P. v. Estrada
Filed 5/9/13 P. v. Estrada CA2/3
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
>
THE PEOPLE, Plaintiff and Respondent, v. ELVIN ORLANDO ESTRADA, Defendant and Appellant. | B235543 (Los Angeles County Super. Ct. No. GA077406) |
APPEAL from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County,
Darrell
S. Mavis, Judge. Affirmed.
Richard C. Neuhoff, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Scott A. Taryle and John Yang, Deputy Attorneys General, for
Plaintiff and Respondent.
_________________________
Elvin
Orlando Estrada
appeals from the judgment entered following his conviction by jury on count 1 –
first degree murder (Pen. Code, §
187) with personal use of a dangerous or deadly weapon (Pen. Code, § 12022,
subd. (b)(1)). The court sentenced
appellant to prison for 26 years to life.
We affirm the judgment.
>FACTUAL SUMMARY
The evidence established
that about 5:00 p.m. on July 16, 2009, Isis Villalobos, Dagoberto
Aguilar, and appellant were drinking in a parking lot near a Pasadena restaurant. Villalobos testified as follows. Villalobos had known appellant for a long
time. Less than an hour after the three
were in the parking lot, they entered the restaurant. Mario Sanchez (the decedent) joined
them.
Appellant later gave Sanchez
$20 to get beer, and Sanchez left. When,
after 30 minutes, Sanchez failed to return, appellant became angry and left to
get beer. Sanchez returned with beer,
and appellant later returned with beer.
Appellant angrily asked Sanchez why it had taken Sanchez so long to
return. Sanchez, Villalobos, Aguilar,
and appellant subsequently drank until nighttime.
Villalobos also testified as
follows. Villalobos, Aguilar, and
appellant exited the restaurant around closing time. The three went to a nearby parking lot and
resumed drinking. Sanchez joined them
and the four continued drinking. Sanchez
offered methamphetamine to appellant and Aguilar. Appellant assaulted Sanchez and Sanchez fell. Appellant grabbed Sanchez by his hair and
tried to stab him with a knife.
Appellant said he was angry because Sanchez had returned late with the
beer. Aguilar pushed appellant off
Sanchez, Sanchez asked appellant not to hurt Sanchez because Sanchez had
children, and Sanchez told appellant that “if it was [Sanchez’s] time, it was
his time but that he had children and that his cousin lived near the body
shop.†Appellant calmed down. Appellant asked Aguilar why he was defending
Sanchez.
Appellant later said that
they could not let Sanchez go because Sanchez might go to the police because
appellant had tried to rob Sanchez.
Sanchez told appellant not to worry because Sanchez would not go to the
police. The group then resumed
drinking. About five minutes later,
appellant pushed Sanchez, grabbed him by his hair, and repeatedly stabbed him,
mortally wounding him. Appellant left
first, then Aguilar, then Villalobos.
Villalobos testified appellant had the knife in his hand as he walked
away.
Villalobos heard a
helicopter, then saw appellant enter a house.
Aguilar told appellant to exit the house and appellant complied. Appellant told Villalobos and Aguilar not to
say anything to the police, and Aguilar told appellant not to worry and that
Villalobos would not say anything.
Appellant left in one direction and Aguilar and Villalobos left in
another.
On July 21, 2009, Pasadena
Police Officer Timothy Bundy interviewed Aguilar. Aguilar initially denied he had been present
during the crime, but later provided information about what he had seen. Aguilar told Bundy that appellant had fled
and was no longer in Pasadena. Bundy
released Aguilar and no longer considered him a suspect.
On July 23, 2009, law
enforcement personnel arrested appellant in New Jersey. On August 2, 2009, Pasadena Police Officer
Javier Aguilar interviewed appellant.
(We will refer to the officer as officer Aguilar to distinguish him from
Dagoberto Aguilar, whom we simply refer to as Aguilar.) Officer Aguilar testified as follows. During the interview, appellant offered to
show the officer the location of the knife appellant had used. Appellant led the officer to a dumpster
behind a liquor store on Madre and Colorado.
Appellant pointed towards the dumpster and, referring to the knife, said
“ ‘That’s where I dumped it.’ †It
was clear appellant was referring to the knife he had used to stab Sanchez.
The dumpster was empty so
officer Aguilar entered the liquor store to ask when the dumpster had been
emptied. Officer Aguilar later exited
the store and a store employee, Dagoberto Medina, later exited. Medina immediately recognized appellant and
asked appellant why he was in custody or if appellant was in trouble. Officer Aguilar testified appellant replied
to Medina, “ ‘I killed someone.’ â€
Medina shook his head and walked away.
Bundy also testified as
follows. On August 2, 2009, appellant,
in jail, had a telephone conversation with someone. Bundy listened to a recording of that
conversation. During the conversation,
appellant said “people had already laid him out and he didn’t have a choice but
to tell the truth, . . .†Appellant
expressed displeasure at Villalobos and Aguilar for “throwing dirt†on
appellant.
A transcript of the above
telephone conversation reflects that at one point appellant said “. . . I had
to tell the truth. Well, you know what,
no shit, I ripped the dude. It was me, I
said.†The transcript also reflects
appellant suggested Aguilar “ratted [appellant] out.†An autopsy revealed Sanchez died from seven
stab wounds in his neck, three of which were fatal, and he had no defensive
wounds on his hands.
Aguilar’s preliminary
hearing testimony was admitted into evidence at trial. His preliminary hearing testimony as to the
events up to and including the stabbing of Sanchez was similar to Villalobos’s
testimony and, at the preliminary hearing, Aguilar identified appellant as the
person who stabbed Sanchez.href="#_ftn1"
name="_ftnref1" title="">[1] Appellant presented no defense evidence.
>ISSUES
Appellant claims (1) the
admission into evidence of Aguilar’s preliminary hearing testimony violated
appellant’s constitutional right to confrontation because Aguilar was not
constitutionally unavailable, (2) the trial court erroneously failed to
instruct that the jury must view with caution an accomplice’s testimony, (3)
the trial court erroneously failed to instruct that accomplice testimony must
be corroborated, (4) appellant was denied effective assistance of counsel at
trial, and (5) cumulative prejudicial error occurred.
>
>DISCUSSION
1. >Aguilar’s Preliminary Hearing Testimony Was
Properly Admitted Into Evidence.
a. Pertinent
Facts.
(1) >Relevant Prior Proceedings.
On February 11, 2010,
appellant’s preliminary hearing occurred, and Aguilar testified at that
proceeding. Later in February 2010, the
trial court filed the information in this case.
The trial court continued the case multiple times for trial or trial
setting, including to March 28, 2011, for trial. The court later continued the case multiple
times for trial, including to the May 4, 2011 trial date. On May 6, 2011, the jury was sworn.
(2) >The May 6, 2011 Admissibility Hearing.
(a) >Court Exhibits.
On May 6, 2011, before the
jury was sworn, the prosecutor proffered Aguilar’s preliminary hearing
testimony as evidence at trial. On that
day, the court conducted an Evidence Code section 402 due diligence hearing and
received court exhibit Nos. 1 and 2 into evidence.
Court exhibit No. 2, fairly
read, reflects as follows. In April
2006, Aguilar violated federal law by illegally reentering the United States
following his conviction for an aggravated felony (8 U.S.C. § 1326(a)). In that matter, a federal court in Florida
committed him to federal prison on November 9, 2009, and his scheduled prison
release date was September 1, 2010.
The exhibit also reflects
that on January 5, 2010, the United States Immigration and Naturalization
Service (INS) lodged a detainer for Aguilar with the Federal Bureau of Prisons
(Bureau). The charge was
“deportation.†(Capitalization
omitted.) A “prior notifiesâ€
(capitalization omitted) section of the exhibit suggests that, on January 5,
2010, the Bureau received notice from the Pasadena Police Department (Pasadena)
that Pasadena wanted the Bureau to notify Pasadena concerning Aguilar. The exhibit does not reflect the content of
the notification that Pasadena wanted.
The exhibit also suggests that on July 29, 2010, the Bureau issued the
above notification to Pasadena. The
exhibit indicates that on September 1, 2010, the Bureau released Aguilar to
United States Immigrations and Customs Enforcement (ICE).
Court exhibit No. 1, fairly
read, reflects as follows. Omar Charris,
an ICE agent, sent to Pasadena Police Officer Jason Van Hecke a document
reflecting, inter alia, Aguilar had been in ICE custody from September 1, 2010,
to October 13, 2010. On October 13,
2010, Aguilar was released, and the exhibit reflects the “release typeâ€
(capitalization omitted) as “DEP.†We
will present additional facts below concerning court exhibit No. 1.
(b) >Van Hecke’s Testimony.
Van Hecke testified at the
admissibility hearing as follows. At
some point prior to the hearing, Pasadena Police Detective Curry, the
investigating officer in this case, was injured on duty. Prior to May 2, 2011, Van Hecke had not been
involved with the present case. On May
2, 2011, Curry’s partner, Pasadena Police Detective Gomez, asked Van Hecke to
follow up on the whereabouts of Aguilar.
The only task assigned to Van Hecke was for him to locate INS documents,
and he was unaware of any other efforts to secure Aguilar’s attendance at
trial.
Aguilar was present at the
February 11, 2010, preliminary hearing, but was also in the custody of federal
prison authorities in Colorado. Gomez
told Van Hecke that Aguilar had been deported in 2010, but Gomez did not tell
Van Hecke when Gomez found out Aguilar had been deported.
On May 2, 2011, Van Hecke
contacted Kimberly Worsham, a clerk in the federal prison in Colorado. Worsham’s database reflected Aguilar had been
in custody in Colorado until September 2010, when he was released to
immigration authorities. Worsham told
Van Hecke that the reference in court’s exhibit No. 2 to “deportation†(with a
release date of September 1, 2010) indicated federal prison authorities
released Aguilar to the custody of immigration authorities for purposes of
deportation.
On May 5, 2011, Charris told
Van Hecke the following. Court’s exhibit
No. 1 reflected information from Charris’s computer. The reference to “DEP†in the exhibit meant
Aguilar was deported on that date (i.e., October 13, 2010). The exhibit reflected Aguilar was born in,
and deported to, El Salvador. Aguilar
“currently was deported†at the time Van Hecke spoke with Charris.
(c) >Argument at the Admissibility Hearing.
During argument, the People
asked the court to find that Aguilar was unavailable as a witness for purposes
of Evidence Code section 240, subdivision (a)(4) because he had been deported
to El Salvador. Although appellant did
not expressly refer to the federal Constitution, he argued the People had not
demonstrated due diligence to secure Aguilar’s attendance at trial. In particular, appellant argued the People
failed to exercise due diligence to prevent Aguilar from being deported and
failed to exercise due diligence in that the People failed to consult databases
to determine if Aguilar had illegally reentered the United States after he was
deported.
The court found under
Evidence Code section 240, subdivision (a)(4) that the court could not compel
Aguilar’s attendance at trial and he was unavailable. The court stated it had no evidence, and the
court could not assume, Aguilar had illegally reentered the United States, and
the court indicated it had evidence Aguilar had not reentered.
(d) >Evidence Presented at Trial.
Bundy testified at trial as
follows. On July 21, 2009, Bundy
interviewed Aguilar. Bundy told Aguilar
that Bundy was not concerned with whether Aguilar was in the United States
illegally and that Bundy just wanted to talk.
Aguilar knew he would be in ICE custody in federal prison, and Aguilar
“was confident he was going to be turned over to immigration.†Bundy released Aguilar shortly after the
interview. However, Aguilar still had an
immigration hold on him, so he was transferred from Pasadena custody to ICE
custody.
As mentioned, Aguilar’s
preliminary hearing testimony was admitted into evidence at trial. Aguilar testified at the February 11, 2010
preliminary hearing that he was afraid he would be deported based on the
Sanchez murder. We will present
additional facts where pertinent below.
b. >Analysis.
Appellant claims the admission into evidence of
Aguilar’s preliminary hearing testimony violated appellant’s constitutional
right to confrontation because Aguilar was not constitutionally
unavailable. Appellant argues the People
(1) failed to exercise due diligence to prevent Aguilar from becoming absent as a consequence of deportation, (2) failed
to exercise due diligence in that the People failed to consult databases to
determine if Aguilar had illegally reentered the United States after he was
deported, and (3) failed to do anything to locate Aguilar until two days before
trial. We reject appellant’s claim.href="#_ftn2" name="_ftnref2" title="">[2]
(1)
No Confrontation Error Occurred.
In
People v. Herrera (2010) 49 Cal.4th
613 (Herrera), our Supreme Court
stated, “A
witness who is absent from a trial is not ‘unavailable’ in the constitutional
sense unless the prosecution has made a ‘good faith effort’ to obtain the
witness’s presence at the trial.
[Citation.]†(>Id. at p. 622.) The prosecution must exercise due
diligence. (Ibid.) Considerations
relevant to the due diligence inquiry include the importance of the proffered
testimony. (Ibid.)
The
proponent of the evidence has the burden of showing that the witness is
unavailable. (People v. Smith (2003) 30 Cal.4th 581, 609.) “We review the trial court’s
resolution of disputed factual issues under the deferential substantial
evidence standard [citation], and independently review whether the facts
demonstrate prosecutorial good faith and due diligence [citation].†(Herrera,
supra, 49 Cal.4th at
p. 623.)
As to the People’s alleged
failure to exercise due diligence to prevent Aguilar from becoming absent as a consequence of deportation, the pertinent
facts reveal the following. On July 21,
2009, Bundy interviewed Aguilar concerning the present case while he was in the
custody of Pasadena but, a few days later, Pasadena released him to INS
custody. He was in federal prison in
Colorado on an immigration offense from November 9, 2009 to September 1, 2010,
inclusive. As of February 11, 2010, when
Aguilar testified at appellant’s preliminary hearing, Aguilar was in custody of
federal prison authorities and subject to an INS detainer.
On September 1, 2010,
federal prison authorities released Aguilar to INS custody. INS commenced deportation proceedings. On October 13, 2010, INS deported Aguilar. We assume without deciding that the People
knew at least as early as February 11, 2010, that there was a substantial risk
INS would deport Aguilar, and that this triggered a prosecutorial duty to use
reasonable means to prevent his absence.
(See People v. Wilson
(2005) 36 Cal.4th 309, 342.)
In People v. Roldan
(2012) 205 Cal.App.4th 969, cited by appellant, a witness in the custody of
federal immigration authorities testified at the defendant’s preliminary
hearing and, shortly thereafter, was deported.
(Id. at pp. 973, 976-977.) The defendant claimed the admission into
evidence of the witness’s preliminary hearing testimony at the defendant’s
trial violated his right to confrontation because the witness was not
constitutionally unavailable at the time of trial. (Id.
at p. 975.)
>Roldan
concluded the People had failed to exercise due diligence in attempting to
secure the witness’s attendance at trial.
(Roldan, supra, 205
Cal.App.4th at p. 978.) >Roldan observed the People had a duty to
use reasonable means to prevent a present witness from becoming absent (>id. at p. 980) and Roldan identified several legal remedies the People might have
attempted to employ.href="#_ftn3"
name="_ftnref3" title="">[3] Roldan
concluded based on its facts that the People, having failed to attempt to use
any of those means, had not exercised due diligence. (Id.
at p. 985.)
However,
not every failure by the People to secure the attendance of a witness at trial
constitutes a failure to exercise the requisite due diligence, and >Roldan is distinguishable from the
present case. Roldan acknowledged that one of the considerations relevant to the
due diligence inquiry was the importance of the proffered testimony. (Roldan,
supra, 205 Cal.App.4th at p.
979.) In Roldan, the witness, Barrera, was a key witness for the People and,
absent Barrera’s preliminary hearing testimony, there was no direct evidence
presented at trial that the defendant committed the shooting at issue in that
case. Roldan characterized the remaining evidence presented at trial and
implicating the defendant as “circumstantial and minimal.†(Id.
at p. 980, fn. 3.)
We
have recited in our Factual Summary the pertinent facts concerning appellant’s
offense. It is not true that, absent
Aguilar’s preliminary hearing testimony, there was no direct evidence appellant
fatally stabbed Sanchez. Aguilar’s
preliminary hearing testimony was cumulative on that issue. Villalobos identified appellant as the person
who stabbed Sanchez. Moreover, as
discussed post, there was
overwhelming evidence of appellant’s guilt.
Accordingly, Aguilar’s testimony was not vital or critical to the
prosecution’s case. (Cf. >People v. Hovey (1988) 44 Cal.3d 543,
564 (Hovey).)href="#_ftn4" name="_ftnref4" title="">[4] We conclude the People did not, prior to the
deportation of Aguilar, fail to use reasonable diligence to secure his
attendance at trial.
As to the People’s alleged
failure to exercise due diligence in that the People failed to consult
databases to determine if Aguilar had illegally reentered the United States
after he was deported, the pertinent facts reveal INS deported Aguilar on October
13, 2010, and he remained deported as of May 5, 2011. The due diligence admissibility hearing in
this case occurred the next day.
Like the present case, >Herrera involved the deportation of an
El Salvadoran witness. (>Herrera, supra, 49 Cal.4th at pp. 617,
619.) Herrera observed the El Salvadoran witness in its case had been
deported after the preliminary hearing; the witness was in El Salvador at the
time of trial and therefore beyond the court’s own process; attempts to locate
the witness in El Salvador proved unsuccessful; and even if the witness could
have been found there, the United States and El Salvador had no treaty or
agreement providing for an alternative means to compel or facilitate his
attendance at trial. (>Id. at p. 629.)
>Herrera held that, under the circumstances, the People fulfilled
their obligation of good faith and due diligence, the witness was unavailable,
and the admission of his preliminary hearing testimony at trial was
proper. (Herrera, supra, 49 Cal.4th at p. 629.) Significantly, Herrera rejected as pure conjecture the suggestion the witness
might have returned to California. (>Id. at p. 631.)
We similarly conclude the
People did not fail to exercise due diligence by not consulting databases to
determine if Aguilar had illegally reentered the United States after he was
deported. Our conclusion >post that there was overwhelming
evidence of appellant’s guilt informs our present due diligence analysis as
well. Moreover, the fact Van Hecke began
his efforts to locate Aguilar on May 2, 2011, does not affect the
analysis. And Herrera refrained from deciding what, if any, prosecutorial efforts
might be constitutionally required when, after a witness has been deported,
there is no contact between the People and the witness. (Cf. Herrera,
supra, 49 Cal.4th at p. 627, fn. 8.)
Aguilar
was constitutionally unavailable and the trial court properly admitted into
evidence his preliminary hearing testimony. (>Herrera, supra, 49 Cal.4th 613, 624-625,
627-628, fn. 9.)
(2) Any
Confrontation Error Was Not Prejudicial.
Finally, even if the
admission into evidence of Aguilar’s preliminary hearing testimony was error,
reversal is not required. Appellant
argues Aguilar’s preliminary hearing testimony was prejudicial for four reasons
discussed post.
(a) The
Alleged Error Was Not Prejudicial on the Issues of Premeditation and
Deliberation.
First,
appellant argues Aguilar’s preliminary hearing testimony was prejudicial on the
issue of whether appellant committed first degree deliberate and premeditated
murder as opposed to second degree murder.
We disagree.
Appellant does not expressly
dispute someone murdered Sanchez by stabbing him. There was substantial evidence from
Villalobos’s testimony as follows.
Appellant gave Sanchez money to get beer, Sanchez did not return within
30 minutes, and appellant became angry.
Appellant later angrily asked Sanchez why it took so long for Sanchez to
return. Appellant later assaulted
Sanchez and Sanchez fell. Appellant
grabbed Sanchez by his hair and tried to stab him with a knife. Appellant said he was angry because Sanchez
had returned late with the beer. Aguilar
intervened, Sanchez asked appellant not to hurt Sanchez, and Sanchez told
appellant “if it was [Sanchez’s] time, it was his time.†Appellant calmed down, and appellant asked
Aguilar why he was defending Sanchez.
Appellant later said he
could not let Sanchez go because Sanchez might go to the police because
appellant had tried to rob Sanchez.
Sanchez told appellant not to worry because Sanchez would not go to the
police. Nonetheless, about five minutes
later, and without provocation or threats from Sanchez, appellant pushed
Sanchez, grabbed him by his hair, and, while Sanchez was thus in a vulnerable
position, repeatedly stabbed him in the neck, killing him. The jury reasonably could have concluded
appellant’s first attack was evidence the second and fatal attack was not
unconsidered or rash, both attacks were motivated, at a minimum, by appellant’s
anger towards Sanchez for failing to return timely with beer, and appellant
deliberately attacked Sanchez the second time without warning to avoid
intervention from Aguilar.
Appellant stabbed Sanchez
seven times in the neck, a particular and exacting killing, and three of the
neck wounds were fatal. The wounds were
not the result of aimless swinging but were centered on the neck, where knife
wounds would be lethal. The unresisting
Sanchez had no defensive wounds, and there was no evidence he was armed or had
a prior history of threatening or committing violence against appellant. Appellant left the scene with the knife in
his hand and did not call for medical assistance for Sanchez.
Appellant told Villalobos
and Aguilar not to say anything, attempted to conceal the murder weapon by throwing
it into a dumpster, and fled, ultimately to New Jersey. These actions evidenced consciousness of
guilt. Appellant made incriminating
statements in jail. Appellant also told
Medina, “ ‘I killed someone,’ â€href="#_ftn5"
name="_ftnref5" title="">[5] and Officer Aguilar did
not testify appellant suggested to Medina that the killing was an unconsidered
or rash action.
We conclude that, even if
the admission into evidence of Aguilar’s preliminary hearing testimony was
error, there was overwhelming evidence that appellant committed first degree deliberate
and premeditated murder (cf. People
v. Cook (2006) 39 Cal.4th 566, 603; People v. Perez (1992) 2 Cal.4th 1117, 1128; People v. Raley (1992) 2 Cal.4th 870, 887-888; >People v. Garcia (2000)
78 Cal.App.4th 1422, 1427-1428; People
v. Lunafelix (1985) 168 Cal.App.3d 97, 102; People v. Clark (1967) 252 Cal.App.2d 524, 528-530);
therefore, the alleged error was harmless beyond a reasonable doubt. (Chapman
v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705] (>Chapman).)
Appellant argues a contrary conclusion is compelled for several
reasons. First, he argues that the
prosecutor, during jury argument, commented Villalobos and Aguilar agreed on
core issues that appellant unsuccessfully assaulted Sanchez and, minutes later
and after things had calmed, successfully assaulted Sanchez again. However, even assuming the trial court
erroneously admitted Aguilar’s preliminary hearing testimony into evidence,
appellant cites no authority for the proposition the erroneous admission of
merely cumulative evidence precludes a conclusion the error is harmless beyond
a reasonable doubt. Moreover, we
previously discussed that there was overwhelming evidence of premeditation and
deliberation. That discussion reveals
there was more evidence (from Villalobos’s testimony and other evidence) of
premeditation and deliberation than appellant’s above argument acknowledges.
Second, appellant argues (1) Villalobos had a “motive to point the finger
away from her ‘best friend’ Aguilar and herself,†(2) she gave dubious claims,
contradicted by her own relatives, about her relationship with Aguilar, and (3)
she gave inconsistent accounts of how long she had known Aguilar. However, appellant’s showing on this issue
does not demonstrate the alleged error in admitting into evidence Aguilar’s
preliminary hearing testimony was not harmless beyond a reasonable doubt.href="#_ftn6" name="_ftnref6" title="">[6] Moreover, the argument that Villalobos had a
motive to point the finger away from Aguilar and herself goes more to the issue
of identity than to the issues of premeditation and deliberation.
Third, appellant argues that “[Villalobos’s] versions of the events on
the fateful night had inconsistencies and improbabilities. For example, she claimed that she had never
previously been drunk, or even tipsy, yet she admitted downing three
or
four beers that night. . . . And though
she was a supposed novice at alcohol consumption, she improbably claimed that
the multiple beers she imbibed did not make her intoxicated — a claim that
Aguilar contradicted.†However,
appellant’s general showing pertaining to Villalobos’s credibility does not
demonstrate any error in admitting Aguilar’s preliminary hearing testimony was
not harmless beyond a reasonable doubt.href="#_ftn7" name="_ftnref7" title="">[7] Moreover, again, there was more evidence of
premeditation and deliberation than appellant’s above argument acknowledges.
Fourth, appellant argues,
“Most significant, though, is that [Villalobos] told very different versions of
how the murder took place. Initially, it was part of a drug robbery by
appellant, and then it was rage over a delayed beer delivery, and then it was
robbery again. . . . Initially, appellant gave Sanchez’s drugs to
Aguilar, then he didn’t, he scattered them on the ground.†Again, appellant’s showing does not demonstrate
Aguilar’s preliminary hearing testimony was not harmless beyond a reasonable
doubt.href="#_ftn8" name="_ftnref8" title="">[8]
Appellant’s citation to People v.
Sandoval (2001) 87 Cal.App.4th 1425 (Sandoval)
is inapposite. That case concluded the
erroneous admission into evidence at trial of the preliminary hearing testimony
of one of two People’s eyewitnesses was prejudicial to the defendant’s
conviction for murder, in part because the remaining witness testified at trial
under a grant of immunity. (>Id. at pp. 1428, 1430.) Villalobos did not testify under a grant of
immunity, and the issue at hand is whether the admission of Aguilar’s
preliminary hearing testimony was prejudicial to the issue of premeditation and
deliberation, not to the issue of whether appellant committed murder.
(b) The
Alleged Error Was Not Prejudicial on the Issue of Manslaughter.
Second, appellant argues
Aguilar’s preliminary hearing testimony was prejudicial on the issue of whether
appellant committed murder as opposed to “manslaughter based on sudden quarrel.†We disagree.
Appellant was charged with first degree murder and Aguilar’s
preliminary hearing testimony presented as part of the People’s case-in-chief
was admissible on the issue of whether appellant committed that crime but not
on the issue of whether he committed a crime(s) not charged, i.e., “manslaughter
based on sudden quarrel.†Aguilar’s
preliminary hearing testimony did not provide substantial evidence appellant
was guilty, if at all, of “manslaughter based on sudden quarrel,†and appellant
does not expressly argue otherwise here except perfunctorily. Appellant presented no defense evidence. In sum, no substantial evidence that
appellant committed only “manslaughter based on sudden quarrel†was presented
to the jury in this case.
Moreover, appellant asked the trial
court to instruct on voluntary manslaughter based on sudden quarrel using
CALCRIM No. 570. The trial court refused
to do so, concluding there was no substantial evidence to support such an
instruction. Appellant never asked the
court to give, and the court did not give, an instruction on involuntary
manslaughter. Thus, the issue of whether
appellant committed “manslaughter based on sudden quarrel†was never submitted
to the jury by evidence or instructions.
If there had been
substantial evidence that appellant was guilty, if at all, of “manslaughter
based on sudden quarrel,†the trial court’s failure to instruct on that issue
would have been error. (Cf. >People
v. Breverman (1998) 19
Cal.4th 142, 162.) Appellant does not
claim the trial court erred by failing to instruct on “manslaughter based on
sudden quarrel.†The judgment of
the trial court is presumed on appeal to be correct and all intendments and
presumptions are indulged in favor of the judgment. (People v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 80.) We therefore presume the trial court properly
failed to instruct on “manslaughter based on sudden quarrel,†and that
“manslaughter based on sudden quarrel†properly was not an issue at trial. It follows the admission into evidence of
Aguilar’s preliminary hearing testimony could not have been prejudicial on the
issue of whether appellant committed “manslaughter based on sudden quarrel.â€href="#_ftn9" name="_ftnref9" title="">[9]
(c) The
Alleged Error Was Not Prejudicial on the Issue of Identity.
Third, appellant argues the
admission into evidence of Aguilar’s preliminary hearing testimony was
prejudicial on the identity issue. We
disagree. Villalobos testified to the
effect that shortly before the stabbing, appellant tried to stab Sanchez with a
knife but Aguilar intervened. Villalobos
testified to the events leading to the later stabbing of Sanchez and testified
appellant was the person who, using a knife, repeatedly stabbed Sanchez.
Villalobos testified that,
after the stabbing, appellant told Villalobos and Aguilar not to say anything
to police. Bundy testified Aguilar told
Bundy that appellant had fled. These
actions of appellant provided evidence of appellant’s consciousness of guilt.
Appellant himself led police
to the dumpster and told police he had dumped the knife there. Officer Aguilar testified without objection
that it was clear appellant was referring to the knife appellant had used to
stab Sanchez. Appellant himself told
Medina, “ ‘I killed someone.’ â€
In jail, appellant told someone that appellant “ ‘ripped the
dude.’ †There was overwhelming
evidence appellant was the person who stabbed Sanchez; therefore, any erroneous
admission into evidence of Aguilar’s preliminary hearing testimony was harmless
beyond a reasonable doubt on the identity issue. (Cf. People v. Louis (1986) 42 Cal.3d 969, 993; >Chapman, supra, 386 U.S. at p. 24.)
(d) The
Alleged Error Was Harmless Under Chapman.
Finally, >Chapman stated, “error in admitting
plainly relevant evidence which possibly influenced the jury adversely to a
litigant cannot . . . be conceived of as harmless.†(Chapman, supra, 386 U.S. at
pp. 23-24.) Appellant, quoting this
statement from Chapman, argues
Aguilar’s preliminary hearing testimony was “plainly relevant evidence.â€
However, the quote from >Chapman refers to plainly relevant
evidence “which possibly influenced the jury.â€
(Chapman, supra, 386 U.S. at
p. 23.) And Chapman observed that “[t]here is little, if any, difference
between . . . ‘whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction’ and requiring the
beneficiary of a constitutional error to prove beyond a reasonable doubt that
the error complained of did not contribute to the verdict obtained.†(Id.
at p. 24) Chapman therefore “[held] . . . that before a federal constitutional
error can be held harmless, the court must be able to declare a belief that it
was harmless beyond a reasonable doubt.â€
(Ibid.) Based on the whole record, and
notwithstanding any arguments of appellant, considered alone or in combination,
we declare that belief here.
2. >No Instructional Error Occurred Regarding
the Issue of Accomplices.
Appellant
presents related claims the trial court erred by failing to instruct the jury
that the jury must view with caution an accomplice’s testimony and by failing
to instruct that accomplice testimony must be corroborated. Appellant argues the trial court erred by
failing to give these instructions as to the testimony of Villalobos and the
preliminary hearing testimony of Aguilar.
We reject appellant’s claims.
We have recited the pertinent facts in our Factual
Summary. Simply put, there was no
substantial evidence that either Villalobos or Aguilar was an accomplice. The trial court was not required to give the
instructions.href="#_ftn10" name="_ftnref10"
title="">[10] (Cf. People
v. Lewis (2001) 26 Cal.4th 334, 369-370 (Lewis).) None of appellant’s
arguments or alleged facts compel a contrary conclusion.
Moreover, our
previous analysis that there was overwhelming evidence of appellant’s guilt
compels the conclusion there was sufficient corroborating evidence. Appellant concedes the jury legitimately
could have concluded appellant’s statements corroborated the testimony of
Villalobos and Aguilar. Any erroneous
failure to instruct on the accomplice corroboration requirement was not
prejudicial (cf. Lewis, supra,
26 Cal.4th at pp. 370-371) and did not violate appellant’s constitutional
right to due process, right to a fair trial, or right to present a
defense. (Id. at p. 371.)
Further, because
there was overwhelming evidence of guilt and the trial court gave CALCRIM No.
226 concerning a willfully false witness, and concerning witness credibility,
any erroneous failure to instruct that accomplice
testimony must be viewed with caution was not prejudicial. (Lewis,
supra, 26 Cal.4th at p. 371.)
>DISPOSITION
The
judgment is affirmed.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
KLEIN, P. J.
ALDRICH,
J.