Defendant’s conviction for first degree murder upheld even though all of the evidence that he built and planted a victim-activated bomb was circumstantial. Moore’s family owned a large farm in Colusa County. Although Moore aspired to run the farm, he was prevented from doing so because he did not always get along with his father, who tended to favor the long time foreman, Roberto, over his own son. One day when Roberto was adjusting an irrigation pump it exploded, killing Roberto. Circumstantial evidence reflected that Moore had familiarity with electrical systems, had years ago built a bomb, hated Roberto, and was connected to a diagram of a bomb. In defense, Moore claimed his cousin Peter, who had a history of violence and a more compelling motive to kill Roberto, planted the bomb. Moore was convicted of first degree murder and appealed, claiming the entirely circumstantial evidence was insufficient to support the conviction. Held: Affirmed. There was no direct or forensic evidence tying Moore to the building and placement of the bomb. There was circumstantial evidence that Moore knew Roberto’s routine, was familiar with the operation of the pump where the bomb was planted, had electrical experience, had once wiretapped his ex-wife’s telephone, had previously created a bomb, was connected to a piece of paper that contained indentations that looked like a bomb diagram, and had a motive to kill Roberto. While it is true that his cousin Peter had a very bad temper and a history of violent acts, the jury rejected the defense theory that it was Peter who committed the killing. The totality of the evidence, although entirely circumstantial, supported Moore’s conviction for first degree murder.

The trial court did not abuse its discretion in admitting prior bad acts evidence. Moore challenged the trial court’s admission of evidence that he once placed a wiretap on his ex-wife’s telephone during divorce proceedings, as well as evidence that he once made oxygen acetylene bombs, because the events were remote in time, not probative of his knowledge of electrical circuitry or construction of sophisticated bombs, and more prejudicial than probative. Character evidence is inadmissible to prove a defendant’s conduct on a specific occasion, unless it is relevant to prove identity, intent, or knowledge (Evid. Code, § 1101, subd. (a)). The admissibility of prior acts depends on the materiality of the fact sought to be proved or disproved, the tendency of the evidence to prove or disprove the fact, and the existence of any rule or policy requiring exclusion of the evidence. Pursuant to Evidence Code section 352, the court may exclude evidence if its probative value is outweighed by its prejudicial effect. Here, the wiretapping evidence was admissible because it takes a certain amount of technical knowledge to tap into someone’s phone line. This is probative of the defendant’s knowledge of electrical systems. The evidence regarding the acetylene bomb reflected Moore had knowledge of bomb making. The potential prejudice from admission of this evidence was slight. There was no abuse of discretion.

The trial court did not err in refusing to allow the defense to present surrebuttal argument. Moore argued the prosecutors “sandbagged” him by withholding the most powerful evidence against him until their rebuttal closing argument and thereby depriving him of the opportunity to answer that evidence. Further, two different prosecutors presented the final opening and rebuttal arguments. The defense request to offer surrebuttal to the second prosecutor’s rebuttal argument was denied. However, the prosecutor did not rely on any evidence outside the record or raise any new theories during final rebuttal argument. There was no abuse of discretion when the trial court denied the defense request to present surrebuttal argument.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C075231.PDF