P. v. Palacio

Filed 1/5/10 P. v. Palacio CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed.

A jury convicted Tomas Heriberto Palacio of deliberate and premeditated attempted murder (Pen. Code,[1] 187, subd. (a); 664), assault with a deadly weapon ( 245, subd. (a)(1)) and corporal injury to a domestic partner ( 273.5, subd. (a)). As to each count, the jury found that Palacio inflicted great bodily injury ( 1192.7, subd. (c)(8), 12022.7, subd. (e)) and personally used a deadly and dangerous weapon ( 1192.7, subd.(c)(23), 12022, subd.(b)(1)). The court sentenced Palacio to life in prison with the possibility of parole plus six years.

Palacio appeals, contending the court erred by failing to sua sponte instruct the jury as to CALCRIM No. 375, instructing the jury that it must consider evidence of appellant's prior suicide attempt only for the purpose of establishing motive in this case. Furthermore, Palacio contends that counsel was ineffective for failing to request the instruction and therefore was prejudiced by this error. We find no prejudicial error and affirm the judgment.

STATEMENT OF FACTS

In 1993, Sylvia Saldana met Palacio and they dated for four years until they started living together in 1997. Saldana and Palacio continued living together for nine years during which time they had two children, a daughter and a son. During the course of their relationship, because of Palacio's increasing drug addiction, abuse and violence, Saldana contemplated leaving Palacio.

In March 2006, Saldana and the children stayed at her mother's home while Palacio was away on a trip to Mexico. When Palacio returned on March 19, 2006, he angrily went to Saldana's mother's house in the middle of the night to find Saldana and the children. Saldana called 911, but Palacio had left by the time the sheriff arrived. The next morning, Palacio once again came to Saldana's mother's house to take the children to his mother's house for the day. When Saldana arrived at Palacio's house to pick up the children later the same day, Palacio was very upset. He was "wasted" on methamphetamine. The children got into Saldana's car and she refused to allow Palacio to get in as she knew he would start a fight. Still, Palacio partially got in the car, pulled out a small sharp knife and started poking his neck, telling Saldana, "This is what I had, just in case you call the Sheriff again." Palacio got out of the car and Saldana immediately drove away. While driving, Saldana could see that Palacio was running into oncoming cars, trying to get hit. He was hit in the leg by a car, but was able to get up and started running towards Saldana's car. Saldana had to stop so she would not hit him. Palacio started banging on Saldana's window, telling her that because of her, he was going to kill himself. Saldana yelled to Palacio to get out of the way. Palacio moved out of the way and Saldana drove to her mother's house and phoned 911.

Saldana never moved back in with Palacio. Saldana and Palacio separated and shared custody of the children. After their separation in 2006, Palacio threatened that if he could not have Saldana, he would rather kill himself. Palacio also physically tried to hurt Saldana, but when she told him she would call 911, he stopped.

On April 12, 2007, the children visited Palacio at his house. When Saldana tried to pick up the children at 7:30 p.m., Palacio said they were playing and asked her to leave them for a while longer. She continued to call every 15 minutes until 10:00 p.m. and Palacio told her the children were still playing. Saldana fell asleep at about 11:00 p.m. She woke up the next morning at around 4:00 a.m., realizing she had fallen asleep without picking up the children. She called Palacio, who refused to drop off the children on his way to work. Saldana drove to Palacio's house and honked the car horn to alert him to bring out the children as usual. When Palacio walked out of the house alone, she put the car into "park" and the car doors unlocked automatically. Saldana rolled down the passenger window and asked Palacio where the children were. Palacio got into the car, closed the door, told Saldana he loved her and asked her for sex. She responded, "Shut the fuck up and bring the kids out." Palacio leaned over and tried to kiss Saldana. She pulled her head back and Palacio stabbed her with an ice pick on the left side of her chest. Saldana struggled with Palacio and urged that he was going to kill her if he persisted. Palacio was very calm and only replied that he loved her. Saldana tried to fight Palacio off while he pulled out the ice pick and stabbed her several more times. Eventually, Saldana got a hold of the ice pick, opened the car door and threw the ice pick under the car. Palacio tried to strangle her with his hands.

Saldana managed to get out of the car and tried to run for help, but could not go far because she could not breathe. Palacio ran after her and asked where she was going. Saldana begged for her keys and asked if the children were okay. Palacio refused and tried to hug her, telling her the children were okay and that he was "next." Palacio began walking back to his house and in Saldana's opinion, appeared to be the calmest in his life. When he got to Saldana's car, he dropped her keys on the ground. Palacio ran up to the children, hugged and kissed them, then pushed the children inside the house, and called his parents to come to the house for an emergency. Both Palacio and Saldana called 911. Palacio was arrested at the scene by Deputy Sheriff Sheets. Fearing further altercation, Saldana drove to a gas station where the paramedics were waiting. Saldana suffered many injuries including a collapsed lung, two puncture stab wounds, bruises on both sides of her neck and an abrasion as well as a scratch on the right side of her neck.

DISCUSSION

Palacio contends the trial court should have instructed the jury with CALCRIM No. 375 with regard to evidence of his prior suicide attempt. In the alternative, Palacio argues that his counsel was ineffective for failing to request a limiting instruction.

Absent a request by a defendant, the court has no sua sponte duty to give a limiting instruction. (People v. Macias (1997) 16 Cal.4th 739, 746, fn. 3.) CALCRIM No. 375 could have provided the jury with a limiting instruction regarding Palacio's prior attempted suicide. Upon request, the court must give this instruction when evidence of other offenses has been introduced. (Evid. Code,  1101, subd. (b).) The court is only required to give a limiting instruction sua sponte in the rare and ''occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.'' (People v. Collie (1981) 30 Cal.3d 43, 64.) The court may in such an appropriate case instruct sua sponte on the limited admissibility of evidence of past criminal conduct, but it is under no duty to do so. (Ibid.)

Here, Palacio contends that evidence of the suicide attempt without a limiting instruction improperly permitted the drawing of prejudicial inferences and allowed the jury to convict Palacio when the evidence was equivocal. We disagree. Here, the evidence was highly relevant to legitimately show the attempted suicide was part of the larger picture of his continual and increasingly violent behavior toward Saldana. This case does not rise to the level of extraordinary case stated in People v. Collie, supra, 30 Cal.3d 43, because evidence of the suicide attempt is relevant to prove Saldana's actions were part of a series of events showing Palacio's overall motive and intent. Additionally, there is no indication from the record that the jury would likely have been confused as to the purpose of evidence relating to the suicide attempt. Furthermore, Palacio failed to request that the court instruct the jury with CALCRIM No. 375. Since we find no sua sponte duty in this case to give a limiting instruction, Palacio's failure to request such instruction has waived this issue on appeal.

Palacio further contends that defense counsel's failure to request an instruction limiting the jury's consideration of the facts underlying the suicide attempt constituted ineffective assistance of counsel. "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Strickland v. Washington (1984) 466 U.S. 668, 687.) To establish ineffective assistance of counsel in criminal matters, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Therefore, the defendant must overcome the presumption that, under the circumstances, the challenged action " 'might be considered sound trial strategy.' " (Id. at p. 689.)

Palacio contends that defense counsel's failure to request the limiting instruction was deficient. Here, the record does not show why such an instruction was not requested. It may well be that counsel did not want to emphasize the prior suicide attempt. Since the record is silent on counsel's reasoning and a satisfactory explanation exists for not making the request, we must presume that under the circumstances, counsel not requesting the instruction must have been a trial strategy. (People v. Mendoza-Tello (1997) 15 Cal.4th 264, 267-268.)

Even assuming counsel's error, Palacio must prove that there is reasonable probability that but for counsel's failure to request the instruction, the result of the proceeding would have been different. We think not because Palacio's prior suicide attempt was relevant to show his motive, intent, common plan or scheme to attack Saldana. As evident in the record, Palacio desperately wanted to reunite with Saldana; he told her that if he could not be with her, no one could and that he was going to kill himself. He tried to kiss her, hug her and have sex with her. The evidence against Palacio is sufficient to show that even if the limiting instruction were given, it is not reasonably probable that Palacio would have received a more favorable result.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

HALLER, J.

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