P. v. Armenta
Filed 9/11/13 P. v. Armenta CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JOE LOUIS ARMENTA,
Defendant and Appellant.
E054533
(Super.Ct.No. RIF147935)
OPINION
APPEAL from the Superior
Court of
County. Richard Todd
Fields and Jeffrey Prevost, Judges.
name="_ftnref1" title=""> Affirmed with directions.
Gregory L. Cannon, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Julie L. Garland, Senior Assistant Attorney General, and Lise Jacobson
and Vincent P. La Pietra, Deputy Attorneys General, for Plaintiff and
Respondent.
Police officers arrived at the home of defendant
Joe Louis Armenta to arrest him on an outstanding
warrant. One officer claimed that,
in addition to knocking on the front door, he announced that they were the
police; his supervisor, however, who was also knocking, did not remember this
announcement.
Meanwhile, other officers opened a sliding glass
door in the rear of the house. This
caused an alarm to sound. Defendant
started yelling. At this point, officers
in both the front and rear announced their identity and purpose. Some officers then entered through the rear
sliding glass door.
Defendant fired at least two shots at the
officers. They fired back at him. There was a standoff for at least 40 minutes,
during which the officers continued to announce their identity and purpose. Defendant fired one last shot before the
officers managed to escape the house. It
took a police negotiator about four hours to talk defendant into surrendering.
Defendant claimed that he mistook the officers
for members of his former gang, which had put out a “green light†on him. When he realized his mistake, he tried to
commit “suicide by cop.â€
A jury found defendant guilty of four counts of
including two counts that it found to be willful, deliberate, and premeditated
(Pen. Code, § 187, subd. (a), 664, subds. (e), (f)), all with personal
firearm discharge enhancements (Pen. Code, § 12022.53, subd. (c)); four
counts of assault with a firearm on a peace officer (Pen. Code, § 245,
subd. (d)(1)), all with personal firearm discharge enhancements (Pen. Code,
§ 12022.53, subd. (c)); one count of unlawful possession of a firearm
(Pen. Code, former § 12021, subd. (a)(1); see now Pen. Code, § 29800,
subd. (a)(1)); and one count of unlawful
possession of ammunition (Pen. Code, former § 12316, subd. (b)(1); see
now Pen. Code, § 30305, subd. (a)).
The trial court sentenced defendant to a
determinate term of 62 years 8 months in prison, plus three consecutive
indeterminate terms of life in prison with an aggregate minimum parole period
of 29 years.
Defendant now contends:
1. The
prosecutor committed misconduct in six separate instances.
2. The
trial court erred by admitting evidence that, in a previous shootout with
another gang member, defendant had killed an “innocent bystander.â€
3. The
trial court erred by failing to instruct on attempted voluntary manslaughter on
a “heat of passion†theory.
4. This
court should independently review the materials produced in camera in response
to defendant’s Pitchess motion.
5. The
abstract of judgment is erroneous.
The People concede that the abstract of judgment
is erroneous and must be corrected.
Otherwise, we find no reversible error.
Hence, we will affirm.
I
FACTUAL BACKGROUND
A. Prosecution Evidence.
On January 6, 2009, shortly after 9:00 p.m., six officers from a
multiagency task force went to defendant’s house in Rubidoux. They were there to arrest defendant pursuant
to a felony warrant. Defendant was also
on felony probation, with full search terms.
The officers were in uniform, including vests with the word “police†on
the back.
Sergeant David Amador and Officer Eric Hibbard knocked on the front
door and rang the doorbell off and on for at least five minutes. There was no response.
According to Sergeant Amador, they did not say anything, because their
standard procedure was to wait until someone answered the door. According to Officer Hibbard, however, toward
the end, he said, “Police Department.
It’s the Riverside Police Department,†though he still did not say why
they were there.
After a short break, Sergeant Amador started knocking on the front
door and ringing the doorbell again. He
still did not say anything.
Meanwhile, Officer Hibbard and Officer David Castenada went around to
the back of the house. They used a
ladder in the back yard to climb up to a second-floor balcony. On the balcony, there was a sliding glass
door. Officer Castenada pushed the
sliding glass door to determine whether it was locked or not. It slid open some one to three inches. This caused an alarm to beep.
At that point, defendant started yelling, “What do you want? Who are you?
Go away.†At the front door,
Sergeant Amador and Officer Darrell Hill immediately responded, “The Riverside
Police Department. We’re here to do a
probation search. If you don’t answer
the door, we will force entry.â€
Defendant replied, “Go away.â€
“Get the fuck out of here . . . .†This exchange was repeated five or six
times. Officer Hill and Officer Michael
Crawford tried to kick in the front door, but without success.
Meanwhile, back at the sliding glass door, when defendant yelled, “Who
is it?,†Officer Hibbard responded, “Riverside Police. Probation search.†He said it twice. After making this announcement, Officer
Hibbard, along with Officer Castenada, entered through the sliding glass door.
They found themselves in the master bedroom. They decided to try to apprehend defendant
using a taser. They summoned Officer
Crawford, because he was the only officer who had a taser. They waited in the bedroom for several
minutes until Officer Crawford came in through the sliding glass door.
As these three officers walked out of the bedroom toward a staircase,
Officer Hibbard heard the sound of a zipper.
He thought it might be the zipper of a gun case, so he told the others
to stop. He then saw defendant, with a
gun in his hand, on the first floor, running into a hallway.
Officer Hibbard said, “Gun, gun, he’s got a gun.†He and Officer Castenada retreated back into
the bedroom. Officer Crawford ran forward;
he was separated from the other officers for several minutes, until he managed
to dash back into the bedroom.
Meanwhile, defendant swept the red dot of a laser gunsight around the
stairwell and toward the bedroom.
Defendant fired two shots.
Estimates of the time between the shots varied from one to two seconds
to one or two minutes.
After the second shot, Officer Hibbard and Officer Castenada fired
back. Before firing, Officer Castenada
said, “Riverside police. Riverside
police.†After firing, Officer Hibbard
yelled, “Police Department. . . .
Drop the gun and come out.â€
At some point, there was a third volley of shots. It is not at all clear whether defendant
fired any of these. According to Officer
Hibbard, defendant did fire a third shot, so he (Officer Hibbard) fired
back. According to Officer Castenada,
however, he noticed the laser dot on his own chest, so he “started throwing
rounds down range.â€
Defendant barricaded himself inside the laundry room; he moved the
dryer to give himself cover. Officer
Hill then came in the upstairs bedroom through the sliding glass door. He tried to negotiate with defendant. He talked to defendant for about 40 minutes,
telling him, “Nobody wants to hurt you.
You need to surrender. . . .
We are the police department.â€
When Officer Hill addressed defendant as “Joe,†defendant claimed that
his name was John. Defendant said there
was a “green light†on him, adding, “I can’t go back to prison. You’re going to have to kill me.†He referred to committing “suicide by
cop.†He was also heard saying
(presumably on a cell phone), “I love you, dad.
The cops are here. They’re
shooting at me. They’re trying to kill
me.â€
Defendant was still turning the laser on and off and moving it
around. All of a sudden, he fired one
last shot. Both Officer Hill and Officer
Crawford fired back.
Meanwhile a helicopter and a Special Weapons and Tactics (SWAT) team
had arrived. Around 10:15 p.m.,
while the SWAT team set off flash-bang grenades as a diversion, the four
officers left the house.
Around 11:20 p.m., Investigator Justino Flores, a police
negotiator, began talking to defendant by phone. Finally, around 3:30 or 4:00 a.m.,
defendant left the house and surrendered.
He was interviewed by one Investigator LeClair.
Defendant’s gun had one bullet in the chamber, plus two bullets in the
seven-bullet magazine. Inside the
laundry room, the police found one live bullet matching the ones in defendant’s
gun. They found three shell casings
matching defendant’s bullets — one in the entryway and two in the hallway to
the laundry room. They also found 19
shell casings matching the bullets in the officers’ weapons. Gunshot residue was found on defendant’s
hands.
B. Defense Evidence.
Defendant testified that he was a former member
of the East Side Riva gang. He had an
“ESR†tattoo.
In 1995, he left the gang by moving to
Arizona. He did not get jumped out,
because he knew that that could cause crippling injuries and even brain
damage. He heard through friends and
family members that the gang would kill him if they caught him.
In 1999, after defendant moved back to
California, an East Side Riva member named Rudy Gil shot him in the face and
leg. Defendant shot back and killed an
innocent bystander.
Defendant testified against Gil, despite
receiving two or three separate threats to kill him and his family. Gil was convicted of first degree murder and
sentenced to 65 years to life.
Defendant, in exchange for his testimony, was allowed to plead guilty to
being a felon in possession of a firearm and sentenced to time served.
Because defendant had testified against Gil,
there was a “green light on [his] life.â€
He believed he would be “a dead man in prison.†He got a gun to protect himself, even though
he knew he was not allowed to have one.
On January 6, 2009, around 9:00 p.m.,
defendant heard knocking at his front door.
It went on for five or ten minutes.
Whoever was knocking did not say anything.
Then defendant heard an alarm beep. This meant that someone had just opened a
door or a window. Once again, no one
said anything.
Defendant got his gun and yelled, “Who the fuck’s
in my house?†There was no response.
the upstairs bedroom. He concluded that
they were East Side Rivas coming to kill him.
Defendant announced that he had a gun; he fired a
“warning shot,†without aiming, in the general direction of the bedroom. The people kept coming, so he fired
again. They then fired back at him. He retreated into the laundry room. At that point, for the first time, they said,
“Police.†However, defendant did not
believe them, because he did not think the police would break into his house.
Defendant’s gun had jammed; he cleared it by
removing one live bullet. He kept
“moving the laser back and forth and up and down†to “keep[] them at bay.â€
When defendant heard sirens and a helicopter, he
“figured if they weren’t police[,] that would make them leave.
. . . But these people kept
shooting at me, telling me . . . they’re the police, come out. And that’s when I started to believe them
. . . .†He decided that
he would rather have the police kill him than go to prison. Later, once he believed the officers were out
of the house, he fired a third shot, to shoot out a light. Defendant claimed that the one bullet found
in the laundry room, plus the three found in the gun, proved that he fired only
three times.
Defendant denied that there was any second round
of knocking. He also denied that the
officers tried to kick in the front door.
He pointed out that the door had glass, which they could have broken to
get in.
Defendant admitted that he had “[n]o logical
reason†to claim that his name was John.
He also could not explain why he did not call 911.
According to defendant, his statements
immediately after the shootout were largely consistent with his testimony at
trial. However, the negotiator,
Investigator Flores, testified that defendant did not mention East Side Riva,
nor did he say that somebody was trying to kill him.
II
PROSECUTORIAL MISCONDUCT
Defendant asserts some six separate instances of
prosecutorial misconduct.
A. General Legal
Principles.
“The standards governing this claim are well
established. A prosecutor’s conduct
violates the federal Constitution when it infects the trial with such unfairness
as to make the resulting conviction a denial of due process. Conduct by a prosecutor that does not rise to
this level nevertheless violates California law if it involves the use of
deceptive or reprehensible methods to attempt to persuade either the court or
the jury. [Citations.] To preserve a prosecutorial misconduct claim
for appeal, the defendant ‘“must make a timely and specific objection and ask
the trial court to admonish the jury to disregard the improprietyâ€â€™ unless
doing so would be futile or an admonition would not cure the harm. [Citation.]â€
(People v. Whalen (2013) 56
Cal.4th 1, 52.)
“‘A defendant’s conviction will not be reversed
for prosecutorial misconduct . . . unless it is reasonably probable
that a result more favorable to the defendant would have been reached without
the misconduct. [Citation.]
. . . [Citation.]’ [Citation.]â€
(People v. Tully (2012) 54
Cal.4th 952, 1010.) “When a trial court
sustains defense objections and admonishes the jury to disregard the comments,
we assume the jury followed the admonition and that prejudice was therefore
avoided. [Citation.]†(People
v. Bennett (2009) 45 Cal.4th 577, 595.)
B. Opening Statement: Impugning Defense Counsel.
Defendant contends that the prosecutor committed
misconduct in opening statement by impugning defense counsel.
1. Additional factual and
procedural background.
In her opening statement, the prosecutor
said: “I anticipate that you are going
to hear some excuses from defense, some made up stories. When people are caught, they try to get out
of it. Two years is a lot of time to
make up something.â€
Defense counsel objected to this, “as
argument.†The trial court sustained the
objection and granted defense counsel’s motion to strike.
The next day, defense counsel asked the trial
court “to assign [the remark] as misconduct.â€
The trial court declined “to formally cite [the
prosecutor] for misconduct,†but it agreed to give an admonition. Thus, when the jury reconvened, it
instructed:
“During her opening statement, [the prosecutor]
stated that ‘I anticipate that you are going to hear some excuses from defense,
some made up stories. When people are
caught, they try to get out of it. Two
years is a lot of time to make up something.’
“I did grant the objection to that statement and
did strike that entire portion of [the prosecutor]’s opening statement. You’re admonished at this time to completely
disregard that portion of [the prosecutor]’s opening statement.
“I’ll remind you that the comments of counsel are
not evidence and they’re not to be considered in any way as evidence of any
facts in this case.
“I have determined that [the prosecutor]’s
comments were to some extent inadvertent, but they were inappropriate, and
argumentative, and were not properly part of an opening statement.
“To the extent that a further inference might be
made that defense counsel is in any way complicit in possibly fabricating
something, such an inference is entirely inappropriate. There is absolutely no suggestion of such at
this time, and any suggestion that defense counsel might be engaged in such is
inappropriate.
“And I have determined that [the prosecutor] did
not so intend, but an inadvertent inference might be made from those comments
so that is why I am admonishing you to completely disregard that portion of
[the prosecutor]’s opening statement.â€
2. Analysis.
“Personal attacks on opposing counsel, including
accusations that counsel fabricated a defense or misstated facts in order to
deceive the jury, are forbidden.
[Citations.] On the other hand,
the prosecutor may vigorously argue his or her case, including the inferences
to be drawn from the evidence.
[Citation.]†(
692-693.)
In this instance, we need not decide whether the
challenged statement constituted misconduct.
The trial court declared that the statement was “inappropriate†and “not
evidence†and admonished the jury to disregard it. Thus, any prejudice was cured. (People
v. Bennett, supra, 45 Cal.4th at
p. 595; People v. Mendoza (2007)
42 Cal.4th 686, 701.)
C. Misrepresenting Facts.
Defendant contends that the prosecutor committed
misconduct in direct examination by misrepresenting the layout of defendant’s
house.
1. Additional factual and
procedural background.
During her redirect examination of Officer
Hibbard, the prosecutor showed him exhibit 97.
Exhibit 97 has not been transmitted to us, but it is described as “Photo
of stairs inside of home.†The prosecutor
then asked:
“Q.
. . . If you were standing in that front hallway area, would
that be the view up to that front hallway area?
“[DEFENSE COUNSEL]: Vague as to ‘hallway area.’ What hallway area?
“THE COURT:
Rephrase.
“Q. (By
[the prosecutor]) The hallway area where
you saw the gun appearing from the wall, from the corner.
“A. Honestly, this picture looks like it’s taken
from the hallway.â€
On recross-examination, defense counsel asked a
series of questions about exhibit 97 and three other photos (exhibits B, G, and
T). Without having in front of us not
only the exhibits but also a floor plan of the house, this testimony is pretty
much impossible to follow. Officer
Hibbard did repeatedly express uncertainty about what exactly exhibit 97
showed. However, there was this
exchange:
“Q.
[T]hat’s a photograph that’s taken from inside the front door and over
to the left in the living room area, is it not?
“A. It
almost looks like it’s to the right of the front door to me.â€
The trial court raised and sustained its own
objection to this line of questioning under Evidence Code section 352,
stating: “[This witness] was never on
the first floor. . . .
He’s not in a position to offer an opinion with respect to the layout of
the other rooms on the first floor.â€
Defense counsel then said,
“ . . . I would ask the Court to strike his testimony
elicited on direct that that picture was taken from the front entrance.†The court denied the motion.
The next day, outside the presence of the jury,
defense counsel argued that the prosecutor had committed misconduct by trying
to elicit testimony that exhibit 97 showed “the view from the entry,†because
it did not. However, he did not ask for
any particular relief; to the contrary, he stated, “ . . . I
just wanted to make a record on that.â€
The trial court opined that there was a problem
because the various photos had not been authenticated by the person who took
them, and none of the officers who had testified so far had been in a position
to authenticate any photos taken from the first floor. It ruled:
“If proper foundation is not laid at some point for . . .
[exhibit] 97, I’ll entertain a motion to strike any testimony relying on that
particular photograph as a base for a witness’s opinion . . . .â€
Officer Hill later testified that exhibit 97
included a wall that was to the left of the front entry. Defendant testified that exhibit 97 was taken
from “the left of the entry.â€
2. Analysis.
Defendant argues that the prosecutor’s question
about whether exhibit 97 showed the view from the “hallway†misrepresented his
ability to see the officers.
Defense counsel forfeited the claimed misconduct
by failing to request an admonition. (
Separately and alternatively, we reject the
misconduct claim because the record fails to show that the question was either
misleading or prejudicial. From the
reporter’s transcript alone, the layout of the house is far from clear. Officer Hibbard testified that exhibit 97 was
taken from the front hallway; however, he also testified that it was taken from
the right of the front door. We cannot
tell whether he meant from the right looking in or the right looking out. We cannot tell whether he was talking about
just one location or two. The exhibits
themselves have not been transmitted to us.
(See Cal. Rules of Court, rules 8.122(a)(3), 8.224(a).) Most significantly, we do not have exhibit
97. Thus, we cannot tell whether the
challenged question and answer were misleading or not.
For much the same reason, we cannot tell whether
they were prejudicial. Numerous exhibits
relating to the layout of the house were admitted. Even assuming the challenged question and
answer, standing alone, were misleading, in light of the record in its
entirety, for all we know, the jury would have had no trouble understanding the
layout of the house.
D. Eliciting False
Testimony.
Defendant contends that the prosecutor committed
misconduct in direct examination by eliciting false testimony regarding his
criminal record.
1. Additional factual and
procedural background.
The prosecutor asked Special Agent Adam Rudolph
whether other officers told him that defendant was on probation for
“manufacturing[,] importing, selling, an undetectable firearm?†Rudolph answered, “I believe that’s correct,
yes.â€
After Rudolph was excused, and outside the
presence of the jury, defense counsel asserted that defendant’s conviction had
actually been for possession of brass knuckles under Penal Code former section
12020, although he conceded that that statute also covered firearms. He further asserted that the prosecutor had
committed misconduct.
The prosecutor responded that all that the
officers knew was that defendant had been convicted under Penal Code section
12020, subdivision (a)(1), so they reasonably assumed that the conviction
related to firearms.
The trial court ruled: “ . . . I think it is
okay for you to elicit testimony as to what was in the officer’s mind at the
time that they approached the house, whether it was erroneous or not, if it was
in good faith, which seems to me to be the case. . . . [¶] But, on the other hand, I agree with [defense
counsel] that the jury should be apprised of what Mr. Armenta was actually
on probation for.â€
It therefore instructed the jury that defendant
had actually been on probation for unlawfully possessing, manufacturing, importing,
or selling metal knuckles.
2. Analysis.
“‘Under well-established principles of due
process, the prosecution cannot present evidence it knows is false and must
correct any falsity of which it is aware in the evidence it presents, even if
the false evidence was not intentionally submitted.’ [Citation.]â€
(People v. Avila (2009) 46
Cal.4th 680, 711.)
Here, however, the prosecutor did not present
false evidence. Other officers
apparently understood, and told Special Agent Rudolph, that defendant was on
probation for unlawful possession of a firearm.
Even though they were mistaken, this was relevant, as the trial court
ruled, to the officers’ state of mind in executing the arrest warrant.
Separately and alternatively, any possible
prejudice was cured by the trial court’s admonition to the jury. (People
v. Bennett, supra, 45 Cal.4th at
p. 595.)
E. Violating the Trial
Court’s in Limine Ruling.
Defendant contends that the prosecutor committed
misconduct by violating an in limine ruling.
1. Additional factual and
procedural background.
Prior to trial, defense counsel indicated that he
wanted to introduce evidence that an East Side Rivas member (i.e., Rudy Gil)
had shot defendant. He noted that, in
the confrontation, defendant shot back and killed a four-year-old child. However, he objected to “any testimony about
this four-year-old that died . . . .â€
The trial court excluded any evidence that the
person who was shot was a four-year-old child.
was excluding evidence “that the gunfire . . . struck
someone,†it said, “No . . . .â€
Defense counsel then asked, “[I]s the Court going
to allow the People to introduce evidence that it was Mr. Armenta’s shot
that killed the individual?†The court
responded, “Well, I’m still in the dark about that really.â€
Defense counsel proceeded to state: “The theory was provocative act murder. [Defendant] was not held culpable or
responsible for that. It was simply
inadvertent. All I propose to say [i]s
that there was an assault on Mr. Armenta that resulted in the death of
someone else. Mr. Armenta testified
for the People in that prosecution. The
individual who was convicted was Rudy Gil.â€
The trial court responded, “All right.
And I’ll limit the references to that incident to the scope that you’ve
just suggested . . . unless Mr. Armenta testifies more
extensively . . . .â€
On direct, defendant testified that Rudy Gil, an
East Side Riva member, shot him twice because he left the gang; Gil was charged
with murder and attempted murder; defendant testified against Gil; in return,
defendant was sentenced to time served for unlawful possession of a firearm;
and Gil was convicted of murder. The
fact that Gil’s assault “resulted in the death of someone else,†however, was
not mentioned.
On cross-examination, the prosecutor asked:
“Q. And
when you pulled the trigger, did your firearm kill an innocent bystander?
“A. Yes,
ma’am.â€
Defense counsel objected and argued, “I thought
you made an order that she wasn’t supposed to go into this.†Defense counsel also asserted that the
prosecutor had committed misconduct and requested a mistrial.
The trial court reviewed the transcript of its in
limine ruling. It then stated: “It was well understood there would be no
reference to a minor homicide victim, but beyond that, I think there was some
wiggle room within my order for either party.â€
“[I]t was permissible to show that a third[ ]party . . .
was killed . . . .â€
“The use of the term innocent bystander can be somewhat inflammatory,
but under all of the circumstances, I believe that it’s a minor
reference . . . .â€
It therefore denied the motion for a mistrial.
After a break, defense counsel raised the issue
again, arguing, “This is . . . the fourth instance of misconduct by
the prosecution . . . .â€
The trial court responded, “I’m treating this as
a renewed motion for a mistrial. That is
denied.
[¶] . . . [¶]
I did rule that [the fact that] a person was a victim of a homicide is
allowable.†“My ruling was unclear. To the extent that there is any blame to be
assigned [for] this, I think it is the Court’s fault
. . . .†“[I]t was not
clear to me that you asked for an order that there be no reference to
Mr. Armenta having fired . . . a weapon which caused the death
of another person. [¶] If I had understood that to be the scope of
your motion, I can’t say how I would have ruled, but I may very well have let
it in because I think the district attorney would be allowed to inquire as to
the circumstances of that incident to a full extent . . . .â€
B. Analysis.
On one hand, defense counsel arguably forfeited
the claimed misconduct by failing to request an admonition. On the other hand, it was also arguable that
the misconduct (if such it was) was not curable by an admonition. Defense counsel implicitly took that position
by moving for a mistrial. Rather than
decide whether there was a forfeiture, we will address the merits.
“It is misconduct for a prosecutor to violate a
court ruling by eliciting or attempting to elicit inadmissible evidence in
violation of a court order.
[Citation.]†(
839.) Here, however, the trial court
found that its ruling was unclear and that it never actually excluded evidence
that defendant shot somebody.
We agree that the trial court’s ruling was
unclear. Defense counsel’s original
objection was to the fact that a four-year-old child was shot. Thus, the trial court repeatedly stated that
what it was excluding was the fact that the victim was a four-year-old
child. In response to a question by the
prosecutor, it specifically said that it was not excluding evidence “that the
gunfire . . . struck someone[.]†When defense counsel asked if the prosecutor
could show that defendant fired the fatal shot, it was noncommittal, saying, “Well,
I’m still in the dark about that really.â€
It is defendant’s position that the evidence was
effectively excluded when defense counsel made an offer of proof and the trial
court responded, “ . . . I’ll limit the references to that
incident to the scope that you’ve just suggested . . . unless
Mr. Armenta testifies more extensively . . . .†The offer of proof, however, included the
fact that “there was an assault on Mr. Armenta that resulted in the death
of someone else.†Moreover, the offer of
proof was clearly just a summary of the proffered testimony; both sides were
allowed to bring out additional details, as long as they were within the scope
of the offer of proof. For example,
defense counsel went on to show that the “assault†was actually an attempted
murder; that it consisted of a shooting; and that defendant was hit in the face
and leg. The trial court’s ruling
therefore at least implied that the prosecutor was allowed to bring out the
details of how the assault “resulted in the death of someone else.â€
F. Misstatement of Law in
Closing Argument.
Defendant contends that the prosecutor misstated
the law in closing argument.
1. Additional factual and
procedural background.
In her rebuttal closing argument, the prosecutor
noted that the claimed knock-notice violation occurred when Officer Castenada
opened the sliding glass door on the balcony a couple of inches.
excused as futile:
“[THE PROSECUTOR:] ‘[A]n officer entering a residence to serve
an arrest warrant need not comply with the requirement of demanding admittance
and explaining the purpose if the officer has a reasonable suspicion that
knocking and announcing, under the particular circumstances, would be dangerous
or futile.’
“Useless, in other words. Them announcing, after everybody knows they’re
outside, the officers have been outside for 10 to 15 minutes knocking on his
front door . . . .
“Knock and announce is for those situations when
officers walk up to somebody’s house, kick a door open, with their guns
ablazing, and someone is naked or in the shower and they need to get up and get
dressed. We didn’t have that here.
“[DEFENSE COUNSEL]: Objection.
Misstates the law.
“THE COURT:
All right. ladies and gentlemen,
if you believe that counsel have misstated the law, you’re to rely on the
instructions . . . .
“[THE PROSECUTOR]: ‘A homeowner,’ Mr. Armenta, ‘has no
right to prevent officers with a warrant from entering his or her home.’ Defense counsel made a big brouhaha about how
the defendant didn’t have to answer the front door. And he’s right, he didn’t. That just gives the officers the ability to
break open and use force to enter the house.
“Your officers at RPD decided, instead of
smashing through those front windows of the house, to go around the back door
to see if they could go in an unlocked door.
It’s easier. It was logical to
them. That’s what they did. They have a right to do it.
“[DEFENSE COUNSEL]: Objection.
Misstates the law.
“THE COURT:
All right. Again, ladies and
gentlemen, the law is stated in the written instructions you will receive. You must rely exclusively on the instructions
of law.
“[THE PROSECUTOR]: In addition, the law tells you, ‘The refusal
of entry need not be verbal.’ So at the
point where they’ve been knocking and pounding at the front door, and the
defendant is not responding, his lack of response for over ten minutes is, in
essence, a refusal.
“[DEFENSE COUNSEL]: That is absolutely not the law.â€
The trial court then held an unreported sidebar
conference. Defense counsel later
asserted that, during the sidebar, “the Court advised [the prosecutor] that
that was not the law, and that a refusal as a matter of law can’t take place
before an announcement.â€
The prosecutor then resumed:
“[THE PROSECUTOR]: Here, when the officers go back to the front
door and they continue to knock and the beeping happens, and the defendant
responds ‘Who is in there?’ and the officers are yelling at him to ‘open the
front door or we’re going to force entry,’ him not responding or not opening
the front door for the period of time that he waited is a refusal.
“[DEFENSE COUNSEL]: That is not the law.
“THE COURT:
Again, ladies and gentlemen, you are to rely upon the written
instructions given to you.â€
After the jury retired to deliberate, defense
counsel argued that the prosecutor had committed misconduct in
saying “that the officers didn’t need to follow the letter of the statute
because Mr. Armenta refused to answer the door, and if there’s a refusal,
then strict compliance with the statute is forgiven.†He requested an admonition.
The trial court refused to find misconduct or to
grant a mistrial.
2. Analysis.
Defendant never explains how the prosecutor’s quoted remarks misstated the law. He cites no relevant authority. Thus, he has forfeited this contention. (People
v. Stanley (1995) 10 Cal.4th 764, 793 [“‘[E]very brief should contain a
legal argument with citation of authorities on the points made. If none is furnished on a particular point,
the court may treat it as waived, and pass it without
consideration . . . .’â€].)
Even if we were to review the remarks
independently, we would find no misstatement of the law. “‘To prevail on a claim of prosecutorial
misconduct based on remarks to the jury, the defendant must show a reasonable
likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner.’
[Citation.]†(
371.)
The prosecutor’s statement, “Knock and announce
is for those situations when officers walk up to somebody’s house, kick a door
open, with their guns ablazing, and someone is naked or in the shower and they
need to get up and get dressed†must be taken in context. She was arguing that knock-notice would have
been futile. She did not mean that
knock-notice literally applies only
when someone is naked or in the shower.
Rather, she gave this as an example
of a situation in which knock-notice does
serve a purpose, and she contrasted that with this case.
Next, the prosecutor argued that the officers,
rather than breaking the front door in, had the right to try to find an
unlocked door. She did not argue that
they have a right to open and enter through an unlocked door
this argument. (See People v. Hoxter (1999) 75 Cal.App.4th 406, 410-411 [knock-notice
requirements apply to entry through unlocked door].)
Defense counsel’s major objection seems to have
been that defendant did not “refuse†entry because the officers had not yet
knocked and given notice. However, there
was ample evidence that even after the officers did knock and did give
notice of their identity and purpose, defendant still did not respond. This constituted a refusal. (See People
v. Hoag (2000) 83 Cal.App.4th 1198, 1207 [“unreasonable delay in responding
to a knock and announce is tantamount to a refused admittanceâ€].)
Defense counsel also claimed that the prosecutor
had argued that, once there is a refusal, strict compliance with the
knock-notice requirement is excused. We
find nothing in her argument so stating.
In any event, strict compliance is never required; all that is required
— refusal or no — is substantial compliance.
(People v. Miller (1999) 69
Cal.App.4th 190, 201.)
Finally, every time defense counsel objected, the
trial court admonished the jury to rely solely on the jury instructions in
determining what the law was. We presume
that the jury obeyed this admonition.
Thus, defendant cannot show prejudice.
(People v. Bennett,
G. Misstatement of Fact in
Closing Argument.
Defendant contends that the prosecutor made a
false statement of fact in closing argument.
1. Additional factual and
procedural background.
In closing argument, the prosecutor stated:
“In order for you to believe the defense,
. . . [¶]
. . . [¶] . . . you’d have to believe that
the defendant is being honest when he’s telling you he thought it was the East
Side Rivas, which he never mentioned to [Investigator] Flores for three and a
half hours. He never mentioned the words
‘East Side Rivas’ until this trial. He
never told that to anyone.†Defense
counsel did not object.
During its deliberations, however, the jury
requested “Joe Armenta’s interview with Le[C]lair.â€
At that point, defense counsel asserted that
Investigator LeClair’s interview with defendant would show that the
prosecutor’s statement quoted above was “a lie.†He noted that (other than a very short
passage) the interview had been not been introduced into evidence. In it, however, defendant had said that he
thought the people knocking on his door were from “East Side†and had come to
kill him. Defense counsel asked that
these portions of the interview be admitted.
He also asked that the jury be admonished. The trial court refused both requests.
2. Analysis.
Defense counsel forfeited the claimed
request an admonition when the misconduct occurred. (People
v. Whalen, supra, 56 Cal.4th at
p. 52.) Defendant argues that, when
defense counsel did object, it was not too late to cure the misconduct with an
admonition. It is generally recognized, however,
that objections made after the jury has already begun deliberating come too
late. (People v. Jenkins (1974) 40 Cal.App.3d 1054, 1057.)
In any event, the claimed misconduct was not
prejudicial. Defendant never mentioned
East Side Riva to any of the officers in the house or to Investigator
Flores. The prosecutor could and did
argue that this showed that defendant was lying. The additional claim that defendant never
mentioned East Side Riva “to anyone†“until this trial†was technically false
in light of Investigator LeClair’s interview with defendant; however, it
correctly described the state of the record, because Investigator LeClair’s
interview was not in evidence. Moreover,
it was merely an overstatement of a point that the prosecutor was allowed to
make more narrowly. It is simply
inconceivable that the claimed misconduct affected the verdict.
III
MOTION FOR NEW TRIAL
Defendant filed a motion for new trial, based on
most of the same asserted instances of prosecutorial misconduct as he is
raising in this appeal.
Defendant discusses the motion in his opening
brief. However, he does not appear to
contend that it adds anything to his underlying misconduct claims. For example, he does not contend that, if
defense counsel failed to preserve a given claim of misconduct, that claim
could still be grounds for a new trial.
It could not. (
869.)
In part II, ante,
we rejected defendant’s claims of misconduct.
For the same reasons, we conclude that the trial court properly denied
defendant’s motion for new trial.
IV
FAILURE TO EXCLUDE EVIDENCE
THAT
DEFENDANT SHOT AN INNOCENT
BYSTANDER
In part II.E, ante,
we discussed defendant’s contention that the prosecutor violated an in limine
ruling excluding evidence that defendant shot and killed an innocent bystander;
we held that the trial court’s in limine ruling was unclear and could have been
understood as not excluding this evidence.
Defendant also argues, alternatively, that if the
trial court did not exclude this evidence, it erred. Defense counsel contributed to the problem,
however, by failing to object to this evidence with sufficient
specificity. (Evid. Code, § 353,
subd. (a).) Initially, he objected exclusively
to the fact that the person defendant shot was a four-year-old child. The trial court sustained that
objection. Then he asked, “[I]s the
Court going to allow the People to introduce evidence that it was
Mr. Armenta’s shot that killed the individual?†He did not indicate that this was actually an
objection, rather than a request for clarification, nor did he state any
particular grounds for the objection.
Defense counsel further muddied the waters by
making an offer of proof that included the fact that “there was an assault on
Mr. Armenta that resulted in the death of someone else.†As a result, he did not make it clear to the
trial court or the prosecutor that he was in any way objecting to the fact that
defendant shot and killed another person.
Defendant relies on the trial court’s remarks to
the effect that, even if it had understood that it was being asked to exclude
evidence that defendant shot an innocent bystander, it might not have done
so. It made these remarks, however,
after the evidence had already come in.
Moreover, it also stated, “ . . . I can’t say how I
would have ruled . . . .â€
Thus, we cannot assume that a specific objection would have been futile.
We therefore conclude that this contention has
not been preserved.
V
FAILURE TO INSTRUCT ON
“HEAT OF PASSION†VOLUNTARY
MANSLAUGHTER
Defendant contends that the trial court erred by
failing to instruct on the lesser included offense of attempted voluntary
manslaughter on a heat of passion theory.
The trial court did instruct on attempted
voluntary manslaughter on an imperfect self-defense theory. (CALCRIM No. 571.) However, it was not asked to instruct, and it
did not instruct, on attempted voluntary manslaughter on a heat of passion
theory. (E.g., CALCRIM No. 570.)
“In criminal cases, even absent a request, a
trial court must instruct on the general principles of law relevant to the
issues the evidence raises.
[Citation.] ‘“That obligation has
been held to include giving instructions on lesser included offenses when the
evidence raises a question as to whether all of the elements of the charged
offense were present [citation], but not when there is no evidence that the
offense was less than that charged.
[Citations.]â€â€™ [Citation.] ‘[T]he existence of “any evidence, no matter how weak†will not justify instructions on
a lesser included offense, but such instructions are required whenever evidence
that the defendant is guilty only of the lesser offense is “substantial enough
to merit consideration†by the jury.
[Citations.]’ [Citation.]†(People
v. Taylor (2010) 48 Cal.4th 574, 623.)
“Voluntary manslaughter is a lesser included
offense of murder. [Citation.]†(People
v. Booker (2011) 51 Cal.4th 141, 181.)
Hence, attempted voluntary manslaughter is a lesser included offense of
attempted murder. (See, e.g.,
1297, 1304, fn. 35.)
“Voluntary manslaughter is ‘the unlawful killing
of a human being, without malice’ ‘upon a sudden quarrel or heat of
passion.’ [Citation.] An unlawful killing is voluntary manslaughter
only ‘if the killer’s reason was actually obscured as the result of a strong
passion aroused by a “provocation†sufficient to cause an “‘ordinary [person]
of average disposition . . . to act rashly or without due
deliberation and reflection, and from this passion rather than from judgment.’†[Citations.]’
[Citation.] ‘The provocation must
be such that an average, sober person would be so inflamed that he or she would
lose reason and judgment. Adequate
provocation . . . must be affirmatively demonstrated.’ [Citation.]â€
(People v. Thomas (2012) 53
Cal.4th 771, 813.)
We may assume, without deciding, that the trial
court erred, because here the error was harmless under any standard. In addition to finding defendant guilty of
attempted murder, the jury specifically found that defendant knew or should
have known that each victim was a peace officer engaged in the performance of
his duties. Moreover, it found defendant
guilty of assault with a deadly weapon on a peace officer, as opposed to simple
assault with a deadly weapon; thus, once again, it necessarily found that each
victim was a peace officer engaged in the performance of his duties. Defendant’s entire provocation argument is
that there was evidence that he did not know who was in his house or why they
were there. In light of the jury’s
findings, however, it plainly rejected this evidence. As a matter of law, a peace officer’s
performance of his or her duties cannot constitute legally adequate
provocation.
We also note that the jury rejected defendant’s
claims of self-defense and imperfect self-defense. “Once the jury rejected defendant’s claims of
reasonable and imperfect self-defense, there was little if any independent
evidence remaining to support his further claim that he killed in the heat of
passion, and no direct testimonial evidence from defendant himself to support
an inference that he subjectively
harbored such strong passion, or acted rashly or impulsively while under its
influence for reasons unrelated to his perceived need for self-defense.†(People
v. Moye (2009) 47 Cal.4th 537, 557.)
We conclude that under other, proper
instructions, the jury necessarily resolved the question posed by the
assertedly omitted instruction adversely to defendant. (See People
v. Castenada (2011) 51 Cal.4th 1292, 1359-1360; see also
693, 716 [Fourth Dist., Div. Two].)
VI
PITCHESS
Defendant asks us to review the trial court’s in
camera ruling on his Pitchess
motion. The People do not oppose the
request.
A. Additional Factual and
Procedural Background.
Before trial, defendant filed a
deputies who were not directly involved in the standoff. The Riverside County Sheriff’s Department
(the Department) opposed the motion.
The trial court found that defendant had shown
good cause for an in camera hearing. The
hearing was attended only by the Department’s attorney and the Department’s
custodian of records. After swearing in
the custodian, questioning him, and reviewing the materials he had brought, the
trial court found that there were no discoverable materials.
B. Analysis.
Under Pitchess,
“on a showing of good cause, a criminal defendant is entitled to discovery of
relevant documents or information in the confidential personnel records of a
peace officer accused of misconduct against the defendant. [Citation.]
. . . If the defendant
establishes good cause, the court must review the requested records in camera
to determine what information, if any, should be disclosed. [Citation.]
Subject to certain statutory exceptions and limitations [citation], ‘the trial court should then
disclose to the defendant “such information [that] is relevant to the subject
matter involved in the pending litigation.â€â€™
[Citations.]†(
179.)
The record of the in camera hearing is sealed,
and appellate counsel for the defendant as well as for the People are not
allowed to read it. (See
330.) Thus, on request, the appellate
court must independently review the sealed record. (People
v. Prince (2007) 40 Cal.4th 1179, 1285.)
Here, the record of the trial court’s in camera
examination of the officers’ personnel files is adequate for our review. It demonstrates that the trial court followed
the proper procedures (see People v. Mooc
(2001) 26 Cal.4th 1216, 1228-1229) and that there were no discoverable
materials. In sum, we find no error.
VII
CLERICAL ERROR IN THE
ABSTRACT OF JUDGMENT
The abstract of judgment reflects the following
fines and fees: (1) a $5,000 restitution
fine (Pen. Code, § 1202.4, subd. (b)); (2) a $5,000 parole revocation
restitution fine (Pen. Code, § 1202.45); (3) $400 in court security fees
(Pen. Code, § 1465.8, subd. (a)(1)); and (4) $300 in criminal conviction
assessments (Gov. Code, § 70373, subd. (a)).
The trial court, in its oral pronouncement of
judgment, did not expressly impose any of these fines and fees.
Defendant does not appear to challenge either the
court security fees or the criminal conviction assessments. However, with respect to the restitution fine
and the parole revocation restitution fine, he contends that the abstract of
judgment is erroneous because the trial court’s pronouncement of judgment is
controlling, and the prosecution forfeited these fines by failing to request
them in the trial court.
The People concede the point. We agree.
(People v. Tillman (2000) 22
Cal.4th 300, 302-303 [prosecution’s failure to object to trial court’s omission
to impose restitution fines bars prosecution from seeking fines on appeal];
380, 387-388 [oral pronouncement of judgment not imposing fines controls over
conflicting minute order and abstract].)
In our disposition, we will direct the trial court clerk to correct the
abstract.
VIII
DISPOSITION
The judgment is affirmed. The clerk of the superior court is directed
to prepare an amended abstract of judgment that does not include either a
restitution fine or a parole revocation restitution fine and to forward a
certified copy of the amended abstract to the Director of the Department of
Corrections and Rehabilitation. (Pen.
Code, §§ 1213, 1216.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.
RICHLI
J.
We
concur:
HOLLENHORST
Acting P. J.
KING
J.
name="_ftn1" title=""> Judge Fields denied the motion for
discovery of peace officer records.
Judge Prevost presided over the trial and made all of the other
challenged rulings.
name="_ftn2" title="">[2] A “Pitchess motion†is a motion for discovery of a peace officer’s
confidential personnel records. (
Cal.3d 531.)
