P. v. Rios

P. v. Rios

Filed 7/25/08 P. v. Rios CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. ARTHUR ALBERT RIOS et al., Defendants and Appellants.

E042048 (Super.Ct.No. FSB47836) OPINION

APPEAL from the Superior Court of San Bernardino County. Arthur Harrison, Judge. Affirmed.

David P. Elder, under appointment by the Court of Appeal, for Defendant and Appellant Buddy Paul Velarde.

Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant Arthur Albert Rios.

Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant Paul Gilbert Velarde.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and James H. Flaherty III, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction

A jury convicted three defendantsArthur Albert Rios (Rios), Buddy Paul Verlade (Buddy), and Paul Gilbert Verlade (Paul)of second degree murder for their participation during a bar fight in the killing of Raul Payan (Payan), the boyfriend of defendant Rioss estranged wife. The court sentenced each defendant to a sentence of 15 years to life.

On appeal, Buddy raises issues involving prosecutorial error, ineffective assistance of counsel, aiding and abetting, insufficiency of evidence, and possible juror misconduct. Rios independently raises an issue involving ineffective assistance of counsel. Paul makes an argument regarding self-defense. Defendants join in one anothers arguments to the extent they are applicable. We reject all these contentions and affirm the judgment against defendants.

2. Facts

Brandy Ornelas (Ornelas) was involved in divorce proceedings against defendant Rios. She had begun dating the victim, Payan. Ornelas, Payan and some friends were at the Marquis Bar one evening. Ornelas and Payan were dancing when Rios confronted them and said, Thats my fucking wife youre with.

When Ornelas, Payan, and their friends began to leave the bar, defendants Rios, Paul, and Buddy, assisted by Rioss two female cousins, initiated a second confrontation. Rioss cousin, Mercy Hernandez (Hernandez) threatened to fuck [Ornelas] up and then punched her.

Meanwhile, Rios and Payan exchanged angry words. Rios claimed he had fucked Ornelas a few days earlier. Payan, upset, removed his shirt, shouted, I am the devil, and hoisted a video game and slammed it down. Ian Gonzales, Payans friend, tried to intervene as Rios threatened to hit Payan. Finally, the Marquis employees escorted the two groups outside to the parking lot.

In the parking lot, the three defendants and the two women again accosted Payan and Ornelas, threatening and hitting them. Ornelas testified she was hit three times before Payan directed her to run to the car and call 911 on a cell phone, which she did. Although she initially told police she could not see what happened because of the crowd, she later testified she saw one of the Velarde defendants, Buddy, hit Payan with an object like a bat and then pass the object to the other Velarde defendant, Paul, who also hit Payan causing him to fall. Ornelas first told the police that she also saw Ivan and Chops kicking Payan but she later retracted that statement.

Michelle Nunez testified that she accompanied Ornelas to the car and while she was calling 911, she could not see what happened from their location.

When Payan was down on the pavement, Rios straddled him and began pummeling him repeatedly. Payan was unconscious and did not move. When Gonzalez tried to stop the attack, he was beaten by two other people. A general melee ensued until the police arrived and defendants fled the scene. Payan died in the parking lot from multiple blunt force head injuries. A shoeprint on Payans forehead did not match any of defendants shoes. But Rios had contusions and abrasions on his hands.

Orlinda Rodriguez, a defense witness who was Rioss friend, said the Velarde defendants were not with them the night of the incident. She overheard Rioss statement to Payan that he had fucked Ornelas. She said Payan hit Rios first several times. She denied there were any baseball bats or weapons. She maintained that Payan had slipped and fallen but no one was kicking him except some people she did not know. She asserted that Ornelas also was not present during the altercation.

A Marquis club bouncer testified that Payan was enraged and acted as the aggressor. Payan was still conscious and fighting when he was on the ground. The bouncer also did not see a baseball bat. According to him, defendants were not the people kicking Payan.

3. Prosecutorial Error

Defendants assert the prosecutor committed two errors. First, defendants contend the prosecutor misstated the evidence by arguing to the jury that defendants came to the Marquis bar because someone had called them and told them Ornelas was there with Payan. Second, defendants contend the prosecutor misstated the law regarding aiding and abetting.

As to the first point, the testimony of Rodriguez was as follows:

Q. . . . : Isnt it true that [Rios] got a call from Mercy Hernandez telling him to get over to the Marquis Lounge because Brandy was there with a beau, another guy?

A. No. [] . . . []

Q. . . . : Isnt it true, that while you were at El Toritos that was the place you were at before, right?

A. Yes.

Q. Either at El Toritos or on the way to leave El Toritos, he got a phone call. Even if you dont know who it was from. He got a phone call and it was him who suggested or insisted that you go over to the Marquis Lounge or whatever?

A. Yeah, he got a call.

Rodriguez further testified they stopped at another bar, The Golden Nugget, and dropped someone off at a residence before proceeding ultimately to the Marquis.

The prosecutor argued it was not a coincidence that defendants showed up at the Marquis: And you heard when Ms. Rodriguez testified that sometime earlier that evening theythat Mr. Rios got a phone call when they were at another bar. Somebody was at the bar already. A friend of Arthur RiosI dont know, thats speculation. But somebody was at that Marquis Lounge already, called Rios knowing how he felt about [Ornelas] being with another man and said, You better get your butt down here because [Ornelas] is here, she just walked in with a guy. [] And thats what put the plan into effect. Arthur Rios got his buddies together to go down there, the ones that werent there already.

Defense counsel did not object to the prosecutors argument until after the jury was released. The court ruled the argument was fairly propounded based upon the evidence.

We entirely agree that, in view of the wide latitude accorded a prosecutor, the argument in this instance was a fair characterization of the evidence, including the reasonable inferences and deductions to be drawn therefrom. (People v. Hill (1998) 17 Cal.4th 800, 819.) This was not a situation in which the prosecutor improperly referred to facts not in evidence. (People v. Pinholster (1992) 1 Cal.4th 865, 948.) Both the witness and the prosecutor agreed that Rios got a phone call shortly before going to the Marquis bar. The prosecutors inferences based on the established facts seem wholly reasonable. No prejudicial prosecutorial error was demonstrated.

Defendants second instance of prosecutorial error is the purported confusion between a conspiracy theory and a theory of aiding and abetting made during rebuttal argument. The term conspiracy was actually introduced by defendant Rioss lawyer in his argument. Defendant Pauls attorney also used the word conspiracy. But the defendants use appears to be colloquial, as in the sense of plan or mutual agreement, not the actual crime of conspiracy. The prosecution adopted defendants language, referring to a conspiratorial type of arrangement . . . a common goal. But the jury was not instructed regarding a criminal conspiracy and that was not the theory of the prosecutions case. Any reasonable jury must have interpreted the word conspiracy in a non-legal sense. Again, no prejudicial prosecutorial error was demonstrated.

4. Ineffective Assistance of Counsel (Buddy)

Defendant Buddy argues he received ineffective assistance of counsel because the case against him was particularly weak and defense counsel failed to investigate adequately the facts and the law.

The principles governing ineffective assistance of counsel are well-established: [D]efendant must show counsels performance fell below a standard of reasonable competence, and that prejudice resulted. (E.g., People v. Staten (2000) 24 Cal.4th 434, 450-451 (Staten); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsels challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 426 (Pope).) Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Staten, supra, at p. 451, quoting Ledesma, supra, 43 Cal.3d 171, 217-218; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688.) (People v. Anderson (2001) 25 Cal.4th 543, 569.)

We conclude it was not ineffective assistance for defense counsel not to introduce testimony by Mercy Hernandez, who was Buddys girlfriend and Rioss cousin. Although defense counsel interviewed Hernandez, Ornelas testified that Hernandez had also participated in the attack, making her subject to significant impeachment. For that reason, it is reasonable to infer defense counsel made a tactical decision not to have Hernandez testify at trial. (People v. Zapien (1993) 4 Cal.4th 929, 980.)

Nor was it deficient performance not to call another witness, Valerie Cruz, to testify. In Cruzs declaration supporting defendants motion for new trial, she asserted she saw Buddy at the Marquis bar in the company of Hernandez. After watching a confrontation between several people on the dance floor, she saw some guys . . . fighting in the parking lot. She did not recognize who was fighting. Cruzs statement did not contradict the testimony of the trial witnesses that defendants Buddy and Paul had clubbed the victim with a bat-like weapon. Most notably, her testimony would have undermined the testimony of a defense witness, Rodriguez, who maintained Buddy was not even present at the Marquis that night. Therefore, this claim of ineffective assistance of counsel was not justified.

We are also not persuaded by defendant Buddys contention that the trial lawyer failed fully to interview witnesses and investigate the crime scene. As to the latter point, the possibility of another defense witness, Gabriel Chops Casteneda, was not supported by a declaration from that person. Furthermore, the physical circumstances of the crime scene received considerable attention throughout the trial. It is not likely additional evidence about sight lines and visibility would have caused any difference in the verdict.

Defendant Buddy also argues his case should have been severed because the case against him was far weaker than the one against Rios. The grant or denial of a severance motion would be reviewed for abuse of discretion: Under section 1098, [w]hen two or more defendants are jointly charged . . . they must be tried jointly, unless the court order[s] separate trials. In light of this legislative preference for joinder, separate trials are usually ordered only in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony. [Citations.] (People v. Box (2000) 23 Cal.4th 1153, 1195.) The present case did not involve any of these factors favoring severance except the possibility of a prejudicial association with Rios or Paul. For that reason, we conclude a severance motion, had it been made, would have been denied without the court abusing its discretion. Defendant Buddy has not shown ineffective assistance of counsel for this reason.

5. Substantial Evidence of Aiding and Abetting

Defendants Buddy and Paul join in arguing there was not substantial evidence of aiding and abetting. Based on CALJIC No. 3.02, the court instructed the jury about the liability of an aider and abettor for the natural and probable consequences of a crime committed by a principal: In order to find the defendant guilty of the crime of murder . . . you must be satisfied beyond a reasonable doubt that: [] 1. The crime of Assault or Battery was committed; [] 2. That the defendant aided and abetted that crime; [] 3. That a co-principal in that crime committed the crime of murder; and [] 4. The crime of murder was a natural and probable consequence of the commission of the crimes of assault and or battery.

The circumstances in which the jury be instructed on the natural and probable consequences rule [occur] only when (1) the record contains substantial evidence that the defendant intended to encourage or assist a confederate in committing a target offense, and (2) the jury could reasonably find that the crime actually committed by the defendants confederate was a natural and probable consequence of the specifically contemplated target offense. (People v. Prettyman (1996) 14 Cal.4th 248, 269.)

Here substantial evidence supported a theory of aiding and abetting because any reasonable jury could have determined that defendants Buddy and Paul participated in and aided Rios with the fatal beating of Payan: The test for determining whether instructions on a particular theory of guilt are appropriate is whether there is substantial evidence which would support conviction on that theory. [Citation.] To determine whether there is substantial evidence to support a conviction we must view the record in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of conviction. We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant guilty on the theory presented. [Citation.] [Citations.] Substantial evidence is evidence of ponderable legal significance . . . reasonable in nature, credible, and of solid value. [Citations.] [Citation.] (People v. Campbell (1994) 25 Cal.App.4th 402, 408.)

According to testimony at trial, Buddy and Paul each delivered a blow with a baseball bat to the victims head, after which Rios began beating the unconscious victim. The forensic experts testified the victims head injuries could have been caused by a baseball bat. Additionally, defendants Buddy and Paul were present in the company of Rios during the initial confrontation and the subsequent fight in the parking lot.

As a reviewing court, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.] [Citation.] (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The testimony of a single witness is sufficient to support a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.) In the present case, the eyewitness account was bolstered by two expert opinions. Even if there was contrary evidence, sufficient evidence supported the conviction for aiding and abetting.

6. Purported Juror Misconduct

All defendants urge the court erred when it refused to unseal juror information so it could be determined whether juror misconduct or juror bias had occurred. (Code Civ. Proc., 206, subd. (g), and 237, subd. (b).) In particular, defendants contend that one of the jurors was the victims cousin and the other jurors were concerned she was discussing the case with her aunt, the victims mother. The only evidence specifically supporting this contention was an unsigned declaration by Donald Ferguson, defendant Pauls attorney, in which he stated that two people, Maureen Hernandez and Stephanie Perez, told him that one of them had overheard a juror assure the victims mother, Dont worry Tia, we will take care of you as well as discussing other parts of the trial before deliberations. But Maureen Hernandez, who submitted two other declarations, did not corroborate this information. No other competent or pertinent evidence established a familial relationship between a juror and the victim. The court, therefore, declined to unseal the juror information.

Code of Civil Procedure section 237, subdivision (b) provides the petition to unseal jury records shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the jurors personal identifying information. The court possesses broad discretion to grant or deny such a petition. (People v. Avila (2006) 38 Cal.4th 491, 603-604.) In the absence of any competent showing the juror was related to the victim, we cannot uphold a claim of error on this ground.

7. Ineffective Assistance of Counsel (Rios)

Defendant Rios contends his trial counsel unreasonably relied solely on a theory of self-defense and expressly rejected an alternative defense of voluntary manslaughter. The jury was instructed about voluntary manslaughter. But defendant relied on the evidence from Rodriguez and the club bouncer that the victim was the aggressor who hit Rios first and that Rios acted in self-defense.

We have previously described how demonstrating ineffective assistance of counsel requires both deficient performance by the attorney and resulting prejudice. (People v. Anderson, supra, 25 Cal.4th at p. 569.) If there is a credible tactical reason for an attorneys strategy, the performance is not deficient. (People v. Frye (1998) 18 Cal.4th 894, 979-980; People v. Hart (1999) 74 Cal.App.4th 479, 486.)

Here there was no deficient performance because Rioss defense counsel made a reasonable tactical decision to attack the credibility of Ornelas, the victims girlfriend and the prosecutions chief witness, to depict Payan as the aggressor, and to seek an acquittal for murder. It would have been wholly inconsistent with that defense strategy to argue in the alternative that defendant was guilty of the lesser crime of voluntary manslaughter.

Furthermore, the jury could have determined, as instructed, that the killing occurred in the actual but unreasonable belief in the necessity to defend oneself. But obviously the jury was not persuaded that, after the victim was felled by blows inflicted by defendants Buddy and Paul with a bat, defendant Rios could have any belief, whether reasonable or not, of the necessity to defend himself from the unconscious victim. Any reasonable jury would have found defendant Rios guilty of murder. No ineffective assistance of counsel was established.

8. Self-Defense or Defense of Another (Paul)

Defendant Paul contends the court should have instructed the jury based on Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 505, involving self-defense or defense of another. (People v. Lemus (1988) 203 Cal.App.3d 470, 478.) The instruction provides a defendant is not guilty of homicide if he reasonably believed another person was in imminent danger of being killed or suffering great bodily injury, that immediate use of deadly force was necessary, and the force used was reasonably necessary to defend against the danger. Paul contends he acted reasonably to defend Rios from imminent danger from Payan.

We discern no substantial evidence to support the defense. When Buddy and then Paul struck Payan with a bat, there was no evidence Payan was about to kill Rios or commit great bodily injury. They had exchanged angry words and may have exchanged blows with their fists but, in using a bat as a weapon, defendants Buddy and Paul escalated the level of violence beyond what was reasonably necessary. Nor is it likely the jury would have reached a different result had the instruction been given. (People v. Breverman (1998) 19 Cal.4th 142, 176-177.)

9. Disposition

We affirm the convictions of second degree murder against all three defendants.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Richli

Acting P. J.

s/King

J.

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