P. v. Cerna
Filed 2/24/12 P. v. Cerna CA4/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ANGEL DUARTE CERNA,
Defendant and Appellant.
G044610
(Super. Ct. No. 07NF2623)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, David A. Thompson, Judge. Affirmed.
Susan D. Shors, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W.
Schons, Assistant Attorney General, and Kristen Kinnaird Chenelia, Deputy
Attorney General, for Plaintiff and Respondent.
Angel
Duarte Cerna appeals from a judgment after a jury convicted him of first degree
murder. Cerna argues the trial court
erred by admitting evidence of prior acts of
Code 1109.
the judgment.
FACTS
In April 2006, Cerna
married Gabriela Herrera (Gabriela) and moved into the Anaheim
apartment she shared with her sons, 14-year-old I.V. and nine-year-old
J.R. After the marriage, I.V. sensed his
mother was sad and saw her cry often.
On November 5, 2006, after J.R. heard Gabriela and
Cerna arguing, Gabriela told J.R. she had a miserable life. J.R. asked why, and Gabriela motioned towards
Cerna. J.R. later saw his mother crying. About 9:00
p.m., I.V. saw Gabriela eating.
Later that night, I.V. was awakened by a woman’s scream. I.V. looked out his bedroom door, saw his
mother’s bedroom door was closed, and went back to sleep.
When I.V. and J.R. woke
up the next morning, Gabriela was gone, which was unusual because she normally
made her sons breakfast and drove J.R. to school on her way to work. Gabriela’s car was not in the driveway, and
her purse, car keys, and cellular telephone were gone. I.V. called Gabriela’s cell phone three times
but only got her voicemail. He also
tried to contact her at work, but she was not there. In Gabriela’s bedroom, the boys did not find
the usual mess she made getting ready for work.
Pictures of Cerna were missing from the bedroom mirror, a ripped pillow
lay on Gabriela’s bed, and the belt to Gabriela’s robe look ripped. I.V. and J.R. stayed home from school and
called family members to try to find their mother.
Cerna returned home at
lunchtime. Cerna told I.V. and J.R. that
he dropped off Gabriela at work and did not know where she was. He went into his bedroom and closed the door. Cerna left 20 minutes later.
Gabriela’s sister filed
a missing persons report at 3:00 p.m. Cerna reported Gabriela missing at 3:34 p.m.
Cerna moved out of the apartment two days later. Four days later, Cerna told his employer he
was quitting his job and moving to Canada.
Police first interviewed
Cerna three days after Gabriela went missing.
left for work
title="">[3] on the morning she
disappeared. He stated that when he
returned home at lunch, I.V. and J.R. were home from school and told him they
could not find their mother. Cerna said
he called Gabriela’s work twice, but she was not there and he went to look for
her. He stated that after he spoke with
Gabriela’s family, he filed a missing person’s report with the police. He told police Gabriela disappeared several
times before and usually stayed away for about a day. He said she was depressed because of the
stress of her job and took medicine for “psychology problems.” She recently told him she hated people,
including her children, and wanted to get away from everything. She also talked about dying. He said strange men had been harassing
Gabriela, and someone slashed her car tires twice in the last few months. Cerna admitted they had argued about his
ex-wife and children, but he denied any involvement in her disappearance. He denied hitting her or arguing with her the
night before her disappearance. Cerna
claimed he moved out of their apartment because he could not pay the rent.
The next morning, Cerna
met Natividad Herrera (Natividad), his
ex-girlfriend
and mother of his children. Cerna told
her that he had a fight with his girlfriend, and when he pushed her against the
wall, she fainted. He told Natividad his
girlfriend had disappeared and he may have killed her. Cerna asked Natividad for help getting out of
the country.
title="">[4]
That night, Cerna met
his friend Celso Torres. Cerna showed
Torres a picture of Gabriela and he looked sad, but he did not mention
Gabriela’s disappearance. Three months
earlier, Cerna told Torres that Gabriela had died in bed from a heart
attack. The next day, Torres learned
Gabriela was missing and called Cerna.
When Torres asked him about Gabriela, Cerna responded cryptically and
hung up the telephone. Cerna did not
respond to Torres’s subsequent telephone calls.
On November 10, police
discovered Gabriela’s body
name="_ftnref5" title="">[5] on a freeway
embankment in Los Angeles. She wore a small halter top and a pair of
small black shorts, but no shoes or jewelry.
Maggots covered her body. Because
of advanced decomposition, an autopsy was difficult. The medical examiner found no signs of blunt
force trauma. He concluded the cause of
death was asphyxia, most likely from smothering, but he could not rule out
strangulation. He could not determine a
time of death, but concluded she ate rice and beans less than two hours before
she died.
Investigators examined
Gabriela’s apartment on November 16.
They found no signs of a struggle and no forced entry. A pillowcase on Gabriela’s bed contained only
pillow stuffing.
title="">[7] Investigators found no significant blood
evidence in the apartment. On November
30, police found Gabriela’s car in a parking lot in Baldwin
Park. The car
appeared to have been parked for some time and displayed no signs of forced
entry. Crime scene investigators found
no blood or other biological evidence in the car.
Police interviewed Cerna
again on February 1, 2007. Cerna said he knew nothing about Gabriela’s
disappearance. He claimed he never told
anyone Gabriela died before she disappeared and would not joke about it. Cerna told police Gabriela had been acting
distant in the weeks leading up to her disappearance. He said she used drugs and took medication
for depression. He told police several
men had been following and harassing Gabriela.
He admitted they argued the night before her disappearance concerning
his ex-wife. That night, Gabriela called
him a stupid idiot and revealed she had been cheating on him. She apologized, he forgave her, and they went
to sleep. The next morning, Cerna said
Gabriela was awake when he left for work.
Cerna said he called Gabriela at work twice that morning but was told
she was not there and he went home at lunch.
Cerna said he looked for her.
The following week,
Natividad agreed to wear a wire and speak with Cerna.
and he lost control. Cerna told
Natividad that he was going to El Salvador.
Cerna
lived with a friend until July 2007.
Cerna told his friend he had a girlfriend who died after he left her but
he denied killing her. Later, the friend
learned it was Cerna’s wife. Cerna said
their relationship was not good because she had another lover.
Police arrested Cerna on
July 20, 2007. After the police advised
him of his rights pursuant to Miranda v.
Arizona (1966) 384 U.S. 436, Cerna explained that the night before Gabriela
disappeared she was angry at him and they argued, but they made amends before
bed. He added that the next morning,
Gabriela was still upset about his ex-wife, but he kissed her and left for
work. Cerna claimed he did not hit or
push Gabriela the night before she disappeared.
Cerna admitted that in August and November he told Torres that Gabriela
died, but he was “playing around” and “joking.”
Cerna said he previously lived in Los Angeles. He could not explain how Gabriela’s cell
phone could have been used near his work on the day she disappeared. He denied telling Natividad he thought he
killed a woman and said she lied because she wanted to be his girlfriend. Cerna denied any role in Gabriela’s murder.
An information charged
Cerna with murder (Pen. Code, § 187,
subd. (a)). Before trial, the prosecutor
moved to admit evidence of Cerna’s prior acts of domestic violence against his
first wife, Sarai Anaya. Cerna opposed
the motion based on the grounds there was no evidence of domestic violence
between Cerna and Gabriela independent of the homicide and admission of the
evidence violated his due process rights.
At a section 402
hearing, the prosecution presented Anaya’s testimony, as well as the written
statement of Anaya’s sister-in-law. In
addition to the five incidents Anaya later described at trial that are
discussed in detail anon, Anaya described other acts of violence Cerna
committed during the marriage. In 2001,
Cerna threatened and punched their nine-year-old son. A year later, Cerna threatened to kill three
of their six children because the family was struggling to pay the rent. The prosecutor also made an offer of proof
concerning testimony Anaya’s sister-in-law would provide detailing another
incident of domestic violence during which the sister-in-law saw Cerna choke
Anaya and push her over a couch.
After considering the
moving papers and Anaya’s testimony, the trial court preliminarily opined the
threshold issues of admissibility concerning admission of the evidence were
satisfied. The prosecutor argued the
probative value of the evidence was high and the evidence would not evoke an
emotional bias against Cerna with the jury.
Defense counsel contended the evidence was indeed inflammatory and based
on the circumstantial evidence of guilt in the case, the jury would certainly
despise Cerna based on the fact he beat his 16-year-old wife and kids. The prosecutor replied the evidence was not
so egregious as to render the evidence unduly prejudicial and the testimony
would not consume an undue amount of time.
The trial court raised the issue of
section
1109, subdivision (e)’s limitation that evidence be no more than 10 years old
subject to the interest of justice. The
prosecutor replied that limitation would only affect the incidents that
occurred before 1996. The prosecutor,
however, sought admission of all the evidence because it was a continuous
course of conduct starting immediately after the marriage began. Defense counsel argued the trial court should
exclude any evidence before 1996.
The trial court, after
summarizing counsels’ arguments, stated he was particularly concerned with the
evidence regarding Cerna threatening to kill his children. Defense counsel added any testimony
concerning Cerna choking Anaya, including from the sister-in-law, was unduly
prejudicial. The prosecutor believed it
to be more probative because it was similar to how Gabriela died. When the court asked whether admission of the
evidence placed an undue burden of Cerna to defend against this evidence, both
counsel stated, “No.” The trial court
asked whether admission of the evidence would confuse the issues, defense
counsel responded, “Other than I just think
it’s tying it up with the [section] 352 argument, no, [he] [did not] see
anything else.” Both counsel stated there
were no less prejudicial alternatives.
The trial court stated it would recess for lunch and rule that
afternoon.
When back on the record,
the trial court stated it would admit most of the evidence subject to certain
exceptions. The court reasoned: “I think the charged offense, murder, is an
offense that involves domestic violence within the meaning of . . .
section
1109 and Penal Code section 13700. I
think the People have established the existence of these prior acts of domestic
violence by [a] preponderance of the evidence through the testimony and offer
of proof. I’ve carefully considered the
probative value of these prior acts of domestic violence vis-a-vis the other
factors that I’m required to consider, and I’ve carefully exercised my
discretion under . . . section 352 in making these rulings.” The court opined the 1992 and 1995 incidents
were not too remote and that evidence was part of a continuing course of
conduct that in the interest of justice should be admitted. The court added evidence of the 1998, 2001,
and 2004 incidents was admissible. The
court concluded Anaya’s testimony was probative and “would not necessitate [an]
undue consumption of time or create a substantial danger of undue prejudice or
confusing the issues or misleading the jury.”
The trial court excluded
evidence of Cerna’s threats to kill his children, as well as other references
to physical violence towards his children, because of its potential to inflame
and confuse the jury. The court also
excluded as cumulative the testimony of Anaya’s sister-in-law.
At trial, the prosecutor
offered Anaya’s testimony. Anaya
testified Cerna regularly abused her during their 12-year marriage, which began
in 1992 when she was 16 years old; the marriage produced six children. She specifically described five
incidents. In 1992, three days after
their wedding, Cerna kicked and punched Anaya when she told him that she did
not know how to cook breakfast. In 1995,
Anaya saw Cerna kissing another
woman. Later that day, Cerna found out
Anaya told the other woman he was married.
He punched, kicked, and choked Anaya until she almost lost
consciousness. Cerna stopped choking
Anaya when her mother knocked on the front door. A few years later, Anaya angered Cerna by
asking for rent money. Cerna took Anaya
into the bathroom and hit her in the stomach and kicked her legs. Cerna also hit her face into the toilet seat
until one of their children interrupted the beating by knocking on the bathroom
door. In 2001, Cerna punched Anaya in
her stomach and arms and kicked her legs after she accepted money from their
pastor, despite Cerna initially telling Anaya to accept the money. In 2004, Cerna threw a shoe at one of their
children. When Anaya tried to intervene,
Cerna pushed and kicked her. Anaya never
reported any of the abuse to the police or to her family. Anaya and Cerna divorced in 2005.
Gabriela’s sister, Maria
Herrera (Maria), testified that a few months before Gabriela’s disappearance,
she heard Cerna say he trained with El Salvadorian guerrillas and knew how to
kill someone without leaving a trace.
Maria testified she talked to Cerna at 1:24 p.m. on the day Gabriella
disappeared, and Cerna told her he had reported Gabriela missing to
police. Maria later found out Cerna had
not made a report. When she asked Cerna
about the inconsistency, he told her that he called police but the computer
system was down, and he could not make a report. She said Cerna acted strange and would not
make eye contact with her the night of Gabriela’s disappearance. Cerna told her Gabriela was asleep when he
left for work. Maria also testified
Cerna stopped returning telephone calls from Gabriela’s family after November
8.
A cellular telephone
expert testified Gabriela’s cell phone was used at
7:40
a.m., 7:42 a.m., and 7:45 a.m. on the day she disappeared. To make the calls, the cell phone accessed a
cell tower less than half a mile from Cerna’s Buena Park workplace. Cerna clocked in that morning at 6:54
a.m. After his arrest, Cerna denied he
used Gabriela’s cell phone that morning.
When Cerna called police at 3:34 p.m. to report Gabriela missing, he
told the dispatcher he was calling from Buena Park and he had last seen his
wife that morning before he went to work.
originated in Baldwin Park near the parking lot where Gabriela’s car was later
found.
Gabriela’s friend and
landlord testified she called Cerna on November 8 to ask about unpaid
rent. Cerna told her that he and
Gabriela were moving out of the apartment.
He did not mention Gabriela’s disappearance. Cerna’s friend testified that on November 8,
Cerna called him to help Cerna move.
Cerna told the friend the apartment belonged to his female cousin. While at the apartment, Cerna told his friend
not to answer the door if anyone knocked.
testified about several interviews they conducted with Natividad as prior
inconsistent and consistent statements.
In one interview, Natividad told police she had breakfast with Cerna on
the morning of November 9, and Cerna told her he killed someone. In another interview, Natividad said Cerna
told her that his wife slapped him and he lost control, but he did not kill
her. Finally, Natividad told police
about a church in Los Angeles where Cerna attended that was close to where
Gabriela’s body was found.
Cerna offered the
testimony of an expert entomologist who analyzed a sample of seven maggots
taken from Gabriela’s body, and concluded the oldest maggot had been
approximately 79 hours old when Gabriela was found. He later testified his conclusion did not
show Gabriela’s body had been exposed to the elements for only
79
hours because older maggots could have existed.
He was unable to determine a time of death.
The jury convicted Cerna
of first degree murder. The trial court
sentenced Cerna to 25 years to life in prison.
DISCUSSION
Section 1109
Cerna
argues the trial court abused its discretion in admitting the prior domestic
violence evidence pursuant to section 1109 because it lacked probative value
and was unduly prejudicial, and its admission violated his due process rights. He also contends the trial court erred by
instructing the jury with CALCRIM No. 852, which permitted the jury to conclude
that because he assaulted Anaya, he must have murdered Gabriela. None of his contentions have merit.
Section 1101, subdivision (a), prohibits the
use of disposition or propensity evidence to prove a defendant’s conduct on a
specific occasion. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) However, section
1109, subdivision (a)(1), provides, “[I]n a criminal action in which the
defendant is accused of an offense involving domestic violence, evidence of the
defendant’s commission of other domestic violence is not made inadmissible by
[s]ection 1101 if the evidence is not inadmissible pursuant to[s]ection 352.”
Section
352, however, authorizes a trial court to exclude prior sexual offenses
evidence. Section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.” We review a trial
court’s ruling for an abuse of discretion.
(People v. Jennings (2000) 81
Cal.App.4th 1301, 1313-1314 (Jennings).)
The enactment of “section[] . . . 1109 dramatically revised the
law of evidence in . . . domestic violence cases by making prior offenses
admissible to prove the defendant’s propensity to commit a charged offense.” (People v. James (2000)
81
Cal.App.4th 1343, 1346.) Thus, when a
defendant is charged with “an offense involving domestic violence,” evidence of
past domestic violence is admissible
to establish the defendant’s propensity to commit the charged offense. (§ 1109,
subd.
(a)(1).)
We
conclude Cerna’s history of domestic violence was probative to show his
propensity to commit domestic violence against his intimate partners, including
Gabriela. Cerna maintained he was a
loving husband who could not have murdered his wife. However, Anaya’s testimony demonstrated Cerna
was prone to violent rages when angry.
Several of the incidents Anaya described, such as the choking incident in
1998, involved acts of violence so serious they could have caused death. Gabriela was murdered by smothering or
choking. Additionally, the probative
value of Anaya’s testimony was increased because the incidents she described
were completely independent of Gabriela’s murder. The short length of time between the conduct
Anaya described and Gabriela’s murder also increased the probative value of
Anaya’s testimony. Although two of the
incidents occurred more than 10 years before Gabriela’s murder, only two years
elapsed between the time Cerna last assaulted Anaya and the time he married
Gabriela. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211 [source of
evidence is independent of charged offense and amount of time between uncharged
acts and charged offense].)
Cerna argues the prior
uncharged assaults lacked probative value because they were too dissimilar to
the charged offense of murder. While we
agree dissimilarities existed, they did not render Anaya’s testimony
irrelevant. Before the Legislature
enacted section 1109, the admissibility of other crimes evidence under section
1101,
subdivision
(b), depended mainly on the degree of similarity between the charged and
uncharged offenses. (
401-402.) However, under section 1109,
prior domestic violence evidence is probative even if it involves different
victims or different conduct than the charged offense. It is enough that both the charged and
uncharged offenses are acts of domestic violence within the meaning of section
1109. Murder of a spouse is an act of
domestic violence. (People
v. Brown (2011)
192
Cal.App.4th 1222, 1233-1234 [murder] (Brown);
People v. Johnson (2000)
77
Cal.App.4th 410, 419-420 [murder] (Johnson).)
Cerna asserts prior acts of assault, requiring only a general criminal intent,
are never relevant to prove murder,
which requires a specific intent to kill with malice aforethought. In Brown,
supra, 192 Cal.App.4th at page 1237, the court rejected a similar argument
stating “a defendant’s pattern of prior acts of domestic violence logically
leads to the inference of malice aforethought and culpability for murder[]”
because “murder is ‘the ultimate form of domestic violence.’”
Finally,
Cerna claims Anaya’s testimony was not probative because it was not accompanied
by corroborating evidence he similarly battered Gabriela. But
section 1109 was enacted precisely “‘because of the acute
difficulties of proof associated with frequently uncooperative victims and
third-party witnesses who are often children or neighbors who may fear
retaliation from the abuser and do not wish to become involved.’” (People
v. Brown (2000) 77 Cal.App.4th 1324, 1333.)
“If we fail to address the very essence of domestic violence,
perpetrators of this violence will beat their intimate partners, even kill
them, and go on to beat or kill the next intimate partner.” (Johnson,
supra, 77 Cal.App.4th at p. 419, italics added.) Essentially, Cerna is attempting to take
advantage of the very “difficulties of proof” section 1109 was created to
remedy.
Prejudicial Effect
“Relevant factors in determining prejudice
include whether the prior acts of domestic violence were more inflammatory than
the charged conduct, the possibility the jury might confuse the prior acts with
the charged acts, how recent were the prior acts, and whether the defendant had
already been convicted and punished for the prior offense(s).” (People
v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) “The weighing process under section 352
depends upon the trial court’s consideration of the unique facts and issues of
each case, rather than upon the mechanical application of automatic
rules.” (Jennings, supra, 81 Cal.App.4th at p. 1314.)
Applying
these rules to this case, we conclude the evidence was not unduly prejudicial. The
incidents described by Anaya were no more egregious than the smothering death
of Gabriela, and posed no danger of confusing the jury. The testimony concerning the prior domestic
violence was short and included five discrete instances of domestic
violence. In addition, the trial court
limited the evidence by expressly excluding inflammatory or confusing details,
such as Cerna’s violence towards his children.
We also reject Cerna’s contention the evidence was prejudicial because of
the risk the jury would misuse it as propensity evidence. Section 1109 expressly authorizes the
admission of propensity evidence
concerning domestic violence. Finally,
although two of the incidents Anaya
described, one in 1992 and one in 1995, occurred more than
10 years before
Gabriela’s murder, Cerna does not claim they were too remote and thus we do not
address this issue.
Cerna
claims the trial court’s admission of the prior domestic violence evidence was
unduly prejudicial in light of the circumstantial nature of the case against
him. Even if we agreed the case against
Cerna was weak, that fact has no bearing on the trial court’s analysis of
prejudicial effect under sections 1109 and 352.
“The supposed weakness of the rest of the case would be relevant to the
question of prejudice if there were error, but it provides no reason to exclude
this particularly probative evidence.” (
Moreover,
we will only “disturb a trial court’s exercise of its discretion under section
352 . . . upon a finding that its decision was palpably arbitrary, capricious
and patently absurd.” (
1314.) To the contrary, the record
before us indicates the trial court conducted an extensive and conscientious
analysis regarding the admissibility of the proffered evidence under sections
1109 and 352, and only made its ruling after carefully balancing any
prejudicial effect of the evidence against its probative value. The court’s statements and observations
demonstrate a keen awareness of the relevant issues before it. Accordingly, we find no abuse of discretion.
We
conclude the trial court did not err by admitting Cerna’s prior acts of
domestic violence under section 1109.
The record before us indicates the trial court carefully exercised its
discretion under section 352 before it admitted the domestic violence evidence.
Due Process
Cerna
contends the propensity inference allowed by section 1109 is
circumstantial case because it reduces the prosecutor’s burden of proving the
charged offense beyond a reasonable doubt.
There is no authority for this contention. As Cerna concedes, it is well settled the
admission of propensity evidence comports with due process because the trial
court must first carefully weigh the evidence under section 352. (Falsetta,
supra, 21 Cal.4th at p. 917 [section 1108];
People v. Johnson
(2010) 185 Cal.App.4th 520, 529-530 [section 1109 does not offend due process;
cases cited therein].) Further, “section
1109 does not lessen the prosecution’s burden of proof, because a
the defendant is presumed innocent and the prosecution must prove him guilty
beyond a reasonable doubt in order for the jury to convict.” (Johnson,
supra, 77 Cal.App.4th at
p. 420, italics added.)
CALCRIM No. 852
Finally,
Cerna claims the trial court erroneously instructed the jury with CALCRIM No.
852. He maintains the trial court erred
by instructing the jury with CALCRIM No. 852, which “permit[s] the jury to find
the uncharged acts of domestic violence (assault) proved appellant’s propensity
to commit murder with express or implied malice.” In his reply brief, Cerna emphasizes “[he]
has not challenged the language of the instruction itself, just its employment
at trial to apply the domestic violence to the elements of murder.”
Courts
have routinely rejected similar instructional challenges. (See People
v. Reliford (2003) 29 Cal.4th 1007, 1014-1015 [rejecting an analogous challenge
to CALJIC No. 2.50.01, an instruction explaining the application section 1108];
People v. Johnson (2008) 164
Cal.App.4th 731, 738-740 [CALCRIM No. 852 proper in murder case];
246, 251-252 [rejecting due process challenge to CALCRIM No. 852].) We find no error in the trial court’s
instructions. They make clear the
propensity inference is but one factor the jury should consider, and they
specify the murder charge must still be proved beyond a reasonable doubt.
DISPOSTION
The
judgment is affirmed.
O’LEARY,
P. J.
WE CONCUR:
BEDSWORTH, J.
MOORE, J.
references are to the Evidence Code, unless otherwise indicated.
interviews with Cerna in November 2006, February 2007, and July 2007. All three interviews were later played for
the jury. The jury was also provided
with transcripts of the interviews.
