P. v. Ramos
Filed 6/28/12 P. v. Ramos CA4/1
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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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MIGUEL RAMOS,
Defendant and Appellant.
D059185
(Super. Ct.
No. FCH800266)
APPEAL from
a judgment of the Superior Court
of
Bernardino County, Gerard S. Brown, Judge. Affirmed.
A jury convicted defendant of
premeditated murder and, in a separate
phase of the trial, rejected his claim that he was not guilty by reason of
insanity. On appeal, defendant asserts
the premeditated murder judgment should be reversed because (1) the trial court
erred in denying his Batson/Wheeler
based on the prosecutor's use of peremptory challenges to excuse three Hispanic
prospective jurors; (2) during closing argument the prosecutor misstated the
law and improperly referred to defendant's decision not to testify; and (3)
there is insufficient evidence of
premeditation and deliberation. We find
no reversible error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 10, 2008, defendant shot and killed his cousin (David
Barrita) at a party in Chino. Defendant was angry because Barrita had been
involved with defendant's wife.
Defendant admitted to the police that he purchased a gun several days
before the shooting and that he brought the gun with him to the party in case
he encountered Barrita. At trial, the
events prior to the shooting were described by defendant's wife and Barrita's
wife. The actual shooting was described
in the testimony of Barrita's wife and his cousin, as well as in defendant's
recorded statements to the police.
In September 2006, about 18 months
before the shooting, Barrita's wife (Maximina Lopez) found a picture of Barrita
and defendant's wife (Irene Garcia) in Barrita's cell phone.
"gone out" with Garcia. In a
subsequent phone conversation, Lopez told defendant that his wife was a
"loose woman" who was chasing her husband. Barrita also spoke to defendant on the phone,
telling him that he never had sexual relations with Garcia and they just
"used to talk." After this
phone conversation, Barrita told Lopez that defendant had threatened to kill him.
During this same time period in
September 2006, Garcia separated from defendant while she was pregnant with her
second child. Garcia claimed defendant
was the father but defendant did not accept that the child was his. Garcia left a letter for defendant in their
house, stating that she was leaving him; she had deceived him even though she
had not "cheated" on him but it was "just as friends"; she
knew he would not understand; she made a mistake but swore she only
"gave" herself to him; she requested his forgiveness for her
"stupidity"; and she had forgiven his mistakes but he was the one
"with the stronger temper."
In June 2007, defendant and Barrita
encountered each other at a party.
During this encounter defendant pulled out a knife and stated that
Barrita "owed him something."
Barrita responded that "he wanted to solve this issue, but just
with their hands, not with weapons."
After this incident, Barrita did not accompany his wife to several
parties because he knew there would be a problem if he met defendant there.
The shooting occurred at about 9:45 p.m. on May 10, 2008, as Lopez, Barrita, and their young son were
leaving a party held at the home of Barrita's cousin (Clemente Vasquez). Defendant was not invited to the party, but
about 30 minutes before the shooting Vasquez saw defendant outside his
home. Vasquez gave defendant a beer, and
then returned to his guests while defendant remained outside the party
area. As Barrita and his family were
walking out the front gate to leave the party, defendant walked towards Barrita
and said, " 'Cousin, you owe me something.' " Defendant then lifted his shirt, pulled out a
gun from his waistband, and shot Barrita.
Defendant first fired about two shots, and then while Barrita was lying
on the ground he shot him about three more times. Defendant ran away and left in his car.
Barrita had been shot once in his
face, once in his hand, and three times in his chest. He died minutes after he was shot.
After an extensive search, on May 16, 2008, the police found
defendant walking outside a residence in the city of Stanton
where he had fled. Defendant ran from
the police but was apprehended and arrested.
During a recorded interview with
the police, defendant stated that his wife left him for his cousin Barrita when
she was pregnant. Later, his wife wanted
to get back together, but defendant was still angry. Barrita was boasting to a lot of people that
he "took [defendant's] woman[,]" which made defendant angry. Defendant did not feel well anymore; he
supported his two babies, but he was not living with them and he did not know
if the second child was his or Barrita's child.
Barrita was "disrespecting" him and that was "why that
happened."
Defendant told the police that he
bought a gun five days before the incident, and "in [his] anger" he
thought about looking for Barrita and "hitting" or
"shooting" him.
name="_ftnref3" title="">[3] On the evening of the shooting, defendant was
at another party for several hours and then decided to go to Vasquez's party to
see a girl he liked who lived there. He
did not know Barrita was at Vasquez's party, but he brought the gun with him
just in case he saw him. He went alone,
explaining that he did not have friends anymore. People were giving him "bad looks"
and treating him "like less of a man" because he had been
"cheated on" and his wife was "involved with another"
man. When defendant encountered Barrita
outside the party, defendant told Barrita that Barrita "owed [defendant
for] the humiliation," and defendant was "going to
collect." After saying this to
Barrita, defendant pulled out the gun and repeatedly shot Barrita. Defendant told the police that at the time of
the shooting he felt "[his] anger" and "[n]othing," but he
now felt sad because Barrita was his cousin.
He told the officers "[e]verything is [his] fault" and he
wanted them to punish him.
Jury Verdict and Sentence
At the
guilt phase of the trial, the defense conceded that defendant had committed
second degree murder, but argued the evidence did not show the premeditation
and deliberation necessary for first degree murder. The jury rejected this, and found defendant
guilty of first degree murder, with a true finding that he personally
discharged a firearm. At the sanity
phase of the trial, the jury rejected his claim that he was not guilty by
reason of insanity and found him sane at the time of the murder.
Defendant
was sentenced to two terms of 25 years to life for the murder and the firearm
enhancement.
DISCUSSION
I.
Denial of Batson/Wheeler
Motion
Defendant argues the trial court
erred in denying his Batson/Wheeler motion
based on the prosecutor's peremptory excusals of three Hispanic prospective
jurors.
To protect a defendant's
constitutional rights to equal protection and a jury drawn from a
representative cross-section of the community, the prosecutor's peremptory
challenges may not be based on group bias.
(People v. Lewis (2008) 43
Cal.4th 415, 469.) "[T]he
unconstitutional exclusion of even a single juror on improper grounds of
. . . group bias requires . . . reversal of
the judgment . . . ."
(People v. Reynoso (2003) 31
Cal.4th 903, 927, fn. 8.) If the
defendant makes a prima facie showing of a discriminatory purpose for the
prosecutor's peremptory challenges, the burden shifts to the prosecutor to
offer nondiscriminatory justifications for striking the jurors. (People
v. Lewis, supra, 43 Cal.4th at p. 469.)
If the prosecutor presents nondiscriminatory explanations, the trial
court must then decide whether the defendant has proved purposeful
discrimination. (Ibid.)
The prosecutor's justification for
a peremptory challenge need not rise to the level of a challenge for cause, and
even a trivial reason or hunch, if genuine and neutral, will suffice. (People
v. Lenix (2008) 44 Cal.4th 602, 613.)
When deciding whether the defendant has shown purposeful discrimination,
the trial court must determine whether the prosecutor's reasons are sincere and
legitimate, or whether they are "implausible or fantastic
justifications" serving as pretexts for a discriminatory purpose. (People
v. Reynoso, supra, 31 Cal.4th at pp. 916, 924.)
The trial court's findings on
purposeful discrimination turn largely on credibility, and on appeal we review
the court's ruling for substantial evidence.
(People v. Lenix, supra, 44
Cal.4th at pp. 613-614.) " 'We
presume that a prosecutor uses peremptory challenges in a constitutional manner
and give great deference to the trial court's ability to distinguish bona fide
reasons from sham excuses. . . . So long as the trial
court makes a sincere and reasoned effort to evaluate the nondiscriminatory
justifications offered, its conclusions are entitled to deference on appeal.' " (Ibid.)
During the
first four peremptory challenges exercised by the prosecutor, the prosecutor
excused three Hispanic jurors (C.V., J.C., and C.H.). Defense counsel then made a
prosecutor was systematically excluding people of Hispanic heritage. The court found that defendant had made a
prima facie showing of discrimination and asked the prosecutor to explain his
reasons for dismissing the three Hispanic jurors. As we shall delineate below, the prosecutor
set forth his reasons, and the court concluded defendant had not carried his
burden to show purposeful discrimination.
Preliminarily, the court noted that the first juror excused by the
prosecutor was not Hispanic. Further,
both the defendant and the victim were Hispanic; hence, this was not a case
involving a defendant and victim of different races. The court then evaluated the reasons
proffered by the prosecutor for the dismissal of the Hispanic jurors, and
concluded they were legitimate, not pretextual.
We summarize the record and
evaluate the court's findings with respect to each of these jurors in turn.
During voir dire questioning by the
prosecutor, the prosecutor asked if there were any jurors who did not want to
be at the trial because it was going to be lengthy (lasting potentially three
months) and it was a serious murder case.
C.V. responded that he had a problem with the subject matter, explaining
he was uncomfortable with the idea of death and when he hears about a dead
person he thinks about the family and friends and feels sad. The prosecutor acknowledged it was not easy
to deal with, but asked if C.V. thought he could be fair in this case, if he
could listen to the evidence, and depending on what the evidence showed could
he return a guilty verdict. C.V.
responded "Yes" to these questions.
C.V. also answered "Yes" when the prosecutor asked jurors if
they could "keep [their] emotions out and [their] common sense in."
Explaining why he excused C.V., the
prosecutor stated that when he asked if any jurors did not want to be at the
trial, C.V. indicated he did not want to be there and he did not think this
would be the right case for him. The
court found that this was a "classic example" of a peremptory
challenge because an attorney does not want a juror who does not want to be
there, especially for a lengthy trial.
The record supports the court's
finding of no pretext for C.V. When the
prosecutor asked the jurors if anyone did not want to be at the trial because
of its length or subject matter, C.V. responded that he was uncomfortable with
the subject matter of death because it made him sad. Although this response could suggest sympathy
for the victim in a manner favorable to the prosecution, the prosecutor could
also deduce that C.V. tended to be emotional and hence might have sympathy for
a defendant who killed because of an emotional response to his wife's perceived
infidelity.
Defendant asserts that an inference
of pretext arises because the prosecutor misconstrued the record when stating
that C.V. said he did not want to be there and the case was not the right one
for him, and further the prosecutor did not question C.V. about whether he
would be better suited to a different case.
The contention is unavailing.
When the prosecutor asked if any jurors did not want to be at the trial
because of its length or subject matter, C.V.'s response that he was
uncomfortable with the subject matter implicitly conveyed that he was concerned
about being at this trial and whether this was the right case for him. C.V.'s response also provided sufficient
information for the prosecutor to evaluate his suitability as a juror without further
questioning about whether he should serve at a different trial.
Defendant also argues the
prosecutor's reason was pretextual because many jurors were uncomfortable with
the homicide subject matter, and C.V. confirmed that he could be fair and could
control his emotions. The fact that homicide
may be an uncomfortable subject for many jurors does not establish that the
prosecutor could not properly excuse a juror based on an assessment that the
juror did not want to be there due to the difficult nature of the case. Further, the prosecutor was not required to
accept C.V.'s ultimate statements that he could be fair and set aside his
emotions; rather, the prosecutor was entitled to make his own determinations on
these matters when exercising peremptory challenges.
Using a comparative analysis,
defendant asserts the prosecutor's pretextual basis for excusing C.V. is shown
by the fact that the prosecutor did not excuse a non-Hispanic juror (S.C.) who
also stated she did not want to be at the trial.
prosecutor's proffered reason for excusing a juror applies equally to a
similarly-situated juror who is not a member of the identified group and who
was retained by the prosecutor. (See
472; People v. Lenix, supra, 44
Cal.4th at pp. 621-622.) The record does
not show that S.C. was similarly situated to C.V. During voir dire questioning by the
prosecutor, S.C. stated she did not want to be at the trial because its length
would affect her workload at the office given that she had no backup and would
have to catch up on a lot of things; however, upon further questioning she
stated this would not impact her ability to be fair. A concern about a lengthy trial affecting
workload is markedly different from a concern about an emotional response to
the subject matter of the trial, and the workload concern does not raise the
issue of sympathy in favor of one party.
The prosecutor's failure to dismiss S.C. does not show pretext with respect
to C.V.
During preliminary voir dire
questioning, J.C. stated he had two cousins who worked in law enforcement; he
had attended police academy; and his daughter had been a rape victim and the
perpetrator had pleaded guilty and was in jail.
During questioning by defense counsel, J.C. stated he had attended
police academy 16 years ago for a few weeks and then left because his
girlfriend became pregnant. When the
prosecutor asked the jurors if any of them had concerns about the subject
matter of the case, J.C. stated he did not know if he would be able to set
aside and "not bring . . . home" what he saw
throughout the case. On further questioning, J.C. stated he thought he could be
fair. When the prosecutor asked jurors
whether they knew anyone who had gone through a divorce, J.C. stated his cousin
had undergone a long divorce. When the
prosecutor asked him whether a "nasty" divorce can justify harming
the other spouse, J.C. responded, "No."
Explaining why he excused J.C., the
prosecutor commented that J.C. could be a favorable juror for the prosecution
due to the fact that he had two cousins in law enforcement. However, the prosecutor noted that J.C.'s
daughter had been raped and he had left the police academy after two weeks. Based on this, the prosecutor stated he was
not sure what J.C.'s feelings were towards law enforcement. The prosecutor elaborated that he did not
want to question J.C. about the details of the rape case because it was a
sensitive topic especially for a parent; he did not think a parent who had gone
through a rape case should have to sit through this type of homicide case; and
a father might have a long-lasting rage response to his child's rape that could
make him amenable to a voluntary manslaughter verdict in this case due to the
defendant's rage. Further, the prosecutor
was suspicious about J.C.'s statement that he left the police academy after two
weeks because his girlfriend got pregnant, and the prosecutor did not know if
he left on "good terms or bad terms."
Defense counsel asserted that
J.C.'s background showed he would be favorable to the prosecution, including
being the father of a rape victim who would have an opportunity in this case to
get justice against a defendant.
The court assessed that J.C.'s
status as the father of a rape victim could be looked at in two different ways;
i.e., the father could be angry at criminals, or the father could see a
justification for a harmed, enraged person (such as a betrayed spouse) taking
matters " 'into [his or her] own hands.' " Accordingly, the court credited the
prosecutor's explanation that he excused J.C. due to the possibility that he
had experienced "an enormous amount of rage" concerning a sexual
incident with a family member that might cause him to mitigate the offense down
to voluntary manslaughter.
The trial court reasonably credited
the prosecutor's race-neutral explanation for dismissing J.C. Although there were factors in J.C.'s
background that could have made him a juror desired by the prosecution, the prosecutor
could legitimately excuse him based on a determination that he might have a
personal understanding of the anger felt by defendant due to his wife's
perceived infidelity, and hence more likely to consider returning a verdict
more favorable to the defense.
name="_ftnref6" title="">[6] Even though J.C. stated he did not think a
situation such as a difficult divorce could justify inflicting
the prosecutor could nevertheless legitimately view J.C. as a juror who might
have empathy for someone who commits a crime while experiencing a rage
reaction.
To support his claim of pretext,
defendant points to the fact that the prosecutor did not question J.C. about
whether he felt rage about his daughter's rape.
A finding of pretext can be based on the prosecutor's failure to engage
a juror in meaningful voir dire about the topic the prosecutor has identified
as important. (See People v. Lewis, supra, 43 Cal.4th at p. 476.) The trial court could reasonably credit the
prosecutor's statement that he did not want to subject J.C. to detailed
questioning about an obviously highly painful experience. Further, the prosecutor could deduce that it
would not be unusual for a father whose daughter was raped to experience rage
at some point, and thus there was no need to question J.C. on this matter. The record does not show an absence of
meaningful voir dire.
Defendant also contends that
pretext is shown because the prosecutor did not excuse a juror (Juror. No. 222)
whose foster daughter had been molested.
The record does not indicate whether Juror No. 222 was
non-Hispanic. In any event, even
assuming that she was not Hispanic, the record does not show Juror No. 222 was
similarly-situated to J.C. When asked by
the prosecutor whether she had any training or experience dealing with sanity
issues or the developmentally disabled, Juror No. 222 stated that she has had
close to 22 foster children, about three of them were bipolar, and they had
issues with rage and anger. A female
foster child had been molested at age five and assaulted with cattle prods; the
child regressed, became violent, and had to be hospitalized; the social workers
who placed the child with the juror did not know about her background; and it
was "a learning experience" and the child did not return to the
juror's home. The prosecutor could
reasonably believe that Juror No. 222's experience with a victimized foster
child who temporarily stayed in her home would not generate the same type of
emotional rage response as J.C.'s experience with his daughter's rape. Further, Juror No. 222 stated that she had no
problems sitting on a murder case, whereas J.C. stated he was concerned about
not being able to set aside what he heard during the case. Given the qualitative differences in their
relationships with a sexual assault victim and in their responses concerning
the subject matter of the trial, these jurors were not similarly situated. Accordingly, the prosecutor's failure to
excuse Juror No. 222 does not reflect a pretext as to J.C.
The victim and defendant in this
case were both from Oaxaca, Mexico; accordingly, during voir dire questioning
defense counsel asked the jurors about their contacts with people from
Oaxaca. In response to this query, C.H. stated
that she had been to Mexico, and although she had not been to Oaxaca she had
"most likely" met someone from Oaxaca because she met "a lot of
people everyday." During voir dire
questioning by the prosecutor, the prosecutor asked the jurors if everyone
needed to follow the "laws of the land," or was it acceptable for
different rules to apply to immigrants due to cultural differences. C.H. responded: "[I]f we're equal people, we should be
treated the same way, no matter if you were born here or immigrated." When she made this response, the interpreter
stated he could not hear her, and the prosecutor instructed C.H. to speak
up. C.H. repeated her answer, and the
prosecutor continued inquiring about this topic with other jurors.
The prosecutor stated that he
excused C.H. because when he collectively asked the jurors whether all people
should be treated equally rather than considering cultural issues, "at
first [C.H.] was nodding her head."
However, when he asked C.H. about this she hesitated, which indicated to
him that there may be "some issues with it." Defense counsel argued that he did not recall
any hesitation from C.H., and C.H. said "she was not influenced by culture
in any way."
The court commented that its
decision concerning C.H. was more difficult and "a bit of a close
one." The court stated that it
"personally could not say with certitude" whether C.H. hesitated when
queried about the cultural issues, and this was not a matter that could be
confirmed by having the court reporter check the record of her voir dire
answer. However, the court concluded the
prosecutor's explanation was credible.
Defendant asserts the record shows
C.H. responded in unequivocal fashion that people should be treated equally
when asked if different rules could apply to immigrants. Further, he notes the prosecutor did not
question C.H. about any hesitation even though he had questioned others jurors
about their hesitation.
As the trial court observed, a
juror's hesitation is not something that would necessarily be captured in the
reporter's transcript. A perception of
hesitation can arise from subtle demeanor factors observed by the
prosecutor. In this arena, we are
required to accept the trial court's assessment of the prosecutor's credibility
as long as the record shows the trial court conscientiously considered the
matter. The record reflects the court
carefully considered whether the prosecutor was providing a pretextual reason
for excusing C.H., and the court concluded his explanation was sincere. Because the trial court was in a position to
observe the prosecutor's demeanor, we defer to this credibility
determination. (See People v. Lenix, supra, 44 Cal.4th at pp. 613-614; see also
S.Ct. 1171, 1175] [trial judge can properly credit prosecutor's demeanor-based
explanation for peremptory challenge even if judge did not personally observe
or recall juror's demeanor].)
Further, the record shows the
prosecutor engaged in extensive juror questioning about whether they would hold
immigrants accountable under our laws and not allow for any leniency due to
cultural differences. This extensive
questioning supports that any hesitation by C.H. in responding to this question
would be a matter of significance to the prosecutor. The fact that the prosecutor asked other
jurors, but not C.H., about their hesitation does not alone establish that the
prosecutor did not observe this reaction in C.H. The prosecutor may have concluded there was
no need for further inquiry of C.H. because he was satisfied based on her
hesitation that, even if she stated that all people should be treated equally,
she might be sensitive to potentially different cultural mores and could be a
juror more favorable to the defense than to the prosecution. Regardless of the objective reasonableness of
relying on C.H.'s perceived hesitation, the trial court was entitled to find it
legitimate based on an assessment that the prosecutor genuinely relied on this
race-neutral reason for a peremptory challenge.
(See People v. Reynoso, supra,
31 Cal.4th at p. 924 ["The proper focus . . . is on
the subjective genuineness of the
race-neutral reasons given for the peremptory challenge, not on the objective reasonableness
of those reasons."].)
Additionally, as found by the trial
court, the record generally supports an inference of no purposeful
discrimination because both the victim and the defendant were Hispanic. Thus, this is not a case where the removal of
Hispanics could operate to the prosecution's benefit by reducing the number of
jurors who share the defendant's, but not the victim's, ethnicity. (See People
v. Reynoso, supra, 31 Cal.4th at p. 926, fn. 7 [fact that both defendants
and murder victims were Hispanic can be "viewed as neutralizing any
suspected untoward belief" by prosecutor that Hispanic jurors would tend
to be biased in favor of Hispanic defendants].)
The record supports the court's
finding of no purposeful discrimination.
II. Prosecutorial
Misconduct
Defendant argues the prosecutor
engaged in misconduct during closing
argument by (1) misstating the mental state for second degree murder, and (2)
commenting on defendant's decision not to testify. Because defense counsel did not object to
these closing arguments at trial, defendant contends he was provided
ineffective assistance of counsel.
To preserve the issue for appellate
review, a defendant must object to prosecutorial misconduct and request that
the jury be admonished unless these actions would be futile or ineffective in
curing the harm. (People v. Harrison (2005) 35
Cal.4th 208, 243-244.) As defendant
recognizes, his counsel did not object to the instances of misconduct now
raised on appeal. However, we need not
discuss the issues of forfeiture or ineffective representation because, even
addressing the misconduct claims on their merits, there is no basis for
reversal. (See id. at p. 244.)
A.
for Second Degree Murder
Defendant
argues that during closing arguments
the prosecutor told the jury that a finding of intent to kill precluded a
conviction of second degree murder. To
review this contention, we summarize the general law governing first and second
degree murder, the court's instructions to the jury, and the prosecutor's
statements during closing argument.
1.
General Law
Murder is
an unlawful killing committed with malice aforethought. (People
v. Cravens (2012) 53 Cal.4th 500, 507.)
Malice may be express or implied; it is express when the defendant
intends to kill, and it is implied when the defendant deliberately commits an
act that is dangerous to human life and acts with knowledge of the danger and a
conscious disregard for life. (
For first degree premeditated
murder, the malice must be express; i.e., with intent to kill. (People
v. Moon (2005) 37 Cal.4th 1, 29.)
Further, the intentional killing must have occurred with deliberation
and premeditation. (People v. Hart (1999) 20 Cal.4th 546, 608.) Deliberation refers to a careful weighing of considerations
in forming a course of action; premeditation means thought over in
advance. (People v. Halvorsen (2007) 42
Cal.4th 379, 419.) Premeditation and
deliberation require more than mere formation of intent to kill. (Ibid.;
People v. Concha (2010) 182
Cal.App.4th 1072, 1083-1084.) That is, the evidence
must show that the intent to kill arose from preexisting thought and reflection
rather than an unconsidered or rash impulse.
(People v. Stitely (2005) 35
Cal.4th 514, 543.)
Second degree murder is an unlawful
killing with either express or implied malice, but without the premeditation
and deliberation that elevates the offense to first degree murder. (People
v. Prince (2007) 40 Cal.4th 1179, 1265-1266; People v. Bohana (2000) 84 Cal.App.4th 360, 368.)
2.
Instructions
Based on these principles, the
trial court instructed the jury that the defendant was charged in count 1 with
murder, and to prove this charge the prosecution had to prove that he acted
with malice aforethought. The court
explained that malice could be either express or implied; malice is express if
he intended to kill; malice is implied if he intentionally committed an act
dangerous to human life with knowledge of the danger and conscious disregard
for life; and malice must be formed before the act but did not require
deliberation. (See CALCRIM No. 520.)
The court then told the jury that
if it decided defendant had committed murder, it must then decide whether it
was murder of the first or second degree.
The court stated that defendant was guilty of first degree murder if the
prosecution proved he acted "willfully, deliberately, and with
premeditation." The court defined
these terms, stating that defendant acted willfully if he intended to kill; he
acted deliberately if he carefully weighed the considerations for and against
his choice and knowing the consequences decided to kill; and he acted with
premeditation if he decided to kill before committing the act. After defining first degree murder, the court
stated that all other murders are of the second degree. (See CALCRIM No. 521.)
3.
In closing
arguments, the prosecutor told the jury that it had to decide if the killing
was committed with malice aforethought, which could be either express or
implied. Further, the jury had to decide
between first degree murder, second degree murder, and not guilty. The prosecutor told the jury it should
immediately reject a not guilty verdict, and its responsibility was to decide
if the offense was first or second degree murder.
Addressing the malice requirement,
the prosecutor argued the evidence showed defendant acted with express malice
based on an intent to kill because he shot the victim multiple times. The prosecutor also defined implied malice as
the intentional commission of an act dangerous to life with knowledge and
conscious disregard of the danger to life; gave an example of implied malice
(i.e., firing a couple of rounds at a group of people without the intent to
kill them but knowing the act was dangerous and with conscious disregard); and
then argued the jury did not "have to worry" about implied malice
because the evidence showed express malice.
After providing this explanation of
malice for murder, the prosecutor addressed first degree murder, stating: "This is how we get to first degree
murder. Did he intend to kill
someone Did he kill another human being
with malice aforethought, and was it willful, premeditated and
deliberate" The prosecutor then
delineated the three elements of first degree murder defined in the court's
instructions (willful, deliberate, and premeditated), quoted the court's
definition of each of the elements, and argued the evidence supported each of
these elements.
The prosecutor stated the defendant
acted willfully if he intended to kill, which was shown by the fact that he
pointed the gun and shot multiple times, including one shot believed to be
execution style. The defendant acted
deliberately if he weighed the considerations for and against his choice and
knew the consequences, which was shown by his admission that he bought the gun
several days earlier and brought it with him on the day of the shooting in case
he saw the victim. The defendant
premeditated if he decided to kill before committing the act, which was also
shown by his admission that he bought the gun in case he saw the victim. The prosecutor commented premeditation and
deliberation did not "need that much time," and it was not the length
that was important but the careful consideration of what the defendant was
going to do and making that choice. The
prosecutor also pointed to defendant's motive for the crime, his flight after
the crime, and his confession, and argued the evidence showed "[a]ll the
elements needed for first degree murder."
Summing up its argument, the
prosecutor stated:
"Possible
verdicts. You'll get these verdict
forms, and if you believe that he premeditated, willfully deliberated this
murder, you sign 1(a) . . . . If you
believe he didn't mean to kill him, but he knew he was firing a firearm, it's
second degree murder. . . .
That's 2(a). And if you think
he's not guilty of either of the crimes, you fill out 1(b) and
2(b). . . . But in this case all you have to decide is it
murder in the first degree, or is it murder in the second degree
[¶] . . . [¶] . . . I'm asking
you to come back with first degree murder, premeditation, willfully, and deliberate . . . ." (Italics added.)
Thereafter,
during defense closing arguments, defense counsel conceded that defendant
committed second degree murder. However,
defense counsel asserted the evidence did not show premeditation and
deliberation for first degree murder because it made no sense that defendant
would plan to kill the victim at a large gathering of people who knew
defendant.
In
rebuttal, the prosecutor argued:
"We agree
with [defendant]. It's murder. But it's for you to decide is it second or
first, and what evidence do we have that
this is a second degree murder, that he didn't intend to kill this person, he
didn't plan it He bought a
gun." (Italics added.)
4.
As set forth above, a defendant may
be found guilty of second degree murder even if the defendant intended to kill
the victim, but there was no premeditation and deliberation. Defendant argues that the prosecutor misled
the jury about this principle by effectively stating that intent to kill
precluded a second degree murder verdict.
In support, defendant cites the prosecutor's statement that "[i]f
you believe he didn't mean to kill him, but he knew he was firing a firearm,
it's second degree murder[,]" and then later, "what evidence do we
have that this is a second degree murder, that he didn't intend to kill this
person, he didn't plan it"
When evaluating claims of improper
argument to the jury, " 'the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks
in an objectionable fashion.' " (
context, there is no reasonable likelihood the jury interpreted them to mean
that if it found defendant had the intent to kill, he had to be convicted of
first degree, not second degree, murder.
The court instructed the jury that
first degree murder required willful conduct (defined as intent to kill),
premeditation, and deliberation. The
prosecutor tracked these elements when arguing for first degree murder, stating
that defendant acted willfully because he intended to kill when he pointed and
shot multiple times, and he acted with deliberation and premeditation because
he told the police that he acquired the gun several days earlier and brought
the gun with him in case he encountered the victim. Further, defense counsel argued to the jury
that the offense was second, not first, degree murder because defendant did not
plan the killing. Based on these
instructions and arguments, there is no possibility that the jury thought it
could find first degree murder based solely
on intent to kill; rather, the jury knew it also had to find premeditation and
deliberation. Under these instructions
and argument, if the jury found no premeditation and deliberation but found
intent to kill, the only verdict available to them was second degree murder.
The court's instructions also told
the jury that malice could be based on either intent to kill (express malice)
or conscious disregard for life (implied malice). The prosecutor reiterated the two definitions
of malice in his closing argument, and gave an example of implied malice when a
person shoots into a crowd without intent to kill. Thus, when during the summation of his
argument the prosecutor stated that defendant committed second degree murder if
he did not intend to kill but knew he was firing a firearm, this was an obvious
reference to implied malice. Although
the prosecutor omitted second degree
murder based on express malice/intent to kill from this summation portion of
his argument, there is no reasonable likelihood the jury interpreted this
omission to mean intent to kill required a first degree murder verdict. It is clear from the instructions and the
arguments that the jury knew that first degree murder required premeditation
and deliberation, not just intent to kill.
Additionally, during an early portion of the prosecutor's closing
argument, the prosecutor expressly referred to second degree murder based on
express malice/intent to kill, stating, "If there was malice aforethought,
there [are] two kinds, expressed and implied, and if he intentionally killed that other person, it's second degree
murder." (Italics added.)
Similarly, the prosecutor did not
misstate the law when arguing in rebuttal that defendant did not commit second
degree murder because there was no evidence that he did not intend to kill and
no evidence he did not plan the killing.
Again, the prosecutor was referencing the elements of first degree
murder (intent to kill and premeditation/deliberation) and arguing that the
evidence established these elements. The
prosecutor's statement did not suggest that intent to kill was sufficient for a
first degree murder verdict or that the presence of intent to kill precluded
second degree murder.
Because the jury was clearly
apprised from both the court's instructions and the closing arguments that
first degree murder required premeditation and deliberation, the jury
necessarily would have returned a second degree murder verdict if it found
intent to kill but no premeditation and deliberation. The prosecutor's later references to second
degree murder based on implied malice (i.e., knowingly firing the gun with no
intent to kill), and to the evidentiary support for first degree murder (i.e.,
intent to kill and planning), did not misstate the law.
B. Prosecutor's
Reference to Defendant's Decision Not To Testify
During
closing arguments, the prosecutor delineated the statements made by defendant
to the police in which he admitted that he shot the victim at the party and he
requested that the police "punish" him. After setting forth the defendant's
statements, the prosecutor stated to the jury:
"He admits. He says, 'Punish
me. I don't want to get anyone
involved,' and yet he doesn't take the
stand for obvious reasons, but he wants to take responsibility, and the
people who have to make him responsible are all of you." (Italics added.)
To protect
the constitutional privilege against self-incrimination,
the prosecutor is prohibited from commenting on the defendant's failure to
testify at trial. (People v. Clair (1992) 2 Cal.4th 629, 662.) The rationale for this rule is that the jury
should not be invited to "consider the defendant's silence as evidence of
guilt." (People v. Lewis (2001) 25 Cal.4th 610, 670.) We agree with defendant that the prosecutor
committed misconduct by referencing his decision not to testify.
However, we conclude the error was
harmless beyond a reasonable doubt. (
420.) The prosecutor's comment was brief
and made in passing. Further, defendant
did not dispute that he committed second degree murder but defended on the
basis that he did not commit first degree murder. The prosecutor's improper reference to
defendant's failure to take the stand was made in the context of arguing that
defendant admitted to the police that he was guilty. However, the comment was not tied to the
prosecutor's contention that defendant was guilty of first, not merely second,
degree murder because he premeditated the killing. Thus, the error had no direct impact on the
key disputed issue regarding the degree of the murder. Additionally, the jury was instructed that a
defendant has a constitutional right not to testify, and it should not
consider, discuss, or be influenced by the fact that the defendant did not
testify. (See CALCRIM No. 355.) We presume the jury followed the court's
instructions. (People v. Gray (2005) 37 Cal.4th 168, 217.)
There is no reasonable possibility
the prosecutor's brief comment affected the jury's verdict.
III. Substantial
Evidence of Premeditation and Deliberation
Defendant
argues the record does not support the jury's finding that he engaged in
premeditation and deliberation.
In evaluating a challenge to the
sufficiency of the evidence, we review the entire record in the light most favorable to the judgment
to determine whether there is substantial evidence from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. (People
v. Nelson (2011) 51 Cal.4th 198, 210.)
We presume in support of the judgment the existence of every fact the
jury could reasonably deduce from the evidence.
(Ibid.) If the circumstances reasonably justify the
jury's findings, reversal is not warranted merely because the circumstances
might also be reasonably reconciled with a contrary finding. (Ibid.)
Deliberation and premeditation require an intentional
killing that is the result of preexisting thought and a careful weighing of
considerations rather than unconsidered or rash impulse. (People
v. Halvorsen, supra, 42 Cal.4th at p. 419; People v. Stitely, supra, 35 Cal.4th at p. 543.) However, deliberation and
premeditation do not require an extended period of time, merely an opportunity
for reflection. (People v. Cook (2006) 39 Cal.4th 566, 603.) The "true test is not the duration of time as much as it
is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly [distinguishing] those homicides . . . which
are the result of mere unconsidered or rash impulse hastily
executed." (People v. Thomas (1945) 25 Cal.2d 880, 900-901.) Factors such as planning, motive, and manner
of killing can assist in the determination of premeditation and deliberation,
but they are not required or exhaustive.
(People v. Halvorsen, supra,
42 Cal.4th at pp. 419-421; People v.
Perez (1992) 2 Cal.4th 1117, 1125.)
To support
his challenge to the jury's verdict, defendant contends that the killing
reflected a sudden explosion of violence rather than a cold, calculated
judgment because within seconds of seeing Barrita at the party, he
"snapped" and shot him in a public location in front of numerous
bystanders. The jury was not required to
reach this conclusion. Defendant told
the police he was angry and felt disrespected by Barrita because of Barrita's
conduct concerning defendant's wife; he bought the gun several days before the
shooting and thought about looking for Barrita; and he brought the gun with him
to the party in case he encountered Barrita.
This showed defendant engaged in substantial planning activity prior to
the shooting. Further, the jury could
find that defendant's conduct of continuing to shoot after the victim had
already fallen to the ground reflected a predetermined plan to inflict
sufficient wounds to ensure the victim's death rather than an impulsive,
unconsidered shooting. Contrary to
defendant's contention, the jury was not required to find the public location
of the shooting established a lack of planning.
The record
supports the jury's findings of premeditation and deliberation.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN,
Acting P. J.
McDONALD, J.
name="_ftn1" title="">[1]
name="_ftn2" title="">[2]
Defendant and Garcia had a
long-term relationship and had children together; for convenience we refer to
them as husband and wife even though they were never legally married.
