P. v. Novoa
Filed 5/20/11 P. v. Novoa CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
| THE PEOPLE, Plaintiff and Respondent, v. ANTHONY NOVOA, Defendant and Appellant. | B221154 (Los Angeles County Super. Ct. No. BA324974) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Marsha N. Revel, Judge. Affirmed.
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Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
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Anthony Novoa admitted at trial that he shot and killed Oscar Castillo. The question for the jury was whether the killing was first degree murder, second degree murder, voluntary manslaughter or self-defense. The jury found the killing was first degree murder. On appeal, Novoa argues the jury only reached that verdict because of prejudicial misconduct by the prosecutor during closing argument. We disagree and affirm the judgment.
FACTS AND PROCEEDINGS BELOW
The night of the shooting, Novoa, Ulises Hernandez and a third person identified at trial only as “Taz,” were riding in Taz’s truck on San Pedro Street in territory claimed by the 41st Street gang but near turf claimed by the Playboys gang. Novoa, Hernandez and Taz were members of the 18th Street gang.
A. The Prosecution Case
Hernandez testified that he told Taz to drop him off at the corner of San Pedro and Adair so that he could catch a bus to downtown Los Angeles.[1] When Hernandez got out of the truck he saw a man on the other side of San Pedro “mad-dogging” him (staring at him in an angry manner). He later identified the man from photographs as the victim, Castillo. Hernandez testified that Castillo had a handgun in his pocket and that as Castillo approached he asked Hernandez, “Do you bang” Hernandez answered, “No.” Castillo then told Hernandez he was a member of the Playboys. Hernandez again stated he didn’t “bang” and Castillo asked him, “Where are you from” When asked what happened next Hernandez answered: “I don’t know. We just ended up fighting . . . .” According to Hernandez, he and Castillo fought with their fists. First Hernandez slipped then Castillo slipped. When Castillo stood back up he started to reach into his pocket “like he was about to take out something.” While Castillo’s hand was in his pocket, Hernandez heard several loud “pops” from behind him and saw Castillo fall to the ground. Hernandez turned around and saw Novoa standing “probably like ten, nine feet away.” Novoa had nothing in his hands.
Gabino Alarcon witnessed the fight between Hernandez and Castillo from approximately 100 feet away. Alarcon testified that Hernandez called Castillo over from across San Pedro Street and the two of them started fighting. Hernandez pushed Castillo away and moved up against a fence then Alarcon heard three or four shots fired in rapid succession. Alarcon did not testify that he saw the person or persons who fired the shots.
Carlos Santizo testified that he did not belong to a gang but he knew Novoa and Hernandez because they lived in his neighborhood and hung out near his house. Santizo stated that he heard Novoa talk about “hunting” for Playboys four days before he shot Castillo and again three days and four days after the shooting. Santizo also stated he heard Hernandez refer to hunting Playboys four days before the shooting and two days after the shooting. Finally, Santizo testified that Novoa and Hernandez told him after the shooting that Novoa had “smoked somebody from Playboys.”
The People introduced the results of an autopsy that showed Castillo was struck by five bullets including one that hit him between the eyes and another that hit one of his lungs. Either of these wounds would have been fatal.
No gun was found on or near Castillo’s body.
Officer Ronald Berdin of the Los Angeles Police Department testified for the prosecution as an expert on Los Angeles gangs. He stated that although the 18th Street gang was one of the largest in the city and county of Los Angeles it was just starting to create a clique in the area where the shooting took place. That area was already claimed by two rival gangs, the 41st Street gang and the Playboys. Novoa and Hernandez were members of the 18th Street gang.
Berdin testified that in order to establish the 18th Street gang in the area the gang members had to commit violent crimes and defend themselves from rival gangs. One way to do this is to seek out and eliminate rival gang members. It is not unusual, Berdin said, for a group of two or more gang members to ride in a vehicle looking for rival gang members. At least one member of the group would be armed. Gang members know when they are in a rival’s territory.
Berdin further testified that he was unable to uncover any evidence that the victim was a gang member and Berdin believed that he was not. The intersection of San Pedro and Adair, Berdin explained, is in territory claimed by the Playboys’ rival, the 41st Street gang and the rivalry between these two gangs “has resulted in numerous shootings and homicides.” Therefore, he stated, “[y]ou’re not going to have a member from Playboys on foot in that area by himself. It is not going to happen.”
Finally, Berdin testified, that even assuming Castillo was a member of the Playboys, a member of that gang walking by himself, whether armed or unarmed, would not “hit up” a stranger near the intersection of Adair and San Pedro in 41st Street gang territory.
B. The Defense Case
Novoa testified in his own defense.
He told the jury that when Taz stopped his truck to drop off Hernandez he asked Taz to park so he could get something to eat at a taco stand around the corner. As Taz was backing into a parking space he asked Novoa, “Who’s that fool right there” Novoa turned and looked back and saw Hernandez “throwing punches” with someone. It appeared to Novoa that Hernandez was losing the fight because he was stumbling and the other person was throwing more punches. Novoa testified that he decided to get out of the truck to help Hernandez for three reasons: “I seen the guy beating up [Hernandez] and the clothes he was wearing looked like some type of gangbanger, and he was putting his hands in his pocket.” Novoa stated that he grabbed a gun from the truck as he got out. He brought the gun, he explained, because he thought Hernandez “was probably in some type of danger” and “either he was going to get hurt or killed.” Novoa concluded Hernandez was in danger because the other person was dressed like a gangbanger and had his hand in his pocket. He told the jury: “People, like, wearing baggie clothes look like gangbangers and put their hands in their pocket usually have a weapon.” Novoa said that he based his opinion on personal experience: “I’ve been shot in that area a couple of times, and usually somebody had their hand in their pocket.”
While Hernandez and the other person were fighting, Novoa ran to the corner of San Pedro and Adair and “fired one shot.” He paused after that shot because he thought he might have hit Hernandez who was standing close to the man he was fighting. After he ran “a little closer,” Novoa fired “a couple more shots.” Novoa explained that he fired the additional shots because the other person “still had his hand in his pocket, and [Novoa] was scared” that he or Hernandez were going to get hurt. Following the shots the person Hernandez had been fighting fell to the ground. Novoa and Hernandez then ran to Taz’s truck and Taz drove away.
Novoa denied talking to Santizo about the shooting and never told him that at the time of the shooting he, Hernandez and Taz were “hunting” for Playboys.
On cross-examination Novoa admitted that when questioned by the police he stated Hernandez was already standing behind him when he fired the first shot. At trial he testified that his statement to the police was a lie.
The defense produced evidence from the autopsy that at the time of his death Castillo had a blood alcohol level between .20 and .25 and that he had smoked marijuana within the preceding two or three hours. John Treuting, a clinical toxicologist, testified that persons with a blood alcohol level of .20 or higher usually experience a loss of inhibitions, slow reaction times, reduced attention to detail and impaired judgment. In many cases that blood alcohol level can produce aggressive behavior. Treuting further testified that one of the side-effects of smoking marijuana can be “an acute panic anxiety reaction” in which a person has “a concern about his or her well-being.” Treuting stated he would expect that a person with Castillo’s level of alcohol and marijuana in his system would experience “an inability to properly process information cognitively, . . . and respond to it physically.”
Dr. Charles Hinkin, a professor of psychiatry at the UCLA school of medicine testified as an expert in neuropsychology. Under appointment by the court, Hinkin conducted an evaluation of Novoa’s neurocognitive and neuropsychiatric functioning. He determined that Novoa had an IQ of 68, within the mentally retarded range. Novoa performed in the impaired range on tests measuring executive functioning, problem solving, sequencing and the ability to inhibit his behavior. According to Hinkin, “Mr. Novoa demonstrated severe psychiatric dysfunction.” Asked how these deficits and disorders affect a person “in the real world in their everyday lives,” Hinkin provided the following assessment. “[P]eople with executive dysfunction have trouble planning. They have troubles anticipating what will happen . . . or how to solve things. Their problem solving is poor.” They also have trouble with inhibition, an inability “to rein themselves in;” they tend to be impulsive and are prone to “knee-jerk reactions;” they do things “on the spur of the moment without . . . thinking them through.” People with low IQ’s, Hinkin testified, “often misinterpret things. They don’t size up the situation . . . . They misinterpret other’s intentions.”
The defense also produced evidence from the victim’s cousin, Elizabeth Castillo, that the victim “kicked it” (hung around) with members of the Playboys but was not a member of the gang. Elizabeth testified that earlier on the day he was killed, Castillo got into a fight with a member of the Playboys.
C. Prosecution’s Closing Argument
As we discuss more fully below, Novoa contends that the prosecutor committed prejudicial misconduct in his closing argument by urging the jury to convict Novoa of murder based on his bad character (gang membership), pleading for a first degree murder verdict and denigrating defense counsel.
D. Verdict and Sentence
The jury found Novoa guilty of first degree murder and carrying a loaded firearm while an active participant in a street gang. It returned true findings that Novoa used a firearm in committing the murder and that he committed the murder for the benefit of a street gang.
The court sentenced Novoa to a term of 25 years to life for the murder plus a consecutive 25 years to life on the gun use enhancement. It imposed a concurrent sentence of 3 years for carrying a firearm while an active participant in a street gang. The court did not impose sentence on the street gang enhancement.
Novoa filed a timely appeal
DISCUSSION
The only issue on appeal is whether the prosecutor’s closing argument was so unfairly prejudicial to Novoa as to deny him a fair trial.
In making that determination, we employ two standards of review. Prosecutorial misconduct constituting constitutional error is subject to analysis under the standard of Chapman v. California (1967) 386 U.S. 18, 24 requiring the People to prove beyond a reasonable doubt that the error did not contribute to the verdict. Prosecutorial misconduct that violates the norms of professional behavior but does not rise to the level of constitutional error is subject to analysis under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 requiring the defendant to show that it is reasonably probable that he would have received a more favorable result absent the prosecutor’s misconduct. (People v. Bolton (1979) 23 Cal.3d 208, 214.) In determining the degree of prejudice we not only assess each error standing alone but their cumulative effect on the fairness of the trial. (People v. Hill (1998) 17 Cal.4th 800, 845.)
A. Argument Based on Defendant’s Bad Character
Novoa claims the prosecutor committed prejudicial misconduct by exhorting the jury to find Novoa guilty of murder because his membership in the 18th Street gang showed he had a criminal disposition. He cites the following examples.
At the beginning of his closing argument the prosecutor told the jury: “First of all, before we can even think about what happened, we have to know the defendant. We have to know what the defendant’s life is about. It is not trying to make the defendant bad or dirty him up, but you have to know who we are talking about. You have to know what his life is. . . . There’s no evidence that the defendant had a job or lived a normal life like you and [me].” Novoa objected to this argument and asked for a mistrial on the ground the prosecutor was arguing that because Novoa was a gang member he must have had the required intent for murder. The court sustained the objection with respect to whether Novoa had a job but overruled it and denied a mistrial based on the comment that Novoa did not live “a normal life” like the jurors and the prosecutor.
Later, the prosecutor responded to Novoa’s argument that he was guilty at most of voluntary manslaughter by stating: “If the evidence was that the defendant was not a gang member and it wasn’t anything about who was getting beat up, okay. Maybe it was voluntary manslaughter. The defendant is a gang member in rival territory with a loaded gun and people acting in concert. When that happens, no, no, no.” Novoa objected that this was improper argument. The court overruled his objection.
Novoa acknowledges that evidence of his gang membership was relevant to the issue of whether Castillo’s killing was committed for the benefit of a criminal street gang as charged in the information and that the prosecutor could legitimately discuss the evidence of Novoa’s gang membership for that purpose. He maintains, however, that the prosecutor went beyond the legitimate use of the gang evidence by advocating the jury use that evidence as proof the killing was murder, not manslaughter.
The prosecutor did not commit misconduct when he argued that the facts surrounding Castillo’s killing contradict the defense theory of voluntary manslaughter. The facts the prosecutor relied on were supported by the evidence: Novoa was a member of the 18th Street gang, he was in rival territory with a loaded gun and his and Hernandez’s conduct could be reasonably viewed as setting up the murder of a rival gang member. Furthermore, other evidence supported a verdict of murder over manslaughter. Officer Berdin testified that the 18th Street gang was trying to establish itself in territory occupied by rival gangs by seeking out and murdering members of those gangs. This testimony suggested a motive for Novoa to murder Castillo. (People v. Hernandez (2004) 33 Cal.4th 1040, 1053 [gang testimony relevant to show a motive for the crime].) Additionally, Santizo testified that he heard Novoa talk about “hunting” Playboys four days before Novoa shot Castillo Given this evidence, we find nothing unfair in the prosecution’s contrasting the facts of the present crime with one that did not involve a gang member with a loaded gun inside a rival gang’s territory shooting a suspected member of the rival gang.
More troubling is the prosecutor’s comment that Novoa did not “live[] a normal life like you and [me].” The remark smacks of an attempt to prejudice the jury against Novoa merely because he belongs to a gang. (See People v. Williams (1997) 16 Cal.4th 153, 193.) Nor can the comment be excused on the ground it was made in response to a defense argument that Novoa was just an ordinary young man out for a drive with his friends. (See United States v. Young (1985) 470 U.S. 1, 11 [“the reviewing court must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel’s opening salvo”].) Novoa never made such an argument and in any event the prosecutor made his observation at the commencement of his closing argument.
But even assuming the prosecutor’s remark constitutes misconduct it is not cause for reversing the judgment. We cannot say that the prosecutor’s behavior was so egregious and unfair as to deny Novoa due process and trigger the federal, Chapman, standard for prejudicial misconduct. Nor can we say that it is reasonably probable that absent this misconduct Novoa would have received a more favorable verdict. (People v. Watson, supra, 46 Cal.2d at p. 836.)
As discussed above, strong evidence supported a conviction for murder rather than voluntary manslaughter. (See discussion at pp. 8-9, ante.) Moreover, the record indicates that in convicting Novoa of first degree murder the jury carefully considered the substantive evidence rather than relying on the mere fact of Novoa’s gang membership. The jurors deliberated for approximately 13 hours. In addition, they listened to read-backs of the portions of Santizo’s testimony regarding Novoa and Hernandez “hunting Playboys,” as well as portions of the testimony of other witnesses including Hernandez, Novoa, and Elizabeth Castillo. They asked the court to clarify the difference between first degree murder, second degree murder and voluntary manslaughter “‘with realistic examples of each.’”[2] Lastly, the court specifically instructed the jury that the street gang evidence “may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crime.” We presume the jury followed this instruction. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
B. Other Alleged Misconduct
Novoa argues the prosecutor committed further misconduct by pleading with the jury to “[p]lease come back with a verdict of murder in the first degree” and “[f]ind the gang allegation to be true and gun allegation to be true, please,” by accusing defense counsel of “[t]alking loud and saying nothing,” making arguments that are “silly” and that “[don’t] make sense.” and misstating the evidence about the significance of certain tattoos worn by the victim.
Novoa did not object to the prosecutor’s use of the word “please” nor to his disparaging comments about Novoa’s arguments. Thus, Novoa forfeited his complaints about these remarks on appeal. (People v. Berryman (1993) 6 Cal.4th 1048, 1072.) In any event, the court on its own motion told the jury the prosecutor’s use of the word “‘please’” was “not really proper argument” and to disregard it.
Novoa maintains the prosecutor misstated the evidence when he stated that the tattoos on Castillo’s face were not gang-related. The court overruled Novoa’s objection to the prosecutor’s statement on the ground the statement was a fair construction of the evidence. The court ruled correctly. The only evidence on the significance of Castillo’s tattoos was Officer Berdin’s testimony that such tattoos are worn by both gang members and non-gang members and thus are not necessarily gang-related.
Finally there is no merit to Novoa’s argument that the cumulative effect of the prosecutor’s misconduct denied him a fair trial. As we have explained, the only cognizable error by the prosecutor was his harmless observation that Novoa did not live a “normal” life like the jurors and the prosecutor.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, J.
We concur:
MALLANO, P. J.
CHANEY, J.
