P. v. Padilla

Filed 11/1/07 P. v. Padilla 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Horan, Judge. Affirmed.

Daniel G. Koryn, 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, Senior Assistant Attorney General, Lance E. Winters and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

INTRODUCTION

Appellant Rudy Rodolfo Padilla challenges his second degree murder conviction on the grounds that, apart from appellants admissions, the evidence was insufficient to establish the corpus delicti, the trial court erred by admitting a videotape and transcript, instructing the jury upon flight, and staying, instead of striking, two Penal Code section 12022.53 enhancements. We conclude the corpus delicti was adequately established. The trial court did not abuse its discretion in admitting the edited videotape or transcript. The court properly instructed upon flight and stayed superfluous Penal Code section 12022.53 enhancements.

BACKGROUND AND PROCEDURAL HISTORY

Maricella Bojorquez was found dead in a Pomona street on December 29, 2005. She had three gunshot wounds to her head and neck. Before her funeral, appellant told his brother, Martin Joya, that he had killed her. Joya subsequently told his grandmother, who told the police.

A jury convicted appellant of second degree murder and returned true findings on allegations that appellant had personally and intentionally fired a gun in the commission of the offense, causing death; personally and intentionally fired a gun in the commission of the offense; and personally used a gun in the commission of the offense. The court sentenced appellant to prison for 40 years to life.

DISCUSSION

1. The prosecution adequately established the corpus delicti.

Appellant contends that, apart from his admissions, the evidence was insufficient to establish the corpus delicti.

In any criminal prosecution, the corpus delicti must be established by the prosecution independently of the extrajudicial statements of the defendant. (Peoplev.Crew (2003) 31 Cal.4th 822, 836-837.) As to every crime charged, the prosecution must prove that an injury, loss or harm occurred and that a criminal agency was the cause. (Id. at p. 837.) A slight or prima facie showing is sufficient, and the proof may be by circumstantial evidence and reasonable inferences drawn from the evidence. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1127-1128.) The rule requires only a showing that a crime occurred, not the defendants criminal liability for it. (Id. at p. 1128.)

The corpus delicti was established by the testimony of Detective Jaime Gutierrez and the coroner, with assistance from a stipulation. Gutierrez testified that while he was investigating another homicide a few blocks away, he heard gunshots. He directed other officers to investigate, and went to the scene himself about ten minutes later. He found Bojorquez lying dead in the street with gunshot wounds to her head and neck. The police did not find a gun at the scene. The parties stipulated she died from gunshot wounds to her head and chest, and the shots were all fired from a .380 caliber handgun. The coroner testified two bullets entered the top of Borjorquezs head and traveled in a downward direction. Due to an absence of stippling, the coroner concluded the gun was more than 18 inches away from the victims head when it was fired.

Appellant does not argue that Borjorquezs death was a suicide, and it is highly improbable she was able to shoot herself in the neck, and then twice in the top of the head with the gun held more than 18 inches from her scalp. In addition, the gun would necessarily have been present somewhere near the body. Accordingly, the prosecution established the corpus delicti.

The core of appellants contention appears to be that he was implicated only through his own extra judicial statements. However, appellants identity as the perpetrator was not part of the corpus delicti.

To the extent appellants contention is intended to challenge the sufficiency of the evidence, it also fails.

We review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (Peoplev.Ceja (1993) 4 Cal.4th 1134, 1138.)

A videotape of the detectives interrogations of Joya and appellant was introduced at trial. Joya told the detectives that before Borjorquezs funeral, appellant admitted he had killed her. Joya and appellant were alone in their bedroom in their grandmothers home at the time. Appellant told the detectives that Bojorquez was one of his girlfriends and they had a child together. He denied telling Joya he had killed Bojorquez. After the detectives told him Joya had told them of his admission, he admitted he had told Joya he killed Bojorquez, but contended he simply did it to frighten Joya so that he would not feel safe walking around on the streets.

Appellant also told the detectives he spent nearly a week between Christmas and New Years at his friend Carmens house in Chino. Carmen Montanez testified that appellant and his girlfriend Robyn Lowe and their baby visited her home for dinner on December 29, 2005, but left a little after midnight. Appellant did not stay at her home for several days or visit her on other days of that week. On February 9, 2006, Lowe told the police that she picked appellant up in Chino on the night of December 29, 2005 at about 9:30 at Carmens home, after leaving school at about 8:45. At trial, she testified that she left school at about 7:30, picked up appellant and their baby, and drove to Carmens home, where they all had dinner.

Viewed in the light most favorable to the judgment, ample evidence supported appellants conviction.

2. The trial court did not abuse its discretion in admitting the edited

videotape and transcript of appellants interrogation, Joyas interrogation, and appellants conversation with Joya.

The prosecutor sought to introduce the entire videotape containing the interrogations of Joya and appellant and a lengthy conversation between the two brothers while they were left alone in a room. Appellant objected that portions of the videotape were irrelevant and should be excluded under Evidence Code section 352. He subsequently elaborated by explaining that portions of the conversation between the brothers were almost mindless dribble and their vulgar language depicted appellant in a very unkind light and made him look amoral. The court ultimately reviewed a transcript of the complete videotape and, in the presence of counsel, designated the portions to be excluded. The court excluded small portions from Joyas and appellants interviews and large segments of the conversation between the brothers. The investigating officer and prosecutor created a redacted copy of the videotape and its transcript. The redacted videotape was played at trial, and the jurors were provided with redacted transcripts.

Appellant contends that the admission of his inflammatory gestures and use of vulgarity in discussing the death of the victim in the redacted videotape was an abuse of discretion because their probative value was outweighed by the risk of undue prejudice.

Evidence Code section 352 provides that the court may, in its discretion, exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. In this context, unduly prejudicial evidence is evidence that evokes an emotional bias against the defendant without regard to its relevance to material issues. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) We review any ruling on the admissibility of evidence for abuse of discretion. (Peoplev.Guerra (2006) 37 Cal.4th 1067, 1113.)

Appellant has not specified the nature or location in the record of the inflammatory gestures that are the partial subject of this claim. Assuming that appellants reference to inflammatory gestures pertains to the sequence of gestures that Gutierrez testified constituted a threat to kill his aunt Patty, the trial court did not abuse its discretion.

Gutierrez testified that appellant indicated he thought the police were audio-taping the brothers. At the outset of the conversation between the brothers, appellant asked Joya if he had told the police that appellant killed Bojorquez. Joya cried, and then told appellant that their aunt Patty had told the police. Appellant subsequently tapped on the table. When he had Joyas attention, he used a combination of hand signals, mouthing words, and spelling words with his hands to say that he was going to have Bosco from 12 shoot or kill Patty. The tape was subsequently played for the jury with these portions included.

The jury was free to view and interpret appellants gestures for itself. Assuming it accepted Gutierrezs interpretation, the partially non verbal statement by appellant was highly probative because it reflected his consciousness of guilt in the form of a desire for revenge upon Patty, whom Joya blamed for informing the police that appellant killed Bojorquez. Its probative value was enhanced because the consciousness of guilt inference corroborated appellants admission of guilt to Joya. At trial, Joya testified that appellant was asleep when he said he had killed Bojorquez. Joya had used crystal meth and might have been hallucinating. He testified he told his grandmother about appellants statement when he was angry at appellant about an argument they had had. Similarly, appellants grandmother, Rosa Padilla, testified at trial that Joya told her appellant was asleep and crying, Joya asked him what was wrong, and appellant said he killed Bojorquez. Appellants desire for murderous revenge against his aunt suggested that he was, in fact, guilty of the murder and his admission to Joya was candid.

The prejudice inherent in the statement stems from the same matters that make it highly probative, i.e., the expression of a desire for revenge suggests appellants consciousness of guilt. This is not the sort of prejudice that renders evidence subject to exclusion under Evidence Code section 352. The possibility that appellant may have wanted to kill Patty for falsely implicating him to the police was a competing inference appellant was free to argue.

Appellant has not specified the location in the record of the vulgarity in discussing the death of Mari that forms the remainder of this claim. He therefore has not carried his burden of proving error on appeal. (Culbertson v. R.D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710.) However, the trial court conscientiously and painstakingly edited the transcript and ordered the videotape edited to remove irrelevant and potentially prejudicial matters. Throughout the hearing during which the editing was performed, the court satisfied counsels every request to remove a statement or partial statement. Defense counsel did not object to any matter left in the transcript and videotape by the court. Appellants initial objection to vulgar language failed to identify any particular statement by page or content. It was incumbent upon appellant to seek exclusion of particular statements, which he failed to do. He therefore forfeited any objection to statements remaining in the edited transcript and tape. In any event, it is highly improbable that any risk of prejudice flowing from a defendants use of vulgar language can ever substantially outweigh the probative value of relevant and otherwise admissible statements including such language.

The trial court did not abuse its discretion by admitting the edited transcript and videotape.

3. The trial court did not err by instructing with CALJIC No. 2.52.

Over appellants objection, the trial court instructed the jury on flight using CALJIC No. 2.52: The flight of a person or attempted flight, after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.

Appellant contends the evidence did not support an instruction upon flight, as there was no evidence of flight from the crime scene, and his subsequent departure from his grandmothers house when the police arrived was attributable to his belief that he had an outstanding warrant,^[1]as he was not yet a suspect in Borjorquezs murder.

Rosa Padilla testified that a few weeks after Bojorquez was killed, appellant asked her if she had seen or picked up a gun. Appellant threatened his grandfather. She asked her daughter to call the police. When the police arrived, appellant and Joya ran out of the house through a side door.

Padillas testimony supported giving CALJIC No. 2.52. Although appellant may have had other reasons for fleeing from Padillas home when the police arrived, his flight created a strong inference of consciousness of guilt and desire to evade capture. Nothing in the record establishes that appellant knew the police did not yet suspect him of involvement in Borjorquezs murder. Moreover, his videotaped reference to the existence of a warrant did not specify the factual basis of the warrant, and therefore may have referred to a warrant for his arrest for committing the charged crime.

As noted by the court in People v. Crandell (1988) 46 Cal.3d 833, 870 overruled on another point in People v. Crayton (2002) 28 Cal.4th 346, the instruction does not posit the existence of flight; both the existence and significance of flight were left to the jury. The jury was directed to disregard any instruction applying to facts that it determined did not exist. (CALJIC No. 17.31.) Accordingly, if the jury did not find that appellants departure from his grandmothers home when the police arrived constituted flight, it would simply disregard CALJIC No. 2.52 and would not infer consciousness of guilt. If the jury found flight, the instruction provided some protection to appellant by informing the jury it could not infer guilt from flight alone.

4. The trial court properly stayed the superfluous Penal Code section

12022.53 enhancements.

The jury found true enhancement allegations under Penal Code section 12022.53, subdivisions (b) through (d). The trial court imposed a 25-years-to-life enhancement provided by subdivision (d) and stayed the subdivision (b) and (c) enhancements. Appellant contends the stayed enhancements should be stricken. An identical issue presently is pending before the California Supreme Court in People v. Gonzalez, review granted March 14, 2007, S149898.

In People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte), Division Four of this district discussed the conflict between section 12022.53, subdivisions (f) and (h). Subdivision (f) states that only one enhancement may be imposed under section 12022.53, but subdivision (h) prohibits striking any enhancement imposed under section 12022.53. Harmonizing the two sections, Bracamonte held that each section 12022.53 enhancement found to be true should be imposed, but all except the enhancement carrying the greatest term of imprisonment should be stayed. (Bracamonte,supra, at p. 713.)

We find the reasoning of Bracamonte persuasive and adopt it here. Accordingly, the trial court properly stayed the section 12022.53, subdivision (b) and (c) enhancements.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

We concur:

COOPER, P. J.

FLIER, J.

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^[1] During appellants taped conversation with Joya, he mentioned a belief that there was a warrant for his arrest. He did not indicate the basis for such warrant.