not paid him for, but otherwise he did not recall what he did when his daughter was at the house. When she left, Luster went back to sleep. He did not remember driving away or returning to the house, as LaTreta testified. When Luster awoke, Barbara was sitting on the couch wearing lingerie. He told her he did not want to stay married to her. She threw her wedding ring at him and said either that she would not need it where she was going or that he would not need it. She then swung a blunt object at Luster, hitting him in the back; he fell against the glass of the entertainment center and onto the floor. Barbara lunged over him and bit his arm. Luster threw a hard elbow at her. The next thing he knew, he woke up on the floor and found Barbara lying three to five feet away. He tried to revive her by pouring water over her and tapping her with an open hand. He unsuccessfully attempted to find a phone, then went outside. The police officer arrived and Luster climbed over the backyard fence. Luster paid a neighbor to let him hide in his attic until it was dark. Then, he left and started drinking. Luster took a bus to the home

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of his friend James McWilliams. McWilliams testified that Luster showed up at his door and said Barbara had killed herself with an overdose and the police were after him. He let Luster make a phone call and drove him to his cousin's house in Los Angeles. The next morning, McWilliams found Luster asleep in the backseat of McWilliams's car. He drove Luster to his home to pick up his van, but the police were there. McWilliams took Luster to work with him, then took him out to eat and left him at a motel. A jury convicted Luster of second degree murder. The court sentenced him to prison for 15 years to life. DISCUSSION 1. CALCRIM No. 220 properly states the reasonable doubt standard. The trial court instructed the jury with CALCRIM No. 220: "The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [

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