P. v. Padilla

Filed 8/11/08 P. v. Padilla CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Steven Manuel Padilla appeals a judgment following conviction of making criminal threats, attempted willful, deliberate, and premeditated murder, and first degree murder, with findings of infliction of great bodily injury, and personal firearm use and discharge causing great bodily injury or death. (Pen. Code,  422, 664, subd. (a), 187, subd. (a), 189, 12022.7, 12022.5, subd. (a), 12022.53, subd. (d).)[1] We affirm.

FACTS AND PROCEDURAL HISTORY

Padilla lived in Visalia with his wife, Maricruz Vela, and her son Felipe. Padilla and Felipe had a strained relationship, and Felipe moved from the family home. Padilla and Vela then moved to an apartment in Los Osos.

Vela later learned that Felipe was homeless, in poor health, and using illegal drugs. In March 2005, she brought him from Visalia to Los Osos to live with her. Padilla disapproved of Vela's decision. In July 2005, Padilla moved from the apartment and began sleeping in his vehicle in the apartment building parking lot.

After another tenant complained of Padilla's sleeping arrangement, he rented a room from a friend. When he moved into the room, he informed his friend that he had two handguns. In fact, the handguns belonged to Vela.

Over the next few months, Padilla suggested to Vela that they reconcile. She rejected his overtures, however, because Felipe continued to live with her.

In December 2005, Vela began to date Norman Hennessey and introduced him to family members. A family member later advised Padilla not to pursue reconciliation with Vela because she had a relationship with Hennessey.

On February 11, 2006, Vela met Padilla at the Merrimaker Bar and wished him a happy birthday. She later spent the night with him. Vela again refused Padilla's entreaties to reconcile, explaining that her son lived with her.

Several days later, Padilla phoned Vela and invited her to a Valentine's Day dinner. Vela declined, and stated that she had a date with Hennessey.

That evening, Vela and Hennessey were at Sweet Springs Saloon when Padilla entered. He spoke to Vela and repeated his Valentine's Day invitation. Vela refused, and stated that they no longer had a relationship. Padilla objected to Vela's relationship with Hennessey, stating that it was "not right," because Vela was married to him.

Padilla then spoke with Hennessey and asked that he end his relationship with Vela. Hennessey responded that ending the relationship depended upon "how [Vela] feels." Vela joined the conversation and stated that she no longer had a relationship with Padilla. Hennessey then informed Padilla that he would continue to date Vela.

Padilla then warned Hennessey that "[s]omething bad" would happen to him. Hennessey asked Padilla if he was threatening him, and Padilla replied that it was "a promise." Padilla then stated to Vela that she was "going to cry and it [would not] be for [Padilla]."

Hennessey was fearful of Padilla's threats, and concerned for himself, his family, and his property. He reported the threats to the sheriff's department and later parked his vehicle inside his garage.

In the evening of Valentine's Day, Hennessey walked to his second automobile which was parked in a vacant lot. As he opened the driver's door, he turned and saw Padilla pointing a handgun at him. No words were exchanged. Padilla then fired the weapon striking Hennessey in the face. Hennessey fell to the ground and Padilla shot him again in the shoulder. As Padilla approached, Hennessey kicked him, causing Padilla to fall. Hennessey arose and ran to his home. Padilla fired the handgun again and hit Hennessey in the back and in the left hand as he fled. In all, Hennessey heard five or six gunshots.

Hennessey obtained assistance from family members. He asked his son-in-law to telephone Vela and warn her. As Vela was on the telephone, Padilla drove into her parking lot. He parked and walked up the stairs to her apartment.

When Felipe opened the door, Padilla shot him in the face. No words were exchanged. Vela ran to her bedroom and telephoned for assistance. Padilla walked downstairs and drove away. Felipe died immediately from a bullet wound to his brain stem.

Immediately following the shootings, Padilla attempted to surrender to sheriff's deputies, but the nearby sheriff's substation was closed. Padilla went to the Sweet Springs Saloon, consumed alcohol, and requested a patron, Dennis Fessler, to drive him to Cuesta College, near county jail. During the drive, Padilla stated: "I just shot two people in Los Osos and I'd like to talk." Padilla described his domestic difficulties, his strained relationship with his stepson, and his wife's relationship with Hennessey. He stated that he waited for Hennessey, and then shot him four or five times. Padilla admitted that he then drove to Vela's apartment and when Felipe "opened the door . . . [he] shot him in the head." Padilla stated that he "just couldn't take it anymore." At Padilla's request, Fessler drove him to county jail to surrender.

Sheriff's deputies later recovered the handgun that Padilla used to shoot Hennessey and Felipe. The weapon contained his handprint. They also recovered a second handgun, ammunition, binoculars, and gloves, among other things, from his vehicle.

At trial, Padilla testified that prior to the shootings, Vela stated that she loved him and wanted to reconcile. He denied threatening Hennessey and testified that Hennessey threatened to "kick the living tar out of him." Padilla stated that he drove to Hennessey's residence to speak to him, and brought handguns with him for protection. When he confronted Hennessey, the gun "just went off." Thereafter, Hennessey kicked him, causing him to fall. As he fell, the gun fired three more times. Padilla stated that when he arose, the gun fired an additional two times.

Padilla testified that he drove to Vela's apartment to explain that he accidentally shot Hennessey. There, Felipe yelled at him and grabbed his arms. The gun discharged accidentally and struck Felipe in the face.

In rebuttal, the prosecutor presented evidence of two videotaped police interviews with Padilla. In the first interview, Padilla admitted threatening Hennessey to "back off" from dating Vela. He also admitted that he was "gonna take this big pain [Felipe] off of [Vela] too." In a second interview, Padilla admitted shooting Hennessey and Felipe. Each interview occurred following Padilla's requests to speak to police officers.

Several days following the shooting, Doctor David Fennell, a psychiatrist and medical director of Atascadero State Hospital, interviewed Padilla. Padilla stated that he shot Hennessey because he was "on automatic," but did not intend to kill him. He stated that he drove to Vela's apartment to inform her that "[Hennessey] was dead and that she did not have to choose anymore." Padilla stated that he intended to inform Vela that he had "taken something from [her] that [she] love[s]." Padilla stated that the shooting of Felipe "just happened." He explained that he pulled the trigger three times before the gun fired and Felipe fell.

Padilla informed Fennell that during his first marriage to Beatrice, he obtained a shotgun and planned to threaten her admirer. He did not use the shotgun, however, and later sold it. ("Beatrice incident.")

Hennessey endured three surgeries to repair his wounds. He now suffers from numbness in his shoulder and weakness in his arm, among other injuries.

The jury convicted Padilla of making criminal threats, attempted willful, deliberate, and premeditated murder, and first degree murder. ( 422, 664, subd. (a), 187, subd. (a), 189.) It also found that he personally inflicted great bodily injury upon Hennessey, and personally used and discharged a firearm causing great bodily injury or death. ( 12022.7, 12022.5, subd. (a), 12022.53, subd. (d).)

During the sentencing hearing, the trial judge described Padilla's version of the offenses as "ridiculous and silly . . . that this was all a big accident of the gun going off five or six times." He then sentenced him to 75 years to life imprisonment, plus life imprisonment with the possibility of parole. He imposed and stayed terms for personal firearm use pursuant to section 12022.5, subdivision (a), and infliction of great bodily injury. ( 12022.7.) The trial court also imposed victim restitution, a $10,000 restitution fine, a $10,000 parole revocation restitution fine, and awarded Padilla 388 days of custody credit.

Padilla appeals and contends that: 1) the trial court erred by admitting evidence of the Beatrice incident; 2) the trial court erred by admitting evidence of the videotaped police interviews; 3) the trial court erred by refusing his request for CALCRIM No. 350 regarding character evidence; 4) the trial court erred by instructing with CALCRIM No. 226 regarding a lying witness; 5) the prosecution committed misconduct by commenting upon his invocation of right to counsel; 6) the trial court erred by imposing and then staying personal firearm use enhancements and a great bodily injury enhancement; and 7) cumulative error requires reversal. Padilla asserts that these errors violate federal and state constitutional principles of due process of law.

DISCUSSION

I.

Padilla argues that the trial court erred by admitting evidence that he threatened an admirer of his former wife Beatrice with a shotgun, and that he stated to Vela in 2000 that "[she] will be worth whoever [he] kill[s] or go[es] after." He asserts that the trial court abused its discretion because the prior incident is not similar to the attempted murder of Hennessey, and evidence of it is unduly prejudicial. (Evid. Code,  1101, 352.) Padilla points out that the Beatrice incident involved threats made without firing the weapon, a shotgun. Here the offense involved firing a handgun without a contemporaneous threat. He also asserts that the Beatrice incident occurred nine years prior to the present offenses. Padilla contends that the error is prejudicial under any standard of review. He asserts that the error denied him due process of law pursuant to the federal Constitution. (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1381 [criminal propensity evidence may violate due process].)

Evidence Code section 1101, subdivision (a) precludes admission of character evidence to establish conduct on a specific occasion. Subdivision (b) of that section, however, permits evidence to prove defendant's motive and intent. (People v. Demetrulias (2006) 39 Cal.4th 1, 14.) "Evidence of other crimes is admissible only if relevant to prove a material fact at issue, separate from criminal propensity." (Ibid. [other crimes evidence admitted to prove motive and intent in murder prosecution].)

To satisfy a theory of relevance based upon intent, the prior uncharged act and the present offenses need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance. (People v.Demetrulias, supra, 39 Cal.4th 1, 15.) "[T]he doctrine of chances teaches that the more often one does something, the more likely that something was intended, and even premeditated, rather than accidental or spontaneous." (People v. Steele (2002) 27 Cal.4th 1230, 1244.)

The trial court did not err because evidence of the Beatrice incident and Padilla's statement to Vela was relevant to establish his motive and intent in confronting and shooting Hennessey. The prior incident and the present offense are sufficiently similar to support the inference that Padilla possessed the same criminal intent in each instance. They each involve Padilla's jealousy regarding his wives and men who were attracted to them. In each instance, Padilla threatened the men and possessed a firearm to carry out his threats, if necessary. The first incident occurred during Padilla's first marriage, and the second occurred during his marriage to Vela. For this reason, the remoteness of the first incident is less important.

Moreover, the trial court did not abuse its discretion pursuant to Evidence Code section 352. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124 [standard of review of Evidence Code section 352 ruling].) Evidence of the Beatrice incident and Padilla's remark to Vela was relevant to his intent when he shot Hennessey. Evidence of the prior incident was no stronger and less inflammatory than the present offense, thus decreasing the likelihood of undue prejudice. (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) The prejudice referred to in Evidence Code section 352 is evidence that tends to create an emotional bias against the defendant and which has little relevance to the issues at trial. (People v. Minifie (1996) 13 Cal.4th 1055, 1070-1071.) Evidence of the Beatrice incident was not likely to evoke an emotional bias against Padilla and, contrary to his argument, was relevant to the issues at trial.

II.

Padilla contends that the trial court erred by admitting into evidence the entire videotape of his police interviews. He asserts that he selectively invoked his right to counsel during each interview, and evidence of that assertion is prejudicial because it appears "that he had something to hide." (People v. Rucker (1980) 26 Cal.3d 368, 388 [impermissible to introduce evidence of a defendant's exercise of his right to counsel or right to remain silent].) Padilla points out that during the first interview, he stated that he would stop answering questions regarding Hennessey because "the lawyer needs to hear the rest" and he would "rather talk to the lawyer." (They then switched topics and discussed his shooting of Felipe.) During the second interview, Padilla complained that a newspaper reporter persisted in questioning him, but he did not respond to her questions because he "need[ed] to talk to a lawyer."

Padilla asserts that the error denied him his constitutional rights to counsel, due process of law, and against self-incrimination. He contends that he did not receive the effective assistance of counsel because his attorney did not request redaction of the videotapes, or a jury admonishment.

Padilla has forfeited this claim on appeal because he did not request redaction or an admonition in the trial court. (People v. Huggins (2006) 38 Cal.4th 175, 198.) Moreover, he cannot establish that he received the ineffective assistance of counsel because there is no reasonable probability of a different outcome had his attorney objected. (Strickland v.Washington (1984) 466 U.S. 668, 687, 694.) A defendant may, during an ongoing interrogation, refuse to answer certain questions without manifesting a desire to terminate the entire interview. (People v. Hurd (1998) 62 Cal.App.4th 1084, 1090.) Moreover, Padilla's response to the newspaper reporter's questions does not implicate constitutional concerns because his response did not occur during a custodial interrogation. Padilla provided detailed information of the shootings during the police interviews, to bar patron Fessler, and to Doctor Fennell. His trial testimony describing the shootings as accidental was implausible. Under any standard of review, he suffered no prejudice from the arguable assertions of his right to counsel during the police interviews.

III.

Padilla argues that the trial court erred by refusing his request for CALCRIM No. 350 regarding consideration of character evidence. He points out that several witnesses testified that based upon their personal observations, they had never seen him intoxicated, lose his temper, curse, or argue. He therefore contends that he was entitled to an instruction that character evidence may be considered in determining guilt beyond a reasonable doubt. (People v. Stewart (1865) 28 Cal. 395, 396 [defendant may introduce evidence of his character "for peace and quiet"].) Padilla asserts that the error denied him the constitutional rights to present a defense, to trial by jury, and to due process of law.

Evidence Code section 1102 permits "evidence of the defendant's character or a trait of his character in the form of an opinion or evidence of his reputation" if the evidence is offered by defendant "to prove his conduct in conformity with such character or trait of character." The trier of fact may consider evidence of defendant's good character in determining guilt beyond a reasonable doubt. (People v. Jones (1954) 42 Cal.2d 219, 224.) "Character is proved by evidence of the accused's general reputation in the community for the traits which are in issue." (Ibid.)

The trial court did not err by refusing the instruction. First, Padilla presented only evidence of the personal observations of his friends and acquaintances, and not evidence of his reputation in the community. Second, evidence of the witnesses' personal observations is not relevant to "the traits which are in issue" here. (People v. Jones, supra, 42 Cal.2d 219, 224.) The witnesses agreed that Padilla and Hennessey argued regarding Vela, and Fessell testified that Padilla was calm following the shootings. Moreover, voluntary intoxication was not in issue at trial. Thus evidence of anger, contentiousness, or intoxication was not relevant to the material issues at trial.

IV.

Padilla asserts that the trial court erred by instructing with CALCRIM No. 226 regarding a lying witness. The instruction states in part: "If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest."

Padilla contends that application of the instruction to his trial testimony lessens the prosecution's burden of proof and denies him his constitutional rights to a jury trial and to due process of law. (Dictum, People v. Lescallett (1981) 123 Cal.App.3d 487, 493 ["It may be, as suggested by [defendant], that [instruction regarding a lying witness] should be avoided where, under the circumstances of the case, it might appear to be directed principally toward a defendant's exculpatory testimony"].) He claims that the instruction and the prosecutor's argument concerning the instruction created prejudicial error under any standard of review.

The prosecution and the defense each requested that the trial court instruct with CALCRIM No. 226. The instruction restates a common-sense approach to determine witness credibility when either opposing witnesses or a single witness offer inconsistent testimony.

Our Supreme Court has concluded that a predecessor instruction was "neutrally phrased" and not directed to a particular witness. (People v. Turner (1990) 50 Cal.3d 668, 699.) "Applying neutral standards of credibility to defense witnesses does not improperly 'lessen the prosecution's burden.'" (Ibid.)

Moreover, sufficient evidence supports the instruction here. Vela's testimony regarding her relationship with Padilla differed from his testimony, as did Hennessey's account of the shooting. Padilla also presented trial testimony that differed from his pretrial statements to Fessler, Doctor Fennell, and police interviewers. For example, Padilla testified at trial that Hennessey and Felipe kicked or grabbed him, causing the handgun to fire. In pretrial statements, Padilla admitted that he shot the victims and stated that he had no pain or injuries. Instruction with CALCRIM No. 226 was proper because "'"a defendant who elects to testify is not entitled to a false aura of veracity. [Citations.]"'" (People v. Turner, supra, 50 Cal.3d 668, 699.)

V.

Padilla contends that the prosecution committed misconduct during summation when it commented upon his invocation of the right to counsel during the course of the police interviews. (Doyle v. Ohio (1976) 426 U.S. 610, 619 [prosecutor may not invite trier of fact to draw unfavorable inference from defendant's post-arrest silence].) He points out that the prosecutor in rebuttal summation invited the jury to review the videotaped interviews because "it appears that [Padilla is ] trying to concoct a defense. It appears that he's trying to think of what the best thing is to say. He even says . . . I need to talk to a lawyer before I talk to you about this anymore because I don't know what it is that I should be saying."

Padilla concedes that defense counsel did not object to the prosecutor's comment. He claims that counsel's omission constitutes the ineffective assistance of counsel.

A prosecutor's misconduct violates federal principles of due process of law when the conduct is so egregious that it denies defendant a fair trial. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Lesser misconduct may violate state principles of due process when it involves deceptive or reprehensible methods to persuade the trier of fact. (Ibid.) In determining whether a prosecutor's summation constitutes misconduct, we decide "whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (Ibid.)

The prosecutor did not commit misconduct because his remarks, fairly construed, did not improperly comment upon any invocation of the right to counsel. The prosecutor's remarks were in response to defense counsel's invitation to the jury to review the videotaped police interviews and observe that Padilla was emotionally overwrought. In context, the prosecutor argued that Padilla was not acting under intense emotion during the interviews, in part because he stated that he did not "know what it is that [he] should be saying" to police.

Moreover, defendant has no right to invoke selectively his constitutional rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. (People v. Hurd, supra, 62 Cal.App.4th 1084, 1092-1094.) "A defendant has no right to remain silent selectively. Once a defendant elects to speak after receiving a Miranda warning, his or her refusal to answer questions may be used for impeachment purposes absent any indication that such refusal is an invocation of Miranda rights." (Id. at p. 1093.) There is no reasonable likelihood that the jury may have construed the prosecutor's remarks as a comment upon Padilla's post-arrest silence and invocation of the right to counsel.

VI.

Padilla argues that the trial court erred by imposing and then staying consecutive sentences for personal firearm use and infliction of great bodily injury. ( 12022.5, subd. (a) [counts 2 & 3], 12022.7, subd. (a) [count 2].) He contends that the trial court must strike the enhancements because it imposed a personal firearm discharge enhancement for counts 2 and 3 pursuant to section 12022.53. Padilla points out that subdivision (f) of section 12022.53, provides that a personal firearm use enhancement or great bodily injury enhancement "shall not be imposed . . . in addition to an enhancement imposed pursuant to this section."

In People v. Gonzalez (2008) 43 Cal.4th 1118, 1123, our Supreme Court recently rejected the argument Padilla makes here concerning the section 12022.5 firearm-use enhancement. Gonzalez interpreted section 12022.53, subdivision (f), to mean that only one enhancement may be imposed and then executed, leaving open the possibility for multiple enhancements to be imposed and then stayed. The court's interpretation furthers the legislative goals of section 12022.53 by allowing other firearm enhancements to be available for punishment should the longer term of imprisonment be found invalid on appeal. (Gonzalez, at pp. 1129-1130.)

The reasoning of Gonzalez also applies to the trial court's decision to stay, rather than strike, the great bodily injury enhancement of section 12022.7. (See Walker v. SuperiorCourt (1988) 47 Cal.3d 112, 132 ["Identical language appearing in separate provisions dealing with the same subject should be accorded the same interpretation"].)

VII.

Finally, Padilla contends that the cumulative effect of the trial court's errors compels reversal because he did not receive a fair trial. As we have concluded, however, the trial court did not commit error. (People v. Carpenter (1999) 21 Cal.4th 1016, 1064.)

The judgment is affirmed.

NOT TO BE PUBLISHED

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

John A. Trice, Judge

Superior Court County of San Luis Obispo

______________________________

Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All further statutory references are to the Penal Code unless stated otherwise.