target="A130066_files/props0008.xml">
Carlos-Zaragoza
Filed 7/9/13 P. v. Carlos-Zaragoza CA1/4
NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ROGELIO
CARLOS-ZARAGOZA,
Defendant and Appellant.
A130066
(Sonoma County
Super. Ct. No. SCR565937)
A
jury convicted appellant Rogelio Carlos-Zaragoza of three counts of
kidnapping and assault with a deadly weapon. (Pen. Code,
§§ 264.1 [now subd. (a)] [Stats, 1994, ch. 1188, § 2, p. 7183]; 236;
209, subd. (b)(1), former § 245, subd. (a)(1) [Stats. 2004, ch. 494,
§ 1, pp. 4040-4041].) The jury
also found true three kidnapping for rape enhancement allegations, leading the
trial court to sentence him to 75 years to life in state prison. (Former § 667.61, subd. (a), (c)(3),
(d)(2) [Initiative Measure, Prop. 83, § 12, eff. Nov. 8, 2006; Stats.
1998, ch. 936, § 9, pp. 6874-6876].)
Carlos-Zaragoza appeals, contending that the trial court committed
various instructional errors. We agree that the failure to instruct the jury
on reasonable doubt was state law error and that the error was
prejudicial. (See CALCRIM No. 220.) Thus, we reverse the conviction and remand
the matter to the trial court for further proceedings.
I.
FACTS
A.
On the
night of June 16, 2006, Jane Doe 1 approached two men in a motor vehicle in a
Santa Rosa convenience store parking lot and asked them for a ride to Mendocino
Avenue. She got into the car driven by a
man whom she later identified as appellant Rogelio Carlos-Zaragoza.
When
the car went past her destination and headed north onto the freeway, Jane Doe 1
yelled at Carlos-Zaragoza to stop the car.
In the back seat with her, his passenger made sexual advances while Jane
Doe 1 struggled and begged to be let out of the car, in vain.
Jane
Doe 1 was driven off the freeway to a vineyard, where Carlos-Zaragoza and his
passenger met up with two other Hispanic males in a second car. The four Spanish-speaking men offered her $50
for sex. She refused and asked to be
taken home. When Carlos-Zaragoza and his
passenger drove away with Jane Doe 1, she believed he was doing so. Instead, Carlos-Zaragoza drove to a deserted
winery, again followed by the occupants of the second car.
At
the winery, all four men touched Jane Doe 1’s body and removed her
clothing. When she repeatedly tried to
run away, the men dragged her back. Each
of the four men raped her. After many
hours, one of the men drove her back to a location near the convenience store
where the evening had begun.
Jane
Doe 1 reported the incident to Santa Rosa Police later that day. She told police that she had been pulled into
the car against her will and that she had passed out after being dropped off
before she contacted authorities. She
underwent a sexual assault examination during which DNA evidence was
collected. Jane Doe 1 was unable to
identify any of her attackers at this time.
B.
Jane Doe 2 Incident
Six
weeks later, on the evening of July 28, 2006, Jane Doe 2 saw two men drive by a
Santa Rosa liquor store, stop and look at her.
She approached them and asked if they knew where she could get drugs and
if she could get a ride from them to Apple Valley Lane. She got into the back seat of the car with
the passenger. The other man—whom she
later identified as Carlos-Zaragoza—drove the car. A third man soon joined them. By this point, Jane Doe 2 asked to get out of
the car, but was not permitted to do so.
Carlos-Zaragoza headed toward the freeway.
Jane
Doe 2 was driven north to a vineyard situated near the freeway. Once Carlos-Zaragoza stopped the car, Jane
Doe 2 twice tried to flee, without success.
Each of the three men raped her twice.
Jane Doe 2 was driven back to Apple Valley Lane in Santa Rosa. As the car was leaving, she wrote down its
license number.
title="">[2]
The
next morning, she reported the incident to Santa Rosa Police. She was unable to positively identify anyone
from photographs of possible suspects.
The lineup did not contain a photograph of Carlos-Zaragoza, but did
include one of his brother Leonel. Jane
Doe 2 thought that Leonel might have been involved in the incident. A sexual assault examination was conducted,
during which a blood sample and DNA evidence was collected. Several months later, in November 2006, Jane
Doe 2 was shown another photographic lineup, this one including
Carlos-Zaragoza’s photograph. She told
police that he looked familiar but she was not positive that he was one of her
attackers.
C.
Jane Doe 3 Incident
Several
years later, on July 24, 2009, Jane Doe 3 was walking in Santa Rosa about
midnight. On Dutton Avenue, a dark
four-door sedan approached her. As she
tried to avoid the car, a man walked toward her holding a knife. He grabbed the screaming Jane Doe 3 and
pushed her into the car, assisted by the car’s driver who was later identified
as Carlos-Zaragoza. He drove the car
north onto the freeway. The passenger
raped Jane Doe 3 in the back seat of the car after removing a tampon from her
vagina.
Witnesses
who heard Jane Doe 3’s cries of distress saw a car drive away on Dutton
Avenue. A call to the sheriff was made,
offering a description of the car and its general direction. By 12:20 a.m., a California Highway Patrol
Officer had spotted a speeding Honda Accord.
The officer initiated a traffic stop, but the driver of the Honda failed
to yield to his instructions. Inside the
car, Jane Doe 3 realized that law enforcement authorities were pursuing the
vehicle. The rapist quickly dressed and
returned to the front seat. When the car
stopped abruptly, the two men fled on foot in opposite directions. Jane Doe 3 reported that she had been
kidnapped and raped.
Within
an hour, Carlos-Zaragoza was located nearby and arrested. He was brought before Jane Doe 3, who
identified him as one of the kidnappers.
She selected photographs of Carlos-Zaragoza and his brother Leonel from
two photographic lineups. Initially, she
identified Carlos-Zaragoza as the person who sexually assaulted her and Leonel
as the driver.
Carlos-Zaragoza
was interviewed
title="">[3] by a
County Sheriff that night.
Carlos-Zaragoza told the sheriff that he rode along with his brother
Leonel in the Honda to go buy some beer.
Leonel got out of the car and spoke to a young woman who wanted some
beer. She got into the backseat of their
car and Leonel drove on the freeway to a get beer at a certain convenience
store in Windsor. The police wanted to
stop the car, so they pulled off the freeway.
Both of them ran from police because they were scared. Carlos-Zaragoza denied that either he or his
brother had any sexual contact with the young woman. He denied that his DNA would be found on
her. Neither man was in the backseat
with her, he told the sheriff.
Carlos-Zaragoza insisted that the woman got into the car willingly—she
did not scream or struggle.
The
authorities soon located Leonel Carlos-Zaragoza. He had a pocket knife in his possession at
the time of his arrest. When Jane Doe 3
saw Leonel in person, she identified him as the rapist. Having seen both men, she was certain Leonel
was the man who sexually assaulted her and that Carlos-Zaragoza was the driver.
After
Leonel’s arrest and Jane Doe 3’s identification of Carlos-Zaragoza as the
driver, Carlos-Zaragoza was confronted with these new facts. He then admitted to the sheriff that he had
driven the car. He said that he had been
afraid to admit that he had been driving because he did not have a
license. Still, Carlos-Zaragoza
continued to insist that Leonel was in the front passenger seat the entire time
that they were in the car with the woman and that neither he nor Leonel had
intercourse with her.
Jane
Doe 3 had a sexual assault examination, in which DNA evidence and a blood
sample were collected. The examination
confirmed that she was having her menstrual period at that time.
D.
Investigation, Charges, and
Pretrial Matters
After
their arrest, DNA evidence was also taken from Carlos-Zaragoza, his brother
Leonel, and the back seat of the Honda.
The evidence in Jane Doe 3’s case was sent for testing. On July 28, 2009, Carlos-Zaragoza and his
brother Leonel
title="">[4] were charged with the
kidnapping, rape, rape in concert, and assault with a deadly weapon of Jane Doe
3. (§§ 209, subd. (b)(1), 261,
subd. (a)(2); former §§ 245, subd. (a)(1), 264.1.)
When
Carlos-Zaragoza’s DNA was run against a state database, the results suggested
that he was involved in the 2006 rape of Jane Doe 2. The investigators assigned to the Jane Doe 1
and Jane Doe 2 cases realized that the cases were similar. On October 9, 2009, the police interviewed
Carlos-Zaragoza about these two cases.
from Carlos-Zaragoza in order to test the accuracy of the initial DNA results
in the Jane Doe 2 case. They also wanted
to see if his DNA matched the DNA evidence in Jane Doe 1’s case.
On
October 15, 2009, Santa Rosa Police interviewed Jane Doe 1 again for the first
time since the June 2006 incident. Most
of the report she had originally given was accurate, she told police. However, she admitted that some details of
her initial report were inaccurate. She
had gone willingly into Carlos-Zaragoza’s car and after her release, Jane Doe 1
had spent several hours looking—without success—for a heroin fix.
By
November 2009, Carlos-Zaragoza faced a second complaint alleging the rape in
concert and false imprisonment of Jane Doe 2.
(§ 236; former § 264.1.)
In January 2010, two informations were filed against
Carlos-Zaragoza. The first charged him
with the kidnapping, assault by means of force likely to cause great bodily
injury, rape, and rape in concert of Jane Doe 3.
(a)(2); former §§ 245, subd. (a)(1), 264.1.) The second information alleged the rape in
concert and false imprisonment of Jane Doe 2.
(§ 236; former § 264.1.)
Both informations included special allegations that the victims were
kidnapped for purposes of rape.
name="_ftnref7" title="">[7] (Former § 667.61, subds. (a)-(e).)
In
February 2010, Santa Rosa Police received DNA test results confirming
Carlos-Zaragoza’s involvement in the Jane Doe 1 and Jane Doe 2 sexual
assaults. Later that month, a third
complaint was filed against him in the Jane Doe 1 case. (§ 236; former § 264.1.) In April 2010, an information was filed
alleging that Carlos-Zaragoza had committed rape in concert, and false
imprisonment against Jane Doe 1, with a kidnapping for rape enhancement. (§ 236; former §§ 264.1, 667.61,
subds. (a), (d).)
In
May 2010, the trial court consolidated all three cases into a single
information. A second consolidated
information was filed in July 2010, charging Carlos-Zaragoza with three counts
of rape in concert, two counts of false imprisonment, and single counts of
kidnapping, rape, and assault by means of force likely to cause great bodily
injury.
subd. (a)(2); former §§ 245, subd. (a)(1), 264.1.) The four rape charges each included a
kidnapping for rape enhancement allegation.
charges and denied the enhancement allegations.
E.
Trial
Carlos-Zaragoza’s
trial was conducted in July and August 2010.
DNA evidence linked Carlos-Zaragoza to the 2006 sexual assaults on Jane
Doe 1 and Jane Doe 2. DNA testing
excluded his brother Leonel as a possible contributor in the two 2006
cases. Jane Doe 3’s DNA evidence was
found on Leonel’s body shortly after the sexual assault, providing evidence
that he committed the July 2009 sexual assault.
Jane
Doe 1, Jane Doe 2, and Jane Doe 3 each testified at trial and each identified
Carlos-Zaragoza in court as a perpetrator.
The jury was shown a photograph of the Honda from which Carlos-Zaragoza
fled after the Jane Doe 3 assault. A
bloody tampon was found in the back seat.
Jane Doe 3 identified the knife found on Leonel at the time of his
arrest as looking like the one he used to abduct her.
Carlos-Zaragoza
attacked the credibility of each of the three complaining witnesses alleging
they lacked credibility based on discrepancies between the reports given and
the evidence, drug or alcohol use, and memory problems. As to Jane Doe 1 and Jane Doe 2, counsel
argued that there was reasonable doubt about whether they consented to
intercourse. He also argued that Leonel
acted on his own when he sexually assaulted Jane Doe 3.
Over
Carlos-Zaragoza’s objection, the prosecution was allowed to argue that the jury
could use evidence of the earlier charged sexual offenses to draw an inference
that Carlos-Zaragoza had a propensity to commit sex offenses, and that this
inference of such a propensity was evidence that supported the later-committed
sexual offenses. Over defense objection,
the trial court instructed the jury that if it found that one of the charged
sexual offenses had been proven by a preponderance of the evidence, it could
draw from that an inference that Carlos-Zaragoza had a propensity to commit
sexual offenses. (See Evid. Code,
§ 1108; CALCRIM No. 1191 [modified].)
Before deliberations began, the trial court did not instruct the jury
with CALCRIM No. 220, on the presumption of innocence, the prosecution’s
burden of proving every element of the charged crimes beyond a reasonable
doubt, and the definition of the term “reasonable doubt.â€
The
jury acquitted Carlos-Zaragoza of the rape of Jane Doe 3, but convicted him of
the remaining seven charges—one count of rape in concert against each of the
three victims, two counts of false imprisonment and single counts of kidnapping
and assault with force likely to cause great bodily injury. (§§ 209, subd. (b)(1), 236; former
§§ 245, subd. (a)(1), 264.1.) The
jury also found three kidnapping for rape allegations to be true. (§ 667.61, subds. (a)-(e).) Carlos-Zaragoza was sentenced to an
indeterminate term of 75 years to life—three consecutive terms of 25 years to
life for each rape in concert. Sentences
on the other four convictions were imposed but stayed to prevent multiple punishment. (§ 654.)
II. REASONABLE DOUBT
Carlos-Zaragoza
raises several instructional issues on appeal.
We need only address one of them—his contention that the trial court
violated state law by failing to define the term “reasonable doubt†during its
predeliberation instructions. This instructional
omission constitutes prejudicial error because the instruction on the use of
propensity evidence allowed the jurors to find Carlos-Zaragoza guilty based on
a mere preponderance of evidence, rather than proof beyond a reasonable doubt.
During
the pendency of this appeal,
name="_ftnref10" title="">[10]
the California Supreme Court issued a decision making it clear that
define the term “reasonable doubt†for the jurors. (People
v. Aranda (2012) 55 Cal.4th 342, 374-375 (Aranda); see §§ 1096, 1096a.)
Standard jury instructions—CALCRIM No. No. 220 and CALJIC No.
2.90—define this most basic and vital concept.
For example, the pertinent aspect of CALCRIM No. 220 states: “Proof beyond a reasonable doubt is proof
that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible
doubt, because everything in life is open to some possible or imaginary doubt.†(See CALCRIM No. 220.) However, the trial court did not give CALCRIM
No. 220 to Carlos-Zaragoza’s jury,
nor did it define reasonable doubt in any other predeliberation
jury instruction it gave.
The
failure to define “reasonable doubt†does not violate federal constitutional
standards, but it does violate state law.
v. Nebraska (1994) 511 U.S. 1, 5; Aranda,
supra, 55 Cal.4th at pp. 350, 354, 374-375; see also §§ 1096-1096a;
Evid. Code, § 502.) This error is
subject to harmless error review. (
p. 375; People v. Mayo (2006)
140 Cal.App.4th 535, 550–551; see People
v. Watson (1956) 46 Cal.2d 818, 837.)
The erroneous omission of a definition of reasonable doubt is harmless
error if nothing in the record suggests that the jury was confused about the
meaning of this concept.
name="_ftnref14" title="">[14] (Aranda,
supra, 55 Cal.4th at p. 375.)
A
key factor of this analysis is whether the jury was invited to apply a standard
of proof less than that of reasonable doubt.
(See Aranda, supra, 55 Cal.4th
at p. 375.) In the case before us, the
jury was instructed that it could use charged sexual offenses as evidence to
allow an inference that Carlos-Zaragoza had a propensity to commit such
offenses when it determined his guilt or innocence of other charged sexual
offenses, if the preliminary offense was proven by a
Code, § 1108.)
As
drafted, CALCRIM No. 1191 instructs on the proper use of uncharged crimes as propensity evidence, if those uncharged
offenses are proven by a preponderance of the evidence. (See CALCRIM No. 1191.) In Carlos-Zaragoza’s case, the trial court
modified the instruction to allow the jury to consider charged offenses if proven by the same preponderance of the
evidence standard of proof. The modified
instruction stated “that the defendant committed the crimes that were charged
in this case†if “the People have proved by a preponderance of the evidence
that the defendant in fact committed the offense.†It went on to say that “[p]roof by a
preponderance of the evidence is a different burden of proof from proof beyond
a reasonable doubt. A fact is proved by a preponderance of the evidence
if you conclude that it is more likely than not that the fact is true.†The
instruction also stated that “[i]f you decide that the defendant committed the
offenses, you may, but are not required to, conclude . . . that the defendant
was likely to commit and did commit the offenses, as charged here.†But
then the instruction concluded by saying that “[i]t is not sufficient by itself
to prove that the defendant is guilty of the charged sex offenses. The
People must still prove each charge and allegation beyond a reasonable
doubt.â€
This
modified instruction was confusing and could have been interpreted to suggest
to the jury that it could find that Carlos-Zaragoza committed a charged offense
by a preponderance of the evidence, rather than by proof beyond a reasonable
doubt. At best, the instruction
contained mixed messages. While it concluded
with an admonition that the People were required to prove each charge and
allegation beyond a reasonable doubt, the rest of the instruction told the jury
that it could conclude that the defendant committed some of the charged
offenses by a preponderance of the evidence.
Courts
should be wary of any set of instructions that excludes the standard reasonable
doubt instruction but includes an instruction referring to a different standard
of proof. (See Aranda, supra, 55 Cal.4th at p. 369 [“Significantly, none of the court’s
instructions at trial referred to a lesser standard of proof such as
preponderance of the evidence . . . â€].)
The set of instructions given in Carlos-Zaragoza’s case are even more
troubling because the modified version of CALCRIM No. 1191 suggested that the
jury could find that the defendant committed the offenses charged in this case
by a mere preponderance of the evidence.
The
California Supreme Court has allowed use of a modified version of CALCRIM No.
1191 to instruct the jury that even charged offenses can be used to demonstrate
the defendant’s propensity to have committed other charged offenses in the same
case. (People v. Villatoro (2012) 54 Cal.4th 1152, 1164-1167.) In Villatoro,
however, the modified instruction did not refer to the preponderance of the
evidence standard as it did here. (
jury in Villatoro was given a
standard reasonable doubt instruction. (
modified version of CALCRIM 1191 did not impermissibly lower the prosecution’s
burden of proof beyond a reasonable doubt.
(Ibid.) The absence of these factors in
Carlos-Zaragoza’s case reinforces our view that the propensity evidence
instruction given in his case was erroneous.
The juxtaposition of the trial
court’s failure to instruct on the definition of reasonable doubt and its
instruction allowing the use of charged offenses found by a preponderance of
the evidence as propensity evidence created a possibility of juror confusion
about the burden of proof to apply to at least one of the charged sexual
offenses. This, in turn, raises serious
concerns about the burden of proof to which the jury actually held the
prosecution. The
reasonable probability that the outcome would have been more favorable to
Carlos-Zaragoza if the trial court had instructed on the definition of
reasonable doubt. Thus, this state law
error flowing from the failure to instruct on reasonable doubt was
prejudicial. (See Aranda, supra, 55 Cal.4th at pp. 375-376.)
The
judgment is reversed and the matter is remanded to the trial court for further
proceedings.
_________________________
REARDON,
P. J.
We concur:
_________________________
RIVERA, J.
_________________________
HUMES, J.
name="_ftn1" title=""> [1]
All statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2]
The car was registered to Antonio Carlos of Santa Rosa. By the time police inquired about it, the
vehicle had been sold.
