Page 1
1 of 100 DOCUMENTS
SCD204988
Warning
As of: Aug 07, 2012
THE PEOPLE, Plaintiff and Respondent, v. GERALD MICHAEL NASH, Defendant and Appellant.
D053238
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE
2010 Cal. App. Unpub. LEXIS 315
January 15, 2010, Filed
NOTICE: NOT TO BE PUBLISHED
IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE
8.1115(a), PROHIBITS COURTS AND
PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED
FOR PUBLICATION OR ORDERED
PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS
OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.
PRIOR HISTORY: [*1]
APPEAL from a judgment of the Superior Court of San Diego County, No.
SCD204988, Frederick L. Link, Judge.
DISPOSITION: Affirmed.
JUDGES: NARES, Acting P. J. WE
CONCUR: McDONALD, J., AARON,
J.
OPINION BY: NARES
OPINION
Page 2
2010 Cal. App. Unpub. LEXIS 315, *
In March 2008 a jury found Gerald
Michael Nash guilty of one count of
willful, deliberate and premeditated
murder (Pen. Code, §§ 187, subd. (a),
189). The jury also found true the allegation that Nash personally and intentionally discharged a firearm, resulting in
great bodily injury and death (§
12022.53, subd. (d)). The court sentenced Nash to a prison term of 50 years
to life, consisting of a 25-year-to-life
term for the murder conviction and a
consecutive 25-year-to-life term for the
firearm enhancement.
1
1 All further references are to the
Penal Code unless otherwise specified.
On appeal Nash asserts (1) the court
erred by admitting notes he wrote about
kidnapping, torturing and killing victims
(the torture notes) and evidence suggesting he was seeking to change his identity
(identity theft evidence); and (2) there is
no substantial evidence that the killing
was committed with premeditation, deliberation or planning. We affirm.
FACTUAL BACKGROUND
A. People's Case
On the morning of February 26,
2007, Fernando [*2] Illanes observed
something suspicious in a ravine below
the 300 block of Hollister Street. Illanes
notified his supervisor Armando Becerra, and the two drove back to the area to
investigate. When Becerra got out of his
truck to look around, he saw a torso in
2
the Otay River. Becerra used his cell
phone to contact police.
2 All further calendar dates are to
the year 2007 unless otherwise
specified.
When police arrived, they observed
the torso had no head, and its legs were
severed above the knees. The hands
were missing. There was a white braided
rope tied tightly around each wrist. The
victim was wearing a pair of jeans,
which had bleach stains on them where
they had been cut. The victim was also
wearing a dark-colored, zippered sweat
shirt. The victim had no tattoos, wallet
or other identifying information. There
was a small amount of blood on the curb
above the river. There were pieces of red
duct tape by the torso.
On February 27, Caltrans landscape
workers Marta Rodriguez and David
Jiminez were picking up trash and debris
near the junction of the Interstate 5 and
163 freeways. They found a human left
hand in some debris by the shoulder of
the road. The hand had not been there a
day [*3] earlier, on February 26. They
notified their lead worker, who contacted police.
When police arrived and observed
the hand, they noticed the middle fingernail was completely missing.
That same day, at around 6:15 a.m.,
Kenneth Kazezski, a tow truck driver,
was removing debris from alongside
southbound Interstate 5. Kazezski saw a
black bag on the shoulder of the free-
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2010 Cal. App. Unpub. LEXIS 315, *
way, just south of 28th Street. When
Kazezski opened the bag to check its
contents, a human head rolled out.
Kazezski called police.
The head was covered in blood and
had been severed at the neck. There was
a bullet hole through the top portion of
the left ear, and the left side of the skull.
There were bloodstains and tissue along
the shoulder of the freeway.
On April 6, Randy Walls searched a
stream bed by his property in Harbison
Canyon after noticing that his dog
smelled like it had discovered a dead animal. After searching for a few hours using binoculars, Walls discovered a black
trash bag at the bottom of a ravine.
When Walls looked at the bag more
closely the next day, he saw a human leg
protruding from the bag. The leg had the
lower portion of a pair of jeans and a
sock on it. Walls called the sheriff's department.
Using [*4] cadaver dogs, sheriff's
deputies discovered a second leg near
the location where the first leg had been
discovered. It also was in a plastic bag,
with a sock on the foot. Both legs were
severed at the knees. The pant legs had
bleach stains consistent with the stains
found on the pants attached to the torso.
Upon discovery of the torso, homicide detectives began efforts to identify
the victim. Detective Jonathan Smith
unzipped the sweatshirt and discovered a
key chain attached to the left side of the
victim's jeans. An Albertson's preferred
customer card was affixed to the key
chain. Detective Brett Burkett obtained
the location of the Albertson's store
where the card had been issued. Detective Burkett then went to the store and
obtained recent surveillance video.
Through the video, he was able to link
the card to a man the video depicted at a
checkout line making a purchase. The
man was wearing the same clothing as
was found on the victim.
Detectives aired the video on the local news and prepared a press release
asking citizens to come forward if they
could identify the victim. Shortly thereafter, calls began to come in. Belinda
Dileo, a librarian at the downtown
branch of the San Diego [*5] public library recognized the victim as "[t]he
baseball card guy." Employees at the library gave him that nickname because
he came in regularly and always checked
out the same book, one about collecting
baseball cards. According to Dileo, on
the afternoon of February 18, Nash came
in looking for the victim. Nash was
shouting and his face was frozen with
rage. Having not seen the victim that
day, Dileo directed Nash to the arts section on the second floor.
Julian Bojorquez, who ran a fitness
club at Robb Field in Ocean Beach,
knew the victim by his name, Allen
Hawes. Hawes was a homeless man who
paid to use the shower facilities at Robb
Field. Bojorquez also saw Hawes occasionally at a bus stop in Ocean Beach.
Hawes always had a backpack with him.
Bojorquez last saw Hawes at the shower
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2010 Cal. App. Unpub. LEXIS 315, *
facilities on Wednesday, February 21, or
Thursday, February 22.
Tame Cavallero, assistant manager at
Extra Storage in Chula Vista, knew
Hawes because he because he rented a
storage unit there. Hawes came to the
facility a couple of times a week and on
weekends. He did his laundry at a nearby Laundromat and, while he was waiting for his laundry, he would spend time
at his storage unit. Hawes was easily
recognizable [*6] because he had a cleft
palate and wore large round glasses.
Cavallero last saw Hawes on Saturday,
February 17.
Chris Renko and Tony Reeder, employees at the Ever So Naughty (ESN)
adult bookstore and theater on Palm Avenue in National City, about a mile from
the Otay River, recognized Hawes from
the news video. Employees of ESN
nicknamed him "pillow man" because he
often slept in the theater or in one of the
peepshow booths. Hawes had been coming in for years and always had his
backpack with him.
Nash was a clerk at ESN who worked
the graveyard shift. Nash and Renko
shared a rental home that was in back of
ESN. Once or twice a week, Hawes
would show up at the beginning of
Nash's shift and would stay until Nash's
shift ended. Hawes would pull up a chair
next to Nash while he was working and
the two would talk for hours. Beginning
in late 2006, Hawes's visits with Nash
became more frequent. Nash quit his job
at ESN in December 2006. When Nash
quit, Hawes left ESN and told Reeder he
would not be returning. Sometime in
early February 2007, Renko saw Hawes
standing by ESN, wearing his backpack.
On February 26, Renko and Reeder
saw the news footage showing Hawes at
the Albertson's. Two acquaintances [*7]
of Hawes, Dan Hicks and Kathy Miranda, came into ESN and said they recognized Hawes from the news footage.
Nash came into ESN shortly thereafter.
While he was there, the news footage
was replayed. Nash stated that he did not
think the person in the news clip was
Hawes. When Renko said he was going
to call the police, Nash responded that
he would "look into it" but did not think
it was necessary to call the police until
they were sure it was Hawes. Nash then
insisted it was not Hawes on the news
footage.
Nash did not seem concerned about
Hawes and left the building without
writing down the tip line number shown
in the story. When Nash returned later
that night and Reeder mentioned the
newscast about Hawes, Nash responded
by throwing his hands in the air and stating, "Haven't seen him in a month."
When Renko's shift was over, he
called the tip line, advising law enforcement that Hawes was a regular customer of ESN. In response, Detective
Burkett, along with Detective Maria Rivera, went to ESN to interview Renko
and identify other possible witnesses.
When they arrived, they were directed to
the house behind ESN where Renko and
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2010 Cal. App. Unpub. LEXIS 315, *
Nash lived. The detectives entered the
residence and separated [*8] Renko and
Nash to interview them.
Detective Burkett showed Nash a
copy of the press release showing the
supermarket picture of Hawes. Nash responded he had not seen the video that
had been telecast and told him he could
not be "100 percent sure" the photo depicted his friend, Allen. Nash told
Burkett the last time he had seen Hawes
was three or four weeks earlier. He told
Burkett that when he had worked the
graveyard shift he would allow Hawes to
sleep in the back of the bookstore from
time to time.
Burkett asked Nash if he had any
cars. Nash responded that he had a red
Ford T-Bird and a blue Ford Tempo and
agreed to let him look at the cars. Nash
led Detective Burkett to the T-Bird, and
Burkett opened the trunk. Inside the
trunk was a Rubbermaid plastic bin, an
unopened roll of red duct tape, gray duct
tape and a blade for a bow saw. The red
duct tape was similar in appearance to
that found near the torso. Detective
Burkett asked Nash why he had the bow
saw blade. Nash replied that he planned
to use it to trim trees around the house.
Detective Burkett looked around the
house and saw no trees. Renko testified
that Nash never did any yard work
around the house.
At Detective Burkett's request, [*9]
Nash led him to the Ford Tempo. The
seats were covered by black trash bags.
Detective Burkett asked Nash why the
bags were on the seats. Nash responded
that he was getting the car detailed.
Renko testified that Nash never had his
cars detailed.
Nash said he did not have any more
cars. Having already learned through his
own investigation that Nash had a van,
Detective Burkett asked Nash, "Where is
your van?" Nash responded, "Oh yes, I
do have one," and pointed to an older
van parked down the street. Nash unlocked the side door of the van and Detective Burkett looked in. When Detective Burkett looked inside, he saw a bottle of bleach on the floorboard that had a
bloodstain on it.
Detective Burkett asked Nash if he
had any storage units. Nash responded
that he had one in Point Loma and
agreed to accompany Detectives Burkett
and Rivera in their car to show it to
them. Nash directed the detectives to an
area at Nimitz Boulevard and Harbor
Drive, but there was no storage facility
there. As the detectives were driving
Nash home, southbound on Interstate 5,
Nash mumbled, "Yeah, we just passed it
. . . it's getting close to be closing time
there." Nash then directed detectives to
National City [*10] Self-Storage. Nash
told the detectives that he had not been
to that facility since February 1 or 2.
However, records from the facility
showed that Nash was there on February
22 and again on February 24.
When they opened Nash's storage
unit, Detectives Burkett and Rivera saw
Hawes's backpack on the ground by the
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2010 Cal. App. Unpub. LEXIS 315, *
door. Detective Burkett asked Nash why
he had Hawes's backpack in his storage
unit. Nash gulped loudly, looked away,
and said something about "Allen must
have left it in my van." Detective
Burkett unzipped the backpack. Inside
were numerous baseball cards, toiletries,
paperwork in Hawes's name, and an article from the February 22 edition of the
San Diego Union Tribune. Nash told detectives he had no other storage facilities. In fact, Nash had another unit at
Acropolis Self Storage Center in National City. Records revealed Nash had
visited that storage unit on February 26
and 28.
While Detectives Burkett and Rivera
were driving around with Nash, Detective Smith conducted a cursory search of
Nash's residence with the assistance of
forensic specialist Dorrie Savage. In the
dining room they found some white underwear in a coffee can, soaking in liquid detergent. They also found a [*11]
WalMart bag containing a Home Depot
receipt dated February 22, an unopened
package of rope, an opened box of trash
bags, a package of pink nylon rope,
white towels, empty grocery bags, five
pieces of frayed white rope with stains
on them, and a large roll of black plastic
tarp.
Later that evening, Nash was questioned by Detective Smith at the police
station. Sometime after midnight, Detective Smith drove Nash home. While
driving him home, Detective Smith noticed that Nash was wearing older shoes
but with new shoelaces. When he asked
Nash about them Nash told the detective
he had thrown the old shoelaces in a
dumpster, but the trash had already been
picked up. Before leaving Nash at his
house, Detective Smith gave Nash his
phone number and Nash agreed to call
him no later than 7:00 a.m. the next
morning.
When Nash got home, Renko was
there. Nash was irate. He told Renko he
had "some scores to settle." He told
Renko he did not know why police were
questioning him, as he barely knew
Hawes. Nash then told him he was going
to do some cleaning. Nash picked up a
bag of trash and told Renko he was going to put it in the dumpster. Renko did
not see Nash again that night.
By 8:00 a.m. the next [*12] morning,
Nash had not contacted Detective Smith.
Detective Smith drove out to Nash's residence, but Nash was not there, and he
was unable to reach Nash on his cell
phone. That afternoon, Detective Smith
again called Nash on his cell phone.
Nash answered the phone. However,
when Detective Smith started talking,
Nash hung up.
At around midnight, Nash telephoned
Renko and told him he was calling "to
make sure everything had cooled down."
He told Renko he was not sure if he
would be there the next day to pay rent,
but would send it by courier if he could
not be there. At around 5:15 a.m. on
March 1, Nash returned to the residence.
Nash started collecting boxes and
brought them outside. Nash told Renko
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2010 Cal. App. Unpub. LEXIS 315, *
he was going to "put some things in
storage." Renko called Detective Smith
and told him Nash had come home.
Officers were dispatched to Nash's
residence and they placed him under arrest. In a search incident to the arrest,
Detective Rivera found in Nash's possession various items, including ear
plugs, approximately $ 1,900 in cash,
and a card key for room 221 in the Super
8 Motel in National City. Through further investigation, Detective Rivera discovered that Nash checked into the motel on [*13] February 28, with a checkout date of March 1.
Searches were conducted at various
locations associated with Nash. A search
of the dumpster next to ESN revealed
trash bags containing paperwork in
Nash's name, several pairs of gloves,
some of which were bloody, a bloody
inflatable mattress, rope with bloodstains, bloody plastic sheeting, a blue
blanket with blood stains, stained Tshirts and rags, a carpet wet with a combination of blood and rubbing alcohol,
and Sprite bottles. One of the Sprite bottles had been fashioned into a homemade gun silencer. There was a second
homemade silencer made from a
PowerAde bottle. There were also several handwritten notes about the murder of
Hawes and disposal of the body. One of
the notes found in the dumpster, dated
two weeks before the murder, included
the notations, "arrange head rags," "get
wallet above all" and "wet vac." Another
note read, "It's set, just follow thru!"
Another read, "Help with van . . .
shoot!" Another read, in capital letters,
"THIS HAS TO BE DONE." Others
read, "cutting time," "tools required" and
"wash saw." The notes were peppered
with references to Hawes. The notes included a hand-drawn map depicting the
area where Hawes's [*14] legs were
found.
Detectives conducted a more thorough search of Nash's residence. They
found a hacksaw with a yellow blade, a
separate hacksaw blade, a Styrofoam
cup with handwriting about bullet holes,
tape and scissors. They also found a
book called "New I.D. in America," a
wallet containing an identification card
and a driver's license in the name of a
Gary Shelstad, as well as three wallets
containing identification cards for various women.
Detectives also discovered handwritten notes about various ways to abduct,
torture and kill a victim, and then dispose of the victim's body so that it could
not be found. These "torture notes" contained a list of how to abduct an individual. The possibilities listed included pretending to need help changing a flat tire,
taping the victim's mouth and eyes, and
using ear plugs on the victim. The notes
referred to "indoctrinating" the victim,
containing such words as "smother,"
"drown," "shoot," "elect. shocks," "disfigure," "wrist links," "burn," "upside
down," "hot, cold water," "punch," "fingernails," and "teeth." The notes contained a heading, "widespread disposal."
They also included possible means of
disposal, including grinding or chopping
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2010 Cal. App. Unpub. LEXIS 315, *
[*15] the body, and spreading the remains over forest and other land. The
notes also stated, "[M]ake sure disposal
equip is available from start in case of
premature demise." The notes identified
possible victims as children and young
women. The notes also contained references to various sexual "activities" to
perform on the victim.
In a grey Ford T-Bird Nash purchased after his vehicles were impounded, police found an Igloo cooler containing ammunition for a .357-caliber handgun, and two .22-caliber rifles. Inside of
a grey, metal tackle box was a Ruger
.357 magnum revolver with ammunition
in the chamber. The tackle box also contained a metal gun silencer, a .22-caliber
rifle with duct tape on the handle and the
ammunition magazine inside, another
loaded .22-caliber rifle, a knife, a sheath
with a stopwatch attached, a security
guard's badge, a security guard's license
in Nash's name, a flashlight, a comb in
the shape of a knife, and miscellaneous
gun cleaning items.
A search of Nash's blue Ford Tempo
revealed a page of handwritten notes
with references to making a gun silencer. There was also a folder with four
pages of notes concerning the murder of
Hawes, the dismemberment of his body,
[*16] the disposal of his remains, and
the cleanup once disposal was complete.
The notes made such statements as,
"chain neck/ankles," "pin arms," and
"duct tape." The notes contained several
references to "ice" and "van." Notes
found in the trunk of the Tempo read
"release of scruples" and made reference
to a gun silencer.
Inside Nash's van police discovered a
bottle of bleach with a bloodstain, and
two plastic trash bags containing wet
clothing with reddish-brown stains in a
laundry basket.
When detectives searched the room
Nash had rented at the Super 8 motel in
National City, they discovered more
handwritten notes concerning the murder
of Hawes and disposal of his body. They
found a brown briefcase containing a
joint application for a VISA credit card
dated January 19, signed by both Nash
and Hawes. Inside a brown attache case
was a plastic wallet with Hawes's name
on it, a grocery card with Hawes's name,
Hawes's California identification card,
and Hawes's eyeglasses. In another attache case, detectives found a copy of
the press release requesting help identifying Hawes, check stubs, and an employment application.
A search was conducted at Nash's
storage unit at Acropolis Self Storage.
[*17] There, detectives found a black
trash bag and two hand saws, one with a
blue handle.
Christopher Swalwell, a deputy medical examiner, performed autopsies on
Hawes's torso, head and left hand. The
torso was severed at the wrists, midthigh and neck. The cuts were consistent
with the use of a bow saw. Swawell
opined a bow saw seized from Nash's
possessions could have been used to remove the left hand and head. Swawell
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2010 Cal. App. Unpub. LEXIS 315, *
could not determine if the middle fingernail on the severed hand was removed prior to or after Hawes's death. A
later autopsy performed on the severed
legs revealed that they were severed using the same type of saw used to remove
the hands and head.
The autopsy on the head showed a
gunshot wound above the left ear, with
no exit wound. There were several bullet
fragments lodged inside the head. The
absence of soot, stippling or other foreign substances indicated the gun was
fired from a distance of at least three
feet. Swawell opined the cause of death
was the gunshot wound to the head, and
the manner of death was homicide.
John Durina, a criminalist and firearm expert, examined the guns recovered from Nash's grey Ford T-Bird, and
the silencer made from the Sprite bottle.
Nash's [*18] .357 magnum had one
empty cartridge, behind the firing pin.
The bullet fragments recovered from
Hawes's skull were fired from that gun.
The silencer had burn marks on the inside and outside of the bottle, indicating
it had been used with a weapon.
Criminalist Tess Hemmerling performed a DNA analysis on items of evidence seized in the case. Several of the
pairs of gloves had Nash's DNA on the
inside and Hawes's DNA on the exterior.
There were human blood stains on the
bleach bottle, plastic drop cloth, and
Nash's carpet. Hemmerling was unable
to obtain a readable profile from these
items. When Hemmerling disassembled
the blue-handled bow saw recovered
from Acropolis Self Storage, she found
blood and tissue embedded in the circular portion of the saw. The DNA on this
evidence was a match for that of Hawes.
David Oleksow, a forensic document
examiner, analyzed the handwritten
notes by comparing them to samples of
Nash's handwriting. His analysis indicated the first 13 pages of notes found in
the dumpster were written by Nash. He
was reasonably certain Nash wrote the
remaining 37 pages. There were also indications Nash wrote the "torture notes."
In Oleskaw's opinion, those notes were
written [*19] at least 10 years before the
other notes. There were also indications
the writing on the Styrofoam cup was
Nash's. Oleksaw was reasonably certain
Nash wrote the notes found in his cars.
B. Defense Case
Nash testified in his defense. He stated that he wrote the torture notes for a
class project in the spring of 1972. The
remaining notes were reminders to himself to repair and test drive his cars, ice
his sore knee, work on projects in the
yard and around the house, plan for retirement, and run various errands. He
purchased shovels, tarps and saws to use
for his projects. He claimed the handwriting on the Styrofoam cup was not
his. When asked why he had a book entitled "New I.D. in America," he stated
he was conducting research after his
wallet was stolen. He testified he was in
possession of other people's wallets be-
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2010 Cal. App. Unpub. LEXIS 315, *
cause they had left them at ESN, and he
was storing them in his van.
Nash stated that he and Hawes were
friends. They got along very well. He
gave Hawes a set of keys to his van after
he stopped working at ESN so Hawes
would have a place to sleep. Hawes
would leave his backpacks in the van
because they were too heavy for him to
carry. The backpack police found in his
storage [*20] unit was originally in his
van. When he saw it there he moved it to
his red T-Bird as he was afraid someone
would burglarize his van. After a couple
of days, he set it down while he was at
his storage unit looking for something
else and forgot about it.
Nash claimed Hawes's blood was
everywhere because Hawes had frequent
nosebleeds. Nash admitted all three guns
were his. When asked why he had a gun
silencer, Nash stated he planned to fire
practice shots in the neighborhood and
did not want to make a lot of noise.
Nash testified that when Renko and
Reeder told him of Hawes's death, his
response was initially that it "sounds . . .
like a bunch of nonsense." However,
Nash then remembered Hawes had left
his backpack in his van, which he
thought was "odd." Nash then decided to
"try to get some information together for
the detectives." As he was gathering information, he noticed his gun box had
been moved, there were bloody items in
his house, and there was a bow saw in
the yard. When asked why he did not
contact Detective Smith as he promised
to do, he stated that he was afraid he
would be accused of planting evidence
so he elected to investigate the matter on
his own.
Nash denied looking
[*21] for
Hawes at the downtown library and stated he had last seen Hawes on February
17. He denied killing Hawes, cutting up
his body, or driving around San Diego
County discarding his body parts. Nash
claimed "it was a well-planned frameup." Nash believed that the frame-up
was the result of "some fashion [of]
communication between the killers and
at least one employee in the store." Nash
concluded that some things must have
been planted in the dumpster by homeless drug dealers, who had broken into
the dumpster in the past and that Renko
must have participated in the frame-up
by orchestrating the discovery by police
of the planted evidence in the dumpster
and by attempting to plant evidence such
as Hawes's wallet and glasses and tampering with Nash's guns. Nash believed
Reeder was also involved in the murder
"because he knew a lot of druggies, given his history and his situation."
Nash called as character witnesses
two waitresses at Jalisco's cafe, two
former coworkers, and a homeless individual who frequented ESN. They all
testified Nash was kind, peaceful, hard
working and nonviolent.
DISCUSSION
I. ADMISSION OF TORTURE NOTES
AND IDENTITY THEFT EVIDENCE
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2010 Cal. App. Unpub. LEXIS 315, *
Nash asserts the court abused it discretion [*22] and violated his constitutional rights to due process and a fair trial by allowing the prosecutor to introduce (1) notes concerning abduction,
torture, and disposal of remains of victims; and (2) information concerning
possible identity theft (the book "New
I.D. in America" and his possession of
various individuals' identification). This
contention is unavailing.
A. Background
Prior to trial, the prosecution filed a
motion in limine to admit various items
of evidence discovered during the investigation of Hawes's death. Included in
the motion were the 10 pages of torture
notes found during the search of Nash's
bedroom, concerning abduction, torture
and disposal of remains, described, ante.
Defense counsel in turn filed a motion in limine seeking to exclude evidence of Nash's prior bad acts, including
possession of child pornography, pornography, obituaries, identity theft evidence and the torture notes referenced,
ante.
At the hearing on the motions, the
court excluded the child pornography,
finding it irrelevant to the charge of
murder. As to general pornography, the
prosecutor stated the only reference
would be to the fact Nash worked at an
adult bookstore. Discussing the torture
notes, [*23] the prosecutor argued they
were relevant because they contained
descriptions of ways to dispose of a
body, similar to the way the body parts
were dispersed in this case. The notes
also listed methods of cleaning up blood.
They also mentioned disabling a victim
by binding and taping the eyes and
mouth, as well as using ear plugs. Ear
plugs were recovered from Nash, and
duct tape was recovered from the dumpster and near the dismembered torso.
The prosecutor also argued the notes revealed a possible motive because they
talked about torture, including removing
a fingernail, and Hawes was missing a
fingernail on his left hand. The prosecutor explained the torture notes provided
a possible motive to what might seem to
a jury an otherwise inexplicable crime.
Defense counsel argued the notes
were inadmissible because the victim
type was different (i.e., the notes made
reference to abducting children and
young women), and they contained generic means of abducting a person. Defense counsel argued they should be excluded under Evidence Code section 352
as "cumulative," as it was unknown
when they were written and over 50
pages of other notes were seized in connection with the case.
The court found [*24] that the notes
did not constitute prior bad acts evidence, but were part of the evidence
against Nash. The court found the notes
relevant and that they were not subject
to exclusion under Evidence Code section 352.
With regard to the identity theft information, the prosecutor explained that
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2010 Cal. App. Unpub. LEXIS 315, *
notes found in the dumpster contained
references to the victim and statements
such as "assume I.D.; T.R. next with 357
silencer." The evidence consisted of a
book on how to create a fake identity
and newspaper clippings on the same
subject. Police also found obituaries of
males who were about Nash's age and
noted that Nash and Hawes were about
the same age. This provided another
possible motive to murder Hawes: to assume his identity. Defense counsel responded that the obituaries could be of
Nash's friends. The court denied the defense motion to exclude the identity theft
evidence, finding it evidence of motive.
3
3 Reeder's initials are "T.R."
After Nash testified at trial that the
notes were part of a school term paper
he wrote over 20 years prior to Hawes's
death, defense counsel renewed his motion to exclude the notes. He argued that
because they were over 10 years old and
because the medical examiner [*25]
could not conclusively determine how
Hawes's fingernail was removed, they
were irrelevant. The court again denied
defense counsel's motion.
B. Analysis
Evidence Code section 1101 provides
in part: "(a) Except as provided in this
section and in Sections 1102, 1103,
1108, and 1109, evidence of a person's
character or a trait of his or her character
(whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is
inadmissible when offered to prove his
or her conduct on a specified occasion.
[P] (b) Nothing in this section prohibits
the admission of evidence that a person
committed a crime, civil wrong, or other
act when relevant to prove some fact
(such as motive, opportunity, intent,
preparation, plan, knowledge, identity,
absence of mistake or accident, or
whether a defendant in a prosecution for
an unlawful sexual act or attempted unlawful sexual act did not reasonably and
in good faith believe that the victim consented) other than his or her disposition
to commit such an act."
Although Evidence Code section
1101 does not use the term "prior bad
acts," case law interpreting this statute
has adopted that term and construes the
statute [*26] to preclude evidence of
other, unrelated bad acts or crimes to
prove disposition to commit the charged
crime. (See People v. Lindberg (2008)
45 Cal.4th 1, 21-22 [prior uncharged
robbery]; People v. Kipp (1998) 18
Cal.4th 349, 369 [uncharged rape &
murder].) The purpose of Evidence Code
section 1101 is to ensure a defendant is
"tried upon the crime charged and is not
tried upon an antisocial history." (People
v. Aeschlimann (1972) 28 Cal.App.3d
460, 473.)
The "torture notes" at issue here were
not evidence of unrelated "prior bad
acts," but rather were circumstantial evidence that supported his conviction of
the crime charged. Criminal intent is
seldom proved by direct evidence and
often must be inferred from a defend-
Page 13
2010 Cal. App. Unpub. LEXIS 315, *
ant's conduct. (People v. Gilbert (1992)
5 Cal.App.4th 1372, 1380.) Prior statements by a defendant frequently are relevant to show intent for the charged
crime, without the necessity of an analysis under Evidence Code section 1101.
For example, in People v. Kraft
(2000) 23 Cal.4th 978, the California
Supreme Court held that a trial court did
not err in allowing the prosecutor to introduce a "death list" in which the defendant wrote down, in code, names of
his intended murder [*27] victims. (Id.
at pp. 1033-1036.) In People v. Crew
(2003) 31 Cal.4th 822, the California
Supreme Court found relevant and admissible a defendant's statement to a relative, "I've done so many things. I think
I would like to kill someone, just to see
if I could get away with it." (Id. at p.
842.) In People v. Zepeda (2008) 167
Cal.App.4th 25, the Court of Appeal upheld admission of rap lyrics written by
the defendant, a gang member charged
with murder, about his gang affiliation,
guns and the murder of rival gang members. (Id. at pp. 32-35.)
In this case, the torture notes were
relevant to show Nash had a long-time
obsession with abducting, torturing and
killing someone, culminating in the
murder of Hawes. They discussed not
only the means of obtaining a victim, but
the manner of killing and how to dispose
of a body in a manner similar to the disposal of body parts in this case. The
identity theft evidence was relevant to
show a plan by Nash, once he had killed
Hawes, to either assume Hawes's identi-
ty or the identity of someone else. Thus,
the evidence was circumstantial evidence supporting the charged crime itself, not unrelated "prior bad acts."
Further, assuming arguendo these
items [*28] of evidence fall within Evidence Code section 1101, the court
properly exercised its discretion it ruling
they were admissible. As detailed, ante,
this evidence was relevant to prove intent and motive. Thus, we must now analyze the evidence to see whether the
probative value of the evidence was
"substantially outweighed by the probability that its admission [would] create
substantial danger of undue prejudice, of
confusing the issues, or of misleading
the jury." (Evid. Code, § 352; People v.
Ewoldt (1994) 7 Cal.4th 380, 404.)
Prejudice, as used in Evidence Code
section 352, means the creation of an
emotional bias against the defendant
through evidence with little probative
value. (People v. Karis (1988) 46 Cal.3d
612, 638.)
However, "'[all] evidence which
tends to prove guilt is prejudicial or
damaging to the defendant's case. The
stronger the evidence, the more it is
"prejudicial." The "prejudice" referred to
in Evidence Code section 352 applies to
evidence which uniquely tends to evoke
an emotional bias against the defendant
as an individual and which has very little
effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is
not synonymous with "damaging."'"
Page 14
2010 Cal. App. Unpub. LEXIS 315, *
(People v. Karis, supra, 46 Cal.3d at p.
638.)
Nash [*29] asserts the prejudicial nature of the torture notes substantially
outweighed their probative value because (1) the proposed victims were either children or young women, (1) the
torture described was not inflicted on
Hawes, and (3) the notes were too remote as they were admittedly written
over 10 years prior to Hawes's murder.
However, despite some differences
between the torture notes and the murder
of Hawes, the similarities are sufficient
to make them admissible. The least degree of similarity between the prior acts
and charged acts is sufficient to prove
intent. (People v. Soper (2009) 45
Cal.4th 759, 776.) Nash befriended
Hawes, a homeless man who was vulnerable, like the children and young
women mentioned in the notes. There is
evidence he was bound and was missing
a fingernail on his left hand. Hawes was
dismembered and his body parts were
distributed over a large area. Further, the
torture notes were not any more prejudicial than the notes Nash wrote of the actual planning of Hawes's murder and
disposing of evidence after the fact.
As to the identity theft evidence,
Nash had identities of various people,
including a navy contractor named Gary
Shelstad, in the same general location
[*30] in his home. Along with the identities, Nash had a book about changing a
person's identity. Most important, Nash
had Hawes's identification and personal
items in an attache case in his hotel
room. Considering the evidence as a
whole, its probative value far outweighed any prejudicial impact.
There is also no merit to Nash's contention the introduction of this evidence
violated his Fourteenth Amendment
right to due process. Claims involving
an alleged improper admission of evidence under state law do not ordinarily
implicate the due process clause. A due
process clause violation arises only if the
trial itself was fundamentally unfair.
(Estelle v. McGuire (1991) 502 U.S. 62,
67-68; People v. Partida (2005) 37
Cal.4th 428, 439.) Admission of prior
acts evidence results in a constitutional
violation "[o]nly if there are no permissible inferences the jury may draw from
the evidence." (Jammal v. Van de Kamp
(9th Cir. 1991) 926 F.2d 918, 920, italics
omitted.) As explained, ante, the jury
could infer motive and intent from the
torture notes. The identity theft evidence
was circumstantial evidence of motive.
Finally, to the extent the court abused
its discretion in admitting the notes or
identity [*31] theft evidence, Nash cannot show that evidence was so prejudicial as to warrant a reversal. There is no
basis for Nash's assertion the focus on
this evidence was so great as to turn the
trial into an "inquisition" and a "character assassination." The prosecution
called 27 witnesses whose testimony,
including cross-examination, comprised
over 1,000 pages of the reporter's transcript. In the prosecution's case-in-chief,
the notes were mentioned only by foren-
Page 15
2010 Cal. App. Unpub. LEXIS 315, *
sic specialist Savage, who testified about
the fact they were found, and document
examiner Oleksow, who testified there
were indications the handwriting belonged to Nash. The testimony about the
identity theft evidence was equally brief,
consisting of testimony by Detectives
Robert Donaldson and Savage, listing
the items recovered during the search of
Nash's home.
ed. (People v. Kipp, supra, 18 Cal.4th at
p. 374.)
This evidence was not mentioned
again until Nash's testimony when he
gave less than credible explanations for
their presence in his home. Even during
Nash's testimony, defense counsel focused on the other notes Nash wrote
about the murder itself and on the damaging items of physical evidence found
in his home, his cars, his motel room,
and his storage unit.
A. Standard of Review
Further, the court [*32] instructed
the jury under CALCRIM No. 303 on
how to evaluate such evidence offered
for a limited purpose. We presume the
jury followed the court's instructions.
(People v. Delgado (1993) 5 Cal.4th
312, 331.)
Finally, the other physical evidence
and notes seized from Nash provided
ample independent evidence of intent,
planning and motive. As will be detailed
in part II of this opinion, there is overwhelming evidence of Nash's guilt. Accordingly, it is not reasonably probable
that the outcome would have been more
favorable to Nash if the torture notes and
identity theft evidence had been exclud-
II. SUFFICIENCY OF THE EVIDENCE
Nash asserts there is no substantial
evidence of premeditation and deliberation to support his conviction for first
degree murder. We reject this contention.
The critical inquiry on review of the
sufficiency of the evidence is whether
the record reasonably supports a finding
of guilt beyond a reasonable doubt. This
inquiry does not require a court to "'ask
itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' [Citation.] Instead, the relevant question [*33] is
whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime
beyond a reasonable doubt." (Jackson v.
Virginia (1979) 443 U.S. 307, 318-319;
People v. Johnson (1980) 26 Cal.3d 557,
576.) Thus, "'"[i]f the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court
that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the
judgment."'" (People v. Bean (1988) 46
Cal.3d 919, 933; People v. Stanley
(1995) 10 Cal.4th 764, 793.) A reviewing court must accord deference to the
jury and not substitute its evaluation of a
witness's credibility for that of the fact
Page 16
2010 Cal. App. Unpub. LEXIS 315, *
finder. (People v. Ochoa (1993) 6
Cal.4th 1199, 1206.)
B. Analysis
Section 189 provides in relevant part,
"All murder which is perpetrated by
means of . . . willful, deliberate, and
premeditated killing . . . is murder of the
first degree."
"In this context, 'premeditated' means
'considered beforehand,' and 'deliberate'
means 'formed or arrived at or determined upon as a result of careful thought
and weighing of considerations for and
against [*34] the proposed course of action.' [Citation.] The process of premeditation and deliberation does not require
any extended period of time. 'The true
test is not the duration of time as much
as it is the extent of the reflection.
Thoughts may follow each other with
great rapidity and cold, calculated judgment may be arrived at quickly . . . .'"
(People v. Mayfield (1997) 14 Cal.4th
668, 767.)
In People v. Anderson (1968) 70
Cal.2d 15, the California Supreme Court
"'identified three categories of evidence
relevant to resolving the issue of premeditation and deliberation: planning
activity, motive, and manner of killing.
However, . . . "Anderson does not require that these factors be present in
some special combination or that they be
accorded a particular weight, nor is the
list exhaustive. Anderson was simply intended to guide an appellate court's assessment whether the evidence supports
an inference that the killing occurred as
the result of preexisting reflection rather
than unconsidered or rash impulse."'"
(People v. Steele (2002) 27 Cal.4th
1230, 1249.)
Here, there is substantial evidence of
all three factors identified in Anderson
relevant to proving deliberation and
premeditation. [*35] First, there was
ample evidence of planning. Three separate gun silencers were found among
Nash's possessions. He purchased rope,
gloves, tarp, saws, duct tape, buckets,
large trash bags and cleaning agents.
Nash's notes show a thought out, deliberate plan for Hawes's murder. Even disregarding the torture notes, the notes
Nash wrote immediately preceding and
after the killing show a well thought out
plan. Notes found in the blue Ford Tempo read "chain neck/ankles," "pin arms,"
and "duct tape." The notes contained
several references to "ice" and "van."
The notes found in the trunk of the
Tempo read "release of scruples" and
made reference to a gun silencer. On the
Styrofoam cup, Nash wrote "bullet
hole," "scissors" and "glove"
There is also substantial evidence of
three possible motives for the killing.
The librarian at the downtown library
testified about Nash coming in looking
for Hawes, shouting and enraged. This
was evidence Nash had a falling out
with Hawes, providing one possible motive for murder. The identity theft evidence, along with Nash's possession of
Hawes's possessions and the joint credit
card application, were evidence Nash
Page 17
2010 Cal. App. Unpub. LEXIS 315, *
wanted to assume Hawes's identity. Finally, [*36] the torture notes written at
least 10 years prior, in combination with
the more recent notes, were circumstantial evidence Nash was a psychopath
who had been planning to commit a
murder for a long time.
Finally, the manner of the killing
supported the jury's verdict. Hawes was
shot once in the head, behind his left ear.
The gun was fired from a distance of at
least three feet. Nash used a silencer
when committing the murder, in order to
muffle sound. Nash used hollow-point
bullets, which are designed to be more
lethal by expanding on contact. Finally,
Nash took great care to dismember the
body, place the body parts in trash bags,
and scatter the remains in remote areas
of the county.
In sum, the evidence is not only substantial, but overwhelming, that Nash is
guilty of first degree murder.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J.
WE CONCUR:
McDONALD, J.
AARON, J.