P. v. Diaz
Filed 8/1/12 P. v. Diaz CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
DORA DIAZ,
Defendant and
Appellant.
H036414
(Santa Clara
County
Super. Ct.
No. CC954415)
Dora Diaz was charged and convicted
of willful, deliberate, and premeditated attempted murder (Pen. Code,
§§ 187, 189, 664, subd. (a))
name="_ftnref1" title="">[1]
(count one) and three counts of criminal
threats (§ 422) (counts three, four, and five).
term of life with possibility of parole consecutive to a three year, four month
prison term. On appeal, defendant Diaz
argues that the trial court erroneously admitted gang evidence and committed
multiple instructional errors. She also attacks the imposition of a booking
fee.
We find no
basis for reversal.
title="">[3]
I
Evidence
A.
Eduardo
Morales ("Morales"), the stabbing victim in this case, was 21 years
old at the time of trial in September 2010.
In September 2009, Morales was living in a two-bedroom apartment with
his mother Marta Rosales and her three young children, his mother's husband
Alvaro Hernandez, the husband's brother Cesar Hernandez (also known as Cesar
Hernandez Castro), his brother Carlos Danilo Morales, and his sister-in-law
Indira Pineda. Morales slept on the
couch in the living room.
A romantic relationship between
Morales and Diaz began when he was 15 or 16 years old and they been together
for about four years before the stabbing incident, which occurred in the early
morning hours of September 5, 2009. The
two usually met at her house on the corner of Julian Street and 19th Street or
somewhere else. During the time that
they were involved, Diaz was married and had four children. Her oldest child was L.S., who Morales
thought was about 16 years old. According
to Morales, a week or two before the incident, Diaz broke up with Morales over
the phone and told him that she did not love him anymore.
Between about 1:00 a.m. and 1:30
a.m. on September 5, 2009, Morales heard hard knocking on the door and the window
of his apartment, apartment one. When he
peeked out the window, he saw Diaz and two females whom he did not know. The window was partly open and Morales heard
Diaz and the others say, "Come out you fucking asshole." He went to put on his shoes and, while he was
putting them on, he heard the window break.
On the night of the September 2009
stabbing incident, Morales's mother Rosales was in bed when she heard Diaz
yelling and the window break; she then went into the living room. Rosales called 911. Pineda, Morales's sister-in-law and Rosales's
daughter-in-law, was awakened by screaming.
Pineda recognized Diaz's voice.
As Pineda was going into the living room, she heard Diaz yelling for
Morales to come outside and saw Rosales in the living room and Morales near the
front door. Diaz sounded aggressive and
was calling Morales names and using vulgar language, like "son of a
bitch," "fucking asshole," and "asshole, jerk."
Rosales knew Diaz from Guatemala;
they had lived in the same village or town.
Pineda also knew Diaz from Guatemala, where they had been neighbors in
the same village or city when Pineda was a child. Here in San Jose, Diaz would often come to
the street in front of their apartment and shout for Morales to come out. Pineda had seen Diaz outside the apartment
when Diaz visited Morales. But Diaz did
not spend time with Rosales's family.
Neither Rosales nor Pineda knew the other two females.
Morales had a feeling of dread when
the window broke but he knew his family was inside the house. Diaz repeatedly demanded that Morales come
out. Morales opened the door a little,
stepped partially out the door, and saw broken glass. He asked, "What's going on" and
"Why are you doing this to me"
Diaz and the other two women attacked Morales, grabbing him by the hair
and dragging him two or three meters into the driveway in front of his
apartment. Diaz was calling Morales
"a son of a fucking bitch" and a "fucking asshole" and
yelling profanities at Morales. Pineda
heard Diaz say to Morales, "I'm going to kill you son of a
bitch." Morales heard someone say
"puro catorce," which in English means "only 14" and which,
to Morales, indicated a Norteno gang.
Rosales was telling the women to "let him go" and they were
shoving her out of the way. The women
were hitting him with their hands, both open and closed, all over his body and
kicking him with their feet; Morales was covering himself. He was knocked to the ground.
Morales was scared. He had not expected Diaz to do anything like
that to him. Diaz stepped back from the
assault and snapped twice and whistled.
Three men emerged from behind a car and crossed the street and began
hitting Morales as well. Morales again
heard "puro catorce" as the men arrived. The men kicked Morales, pulled his hair, and
hit him with open hands. Diaz was
hitting him again. Morales suddenly felt
something in his right side stomach area and felt weak. Rosales was yelling at them to leave Morales
alone and Morales was trying to get away.
Rosales was pulling on the shirt of one of the men and she did not
realize that the man was stabbing Morales until she saw blood gushing out. She then saw his knife. Rosales did not see Diaz holding a weapon of
any type.
Morales was feeling very
lightheaded and saw a hand with a blade coming at him and put up an arm to
protect himself. The blade went all the
way through his left forearm. During the
attack, Morales was trying to cover up his body. Morales heard them repeatedly call him a
"fucking asshole" and heard someone say "puro norte," which
means "only north" and conveyed to him that they were in a gang.
According to Morales, one of the
two females accompanying Diaz was wearing a white shirt, was taller than him,
and had "white skin" and long "dark yellow hair," and appeared
to be about 17 or 18 years old. He
remembered that the other female was short and Hispanic. Morales did not see any tattoos on them but
he knew that Diaz had a red butterfly tattoo on her back. Rosales recalled that one of the two was
wearing a sort of gray-colored sweater and the other was wearing a red shirt.
The men's clothing made Morales
think they were "Cholos," by which he meant they were in a gang. One man looked like Diaz's son L.S. and he
was wearing a white shirt with some red lettering; this was the person who
stabbed him. Another man's face was
familiar from the neighborhood. The man
whom Morales believed was Diaz's son was about Morales's height, he was "a
little bit fuller than" Morales, who weighed about 200 or 210 pounds.
The attack lasted about five
minutes and then sirens were heard. All
the assailants except Diaz ran off, got into the car, a Lincoln, and seemed to
be waiting for Diaz.
Before she took off, Diaz
approached Morales and lifted his shirt.
She saw his wound, called him a "fucking asshole," and
laughed. She told Morales, "If you
don't die from this one, you'll die next time around."
Pineda, who had witnessed the
stabbing, was scared. Pineda told Diaz
something to the effect, "leave him alone, he's already hurt." Diaz looked angry and appeared ready to hit
Pineda; Pineda grabbed Diaz's hands to prevent Diaz from hitting her. Diaz was calling Pineda a "fucking
bitch." Pineda said, "Please
don't hit me because I'm pregnant."
Even though he felt dizzy, Morales, who was wearing tennis shoes, kicked
Diaz in order to protect his sister-in-law.
Diaz gestured for the assailants to come back and one of them was about
to come back across the street when a siren was heard. Diaz told Pineda, "I'm going to kill
you." Diaz said to Pineda and
Rosales, "You're going to pay for this." Diaz indicated that she was going to kill
everyone who lived there "one by one." Pineda remembered trembling because she was
terrified. Pineda did not see any type
of object in Diaz's hand on the night of the incident.
The sirens sounded closer and Diaz
left. Morales testified that he heard
Diaz say "puro catorce" as she was leaving.
Cesar Hernandez, the brother of
Rosales's husband, slept in the living room of apartment one. At trial, he identified Diaz from the
incident. He did not go outside until
Rosales was saying that Morales was about to die. When he went outside, he saw Morales against
a wall, grabbing himself. Morales was
bleeding and he saw a lot of blood. He
saw people getting into a car across the street. He heard Diaz angrily yell that "she
wasn't garbage that she could be left so easily." He saw Diaz and Pineda yelling at each other. He went back into the house and then, looking
out the window, he saw Diaz leave.
Alvaro Hernandez, Rosales's
husband, was asleep when the incident began.
After Rosales woke him up, he heard a woman screaming outside, and
Rosales said, "Get up because they're going to kill him." When he went to the front door, he saw a
woman screaming at Rosales that she was going to kill everyone. He heard Pineda saying, "Leave,
leave." A group of men and women
were crossing the street and getting into a car parked on the other side of the
street. The threatening woman took
off. He saw that Morales was hurt and
bleeding a lot.
Alvaro Hernandez gave Morales a
shirt to wrap around himself right after the attack. Rosales was on the phone to police.
The recorded 911 call was played
for the jury. The recording contains
inaudible portions and a few snatches of voices of unspecified speakers. At one point, Rosales reported that "she
came with many cholos" and "[a] man stabbed him--" No threats can be heard on the recording.
On September 5, 2009, Rommel
Macatangay, a San Jose police officer, was dispatched to a disturbance and
arrived at about 2:00 a.m. He was the
first to arrive. He saw large quantities
of blood in multiple locations, broken glass, and a broken window of an apartment. Morales, who was bleeding heavily, was with
family members at the front of the apartment complex's driveway. Officer Macatangay informed dispatch of the
medical emergency situation. Morales
told the officer that he had been stabbed.
Francis Magalang, a San Jose police
officer, was on duty the night of September 5, 2009. He was dispatched to the scene of a reported
stabbing. He arrived at about 2:05 a.m.
and saw the victim sitting on a curb.
His clothes were heavily soaked in blood and he was bleeding
heavily. Officer Magalang noticed a
trail of blood starting from the doorway of an apartment, going along the
driveway, and ending at the curb line where the victim was sitting. Emergency personnel arrived shortly
thereafter. The emergency personnel
removed the victim's clothing.
Eduardo Sandoval, a
Spanish-speaking, certified bilingual San Jose police officer assisted with the
investigation of the stabbing incident on September 5, 2009. He first spoke privately with Rosales, the
mother of the victim, who was "in complete shock," "in tears,
and terrified." She was fearful for
her life and the lives of family members.
Officer Sandoval spoke privately with Pineda. She also appeared to be in a state of shock
and terrified. The officer briefly spoke
separately in private with Alvaro Hernandez and Cesar Hernandez, who were both
still shaken up but had not seen the actual stabbing.
Dan
Collins, a San Jose police officer, was asked to assist in locating suspects in
a stabbing incident and was on the lookout for suspect Diaz, whose description
he had been given, and a dark Lincoln Town Car.
Officer Collins and San Jose Police Officers Joseph Njoroge and Guy
Ezard proceeded to 903 East Julian Street, the address of a Lincoln registered
to Diaz and Diaz's last known mailing address.
The front door of the corner house located at that address faced East
Julian and its garage faced the cross-street.
The officers parked and approached
the house at 903 East Julian Street on foot at about 3:30 a.m. Someone on the porch turned toward the
officers and then went down the stairs, and started to run westbound on East
Julian Street, away from the officers.
Officers Collins and Njoroge pursued, identified themselves as law
enforcement, and ordered the person, who appeared to be female, to stop. Officer Njoroge described her as a short, heavy-set
female wearing flip-flops. She was
trying to run, but it was more of a fast-paced walk. Officer Njoroge testified that she had an
unsteady gait and appeared intoxicated.
The fleeing
female crossed an intersection and then, about mid-block, she stumbled and fell
and the officers caught up with her. At
that point, Officer Collins observed that she was a Hispanic female who matched
the description of suspect Diaz, who had been described as a short Hispanic female,
approximately 200 pounds. After being
asked her name in Spanish, the woman identified herself as "Dora
Diaz." She was wearing dark jeans.
Officer Collins could not recall
whether Diaz had smelled of alcohol and he did not conduct a field sobriety
test. Officer Njoroge testified that he
smelled alcohol on Diaz, her speech was slurred, she had "red bloodshot
watery eyes" and she appeared heavily intoxicated. But Officer Njoroge acknowledged at trial
that Diaz had been responsive to police commands and questions. Officers Collins and Njoroge each identified
defendant Diaz at trial as the female who had tried to flee.
As the
officers were attempting to obtain more information from Diaz, a dark Lincoln
Town Car drove past them eastbound on East Julian Street, slowing to a near
stop against a green light and then turning north onto 19th Street. Officer Collins put out a broadcast regarding
the vehicle.
Officer Ezard, who had remained
watching the residence at 903 East Julian, saw a male look out the front door,
look at him, and close the front door.
The officer called for additional officers to set up a
"perimeter" of the house. As
additional resources were arriving, a dark Lincoln Town Car, which matched the
description of the vehicle seen leaving the stabbing incident, pulled up near
the residence's garage. Derrick Antonio,
a San Jose police officer who arrived about that time, saw the vehicle
arriving. Officer Ezard told the driver
to stop the vehicle.
Officer Antonio ordered the
occupants, a Hispanic male driver and a Hispanic female passenger, to get out
of the car. He ordered the male to the
ground. The male had numerous tattoos,
including a star tattoo on his face.
Officer Njoroge described the female as a 15 or 16 year old who was
intoxicated. When Officer Njoroge
examined the interior of the vehicle, he noticed what appeared to be blood in
the back passenger compartment. When
Officer Ezard looked inside the car after the occupants had been removed, he
saw some blood smear stains on the rear, passenger-side door.
Jason Cook, a San Jose police
officer who was assisting with the investigation, was reassigned to a perimeter
position to secure 903 Julian Street, which was in the "JSP" or
"Julian Street Posse" gang area.
Officers Cook and Antonio assisted in the search of the residence. All areas of the home were being used as
sleeping quarters. The living room had
two bunk beds and was messy.
Approximately eight individuals were inside the house.
Officer Cook first spoke with a
38-year-old male, Gerardo Sosa. The
officer also spoke to L.S., one of his two teenage sons who were present. L.S. was approximately 17 years old and he
had no immediately visible tattoos. The
other son, Guillermo Rodriguez, an 18-year-old Hispanic male, had
"SJ" tattooed on his left arm and "ES" tattooed on his
right arm. Rodriguez was wearing a red
belt with a buckle with the letter "S" on it and another buckle with
the letter "J" on it. Officer
Antonio spoke with Rodriguez. Inside the
residence, Officer Antonio found a cell phone with photographs of
Rodriguez. The cell phone's screen said
"VBW."
Joseph Kalsbeek, a San Jose police
officer assigned to process evidence and take photographs, went to the
residence at 903 East Julian on the corner of 19th. He confirmed that the photographs taken
accurately depicted what he had seen. A
number of photographs showed the suspect Lincoln sedan that had parked at that
location. The officer saw blood inside
the vehicle on the rear passenger door, seat, and door handle and on the front
passenger seat. At trial, Morales
identified the vehicle in the photographs as the car from behind which the
three men emerged and which left the area after the stabbing. Cesar Hernandez identified the vehicle in the
photographs as the car that he saw that night.
A photograph showed the initials
"JSP" in very large letters spray painted on the street in front of
the house at 903 East Julian Street.
Inside the residence, Officer Kalsbeek located some blood on the wall
and the light switch near the front door.
There was also a blood stain on the inside of the front door of the
house and on the carpet or cement.
Officer Kalsbeek was directed to
bloody clothing and shoes under a bottom bunk in the living room area, which
other officers had discovered. He
photographed a white T-shirt with some red design and lettering, white Nike
shoes, and a tan Dickies shirt.
Officer Klasbeek returned to the
stabbing scene at the apartment complex and took photographs documenting
it. A number of the apartment units,
including apartment one which was closest to the street, opened onto a
driveway. There was a broken window next
to the front door of apartment one and a large amount of blood on the ground in
front of that apartment. There was some
bloody clothing, which had holes consistent with puncture wounds, in front of
apartment one. A blood trail led
westbound on the driveway in front of apartments two and three. There was blood on the wall and door of
apartment three and a trail of blood going from apartment three to a fence
across the driveway facing the apartment.
There was blood at the base of the fence and on the fence itself. The officer noticed shoe patterns in the
blood. A bloody cell phone, in several
pieces, was found at the scene. On
cross-examination, Officer Klasbeek acknowledged that he had been unable to
match the shoe tread of Diaz's shoes to any shoe pattern in the blood.
At some point, Officer Klasbeek
received and photographed Diaz's jeans, which had blood stains on the left
upper thigh and the left rear pocket. He
also received a cell phone that had a red shark logo as wallpaper.
The following items of evidence
that had been collected were submitted to the Santa Clara County Crime Lab for
DNA analysis: victim Morales's clothing, Diaz's shoes and clothing, and the white
T-shirt, the tan Dickies brand shirt, and the Nike Cortez shoes found under the
bed at 903 East Julian. A blood sample
was taken from defendant Diaz and a cheek swab was taken from Morales for DNA
analysis. Ashley Elliott, a DNA analyst
from the Santa Clara County Crime Lab, did a preliminary screening on all the
evidence. Both defendant Diaz's shoes
and her jeans reacted positively to the presumptive test for blood. The white T-shirt, the tan Dickies shirt, and
the white Nike shoes from under the bed produced a presumptive positive for
blood. Cuttings were taken from each
item for further DNA analysis.
Cathleen Trowbridge, a
criminologist at the Santa Clara County Crime Lab, testified as an expert in
DNA analysis. She tested items received
from Ashley Elliott. Two cuttings from
Diaz's clothing produced DNA from a single source, Morales. A swab from Diaz's shoes produced a mixture
of DNA from at least four individuals, including Morales and Diaz. The three cuttings taken from clothing found
under the bed and swabs from the shoes found under the bed produced DNA from a
single source, Morales.
The emergency room physician at the
Regional Medical Center diagnosed Morales with multiple stab wounds, two to the
left mid-forearm, two to the right mid-chest, and two to the lower back. He was also diagnosed with traumatic right
hemathorax (blood in the lungs), liver laceration, and right pulmonary
contusion. He suffered acute blood loss
resulting in anemia. His treatment
required a blood transfusion, a chest tube to drain blood from the lung, and
suturing. In addition, Morales had
lacerations and soft tissue contusions to the left arm and lacerations to the
right back and flank. His injuries were
considered life threatening and he was admitted to the intensive care unit.
Roughly two or three hours later
after Officer Magalang had responded to the scene, the officer spoke with
Morales at the hospital for five to 10 minutes.
Morales's wounds were dressed and bandaged. He was heavily medicated and very groggy. The officer spoke in English and the victim
answered in broken English.
Francisco Hernandez, a city of San
Jose police officer, spoke Spanish and was a certified bilingual officer. On September 8, 2009, Officer Hernandez spoke
with Rosales for about 10 minutes.
Rosales reported that Diaz had said, "I hope you die from
this. If you don't, you will next
time" and "Die, die, die."
She said that Diaz had been dating her son.
Sometime after his discharge,
Morales returned to the hospital for the removal of stitches and staples. He took pain medication for about a month and
a half. At the time of trial, he was
still experiencing numbness in his right, middle chest and was not able to
fully extend his fingers. He still did
not have his usual hand strength. He
still had scars.
Morales acknowledged that he had
asked the prosecutor to drop charges against Diaz when he came into court in
November 2009. Morales told the
prosecutor that Diaz did not hurt him.
At trial, Morales explained that he had spoke out of fear and was afraid
that some of Diaz's relatives might go to his house where children were present
and hurt someone.
Morales spoke with private
investigator Claudia Silva in November 2009 and he then said that Diaz had
nothing to do with the assault on him.
At trial, Morales explained that he had spoken out of fear because he
did not want anything to happen to his family.
The next day, Morales went to speak to investigator Silva again and told
her that he was retracting what he had said the previous day and that Diaz did
in fact assault him.
Morales spoke with Sergeant Alfonso
sometime after speaking with the prosecutor.
Morales then said that Diaz did not break the window. Morales remembered that, during the same conversation,
he told the sergeant that Diaz was not one of people who stabbed him and he
indicated that another person had stabbed him and defense counsel had
"used the name Bonilla in talking about that person." At trial, Morales testified that the person
that had actually stabbed him looked like Diaz's son L.S.
Morales was afraid of Diaz at the
time of the attack and was still afraid of her at the time of trial. He was scared that people would be looking
for him and he was worried for his family and did not want anything to happen
to his mother's children. Since the
incident, he had continued to feel nervous and traumatized and he said that he
fearfully looked around every time he went out and was not sleeping as well as
he used to. Rosales testified that she
is still afraid whenever she goes out.
Pineda was also still afraid at the time of trial.
At trial, Morales testified that he
was not a gang member, he did not have friends who were gang members, and he
did not hang around people who were gang members. He hung out with people who were from
Guatemala like him and spent most of his time with his family. He had never before had any sort of problems
with the group that attacked him.
Morales acknowledged that he knew
Diaz was married when he began dating her.
He admitted that he had been very much in love with Diaz and had her
name tattooed over his heart about six months before the incident. Morales had other tattoos in addition to the
"Dora" tattoo. Those included
tattoos of his father's name, a bird, a rose, a cross, and a virgin. He also had a tattoo of the Spanish word for
"love," a letter on each finger.
He obtained all the tattoos, except the "Dora" tattoo, while
in Guatamala prior to dating Diaz.
Anthony Alfonso, a San Jose police
officer, was a detective with the family violence unit of the police department
during September 2009. He had previously
worked for three years as a detective in the gang investigation unit
investigating all crimes committed by Nortenos.
At the time of trial, he was a patrol supervisor. Detective Alfonso testified as an expert
regarding gangs, gang activity and gang investigation.
Detective Alfonso had spoken with
Morales, through a Spanish-speaking detective, four or five times after the
incident. He first spoke with Morales at
Morales's home on September 9, 2009.
They spoke for a couple of hours.
In Detective Alfonso's opinion, none of Morales's tattoos were gang
tattoos.
Detective Alfonso explained that
the general purpose of a gang is to commit crimes, to intimidate and control their
neighborhood, and use violence to enhance the gang's reputation. If an assailant calls out the name of a gang
during an assault, the information that a gang is responsible spreads quickly
to the streets and bolsters the gang's reputation and an individual gang
member's status. Groups of gang members
may attack members of other gangs or individuals who are not gang members but
live in their neighborhood in order to control the neighborhood.
According to the detective,
Nortenos claim northern California and San Jose is consider a Norteno
City. Norteno gangs associate with the
color red and the letter "N" and the number "14" because
"N" is the fourteenth letter of the alphabet. They use the Spanish word for 14,
"catorce," four dots, "anything with San Jose or 'San
Ho' " or the San Jose Sharks, the northern star or anything
associated with north, or the "408" area code. Displaying a gang's colors or symbols shows
allegiance to and pride and membership in the gang and the display is used to
intimidate others.
Gang members may be identified by
self admission, tattoos, clothing, or other gang members. Norteno tattoos could include, for example,
the Spanish word for north, "norte," the "408" area code, a
San Jose zip code, a red Sharks fin, or a star.
Respect is very important in gang
culture. A gang member will typically
have to react with violence to maintain status if he is disrespected by a rival
gang member.
Specific neighborhood Norteno gangs
come under the umbrella of the Nortenos.
Sometimes San Jose gang members will be connected to, and will tattoo
themselves with, a reference to a geographic location within the city, such as
"NSSJ" ("North Side San Jose") or "ESSJ"
("East Side San Jose").
Sometimes a gang will take the name of a street or an apartment. "JSP" stands for Julian Street
Posse, which started as a tagging crew in 2000 and evolved into a Norteno
criminal street gang.
When someone yells out "puro
norte" or "puro catorce" while committing violence, the victims
and witnesses will know that Nortenos are responsible. That information enhances the reputation of
the gang and the members involved and also serves as a warning to those who
might want to cooperate with police.
Detective Alfonso was familiar with
the star tattoo visible in the photograph of the Hispanic male driver of the
Lincoln He explained that "the star
or the northern star can be associated to Norteno, along with other
things." In his opinion, a person
with a star tattoo, a four dots tattoo, a 408 tattoo, and a San Jose Sharks
tattoo would be a Norteno gang member.
He confirmed that red clothing may signify gang membership or
affiliation, depending upon the totality of circumstances. A red Sharks logo on a person's cell phone
may also identify the person as Norteno, depending upon the totality of
circumstances for that individual.
Based on information received from
other officers, Detective Alfonso believed that the house at 903 East Julian
Street was a Norteno hangout. The
discovery of clothing with red lettering in that residence would reinforce that
opinion.
When asked about Rodriguez's
tattoos, belt and belt buckles, Detective Alfonso explained that
"ESSJ" stood for "East Side San Jose" and indicated Norteno
gang membership. He said a red belt was
common and indicated that the buckles' "S" and "J" stood
for San Jose, which is deemed a Norteno city.
When asked about the cell phone displaying "VBW," the
detective stated that the initials stood for "Varrio Bloody Waters,"
which was a tagging crew aligned with the Nortenos but not yet a criminal
street gang.
In the opinion of Detective
Alfonso, L.S. was a gang member. His
belief was based on L.S.'s tattoos and admissions. L.S. had "NSSJ," which stands for
"North Side San Jose," tattooed on his knuckles. L.S. had the number 14 tattooed on his
hand. L.S. had admitted to being a
member of the Julian Street Posse during at least four police contacts. When L.S. was arrested for a probation violation
about a month after the stabbing incident and he had a knife in his possession,
L.S. told officers that the knife was for protection against rival gang
members.
Even though L.S. is Diaz's son,
there were insufficient indicia for Detective Alfonso to conclude that Diaz was
a gang member. He agreed that Diaz's
husband was not a gang member. He
acknowledged that it is quite common for gang members to live with other family
members who are not affiliated with the gang.
The detective agreed that gang
members are known to carry weapons. Gang
members must have their weapons readily available since they do not know when
they will be needed given "the very nature of what they do and their
violent lifestyle and the rivalries . . . ." Some gang members carry weapons at all times
while others hide them nearby. A knife
is the most common weapon for gang members because it is extremely easy to get,
it is easy to use, and easily concealed.
B.
The defense presented no evidence.
II
A.
Defense counsel moved in limine to
exclude evidence of gang membership or affiliation on grounds that defendant
Diaz had not been charged with a gang crime and no gang enhancement had been
alleged. The defense specifically sought
to exclude evidence that defendant Diaz resided in a Norteno house, her son was
a validated member or associate of the Julian Street Posse, and her former
codefendant, Adrian Bonilla, was a Norteno.
The defense contended that the evidence should be excluded under
Evidence Code section 352. At the
hearing, defense counsel argued that the gang evidence was highly prejudicial
and Diaz would not get a fair trial.
Counsel contended that it was a domestic violence, not a gang, case and
the gang evidence would inflame the jury against Diaz.
The prosecutor argued that gang
evidence was relevant and admissible with regard to the issue of Diaz's
knowledge that a knife would be used, her intent to aid and abet attempted
murder, and the fear element of the section 422 counts (criminal threats). It was the People's theory that Diaz's son
was the stabber and the evidence regarding his gang membership and their
residence in a known Norteno house tended to "corroborate the fact that
she orchestrated this attack" and "she was aware of what was going to
happen during the attack." The
prosecutor told the court that defendant appeared to orchestrate the attack and
signaled a second group to join in the beating by whistling or gesturing. She insisted that the gang evidence was
relevant to the People's aiding and abetting theory in that Diaz was associating
with gang members who are known to be violent and carry weapons and the
evidence tended to show that Diaz knew someone was going to use a weapon in the
attack and she possessed the specific intent to kill. The prosecutor asserted that evidence that
the victim of, and witnesses to, the stabbing believed the perpetrators of the
attack were affiliated with a gang bore on whether their fear was actual,
reasonable, and sustained.
The court remarked that a
stipulation or testimony that Diaz was not a gang member would lessen the
possibility of undue prejudice. Upon the
court's inquiry, the prosecutor indicated her willingness to ask the People's
gang expert whether Diaz was a gang member and stated that it did not appear
that Diaz was a gang member.
Defense counsel argued that the
gang evidence was improper because the prosecution could not show that Diaz had
any direct knowledge "of how a gang is going to operate or what a gang is
going to do." The prosecutor
countered that Diaz was living in a known Norteno home and "there has to
be some reasonable inference that mother has some knowledge as to what her
children are up to."
The court told defense counsel that
the defense could "certainly elicit facts that would be inconsistent with
having a gang do her dirty work . . . ."
The court determined that the gang evidence was relevant to elements of
section 422 and defendant's specific intent to kill. It concluded the evidence was far more
probative than prejudicial because the prosecutor's theory is that Diaz intends
to kill and "[i]t's a group of people that she can count on to complete
the job." The court also observed
that Diaz's threats were "going to be taken more seriously when she's got
a gang of people behind her . . . as opposed to random individuals . . .
." The court indicated that the
defense was free to thoroughly argue that Diaz had "no control over these
people . . . because she's not a member of the gang."
On appeal, defendant maintains that
the gang evidence was irrelevant and prejudicial and its admission violated her
federal due process rights. Since she
did not object in the trial court to the admission of gang evidence on due
process grounds, she "may not argue on appeal that due process required
exclusion of the evidence for reasons other than those articulated in [her]
Evidence Code section 352 argument."
(People v. Partida (2005) 37
Cal.4th 428, 435.) She may only contend
that "the asserted error in admitting the evidence over [her] Evidence
Code section 352 objection had the additional legal consequence of violating
due process." (Ibid.)
Evidence is relevant if it has
"any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action." (Evid. Code, § 210.) In general, "all relevant evidence is
admissible." (Evid. Code,
§ 351.) "[E]vidence related to
gang membership is not insulated from the general rule that all relevant
evidence is admissible if it is relevant to a material issue in the case other
than character, is not more prejudicial than probative, and is not
cumulative. (People v. Avitia (2005) 127 Cal.App.4th 185, 192; see also
1040, 1049; Evid. Code, §§ 210, 351.)"
(People v. Samaniego (2009)
172 Cal.App.4th 1148, 1167.) "Although
evidence of a defendant's gang membership creates a risk the jury will
improperly infer the defendant has a criminal disposition and is therefore
guilty of the offense charged-and thus should be carefully scrutinized by trial
courts-such evidence is admissible when relevant . . . if its probative value
is not substantially outweighed by its prejudicial effect. (People
v. Williams (1997) 16 Cal.4th 153, 193.)" (People
v. Carter (2003) 30 Cal.4th 1166, 1194.)
A trial court's ruling on the admission of gang evidence is reviewed for
abuse of discretion. (
Here, the gang evidence had some
tendency in reason to show that defendant Diaz lived with gang members in a
known gang house, inferably knew that her son L.S. was a gang member, and she
enlisted him, and possibly other gang members, to help carry out the attack on
Morales. The gang expert testified that
gang members are known to carry weapons and commonly carry knives and engage in
violence. The gang evidence, together
with other evidence indicating Diaz was orchestrating the attack on Morales and
intended for him to die, tended to counter the defense's argument that she had
no knowledge that Morales would be stabbed and no intent to kill Morales at the
time of the stabbing. "[T]he facts
from which a mental state may be inferred must not be confused with the mental
state that the prosecution is required to prove." (People
v. Beeman (1984) 35 Cal.3d 547, 558.)
"Mental state and intent are rarely susceptible of direct proof and
must therefore be proven circumstantially.
(People v. Smith (2005) 37
Cal.4th 733, 741; People v. Beeman
(1984) 35 Cal.3d 547, 558–559.)" (
355.)
Defendant also asserts that the
gang evidence was irrelevant to the criminal threat charges. We reject her contention that, since there
was no "evidence that the victims knew that any of the assailants were
gang members," "the victims could not have feared [her] on that
basis." Morales indicated that the
male perpetrators were dressed like "cholos," meaning that they were
gang members. He also understood
"puro catorce" to refer to a Norteno gang. During the 911 call, his mother Rosales said
that "she came with many cholos."
The evidence that gang involvement was made known during the attack on
Morales was relevant to whether Diaz's threats caused any of the criminal
threat victims "reasonably to be in sustained fear for his or her own
safety or for his or her immediate family's safety . . . ." (§ 422, subd. (a).) The circumstances surrounding commission of
an alleged criminal threat may be circumstantial evidence of the basis for and
reasonableness of a victim's fear. (Cf.
690 [direct proof of a robbery victim's fear is not necessary; fear may be
inferred from the circumstances].)
The gang evidence was relevant and
not cumulative of other evidence on key issues.
Accordingly, the trial court did not abuse its discretion in admitting
the challenged gang evidence over the Evidence Code section 352 objection. "[R]ejection, on the merits, of a claim
that the trial court erred on the issue actually before that court necessarily
leads to rejection of the newly applied constitutional 'gloss' as well. No separate constitutional discussion is
required in such cases . . . ." (
441, fn. 17.) Defendant Diaz's claim of
federal constitutional error must also be rejected.
B.
1.
Abetting Instruction
The court
instructed substantially in accordance with CALCRIM No. 400: "A person may
be guilty of a crime in two ways. One,
he or she may have directly committed the crime. Two, he or she may have aided and abetted
someone else who committed the crime. In
these instructions, I will call the other person the perpetrator. [¶]
whether he or she committed it personally or aided and abetted the perpetrator
who committed it." (Italics
added.) The italicized statement is
generally consistent with section 31, which extends criminal liability in a
crime to "[a]ll persons concerned in the commission of a crime, . . .
whether they directly commit the act constituting the offense, or aid and abet
in its commission . . . ." (See
Cal.App.4th at p. 1163 ("Samaniego")
["CALCRIM No. 400 is generally an accurate statement of law"].)
Defendant
Diaz argues that "[t]he effect of the 'equally guilty' language was to
impermissibly instruct the jury that it was required to presume that appellant
shared the stabber's intent."
name="_ftnref4" title="">[4] She states that "at least two appellate
case have strongly criticized the 'equally guilty' language" based on the
California Supreme Court case of People
v. McCoy (2001) 25 Cal.4th 1111 ("McCoy"). She points to People v. Nero (2010) 181 Cal.App.4th 504 ("
Cal.App.4th 1148.
In
resolved the question "whether an aider and abettor may be guilty of
greater homicide-related offenses than those the actual perpetrator
committed." (McCoy, supra, 25 Cal.4th
at p. 1114.) The court concluded:
"[W]hen a person, with the mental state necessary for an aider and
abettor, helps or induces another to kill, that person's guilt is determined by
the combined acts of all the participants as well as that person's own mens
rea. If that person's mens rea is more
culpable than another's, that person's guilt may be greater even if the other
might be deemed the actual perpetrator."
(Id. at p. 1122, fn.
omitted.) The court explained: "The statement that an aider and abettor
may not be guilty of a greater offense than the direct perpetrator, although
sometimes true in individual cases, is not universally correct. Aider and abettor liability is premised on
the combined acts of all the principals, but on the aider and abettor's own
mens rea. If the mens rea of the aider
and abettor is more culpable than the actual perpetrator's, the aider and
abettor may be guilty of a more serious crime than the actual
perpetrator." (Id. at p. 1120.)
In
of two counts of first degree murder. (
wounds, having sustained five likely-fatal wounds" (id. at p. 1157) and the other victim "died of a single gunshot
wound to the head." (
actual shooting of [the two victims] and therefore no evidence as to which
appellant was the direct perpetrator."
(Id. at p. 1162.)
error to give an "equally guilty" aiding and abetting instruction in
that case: "Though McCoy
concluded that an aider and abettor could be guilty of a greater offense than
the direct perpetrator, its reasoning leads inexorably to the further
conclusion that an aider and abettor's guilt may also be less than the
perpetrator's, if the aider and abettor has a less
Consequently, CALCRIM No. 400's direction that '[a] person is
the perpetrator is guilty] whether he or she committed it personally or aided
and abetted the perpetrator who committed it' (CALCRIM No. 400, italics added),
while generally correct in all but the most exceptional circumstances, is
misleading here and should have been modified." (172 Cal.App.4th at pp. 1164-1165.) Nevertheless, it found the instructional
error to be harmless beyond a reasonable doubt because the jury necessarily
resolved the intent and mental state issues under other proper
instructions. (Id. at p. 1165.)
In
sister, were both tried for murder for a fatal stabbing committed by the
brother. (Id. at p. 507.) The
prosecution's theory of the case was that the older sister, Lisa Brown, aided
and abetted the brother, Bennie Nero, by handing him the knife. (Ibid.) During deliberations, the jury asked whether
it could find the aider and abettor less culpable or more culpable than the
direct perpetrator. (
abettor could not bear greater responsibility than the direct perpetrator. (Id.
at p. 511.) When the jury foreperson
asked whether an aider and abetter could bear less responsibility, the court
responded that the jury may find the alleged aider and abettor not guilty. (Id.
at p. 511.) The trial court twice reread
former CALJIC No. 3.00, stating that each principal, including aiders and
abettors, are "equally guilty."
(Id. at pp. 509-510,
518.) The jury then found both
defendants guilty of second degree murder.
(Id. at p. 513.)
On appeal
in Nero, the reviewing court agreed
that "an aider and abettor may be found guilty of lesser homicide-related offenses than those the actual perpetrator
committed." (Id. at p. 507.) The court
was aware that "McCoy
emphasized, repeatedly, that an aider and abettor's mens rea is personal, that
it may be different than the direct perpetrator's: 'guilt is based on a
combination of the direct perpetrator's acts and the aider and abettor's
p. 1117 . . .); an aider and abettor's 'mental state is her own; she
is liable for her mens rea, not the other person's' (id. at p. 1118 . . .); aider and abettor liability is
'premised on the combined acts of all the principals, but on the aider and
abettor's own mens rea' (id. at p.
1120 . . .)." (
The court found the "equally
guilty" instruction to be prejudicial error in Nero. (Id. at pp. 518-520.) The
error was not harmless beyond a reasonable doubt because, under the evidence in
that case, the source of the murder weapon's owner was unclear, the jury was impliedly
considering whether Brown was less culpable than her brother Nero, and the
court's erroneous instruction foreclosed the jury from finding Brown was less
culpable than Nero. (
Unlike the jury in
culpability of more than one defendant.
Further, even assuming the court erred by giving the "equally
guilty" instruction, the error was harmless under other properly given
instructions.
As to specific intent, the trial
court instructed in this case: "In connection with the charges of count 1,
3, 4, and 5 requiring specific intent, the people have the burden of proving
beyond a reasonable doubt that the defendant acted with a specific intent. The specific intent required in count 1 is
intent to kill . . . ."
The court also instructed: "If
you find the defendant guilty of attempted murder under count 1, you must then
decide whether the People have proved the additional allegation that the
attempted murder was done willfully and with deliberation and
premeditation. [¶] The defendant Dora Diaz . . . acted willfully
if she intended to kill when she acted.
The defendant Dora Diaz deliberated if she carefully weighed the
considerations for and against her choice and knowing the consequences decided
to kill. And the defendant Dora Diaz
premeditated if she decided to kill before acting. [¶] . . . A decision to kill made rashly and
impulsively or without careful consideration of the choice and its consequences
is not deliberate and premediated."
The court told the jury:
"The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not
met this burden, you must find the allegation has not been proved." The jury found true that Diaz acted
willfully, deliberately and with premeditation in attempting the murder of
Morales.
On the record before us, we can say
beyond a reasonable doubt that Diaz would have been found guilty of attempted
murder in the absence of the "equally guilty" instruction.
2.
a.
The trial court instructed the jury
regarding voluntary intoxication as
follows: "You may consider evidence[,] if any[,] of the defendant's
voluntary intoxication only in a limited way.
You may consider that evidence only in deciding whether the defendant
acted with the specific intent required by any crime. A person is voluntarily intoxicated
. . . by willingly using an intoxicating drug, drink or other
substance knowing that it can produce an intoxicating effect or willingly
assuming the risk of that effect."
After instructing regarding specific intent elements, the court told the
jury: "You may not consider evidence of voluntary intoxication for any
other purpose. If you conclude the
defendant was intoxicated at the time of the alleged crime, you may consider
this evidence in deciding whether the defendant . . . knew the perpetrator
with the knife intended to kill and intended to aid and abet the perpetrator
with the knife in attempting to kill."
Diaz
contends that the trial court erred by failing to instruct the jury that
voluntary intoxication may negate premeditation and deliberation and the error
was prejudicial and violated her federal due process rights. She asserts that the jury's rejection of the
theory that she was too intoxicated to form the specific intent to kill does
not mean that the jury would also have rejected the theory that she was too
intoxicated to premeditate and deliberate.
First, defendant was not entitled
to an instruction that voluntary intoxication may "negate"
premeditation or deliberation. Evidence
of voluntary intoxication is not admissible "to negate the capacity to
form any mental states." (§ 22,
subd. (a).) It is "admissible
solely on the issue of whether or not the defendant actually formed a required
specific intent, or, when charged with murder, whether the defendant
premeditated, deliberated, or harbored express malice aforethought." (§ 22, subd. (b).)
Second, the court did not have a
duty to instruct sua sponte that the jury could consider voluntary intoxication
evidence with respect to the issue whether the defendant premeditated and
deliberated. "As [the California
Supreme Court] explained in People v.
Saille (1991) 54 Cal.3d 1103, 1120 . . . , an instruction on
voluntary intoxication, explaining how evidence of a defendant's voluntary
intoxication affects the determination whether defendant had the mental states
required for the offenses charged, is a form of pinpoint instruction that the
trial court is not required to give in the absence of a request. (See also People
v. Lewis (2001) 25 Cal.4th 610.)"
(People v. Bolden (2002) 29
Cal.4th 515, 559.)
In People v. Saille (1991) 54 Cal.3d 1103, the defendant was convicted
of the first degree murder of one victim and the attempted murder of another
victim. (Id. at p. 1107; see § 189 [a willful, deliberate, and
premeditated murder is murder of the first degree].) "[T]he instructions given (CALJIC No.
4.21) related voluntary intoxication only to the question of whether defendant
had the specific intent to kill." (
court erred in failing to instruct sua sponte that the jury should consider his
voluntary intoxication in determining whether he had premeditated and
deliberated the murder." (
Court held that an instruction that relates the evidence of the defendant's
intoxication to an element of a crime, such as premeditation and deliberation,
is a "pinpoint" instruction, which the defense must request, and not
a "general principle of law," upon which a trial court must instruct
sua sponte. (Id. at p. 1120.) It
concluded that the trial court did not err.
(Ibid.)
Here, the record does not disclose
that Diaz's counsel requested a pinpoint instruction relating involuntary
intoxication to premeditation and deliberation.
It follows that the trial court did not err in failing to give one. Nevertheless, on appeal, defendant argues
that the given instruction was legally incorrect because it improperly limited
the jury's consideration of the evidence of involuntary intoxication, citing
1009.
In Castillo, the jury convicted the defendant of the first degree
murder of one victim and the assault with a firearm of another victim. (Id.
at p. 1013.) The trial court had
instructed the jury to consider the defendant's voluntary intoxication in
determining whether the defendant had the
at p. 1014.) On appeal, the defendant
contended that his "defense counsel was ineffective for not requesting
that the instruction specifically tell the jury it should consider the
intoxication evidence in deciding whether he premeditated the killing."
(Ibid.)
The Supreme Court in
ineffective assistance claim. It found
that, under the totality of instructions, "[a] reasonable jury would have
understood deliberation and premeditation to be 'mental states' for which it
should consider the evidence of intoxication as to either attempted murder or
murder." (Id. at p. 1016.) It also
observed that "[t]he court's instructions did not hinder defense counsel
from arguing that defendant's intoxication affected all the necessary mental
states, including premeditation" and, in fact, "[c]ounsel tied the
intoxication evidence to the issue of premeditation and deliberation, even
calling the jury's attention to the instructions . . . ." (Id.
at pp. 1017-1018.) The court determined
that "competent counsel could reasonably conclude that the instructions
adequately advised the jury to consider the evidence of intoxication on the
question of premeditation, and that an additional instruction stating the
obvious-that premeditation is a mental state-was unnecessary." (Id.
at p. 1018.)
In this appeal, defendant Diaz
points to the following dicta in Castillo:
"The court gave CALJIC Nos. 4.21 and 4.21.1 [on voluntary intoxication] as
adapted to this case. . . . The Court of Appeal found the instructions
inadequate and misleading. It believed
they caused the jury to conclude it should consider the evidence of
intoxication on the question of intent to kill but could not consider it on the
question of premeditation. Were that
correct, the issue would not solely be one of ineffective assistance of
counsel. If the trial court's
instructions were indeed misleading, the issue here would implicate the court's
duty to give legally correct instructions.
Even if the court has no sua sponte duty to instruct on a particular
legal point, when it does choose to instruct, it must do so correctly. 'Although we might hesitate before holding
that the absence of any instruction on voluntary intoxication in a situation
such as that presented in this case is prejudicial error, when a partial
instruction has been given we cannot but hold that the failure to give complete
instructions was prejudicial error.' (
575-576, and quoted in People v. Saille,
supra, 54 Cal.3d at p.
1119.)" (Id. at p. 1015.)
Castillo
did not overrule Saille despite its
dicta and we are still bound by Saille. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The California Supreme Court more recently
explained that Saille was "a
murder case in which we held the trial court was not required to instruct on
its own motion that the jury should consider the defendant's voluntary
intoxication in determining whether defendant premeditated and
deliberated. (Id. at pp. 1117–1120 . . . .)"
(People v. Rogers (2006) 39
Cal.4th 826, 878.) Thus, in the absence
of a defense request, the court was not required to give an instruction
informing the jury that it may consider evidence of voluntary intoxication in
deciding whether the defendant premeditated and deliberated.
People
v. Baker (1954) 42 Cal.2d 550, which was quoted in Castillo, was obviously taken into consideration in
nevertheless found the trial court had no sua sponte duty to give a more
complete instruction regarding intoxication.
Also, the situation in Baker
was different than the situation in this case.
In Baker, "there was ample evidence of intoxication in the
record" in that "[t]here was evidence that defendant had voluntarily
taken an overdose of both dilantin and phenobarbital on the night of the
killing" and both drugs were "hypnotics," which had the
"effect of removing the inhibitions of the person taking them, and as having
an intoxicating effect similar to that of alcohol." (Id.
at p. 573.) The trial court had
instructed based on former section 22 that " '[n]o act committed by a
person while in a state of voluntary intoxication is less criminal by reason of
his having been in such condition.' " (Id. at p. 572; see § 22, subd. (a).) Defendant Baker contended on appeal that
"the court erred in not giving an instruction based on the second sentence
of [former] section 22: 'But whenever the actual existence of any particular
purpose, motive, or intent is a necessary element to constitute any particular
species or degree of crime, the jury must take into consideration the fact that
the accused was intoxicated at the time, in determining the purpose, motive, or
intent with which he committed the act.' " (Id.
at p. 572, fn. omitted.) The California
Supreme Court determined that, by telling the jury that the "defendant's
drugged condition could not influence their decision on any issue submitted to
them," the trial court "completely negatived" the defendant's
defense on the theory of intoxication. (
In this case, the defense's theory
was that stabber was a gang member out to enhance his own "street
credibility" and the gang's reputation and Diaz had no knowledge of the
stabber's intent and she did not intend to kill or have a motive to kill. Defense counsel described Diaz's conduct as
domestic violence and contended that Diaz was intoxicated when she went over to
Morales's apartment. Counsel stated,
"I think what is logical is she was drunk when she went over to his
apartment that night and that would explain the banging, the irrational
behavior, the pulling on his hair and using dirty language." Defense counsel pointed out that Diaz had not
arrived with a knife. She claimed there
was no evidence that Diaz told or asked anyone to kill Morales, no evidence
that Diaz handed anyone a knife, and no evidence that Diaz had any knowledge
that someone would use a knife. Counsel
maintained that there was no evidence of intent to kill or of premeditation and
deliberation.
Defense counsel asserted that there
was "no nexus between what she's thinking and what these men decide to
do." Counsel told the jury:
"Even if you believe every single witness that was brought to court and
you believe every single thing they said, you cannot find premeditation and
deliberation, you just can't get there.
Even if you believe every single thing you heard." Counsel also argued that if the jury somehow
found that Diaz intended for the stabbing to occur, voluntary intoxication
negated her specific intent to kill.
Thus, it was not the defense's theory that defendant Diaz had intended to kill
Morales but she had not actually premeditated or deliberated in her intoxicated
state. Rather, the defense maintained
that Diaz had no intent to kill Morales.
The court's instruction permitted the jury to consider defendant Diaz's
voluntary intoxication in deciding whether she had the intent to kill, she knew
the perpetrator with the knife intended to kill, and she intended to aid and
abet the perpetrator with the knife in attempting to kill. If the jury had entertained a reasonable
doubt that Diaz intended to kill him, it would not have reached the issue of
premeditation or deliberation.
We recognize that a criminal defendant
has a right to present a complete defense. (See California
v. Trombetta (1984) 467 U.S. 479, 485 [104 S.Ct. 2528] [the Fourteenth
Amendment due process clause's standard of fundamental fairness
"require[s] that criminal defendants be afforded a meaningful opportunity
to present a complete defense"]; Chambers
v. Mississippi (1973) 410 U.S. 284, 294 [93 S.Ct. 1038] ["The right of
an accused in a criminal trial to due process is, in essence, the right to a
fair opportunity to defend against the State's accusations"].) Unlike the voluntary intoxication instruction
in Baker, however, the voluntary
intoxication instruction in this case, even if incomplete or abstractly
inaccurate, did not interfere with or negate the defense's theory of the case
or Diaz's fundamental right to present a defense. Thus, even if we were to assume arguendo that
the court's instruction incorrectly prohibited jurors from considering evidence
of voluntary intoxication on the issues of premeditation and deliberation,
there was no error of federal constitutional dimension.
The instructional error, if any,
was a state law error subject to California's Watson standard of review.
(See People v. Watson (1956)
46 Cal.2d 818, 836-837; see also People
v. Flood (1998) 18 Cal.4th 470, 490; Cal. Const., art. VI, § 13.) There is no reasonable probability that the
jury would have found that Diaz had not premeditated or deliberated if it had
received an instruction on voluntary
intoxication as to those issues as well.
Although there was evidence that Diaz was intoxicated hours after the
stabbing when she tried to run from police, there was no direct testimony from
the victim or witnesses of the incident that Diaz was intoxicated at the time
of the stabbing. The jury found that
Diaz
| Description | Dora Diaz was charged and convicted of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187, 189, 664, subd. (a))[1] (count one) and three counts of criminal threats (§ 422) (counts three, four, and five).[2] Defendant was sentenced to a total prison term of life with possibility of parole consecutive to a three year, four month prison term. On appeal, defendant Diaz argues that the trial court erroneously admitted gang evidence and committed multiple instructional errors. She also attacks the imposition of a booking fee. We find no basis for reversal.[3] |
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