P. v. Cruz

Filed 1/26/09 P. v. Cruz CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Gonzalo Cruz was retried after his conviction for murder (Pen. Code,  187, subd. (a)) was reversed. On retrial, a jury found him guilty of the lesser offense of second degree murder. It also found true the allegation that defendant personally used a deadly and dangerous weapon (a knife), within the meaning of Penal Code sections 12022, subdivision (b)(1) and 1192.7, subdivision (c)(23). A trial court sentenced defendant to 16 years to life, and ordered the sentence to be served consecutive to a 26-year-to-life term previously imposed on another murder conviction.

On appeal, defendant argues that his conviction should be reversed because the court improperly admitted a hearsay statement made by his daughter regarding the whereabouts of the victim. Furthermore, the court failed to properly instruct the jury as to the treatment of the alleged adoptive admission. We affirm.

FACTUAL BACKGROUND

In 2004, defendant was living in a house with his girlfriend, Guisele Orduno, two young daughters (ages three and 11 months), and the victim, Ricardo Sanchez (the victim). The victim was known to Orduno and defendant as Tony. On April 22, 2004, defendant and Orduno had an argument, and he accused her of cheating with other men. That afternoon, Orduno called defendants mother. As Orduno was talking, defendant became angry, so he took the phone away and threw it at her. Defendant and the victim also got into an argument over property that the victim accused defendant of taking. At some point, defendant went to the kitchen to get a drink of water. He poured some water into an unwashed childs sippy cup that had been in the sink. He drank from the cup and then accused Orduno of trying to poison him by putting something in the cup. Defendant tried to make Orduno drink from the cup, but she poured it out. He hit her with his fist, grabbed her head, and made her drink the water. Defendant then stated that if Orduno did not try to poison him, the victim must have done so.

Defendant left the house and approached the victim, who was standing next to his car in the driveway. Orduno observed defendant and the victim arguing from the front door of the house. She saw the victim back away from defendant; defendant followed him. Defendants back was toward Orduno, but she saw him repeatedly strike the victim in the chest and stomach areas, while the victim said, no, Gonzalo. The victim yelled for a neighbor to call 911. The neighbor went in the house to call the police, and when she looked back outside, the victim was gone.

After Orduno went back in the house, defendant was there and told her they had to leave. He grabbed their oldest daughter and put her in the backseat of the victims car. Orduno picked up the baby and brought her to the living room. Defendant took the baby from her and put her in the car also. Orduno noticed the victim was not in sight and asked defendant where he was. Defendant did not answer, but just told her to get in the car. When they were in the car, Orduno asked defendant again where the victim was. Defendant did not answer. Then, their oldest daughter said the victim was in the trash can. After they started driving, Orduno noticed the handle of one of their kitchen knives under the drivers seat. Orduno again asked defendant where the victim was. Defendant said (in Spanish) something to the effect of, Let the . . . a------ [or faggot] . . . die. Defendant dropped Orduno and the children off at her fathers residence and left.

The police found the victim that evening in a dumpster located in defendants yard. The victim was still breathing, so the police took him to the hospital, where he later died.

The next morning, defendant showed up at Ordunos mothers house. Defendant talked to Orduno and told her he had thrown the knife out. Defendant left again and later called Orduno from Las Vegas.

Defendant was arrested in Las Vegas and was thereafter interviewed by San Bernardino County Sheriffs detectives. Defendant waived his Miranda^[1]rights and told the detectives the events leading up to the stabbing of the victim. He said he was at home arguing with his girlfriend, grabbed a cup and filled it with water, and when he drank the water, it tasted funny. He believed his girlfriend was trying to poison him. Defendant told the detectives that when confronting his girlfriend, he grabbed a kitchen knife and threatened her with it. He then went outside to look for the victim, with the knife in his hand. Defendant confessed that he confronted the victim about trying to poison him, grabbed the victim behind the neck with his left hand, and stabbed him in the chest with the knife about five times. Defendant demonstrated how he stabbed the victim and described how deeply he had thrust the knife into the victims chest. Defendant said he returned to his residence, while the victim walked to a neighbors gate to yell for help. When defendant came back outside, he saw the victim lying on the ground and believed he was dead. So, he reached into the victims pocket, took his car keys, and then picked the victim up and threw him in a dumpster. Defendant went back to the house to get his girlfriend and children and then left.

ANALYSIS

Any Error in Admitting the Daughters Statement Was Harmless

Defendant contends the court prejudicially erred in admitting his daughters hearsay statement that the victim was in the trash can, as an adoptive admission. He further argues that the court failed to instruct the jury on the foundational requirements for an adoptive admission. He therefore claims that his conviction should be reversed. We find no prejudice.

To prove adoption of a hearsay statement sufficient to make it admissible under Evidence Code section 1221, it must be shown that the party against whom a declarants hearsay statement is offered both (1) had knowledge of the contents of declarants statement, and (2) having such knowledge, has, by words or other conduct, manifested his adoption or his belief in its truth. [Citation.] [Citations.] (People v. Lewis (2008) 43 Cal.4th 415, 498.) Here there was no evidence that defendant knew of the contents of his daughters statement, or by words or conduct manifested or adopted a belief in its truth. As such, the statement was hearsay and was inadmissible against defendant.

Nonetheless, the erroneous admission of the statement did not prejudice defendant. Defendant confessed to stabbing the victim and throwing him in the dumpster. On appeal, defendant even states that the fact that [he] placed [the victim] in the dumpster, where he was later found, was undisputed. However, defendant asserts that the issue at trial was his state of mind in killing the victim. Accordingly, he argues the prejudice to [him] arose not from the substance of the hearsay statement, but from the fact that it was made by [his] three year old daughter. Defendant claims [i]t was that fact that . . . enabled the prosecutor to argue that [he] acted in a vicious, cold-blooded and calculated manner. He concludes that the jury was more likely to find that he acted in the manner described rather than in the heat of passion, and thus, it convicted him of murder rather than manslaughter. Defendants argument is nonsense. The prosecutor argued that defendants act was cold, calculated, and vicious, based on the facts that defendant stabbed the victim, stole his car keys, and threw him in a dumpster. The prosecutor did not even mention the hearsay statement, or that it was made by defendants three-year-old daughter. Even if the prosecutor did mention defendants daughters age, we do not see how the fact of her age enabled the prosecutor to argue that the murder was cold and calculated, as defendant claims.

For these reasons, we find no reasonable probability that the outcome would have been more favorable to defendant absent the error in admitting the hearsay statement. (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Lewis, supra, 43 Cal.4th at pp. 499-500.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

GAUT

J.

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^[1]Miranda v. Arizona (1966) 384 U.S. 436.