P. v. Huezo
Filed 7/16/12 P. v. Huezo CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN CARLOS HUEZO,
Defendant and Appellant.
B233864
(Los Angeles County
Super. Ct. No. LA062282)
APPEAL from
a judgment of the Superior Court of
County, Elizabeth A. Lippitt, Judge.
Affirmed in part, modified in part and remanded.
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, Senior
Assistant Attorney General, James William Bilderback II, Supervising Deputy
Attorney General, Steven E. Mercer, Deputy Attorney General, for Plaintiff and
Respondent.
Defendant and appellant Juan Carlos Huezo
(defendant) was convicted of murder (Pen. Code, § 187, subd. (a)
court committed prejudicial error by instructing the jury that it could only
consider defendant’s voluntary
intoxication to determine whether defendant acted with the intent necessary
for first-degree deliberate and premeditated murder and not in connection with
the felony-murder charge; allowing the jury to be informed that a witness had
not been given immunity; admitting evidence that defendant’s cousin told a
witness to “stick to the story;†and to the extent there were any forfeitures,
there was ineffective assistance of counsel.
Defendant also contends that the cumulative effect of the errors
requires reversal. The Attorney General
requests that we strike the parole revocation fine that was imposed and
suspended against defendant. We affirm
the judgment as to defendant’s contentions, modify defendant’s sentence to
eliminate the imposition of a parole revocation fine, and remand the matter to
the trial court to amend the abstract of judgment accordingly.
BACKGROUND
A.
Factual
Background
1.
Evidence
Marissa
Hernandez
ago she and defendant had dated “on and off†for about a year and thereafter
they were intermittent friends. On the
night of June 7, 2009, after not speaking to defendant for several months,
Marissa called defendant to determine if he wanted to get together. Defendant agreed, and they went to a bar in
Glendale and consumed seven “tasters†of medium sized beers for about one hour.
Marissa
testified that she and defendant decided to rent a room at a motel in North
Hollywood. When they arrived at the
motel, defendant went inside to see how much a room would cost. When defendant returned to the car, he told
Marissa there was a man in the office, later identified as Filemon Cortez, who
had a lot of cash on him.
Marissa testified that
defendant and Marissa then drove to a convenience store across the street from
the motel, and Cortez had exited the motel and was crossing the street. Defendant referenced Cortez and told Marissa
that Cortez was going to the convenience store to get change. Defendant told Marissa that he wanted to “get
off and jack him for his money,†which Marissa understood to mean to steal
Cortez’s money. Marissa did not think
defendant was serious.
Marissa
testified that when she and defendant arrived at the convenience store,
defendant went in to purchase cranberry juice.
When defendant exited the convenience store, he and Cortez spoke. At some point, defendant and Cortez exchanged
telephone numbers.
Marissa testified that defendant and Marissa
returned to the motel and rented a room.
Defendant called Cortez and invited him to drink with them. Marissa drove defendant and Cortez to two
convenience stores where they bought a bottle of vodka and more cranberry
juice.
Marissa
testified that the three of them returned to the hotel and drank about half a
bottle of vodka in Cortez’s room. At
some point defendant went into the bathroom, and when he exited the bathroom he
was carrying a bottle of vodka.
Defendant then stood behind Cortez, gestured to Marissa to be quiet by placing
his finger against his lips, and struck Cortez on the back of the head with the
bottle. Marissa told defendant, “You
killed him,†and “What did you do?â€
Defendant told Marissa to shut up and get the car.
Marissa
testified that she does not recall dancing by herself in Cortez’s room that
night. Cortez had not been flirting with
her or acting inappropriately toward her before defendant struck him with the
bottle. Cortez had not hit or threatened
defendant, and defendant and Cortez did not have an altercation before
defendant struck Cortez with the bottle.
Defendant may have patted down Cortez pant pockets.
Marissa
testified that she retrieved her vehicle and pulled it up to the motel
room. She did not drive away alone
because she was scared and did not know what to do. Defendant got into the vehicle carrying the
vodka bottle. Marissa testified that her
memory was blurry and she did not remember whether she or defendant drove away.
Dahyabhai
Patel
manger of the motel and was working at the time of the incident. Earlier that day, Dahyabhai had rented a room
to Cortez. Cortez had placed his wallet
on the counter while checking in, and defendant was near him. That night, Dahyabhai heard a man screaming
from Cortez’s room. Dahyabhai and the
motel owner’s son, Ashish,
knocked on the door to Cortez’s room, and Marissa and defendant exited the room. Ashish testified that defendant told him,
“Don’t open the door. Everything is
fine.†Dahyabhai and Ashish testified that
Marissa and defendant drove off, and Cortez was lying on the floor with
they called 911.
Aaron
Halverson, a paramedic with the City of Los Angeles Fire Department, testified
that he arrived at the scene and found Cortez unconscious and
unresponsive. Cortez had a four-inch
laceration on the back of his head and was surrounded by broken glass. Los Angeles Police Department Detective
Charles Lenane testified that he responded to the scene and there were blood
stains and splatters of blood in the room.
Halverson testified that Cortez was in critical condition and
transported to the hospital. Cortez
subsequently died. Detective Lenane
testified that no wallet or money was found in the room.
Marissa
testified that she went home and told Priscilla that she had just seen defendant kill
somebody, and Priscilla
called the police. When the
police arrived they handcuffed Marissa and took her to the police station.
Priscilla testified that
Marissa came home between 2:30 and 3:00 a.m. on June 8, 2009, traumatized,
saying defendant “rob[bed] a guy and hit him over the head over and over with
[a] bottle.†Marissa told Priscilla that
before defendant struck Cortez with the bottle, he “kept telling her, ‘I’m
going to rob him. I’m going to rob
him. He has a lot of money.†Priscilla does not recall Marissa telling her
that Cortez “tried to hit on her.†When
Marissa told Priscilla that Cortez was dead, Priscilla called the police. Priscilla told the police that Marissa said
Cortez had tried to “hit on†Marissa, and defendant and Cortez started to argue
prior to defendant repeatedly hitting Cortez on the head with the bottle. The day after the incident Marissa told
Priscilla that Cortez did not “hit on†her.
At about 4:30 a.m. on June 8,
2009, the morning after the incident, Marissa was interviewed by Detective
Edwards of the Los Angeles Police Department, an audio recording of which was
played for the jury.
name="_ftnref4" title="">[4] Marissa was scared and still intoxicated
during the interview. Marissa told
Detective Edwards that after defendant paid for the room defendant told Marissa
that Cortez had a lot of money and defendant wanted to steal it. Marissa said she told defendant that they
were not going to do that, and defendant responded to Marissa, “Oh, okay. Okay.
Hey, now I know.â€
Marissa
told Detective Edwards that Cortez “had stared at her “like I was a piece of
meat or something.†She asked defendant
“what the hell is [Cortez] looking at,†and defendant responded, “Nothing. He just wants to hang out with us.†Marissa told Detective Edwards that when they
were in Cortez’s motel room, Cortez had “kind of hit on me.†Marissa said
defendant and Cortez “[got] into it. And
[defendant] just like knocked him with the bottle of [vodka] and killed
him.†Marissa “completely freaked out,â€
ran out of the room, retrieved her car, and picked up defendant. Marissa told defendant she was “going to call
the cops on you,†and defendant replied that if she did he was going to kill
her. Marissa testified that at some
point defendant drove, she was in the passenger seat, and they picked up
defendant’s “really big†friend.
Defendant’s friend drove the vehicle, dropped off defendant, took
Marissa back to her house, and told Marissa, “[I]f you say anything, a lot is
going to happen to you.†Marissa ran up
to her house, told her sister what happened, and her sister called the police.
Marissa
told Detective Edwards that she has no idea why defendant hit Cortez—defendant
anything, and she never saw defendant take Cortez’s money. Marissa said she felt threatened that if she
spoke up, defendant would hurt her. Marissa
asked Detective Edwards, “If I tell you exactly what happened, will you let me
go home? Honestly? I’ll probably tell you what happened.†Detective Edwards responded, “[At this
moment] I have no intention of holding you. . . . I’d like you to feel comfortable to speak
freely. . . . [¶] It’s just when you say, ‘Well, if I tell you
the truth, you going to let me go?†[¶]
[I]f you tell me right after that . . . you robbed five
banks, well then I would have [lied]. . . . [¶] My
only question to you now is, can we continue talking or—or do we have to stop? [¶] [C]an we continue talking . . . what are
willing to do—because I do have one or two more questions for you.†Marissa said, “Continue with your
questions.†When Detective Edwards then
asked Marissa why she thinks defendant hit Cortez, she said, “Honestly—hit him
to jack him—. . . . [¶] —for his money that he had.†She then said that defendant “most likelyâ€
took Cortez’s money, but she did not see him do it.
At about
4:00 p.m. on June 8, 2009, Marissa was interviewed by Detective Mario Santana
of the Los Angeles Police Department, and all but a small portion of an audio
recording of the interview was played for the jury.
that when defendant returned from the motel to the vehicle after determining
how much a room would cost, he told Marissa that Cortez had “so much money†and
“[l]et me jack him. Let me beat him
up.†Marissa responded no, “I’m not going
to get in trouble for you.†At one point
after consuming shots of vodka in defendant’s room, Cortez was sitting on the
bed, and defendant went to the bathroom carrying the bottle of vodka. Marissa said that she became “tipsy,†danced
by herself next to Cortez, and then sat next to Cortez talking to him.
drink. Defendant returned from the
bathroom, carrying the bottle of vodka, approached Cortez from behind, gestured
to Marissa to be quiet, and struck Cortez in the back of the head with the vodka
bottle.
Paul Gliniecki, a Deputy Medical
Examiner for the Los Angeles Department of Coroner, testified that he performed
an autopsy on Cortez and determined that the Cortez died from a blunt force
trauma to the head, which was the result of a powerful blow that fractured his
skull. The skull fractures could have
been caused by a bottle striking Cortez’s skull.
Cortez had a small abrasion to his
right eyebrow and next to his left eye, a small laceration next to his left
ear, and bruises on the back and front of his right hand, left wrist, and right
bicep. Gliniecki did not know with what
the laceration to Cortez’s left ear was consistent, but it was possible that it
was consistent with a blow from a fist fight, as was the abrasion to this right
eyebrow. Gliniecki did not know what
caused the bruising on Cortez’s hand and wrist.
The bruises to the right hand were consistent with a blow to someone’s
head or face, or someone who works with their hands, but those injuries, as
well as the injuries to Cortez’s left wrist, were not typical fist fight
injuries.
Gliniecki testified that Cortez also
sustained five fractured ribs, and he had bruises on his lungs and surrounding
muscles. Those injuries were caused by
application of a significant amount of force, and were consistent with someone
stomping the ribs with a foot. Gliniecki
testified that all of Cortez’s injuries appeared to have occurred at around the
same time, while Cortez was alive, but he could not determine the order in
which he sustained them.
2. Defense Evidence
An audio recording
of defendant’s interview with Detectives Santana and Joshua Byers on June 9,
2009, was played for the jury. Defendant
told the detectives that, “I don’t know what happened that night [of the
incident]. When I, when I woke up the
next morning, it was just with the biggest hangover.†According to defendant, he and Marissa were
drinking shots and beer. When they left
to go to the motel they were “pretty messed up.†After getting a room at the motel, they meet
Cortez who invited them to drink with him.
Cortez bought a bottle of alcohol, and they consumed it. Defendant went to the restroom, and when he
came out Marissa told him that Cortez was “trying to do it, he’s trying to do
it or something.†Cortez, who was not
wearing pants, “rushed towards†defendant with a bottle and they
“[s]omehow . . . got into an argument.†They “were all wasted.†Defendant and Cortez fought, but defendant
“didn’t know how it started or . . . finished.†Defendant did not know who did what to whom,
but defendant believes that when he walked out of the room he had a bottle in
his hand and it fell at the door.
Defendant said he “didn’t hit no one with a bottle.†Defendant said he injured his right hand
during the fight, and Detective Santana agreed that it was a little
swollen. Defendant denied taking
Cortez’s wallet or money, other than the money Cortez gave defendant to
purchase the bottle of alcohol.
Defendant did not intend to take Cortez’s wallet.
Detective
Santana testified that he interviewed defendant at about 10:30 p.m. on June 9,
2009. During the interview, defendant
said he injured his hand during the fight with Cortez, but there was no visible
injury or swelling. As a ruse to keep
the interview going, Detective Santana agreed with defendant that his hand
appeared to be injured.
B. Procedural Background
The District Attorney of Los
Angeles County filed an information charging defendant with one count of the
murder of Cortez in violation of section 187, subdivision (a). The District Attorney alleged that defendant
personally used a deadly weapon in violation of section 12022, subdivision
(b)(1), and killed Cortez during the commission of a robbery in violation of
section 190.2, subdivision (a)(17). The
District Attorney further alleged that
defendant had served one prior prison term within the meaning of section 667.5,
subdivision (b), and had four prior felony convictions with the meaning of
section 1203, subdivision (e)(4).
Following a trial, the jury found
defendant guilty of murder, found the murder to be in the first degree, and
found that the special circumstances and deadly weapons allegations were
true. The trial court sentenced
defendant to state prison for a term of life without the possibility of parole. The trial court ordered defendant to pay a
$10,000 restitution fine pursuant to subdivision (b) of section 1202.4, a $30
criminal conviction assessment, and a $40 court security assessment. The trial court imposed and suspended a
$10,000 parole revocation fine pursuant to section 1202.45.
DISCUSSION
A. Voluntary Intoxication
Instruction
The jury was instructed that
defendant could be found guilty of first degree murder if the murder was
willful and premeditated, or during the commission of a robbery. Defendant contends that the trial court
committed prejudicial error when it instructed the jury that it may consider
evidence of defendant’s intoxication only in deciding whether he acted with an
intent to kill or if defendant acted with deliberation and premeditation,
thereby precluding the jury from considering such evidence in determining
whether defendant acted with the specific intent to commit
Although the trial court erred, the error was harmless.
1. Background Facts
The following exchange occurred
during a discussion about proposed jury instructions: “[Trial court:] Voluntary intoxication. There seems to be evidence of alcohol in this
case. [Prosecutor:] Your Honor, the voluntary intoxication goes
to the malice element, the intent to kill, with respect to murder. It doesn’t apply in a felony murder
context. [Defendant’s counsel:] Well, it would—I mean obviously under their
theory they have to prove robbery, which is a specific intent crime. So certainly it would go to whether or not
[defendant] had the intent to permanently deprive, which robbery would ask
for. And I’m not sure that the People
are simply asking for the 187 based on a felony murder theory. It could be under a malice theory too that
the jury could find based on the evidence.
[¶] I mean if the jury were to
accept [defendant] hit [Cortez] in the head with the bottle, but it wasn’t in
the course of robbery, it could still be a 187.†The matter was submitted and the trial court
moved on without comment. Later, during
a discussion about the proposed jury instruction for voluntary intoxication,
the trial court inquired whether either counsel wanted to be heard regarding
it, and both the prosecutor and defendant’s counsel said they did not. The only theory of first-degree murder argued
by the prosecutor was the felony-murder based on robbery.
The trial
court instructed the jury pursuant to CALCRIM No. 625,
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 an intent to kill or if the
defendant acted with deliberation and premeditation. [¶] A
person is voluntarily intoxicated if she or he becomes intoxicated by willingly
using any intoxicating drug, drink, or other substance knowing that it could
produce an intoxicating effect or willingly assume the risk of that
effect. You may not consider evidence of
involuntary [sic] intoxication for any other purpose.â€
2. Analysis
Although
the jury was instructed that defendant could be found guilty of first degree
murder if the murder was willful and premeditated, or during the commission of
a robbery, it is undisputed that the prosecutor’s only theory was that
defendant killed Cortez during the commission of a robbery. Robbery, as the jury was instructed, requires
a showing that there was a specific intent to steal. (In re
Albert A. (1996) 47 Cal.App.4th 1004, 1007). There was substantial evidence that defendant
was intoxicated at the time he killed Cortez.
The parties
agree that the trial court’s instruction to the jury under CALCRIM No. 625 was
erroneous because it prohibited the jury from considering the evidence of
defendant’s voluntary intoxication in determining whether defendant acted with
the specific intent to commit battery.
(See People v. Mickey (1991)
54 Cal.3d 612, 675.) The Attorney
General contends, however, that the error was harmless pursuant to
v. Watson (1956) 46 Cal.2d 818 [more favorable outcome for defendant
reasonably probable absent error].
Defendant contends that he was deprived of a potentially meritorious
challenge to the prosecution’s case and, therefore, the harmless error standard
under Chapman v. California (1967)
386 U.S. 18 [harmless beyond a reasonable doubt] applies. We conclude that the error was harmless under
either standard.
Prior to
going to defendant’s room, defendant announced that he intended to steal from
Cortez, and then he followed through with his announced intention. Evidence was introduced that when Cortez
rented the motel room from the manger of the motel, he had placed his wallet on
the counter, and defendant was near him.
Marissa testified, and told Detectives Edwards and Santana, that when
defendant returned to the car from the motel office, he told Marissa that
Cortez had a lot of cash on him and defendant wanted to steal it. Priscilla testified that when Marissa arrived home shortly
after the incident, Marissa told her that defendant “rob[bed] a guy and hit him
over the head over and over with [a] bottle†and that before defendant struck
Cortez with the bottle, defendant “kept telling [Marissa], ‘I’m going to rob
him. I’m going to rob him. He has a lot of money.â€
The evidence establishes that when
defendant was in Cortez’s room, defendant approached Cortez from behind
carrying a bottle of vodka, gestured to Marissa to be quiet by placing his
finger against his lips, and struck Cortez in the back of the head with the
bottle. It is reasonable to infer that
by defendant gesturing to Marissa to be quiet, he knew what he was doing, that
he harbored the intent to steal from Cortez without being detected, and that he
was consciously and deliberately signaling his intent to Marissa. Marissa testified that defendant may have
patted down Cortez’s pants pockets, and Ashish testified that when he knocked on the door of the
motel room, defendant told him, “Don’t open the door. Everything is fine.†Defendant immediately fled the
scene. No wallet or cash was found in the
room.
Defendant
contends that the trial court’s erroneous instruction was not harmless error
because it precluded the jury from considering the evidence of defendant’s
intoxication in determining whether defendant engaged in a “drunken pay-back
[fight with Cortez] for flirting with or disrespecting Marissa†as opposed to
whether defendant intended to steal. At trial, defendant’s counsel argued to
the jury that defendant did not intend to steal from Cortez, but instead that
defendant and Cortez were engaged in a fight over Marissa. The jury rejected this argument, finding that
defendant intended to commit a robbery.
That defendant may have been intoxicated at the time of the incident is
of no significance to the jury’s determination.
The
judgment against defendant was not sufficiently affected by the trial court’s
failure to instruct the jury that voluntary intoxication could negate the
specific intent required to commit the crime of robbery. The failure was harmless error.
B. Immunity
Defendant
contends that the trial court erred by striking the language from CALCRIM No.
226, that in determining the credibility or believability of a witness the jury
may consider whether “the witness [was] promised immunity or leniency in
exchange for his or her testimony,†and allowing the prosecutor to argue before
the jury that Marissa did not have immunity.
Defendant contends that this violated his right to due process under the
Fifth and Fourteenth Amendments, and his rights to compulsory process and
confrontation under the Sixth Amendment to the United States Constitution. We disagree.
1. Background Facts
During
Marissa’s testimony at the preliminary hearing, before the Honorable Jessica P.
Silvers, at which the prosecutor was Edward Nison, Marissa asked to take a
break. On cross-examination, she stated
that at the break she spoke with the prosecutor and a detective and told them
that she was scared to be there. When
asked if they discussed anything else, Marissa answered,
“Yes. [¶] . . .
About that they haven’t given me immunity.†Marissa testified that the day before, “They
had told me they were going to give me one before I asked for one.â€
The
following exchange occurred during the preliminary hearing: “[Prosecutor:] Your Honor, [for] the record, [Marissa] had
an attorney who advised her. So clearly,
there was some discussions regarding [immunity]. [¶] . . . And he made the determination that it was not
necessary. [Trial court:] Because the People had agreed there would be
absolutely no filing of any charges relating to this incident against this
witness. [Prosecutor:] Correct, Your Honor. That none of her testimony would give rise to
any such charge. [Trial court:] That’s correct. That was said here. [Defendant’s counsel:] Right.â€
Marissa resumed her testimony, and the following exchange occurred: “[Defendant’s counsel:] So when you started the actual testimony
[today], talking about what actually happened, you felt assured you would not
be prosecuted for anything; is that correct? [Marissa:]
For the most part, yes.
[Defendant’s counsel:] You felt
you had immunity then; is that correct?
[Marissa:] Yes. I know I didn’t do anything either, so— [Defendant’s counsel:] Thank you.
Nothing additional.â€
The Honorable Elizabeth A. Lippitt
presided over the trial, and Scott Marcus was the prosecutor. The following exchange occurred at a
pre-trial conference: “[Trial
court:] Is there any issue that
[Marissa] is arguably involved under an aider and abettor theory? [Prosecutor:]
Not from the People’s perspective.
[Trial court:] Okay. [Defendant’s counsel:] I think the immunity came up at prelim. [Marissa] was appointed counsel, and she
testified she felt she had immunity. I’m
not sure if it was ever formally offered to her. I don’t believe so. She did have the advisement of counsel, and I
think that issue has been gone over.
[Prosecutor:] I didn’t do the
prelim. But my understanding from
reviewing the prelim transcript she was appointed counsel. The deputy district attorney handling the
that he did not envision any charges that could be filed against her based on
what we anticipated her testimony to be.
Her appointed lawyer agreed with that statement, and she proceeded to
testify. I don’t believe immunity was
officially offered, and I don’t believe she ever took the Fifth. [Trial court:] Immunity and leniency at this point doesn’t
seem to be an issue.â€
Defendant’s counsel argued that whether
Marissa thought she had immunity was relevant to her state of mind. The prosecutor stated that he had no
objection if defendant’s counsel wanted to ask Marissa questions going to her
bias or creditability.
Marissa testified at trial that she
“thinks†the term immunity, in the context of a criminal case, “means anything
you say can’t be held against you later on,†but she said she did not know if
it also means that “you can’t be charged for anything you say.†The following exchange then occurred: “[Defendant’s
counsel:] The day before [the
preliminary hearing], did you talk to either of the detectives on that day; of
immunity for yourself? [Marissa:]
Yes. [¶] . . . [Defendant’s counsel:] Do you recall what you said regarding
immunity? [Marissa:] No. I
don’t remember exactly, exactly what I said.
[Defendant’s counsel:] Do you
recall what they said regarding immunity?
[Marissa:] No.†Marissa testified that she asked for
immunity. Defendant’s counsel asked
Marissa “[d]id you feel you got it when you asked for it?†Marissa responded, “I don’t know. I don’t know—we talked about it and—it
doesn’t really matter. I’m still going
to testify. I have to do what I have to
do, do the right thing.â€
Marissa testified that she had an
attorney at the preliminary hearing, and she had spoken to the prosecutor and a
detective during a break in her testimony at the hearing about immunity. Defendant’s counsel asked Marissa, “At [the]
point [she spoke to her attorney] did you feel assured you had immunity?†Marissa responded, “I guess. I don’t know.†Defendant’s counsel asked Marissa “after you
talk[ed] to . . . [the] detectives [during a break in her preliminary
hearing testimony], did you feel you had immunity?†Marissa responded, “Well, they announced it
in court that I did really quickly.†On
redirect examination, Marissa testified that there was a statement made on the
record during the preliminary hearing that “there wasn’t anything to charge
[her] with,†and she testified at the hearing as “honestly and completely†as
she could.
During a discussion of proposed
jury instructions, counsel and the trial court discussed CALCRIM No. 226, which
concerns the factors a jury may consider in determining the credibility or
believability of a witness, including as a possible factor dependant on the
evidence, “Was the witness promised immunity or leniency in exchange for his or
her testimony?â€
title="">[9] The prosecutor proposed that this possible
factor not be included in the instruction given to the jury because “there was
no immunity promised to [Marissa].†The
trial court stated, “That’s true. All
right. We will cross out that paragraph,
the immunity one.†Defendant’s counsel
agreed with the trial court, stating, “Right.
Perhaps we can have a special instruction, if the witness felt she had
immunity.†The trial court invited
defendant’s counsel to submit such a proposed special instruction, but the
record does not include one. The trial
court also stated that defendant’s counsel could argue the matter to the jury.
During closing arguments,
defendant’s counsel argued concerning Marissa, “[The day of the preliminary
hearing], I need a bathroom break.
Sure. By all means. Oh, detective, Mr. District Attorney, let’s
talk about immunity for myself. Did she
get it? I don’t think we actually heard
she ever got it. Perhaps another factor
to greatly influence her, her testimony.
She certainly took that break to ask for it.†In rebuttal, without an objection by
defendant’s counsel, the prosecutor argued before the jury, “The defense wants
you to think that Marissa . . . upon taking this break at the
preliminary hearing—and again, I wasn’t there.
I don’t know—to arrange for her immunity. [According to defendant’s counsel,] [t]hat’s
when, you know, all these things started changing. That’s when she decided to start telling a
different story . . . .
[¶] . . . Marissa . . . doesn’t have
immunity. You didn’t see any
paperwork. You didn’t hear any testimony
of it. You heard her say she thought she
was taken care of, but you didn’t see any proof of any actual immunity because
there wasn’t any immunity.â€
2. Analysis
The Fifth
Amendment to the
States Constitution provides, in pertinent part, that no person “shall be
compelled in any criminal case to be a witness against himself.†(U.S. Const., 5th Amend.) But “where a witness receives immunity, that
witness’s testimony is compelled and the witness no longer has a privilege
against self-incrimination.
[Citations.]†(
454, 466-467.) CALCRIM No. 226 provides
that in order for the jury to consider it in determining a witness’s
credibility the witness must be “promised immunity or leniency in exchange for
his or her testimony.â€
Marissa was not given immunity by the
prosecution. She was not “promisedâ€
immunity or leniency, nor was one made “in exchange for his or her
testimony[.]†The prosecutor at the
preliminary hearing stated that Marissa’s counsel determined that immunity for
Marissa was not necessary because the prosecution said that Marissa’s testimony
would not give rise to the filing of any charges against her relating to this
incident. Defendant’s counsel conceded,
“I’m not sure if [immunity] was ever formally offered to [Marissa]. I don’t believe so.†Even Marissa was vague as to her recollection
what was said about the issue of immunity and her understanding of whether she
“felt†she was given immunity, but at one point when was asked at trial whether
she felt she got immunity, she responded, “I don’t know. I don’t know—we talked about it and—it
doesn’t really matter. I’m still going
to testify. I have to do what I have to
do, do the right thing.â€
The trial
court did not err by striking the language from the jury instruction that in
determining the credibility or believability of a witness the jury may consider
whether the witness was given immunity, or by allowing the prosecutor to argue
before the jury that Marissa did not have immunity.
C. Testimony That Andy
Huezo Told Marissa to “Stick to the Storyâ€
Defendant contends that the trial
court erred in admitting evidence that Andy Huezo told Marissa to “stick to the
story.†We disagree.
1. Standard of Review
The trial
court’s ruling to admit evidence over defendant’s objection based on Evidence
Code section 352 is reviewed under an abuse of discretion standard of
review. (See People v. Avila (2006) 38 Cal.4th 491, 578 [“We review for abuse of
discretion a trial court’s rulings on relevance and the exclusion of evidence
under Evidence Code section 352â€].)
2. Background Facts
Marissa
testified that a day or two after the incident, Andy Huezo, defendant’s cousin
and Marissa’s boyfriend at the time, called Marissa and told her, “Just stick
to the story. You know what story I’m
talking about.†Marissa said, “I think
he said the one you and [defendant] talked about or something.†Marissa did not know what “story†Andy Huezo
was talking about, and she did not recall defendant telling her what story to
tell the police. Marissa told the police
about the telephone call.
Detective
Santana testified that on June 10, 2009, Marissa told him that the day before
Andy Huezo had called her and “told her to remember the story that he told,
that the defendant gave her.†In
response to being asked whether Marissa told him what that story was, Detective
Santana responded, “That
the victim, . . . Cortez, tried to sexually assault her and that he
was defending her.†During argument to
the jury, the prosecutor said, “[Defendant and Cortez] weren’t
fighting. That never happened. That was the lie that
Marissa . . . told initially because the defendant told her to,
but realized she couldn’t protect him anymore and then told the
truth . . .â€
Defendant
previously objected to such evidence under Evidence Code section 352,
probative value is outweighed by the prejudicial impact because “it creates a
very unfair nexus to†defendant. The
trial court overruled the objection stating “probative matters usually are
prejudicial against the defendant.†The
trial court cited People v. Olguin
(1994) 31 Cal.App.4th 1355, and stated that it “specifically addresses after a
crime where witnesses are threatened or influenced that it is admissible
because all—this case has everything to do with credibility .
. . .
[¶] . . . It
clearly is probative as to credibility and the effect on the listener. We will let that in, and we can talk about a
limiting instruction.â€
At the
close of trial, the trial court gave the following limiting instruction, which
defendant’s counsel and the prosecutor agreed was appropriate: “During trial, certain evidence was admitted
for a limited purpose. The phone
conversation from [Andy Huezo] to ‘stick to the story’ was admitted for the
credibility and the effect on the mind of witness Marissa . . .
. You may consider that evidence only
for that purpose and for no other.
3.
“[T]he
court or jury may consider in determining the credibility of a witness any
matter that has any tendency in reason to prove or disprove the truthfulness of
his testimony at the hearing . . . .†(Evid. Code, § 780.) This includes, but is not limited to, “[t]he
existence or nonexistence of a bias, interest, or other motive. .
. .
[¶] . . .
[¶] . . . [and the
witness’s] attitude toward the action in which he testifies or toward the
giving of testimony.†(
“stick to the story†was highly probative because it concerned the credibility
of a key witness in the case.
“California law prohibits proving
consciousness of guilt by establishing attempts to suppress evidence unless
those attempts can be connected to a defendant.
[Citations.]†(
There was evidence introduced at trial that the story Andy Huezo told
Marissa to “stick to†was given to Marissa by defendant—that Cortez had “tried to sexually assault
her and that he was defending her.†Defendant
contends that he was prejudiced by the admission of this evidence, and that
prejudice substantially outweighed the probative value of the evidence, because it can be reasonably
inferred that defendant was attempting to suppress evidence, thereby showing his consciousness of guilt. Defendant similarly contends that he was
prejudiced when the prosecutor purportedly attempted to prove his consciousness
of guilt when he argued to the jury, “[Defendant and Cortez] weren’t
fighting. That never happened. That was the lie that
Marissa . . . told initially because the defendant told her to,
but realized she couldn’t protect him anymore and then told the
truth. . . .â€
The prosecutor was not
attempting to prove defendant’s consciousness of guilt. The prosecutor was commenting on the
credibility of Marissa’s testimony and why she previously gave one account to
police officers. In addition, the trial
court gave the jury a limiting instruction that evidence of “[t]he phone conversation
from [Andy Huezo] to ‘stick to the story’ was admitted for the credibility and
the effect on the mind of witness Marissa . . . . You may consider that evidence only for that
purpose and for no other. We presume the
jury followed the trial court’s instructions.
(People v. Avila,
596.) Whatever prejudice defendant might
have experienced from the evidence was substantially diminished by the limiting
instruction.
Here, as in
People v. Olguin,
never an argument, never even a suggestion, that [the] evidence [of a third
party’s attempt to suppress evidence] reflected [defendant’s] consciousness of
guilt. It was strictly limited to
establishing the witness’s state of mind.
For this purpose it was highly relevant.†(Id.
at p. 1368.)
“The
prejudice which exclusion of evidence under Evidence Code section 352 is
designed to avoid is not the prejudice or damage to a defense that naturally
flows from relevant, highly probative evidence.
‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to
the defendant’s case. The stronger the
evidence, the more it is “prejudicial.â€
The “prejudice†referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the defendant
as an individual and which has very little effect on the issues. In applying section 352, “prejudicial†is not
synonymous with “damaging.â€â€™ (
377 [191 Cal.Rptr. 859].)†(
638.) The trial court did not err in
admitting the evidence.
D. Parole
Revocation Fine
Although the issue was not raised by
defendant, the Attorney General observed that it was improper for the trial
court to impose (and suspend) a $10,000 parole revocation fine pursuant to
section 1202.45
title="">[11]
sentence without the possibility of parole.
We agree, and we strike parole revocation fine.
E. Cumulative Error
Defendant contends that the
cumulative effect of errors committed by the trial court requires the reversal
of his conviction. There has been no
showing of cumulative prejudicial error.
(People v. Watson (2008) 43
Cal.4th 652, 704; People v. Boyette
(2002) 29 Cal.4th 381, 467-468; People v.
Seaton (2001) 26 Cal.4th 598, 675, 691-692 [few errors identified were
minor and either individually or cumulatively would not alter the outcome of
the trial]; People v. Cudjo (1993) 6
Cal.4th 585, 630 [no cumulative error when the few errors that occurred during
the trial were inconsequential].)
Whether considered individually or for their cumulative effect, any of
the errors alleged did not affect the accuracy of the fact finding process or
accrue to defendant’s detriment. (
565; People v. Cudjo,
consistently held, “[A] defendant [is] entitled to a fair trial but not a
perfect one.†(People v. Cunningham (2001) 25 Cal.4th 926, 1009;
v. Miranda (1987) 44 Cal.3d 57, 123.)
Having determined that there is
merit in only one of defendant’s contentions, but holding that error harmless,
there is no occasion to consider the cumulative impact of errors. Also, because there was no prejudicial error,
we did not deal with any forfeitures of an issue or the ineffective assistance
of counsel contention if there had been a forfeiture.
DISPOSITION
The
judgment is modified to eliminate the imposition of a $10,000 parole revocation
fine. The matter is remanded for the
trial court to amend the abstract of judgment accordingly. In all other respects, the judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
MOSK,
J.
We concur:
TURNER,
P. J.
ARMSTRONG,
J.
name="_ftn1" title="">[1]
statutory citations are to the Penal Code unless otherwise noted.
name="_ftn2" title="">[2] Marissa
Hernandez shares the same surname as her sister, Priscilla Hernandez. For clarity, further references to these
individuals are by their first name only.
