P. v. Rodriguez
Filed 7/26/13 P. v. Rodriguez CA4/2
TO BE PUBLISHED IN OFFICIAL REPORTS
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THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE
PEOPLE,
Plaintiff and Appellant,
v.
CONCEPCION
RODRIGUEZ,
Defendant and Appellant.
E054701
(Super.Ct.No. INF065609)
OPINION
APPEAL from
the Superior Court of
County. Richard A.
Erwood, Judge. Defendant’s appeal: Judgment affirmed. People’s appeal: Sentence vacated; remanded with instructions.
Waldemar D.
Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Steve Oetting and Andrew Mestman,
Deputy Attorneys General; Paul E. Zellerbach, District Attorney, and Kelli
Catlett, Deputy District Attorney, for Plaintiff and Appellant.
Defendant
Concepcion Rodriguez appeals his conviction for
circumstance of murder committed during the course of a kidnapping. We find no
conviction.
The
prosecution appeals from the sentence, contending that the trial court’s
decision to suspend the order for victim restitution rendered the sentence
unauthorized. We agree. Further, we conclude that the imposition of a
parole revocation fine was unauthorized.
We will direct the trial court to take corrective action with respect to
both sentencing issues.
PROCEDURAL HISTORY
Defendant
was charged with the premeditated and deliberate murder of Anastacio Torres,
including an allegation that the murder was committed during the commission or
attempted commission of kidnapping. (Pen. Code, §§ 187, subd. (a), 190.2,
subd. (a)(17)(B).)
name="_ftnref1" title="">[1]
The information also alleged that defendant personally and intentionally
discharged a firearm causing great bodily injury and death during the
commission of count 1, within the meaning of section 12022.53, subdivision (d)
and section 1192.7, subdivision (c)(8).
During the trial, the information was amended to allege personal use of
a firearm within the meaning of section 12022.5, subdivision (a).
A jury
found defendant guilty as charged on count 1 and found the kidnapping special
circumstance true. The jury deadlocked
on the two gun use allegations, and the allegations were later dismissed on
motion of the People.
Defendant
filed a motion for acquittal or new
trial, and for an order imposing no restitution. The prosecution filed opposition. The court denied the motion for acquittal or
new trial. It imposed the mandatory term
of life imprisonment without the possibility of parole. It ordered victim restitution in the amount
of $7,500 but ordered it stayed unless defendant was released on parole. The court imposed a restitution fine in the
amount of $1,000 and imposed and stayed a parole revocation fine in the same
amount.
Defendant
filed a timely notice of appeal. The
prosecution filed a timely notice of appeal from the order staying victim
restitution.
FACTS
On the
morning of May 14, 2006, the body of Anastacio Torres was found
in a semi-secluded area of Desert Hot Springs.
His hands were bound in front of him with plastic zip ties and his body
lay on top of a mattress pad and a blanket.
He had been shot twice in the chest.
In May 2006, a rumor began to circulate
among a group of acquaintances that Torres, known as “Taquito,†had raped
Andrea Garcia, the girlfriend of defendant Rodriguez. On May 12, 2006, defendant repeatedly asked
Garcia if the rumor was true. She denied
it. During the course of that day and
evening, defendant beat her, threatened her with a handgun, tied her wrists
with zip ties, and put her into a closet in their apartment. He pointed the gun at her head and demanded
to know if Torres had raped her. Afraid
of being shot, Garcia finally told him that Torres had raped her, although in
fact he had not done so. After Garcia
had confirmed that Torres had raped her, defendant cut off the zip ties and let
her go.
On May 13,
2006, defendant and another man, later identified as Mingus Chavarria, went to
the apartment in Desert Hot Springs where Torres lived with his girlfriend
Amanda Valenzuela, her mother Michele Valenzuela, and Michele’s husband,
Franklin Vasquez. Only Vasquez was at
home when defendant and Chavarria arrived.
Vasquez knew defendant but did not know Chavarria. Defendant told Vasquez he was looking for
Torres. Vasquez told defendant that
Torres was not home. Defendant and
Chavarria waited outside the apartment.
While they waited, defendant made “cuff-like†shapes out of zip ties he
had in his pocket. Although Vasquez did
not perceive that defendant was angry or upset, Chavarria said that defendant
appeared to be angry.
name="_ftnref2" title="">[2]
According to Chavarria, defendant had a gun in the waistband of his
pants.
Around
10:30 or 11:00 p.m., Torres and Amanda and Michele Valenzuela returned to the
apartment. Vasquez told Torres that
defendant was downstairs and wanted to see him.
Torres left the apartment and went to the laundry room where defendant
and Chavarria were waiting for him.
Inside the
laundry room, defendant asked Torres why he had raped defendant’s
girlfriend. Torres said he did not do
that. The two argued loudly.
Michele
Valenzuela heard loud voices outside and went out to see what was going
on. The voices were coming from the
laundry room. From outside the laundry
room, she heard Torres say, “Dude, if you are going to shoot me, then shoot me.†Michele yelled out that they needed to take
their “bullshit†elsewhere. At that
point, defendant said to Chavarria, “Let’s go.â€
Chavarria left the laundry room and began walking toward the
street. Defendant and Torres exited
next. Michele Valenzuela saw defendant
put his arm around Torres’s shoulder and heard him say, “If you have nothing to
hide, then come with me.†Michele
watched them walk up the street toward a church, and then returned to her
apartment. Amanda Valenzuela also saw
them walking toward the church. She
described the three men walking abreast, with Torres in the middle.
When they
arrived at the parking lot, where their driver awaited them, Chavarria saw that
Torres’s hands were bound with zip ties.
Chavarria asked Torres what was going on. Torres said that what defendant was saying
was not true. Defendant told Torres, “If
you have nothing to hide, then you’ll go with us.†Torres got into the car, and they drove to
defendant’s apartment.
At the
apartment, they went into a bedroom, where defendant began arguing with Torres,
pacing and yelling at him. He accused
Torres of raping Garcia, and Torres continued to deny it. Torres’s hands were still zip-tied. Defendant told Chavarria to stay with Torres
while he went to get Garcia.
Garcia was
sleeping in defendant’s mother’s apartment in the same apartment building where
she lived with defendant. Around 2:00 or
3:00 a.m., defendant woke her and asked her to come with him. She followed defendant to their
apartment. There, she saw Torres
kneeling on the floor in the middle of the bedroom with his hands bound behind
him. There was another man in the room,
or possibly two. Garcia did not know
them. One or both men were standing next
to Torres. At least one man other than
defendant had a gun.
name="_ftnref4" title="">[4]
Defendant,
holding a handgun, asked Garcia whether Torres had raped her. He told her either she or Torres was going to
be “getting it†if she did not tell the truth.
Torres was crying, and begged Garcia to tell defendant the truth, i.e.,
that he didn’t do it. Garcia, fearing
for her life, apologized to Torres, but told defendant that Torres had raped
her. Defendant then told her to leave.
Garcia
returned to defendant’s mother’s apartment and went to sleep. She did not call the police or alert
defendant’s brother, Adam, who lived in the same building. She did not hear any gunshots.
After
Garcia left the apartment, Chavarria pleaded with Torres to tell defendant what
he wanted to know, but Torres did not.
Defendant turned on some loud music and shot Torres in the chest. Torres staggered and fell.
Defendant,
Chavarria and the unknown female drove to a house belonging to someone named
Irma. A friend named Turtle was also at
the house. Irma then drove defendant,
Chavarria and Turtle back to defendant’s apartment in her pickup truck. Defendant, Chavarria and Turtle placed
Torres’s body in the back of the truck and covered him with two blankets
Chavarria got from a neighboring apartment.
Defendant then told Chavarria to dispose of the body.
Chavarria
drove the truck two or three blocks before running out of gas. He walked back to the apartment and told
defendant what had happened. He and
defendant walked to a gas station, got some gas and put it into the truck, then
drove to the location where Torres’s body was found. Defendant told Chavarria to get the body out
of the truck. Chavarria pushed the body
out of the truck with his feet and covered it with the blankets. He and defendant then returned to the
apartment. Chavarria washed out the
truck bed with a hose.
Defendant
was interviewed in connection with Torres’s murder on July 7, 2006. He denied killing Torres, but admitted that
they had talked in the laundry room about Torres’s having sex with Garcia. He said they left together and walked toward
the church, then parted amicably. Police
contacted Garcia, and she provided an alibi.
No one could identify defendant’s accomplice at that point, and the district
attorney declined to file charges.
In December
2008, Michele Valenzuela identified a photograph of Chavarria as possibly being
the person who was with defendant on May 13, 2006. In March 2009, police interviewed Chavarria
at the county jail in Indio, where he was in custody on a different
matter. Chavarria admitted his involvement. Police later contacted Andrea Garcia, who was
then living in Los Angeles County.
Charges were then filed against defendant and Chavarria. Chavarria later pleaded guilty to second
degree murder and received a sentence of 15 years to life in exchange for
truthful testimony.
DEFENDANT’S APPEAL
LEGAL ANALYSIS
1.
THE TRIAL COURT PROPERLY
DENIED THE MOTION FOR ACQUITTAL
At the
conclusion of the prosecution’s case-in-chief, defendant made a motion for
acquittal pursuant to section 1118.1 with respect to the kidnapping special
circumstance and the felony-murder theory of murder during the commission of a
kidnapping. He contended that there was
no substantial evidence to corroborate the testimony of Mingus Chavarria, who
was an accomplice as a matter of law.
The trial court denied the motion after finding that Torres’s statement,
“Dude, if you are going to shoot me, then shoot me,†was sufficient proof to
establish “the fact that the defendant had a gun pointed at the victim,†that
the victim was “threatened with a firearm,†and that the threat with the gun
made Torres’s movement without consent because “[n]ow he’s leaving with the
person who is threatening him.â€
Defendant
now contends that although the trial court correctly assessed the evidence without
regard to Chavarria’s testimony, it erroneously relied on Torres’s statement as
evidence of the victim’s state of mind to prove defendant’s conduct. He also contends that if Torres’s statement
had been excluded or “properly limited,†there would have been insufficient
corroboration of the testimony of the accomplice, Chavarria. In a related argument, he contends that the
court erroneously allowed the jury to consider Torres’s statement as proof of
the matter asserted, i.e., that defendant possessed and displayed a gun in the
laundry room. We will address the
admissibility of the statement before considering whether the motion for
acquittal should have been granted.
Circumstantial Evidence That Torres Did Not Go Willingly with Defendant.
During
motions in limine, the trial court initially ruled that Torres’s laundry room
statement was admissible for the nonhearsay purpose of showing the effect of
the statement on the listener, Michele Valenzuela, i.e., to explain her
subsequent conduct. The court ruled that
the statement would not be admissible “for the truth of the matter
asserted.†The court did not specify
what matter was asserted in the statement, “Dude, if you are going to shoot me,
then shoot me.†Later, the prosecution
sought to have the statement admitted under Evidence Code section 1250,
subdivision (a)(2), to explain Torres’s subsequent conduct, i.e., that he
did not leave with defendant voluntarily but because defendant had a gun (or
because Torres thought he did). Over
defendant’s objection, the court revised its prior ruling to allow the
prosecutor to introduce the statement for the “truth of the matter asserted.â€
In his
on the statement as evidence that Torres did not go willingly with defendant
and Chavarria but went out of fear because defendant had displayed a gun.
Evidence of
a murder victim’s state of mind may be admissible under the hearsay exception
provided in Evidence Code section 1250 or as nonhearsay circumstantial evidence
of the victim’s state of mind:
“[Evidence
Code] [s]ection 1250 provides in relevant part that ‘. . . evidence of a
statement of the declarant’s then existing state of mind, emotion, or physical
sensation (including a statement of intent, plan . . .) is not made
inadmissible by the hearsay rule when:
[¶] (1) The evidence is offered to prove the declarant’s state of mind,
emotion, or physical sensation at that time or at any other time when it is
itself an issue in the action; or [¶] (2) The evidence is offered to prove or
explain acts or conduct of the declarant.’
The evidence admitted under section 1250 is hearsay; it describes a
mental or physical condition, intent, plan, or motive and is received for the
truth of the matter stated.
[Citation.] If offered to prove
the declarant’s state of mind, the statement may be introduced without
limitation, subject only to section 352.
However, the declarant’s state of mind must be at issue in the
case. For instance, evidence of the
victim’s general fear or dislike of the appellant is not relevant unless the
victim’s state of mind has been placed in issue. [Citation.]
“In
contrast, a statement which does not directly declare a mental state, but is
merely circumstantial evidence of that state of mind, is not hearsay. It is not received for the truth of the
matter stated, but rather whether the statement is true or not, the fact such
statement was made is relevant to a determination of the declarant’s state of
mind. [Citation.] Again, such evidence must be relevant to be
admissible—the declarant’s state of mind must be in issue. [Citation.]
[Upon request,] [a] limiting instruction is required with declarations
used as circumstantial evidence of the declarant’s mental state; that is, the
declaration is not received for the truth of the matter stated and can only be
used for the limited purpose for which it is offered. [Citation].â€
(People v. Ortiz (1995) 38
Cal.App.4th 377, 389; accord, People v.
Cox (2003) 30 Cal.4th 916, 962-963.)
Here,
Torres’s statement did not directly declare a mental state, such as “I am
afraid that Rodriguez is going to kill me.â€
Consequently, it was not admissible under Evidence Code section 1250. Rather, it was nonhearsay circumstantial
evidence of his state of mind, i.e., that he was afraid that defendant was
going to shoot him, either because defendant had displayed a gun or because
Torres for some other reason believed defendant had a gun. It was also circumstantial evidence that
Torres accompanied defendant and Chavarria out of fear that defendant would
shoot him. Accordingly, it was
admissible for that purpose.
Defendant contends, however, that even if
the evidence was admissible, the court should have excluded it under Evidence
Code section 352.
name="_ftnref7" title="">[7]
He contends that the probative value as to Torres’s state of mind and
whether Torres voluntarily accompanied defendant to defendant’s apartment was
substantially outweighed by the probability that the jury would improperly use
the evidence of Torres’s statement as proof of defendant’s mental state and conduct. He asserts that in his closing arguments, the
prosecutor relied on Torres’s statement “at least five separate times†in
arguing for a felony-murder conviction on the kidnapping theory.
Evidence
Code section 352 accords the trial court broad discretion to exclude even
relevant evidence “‘if its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.’ ‘Evidence is substantially more prejudicial
than probative [citation] if, broadly stated, it poses an intolerable “risk to
the fairness of the proceedings or the reliability of the outcomeâ€
[citation].’ [Citation.] We review a trial court’s ruling under
Evidence Code section 352 for an abuse of discretion.†(People
v. Clark (2011) 52 Cal.4th 856, 893.)
Here,
defendant objected to the evidence of Torres’s statement under Evidence Code
section 352. The trial court’s implied
finding that the probative value of the statement outweighed its potential for
prejudice was not an abuse of discretion.
Torres’s state of mind when he left the laundry room with
defendant—whether he went willingly or because of force or fear—was a
significant issue for purposes of the felony-murder theory that he was murdered
during a kidnapping and for the kidnapping special circumstance, and his
statement was highly probative on that point.
However, it was not the only evidence that defendant had a gun—Chavarria
testified that defendant had a gun in his waistband before he and Torres went
into the laundry room. Consequently, the
likelihood that the jury would misuse Torres’s statement as evidence of defendant’s
mental state or conduct, rather than as circumstantial evidence of Torres’s
mental state or as an explanation of his conduct, was minimal. Accordingly, the trial court did not abuse
its discretion in ruling on defendant’s objection pursuant to Evidence Code
section 352.
“On a
motion for judgment of acquittal under section 1118.1, the trial court applies
the same standard as an appellate court reviewing the sufficiency of the
evidence. The court must consider
whether there is any substantial evidence of the existence of each element of
the offense charged, sufficient for a reasonable trier of fact to find the
defendant guilty beyond a reasonable doubt.
[Citation.]†(
1286.) Whether substantial evidence
exists is a question of law which a reviewing court decides independently. (Ibid.) Accordingly, we do not address the
correctness of the trial court’s analysis of the evidence.
Accomplice
testimony is not sufficient to support a conviction unless it is corroborated
by other evidence connecting the defendant with the offense without aid or
assistance from the accomplice’s testimony.
(§ 1111; People v. Avila
(2006) 38 Cal.4th 491, 562-563.)
Corroborating evidence is sufficient if it “tends to implicate the
defendant and thus relates to some act or fact that is an element of the
crime.†(People v. Avila, at pp. 562-563)
The corroborative evidence may be “‘“slight and entitled to little
consideration when standing alone.â€
[Citation.]’†(
tends to connect defendant with the crime in a way that may reasonably satisfy
a jury that the accomplice is telling the truth. [Citation.]â€
(People v. Narvaez (2002) 104
Cal.App.4th 1295, 1303.) Corroborative
evidence may be entirely circumstantial.
(Ibid.)
As
discussed above, Michele Valenzuela’s testimony that Torres said, “Dude, if you
are going to shoot me, then shoot me,†was admissible as circumstantial
evidence that Torres did not voluntarily leave the apartment complex with
defendant. That evidence was also
sufficient to corroborate Chavarria’s testimony that defendant had a gun. Defendant’s admission that the night before
Torres’s body was found, he confronted Torres about the rumors that Torres had
raped Garcia, also corroborated Chavarria’s testimony, as did Michele
Valenzuela’s testimony that defendant and Torres were talking in “very loudâ€
voices. Additionally, Amanda Valenzuela
saw the three men walking away from the apartment complex three abreast, with
Torres in the middle, thus implying that Torres did not go willingly. Taken all together, this evidence supports
the inference that Torres did not leave the apartment complex with defendant
voluntarily.
Defendant
contends that Michele Valenzuela’s further testimony that moments later she saw
defendant put his arm around Torres’s shoulder and heard him say, “If you have
nothing to hide, then come with me,†and that defendant’s hands were not bound
shows that defendant did not kidnap Torres.
The existence of conflicting evidence does not, however, affect our
substantial evidence analysis. In
assessing whether substantial evidence exists, an appellate court views all
factual matters in the light most favorable to the prevailing party and
resolves all conflicts in the evidence and indulges all reasonable inferences
from the evidence to support the judgment.
(Bickel v. City of Piedmont
(1997) 16 Cal.4th 1040, 1053.) The
judgment will be upheld if it is supported by substantial evidence, even though
substantial evidence to the contrary also exists and the trier of fact might
have reached a different result if it had believed other evidence. (Howard
v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)
Because
substantial evidence corroborated Chavarria’s testimony and supported the
kidnapping special circumstance and the kidnapping felony-murder theory, the
trial court properly denied the motion for acquittal.
2.
THE TRIAL COURT DID NOT ERR
BY FAILING TO DISMISS THE MURDER CHARGE ON ITS OWN MOTION
Defendant
contends that although he did not seek acquittal of murder on theories of
express or implied malice, the trial court should nevertheless have dismissed
the murder charge in its entirety because the accomplice’s testimony was the
only direct evidence linking defendant to the killing.
Section
1118.1 provides that before the case is submitted to the jury, either on motion
of the defendant or on its own motion, the trial court must order entry of a
judgment of acquittal as to any offense charged in the accusatory pleading if
the evidence is insufficient to sustain a conviction on the offense or offenses
on appeal.
Here, there
is ample circumstantial evidence linking defendant to the killing, independent
of Chavarria’s testimony. Defendant
admitted that he confronted Torres about the rumor that Torres had raped
defendant’s girlfriend, Andrea Garcia.
The confrontation in the laundry room, which was overheard by Michele
Valenzuela, took place late in the evening on May 13, 2006. Andrea Garcia testified that around 2:00 or
3:00 a.m. on May 13, 2006, defendant took her to their apartment where Torres,
with his hands bound and on his knees, begged her to tell defendant the truth,
while defendant stood nearby, holding a handgun. Torres’s body, with two bullet wounds and his
hands bound, was found on the morning of May 14, 2006. That evidence, which is in itself sufficient
to support the inference that defendant shot and killed Torres, is also
sufficient to corroborate Chavarria’s testimony.
it is independent of the accomplice’s testimony and “tends to implicate the
defendant and thus relates to some act or fact that is an element of the
crimeâ€].) Accordingly, the trial court
did not err in failing to order acquittal on the murder charge.
3.
THE EVIDENCE DID NOT MANDATE
AN INSTRUCTION THAT
ANDREA GARCIA WAS AN
ACCOMPLICE
Defendant
makes three separate arguments based on the premise that Andrea Garcia was an
accomplice: In Argument III, he contends
that the murder charge should have been dismissed because Garcia was an
accomplice whose testimony was not corroborated and whose testimony could not
corroborate Chavarria’s; in Argument VIII, he contends that the trial court
prejudicially erred by failing to instruct the jury that Garcia was an
accomplice; and in Argument IX, he contends that the trial court’s failure to
so instruct violated his right to due process.
We reject all three contentions because the evidence does not show that
Garcia was an accomplice as a matter of law, and the evidence did not warrant
an instruction directing the jury to determine whether she was an accomplice.
Was Not an Accomplice As a Matter of Law.
Section 1111 defines “accomplice†as
“one who is liable to prosecution for the identical offense charged against the
defendant on trial in the cause in which the testimony of the accomplice is
given.†An accomplice may be a direct
perpetrator or an aider and abettor. (
Whether a person is an accomplice is a question of fact for the jury
unless there is no dispute as to either the facts or the inferences to be drawn
from the facts. (People v. Fauber (1992) 2 Cal.4th 792, 834.) Stated another way, a person is an accomplice
as a matter of law only if the evidence is uncontested and unequivocal. (People
v. Williams (2008) 43 Cal.4th 584, 637.)
The burden is on the defendant to prove by a preponderance of the
evidence that a witness is an accomplice.
Defendant
contends that Garcia was an accomplice under either the theory that she was a
direct participant in the murder or the theory that she was an aider and
abettor. Both theories depend on
defendant’s contention that Garcia lied about Torres having raped her, knowing
that defendant would either murder Torres in revenge or assault him with a
firearm, with murder being a foreseeable consequence of the assault.
Defendant
did not seek a ruling that Garcia was an accomplice as a matter of law, nor did
he request an instruction to the jury to determine whether Garcia was an
accomplice. In general, errors not
asserted in the trial court may not be raised for the first time on
appeal. (See, generally,
880-881.) Assuming, however, that review
of defendant’s claim is not forfeited by his failure to raise it below, he has
failed to meet his burden of demonstrating error.
Although
defendant repeatedly asserts that Garcia “knew†that defendant would kill or
assault Torres, he does not cite to any evidence in the record which shows that
Garcia knew what defendant would do. The
only evidence he refers to, and the only evidence of which we are aware, is
Garcia’s testimony that when defendant brought her to the apartment where
Torres was being held, he told her that unless she told the truth about being
raped by Torres, “it was either going to be me getting it or [Torres] getting
it.†This statement is ambiguous, to say
the least, and it clearly does not mandate the conclusion that Garcia “knewâ€
that if she told defendant Torres had raped her, defendant would kill Torres.
Furthermore,
under either of defendant’s theories of Garcia’s accomplice status, it is essential
that there be unequivocal and undisputed evidence that Garcia acted with the
intent to further defendant’s criminal purpose.
As an aider and abettor, Garcia’s vicarious liability depended on her
acting “‘“with knowledge of the criminal purpose of the perpetrator
committing, or of encouraging or facilitating commission of, the offense.†[Citation.]’â€
(People v. McCoy (2001) 25
Cal.4th 1111, 1118.) Where the evidence
concerning the witness’s intent is disputed or where it supports more than one
inference concerning the witness’s intent, the witness is not an accomplice as
a matter of law. (People v. Williams, supra,
43 Cal.4th at p. 637.)
Defendant
does not cite any evidence which demonstrates that Garcia intended to further
defendant’s criminal purpose, and we have found none. Rather, the evidence shows that Garcia’s only
intention was to avoid being harmed herself.
She testified that when defendant demanded that she tell the truth or
else it would be either her or Torres “getting it,†she rebuffed Torres’s plea
that she tell defendant that he did not rape her and lied to defendant because
she was afraid of what defendant would do to her if she did not. Her fear
was based on her experience of the day before, when defendant beat and
harangued her all day, eventually binding her wrists and confining her in a
closet and threatening her at gunpoint that he would kill her if she did not
admit that Torres had raped her. There
was no evidence to the contrary, and there is simply no factual basis upon
which to base an inference that, contrary to her testimony, Garcia really
intended for defendant to assault or murder Torres. Any such inference would be based on nothing
more than speculation. Speculation, of
course, is not a sufficient basis for any inference. (People
v. Hughes (2002) 27 Cal.4th 287, 365.)
Accordingly, Garcia’s testimony does not support a finding that she was
an accomplice under an aiding and abetting theory. (People
v. Williams, supra, 43 Cal.4th at
p. 637.)
Defendant’s
so-called “Othello†theory—that Garcia lied about Torres having raped her in
order to goad defendant into killing Torres—also required evidence that Garcia
lied with the intention of bringing about Torres’s murder. (See People
v. McCoy, supra, 25 Cal.4th at
pp. 1121-1122.)
name="_ftnref10" title="">[10]
Again, there is no such evidence, and any conclusion that she did act
with that intention would be pure speculation.
Instruction Directing the Jury to Determine Whether Garcia Was an Accomplice.
A trial
court has a sua sponte duty to instruct the jury to determine whether the
witness is an accomplice whenever trial
testimony is sufficient to warrant the conclusion that a witness
implicating the defendant is an accomplice.
(People v. Richardson (2008)
43 Cal.4th 959, 1024.) Here, defendant
contends only that Garcia was an accomplice as a matter of law and that the
trial court had a sua sponte duty to so instruct the jury. He does not contend that the evidence
warranted an instruction to the jury to determine whether Garcia was an
accomplice. Accordingly, we need not
address that issue. We note, however,
that the evidence is not sufficient to warrant that conclusion, for the reasons
stated above.
4.
APPRENDI ISSUE
Defendant
contends that the rule that corroboration for accomplice testimony need only be
“slight†(see People v. Avila,
in Section 3, ante)
right to have all facts necessary for conviction and for increased punishment
proven beyond a reasonable doubt, under the holding of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). He contends that
corroboration of accomplice testimony is “akin†to an element of the offense
and is thus subject to the Apprendi
rule.
In
United States Supreme Court held that any fact, other than the fact of a prior
conviction, which increases the penalty for a crime beyond the statutory
maximum, must be submitted to the jury and must be proven beyond a reasonable
doubt. (People v. Nguyen (2009) 46 Cal.4th 1007, 1010.) In Apprendi,
the court “found this principle
inherent in the common law tradition, in effect when the Sixth Amendment was
adopted, that any fact crucial to the maximum punishment for an offense was,
for that purpose, an ‘element’ of the offense, and thus equally subject to the
requirements of indictment or presentment, proof beyond reasonable doubt, and
jury trial.†(Ibid.)
Although
defendant contends that corroboration of accomplice testimony is tantamount to
an element of the offense, he provides no authority or persuasive argument that
this is so. Indeed, in
our Supreme Court rejected such a contention. “Defendant’s characterization of
the accomplice corroboration requirement as an element of the crime subject to
proof beyond a reasonable doubt [citations] is unsupported and unpersuasive.†(Id.
at p. 966.) Instead, the court
characterized the corroboration requirement as a “collateral factual issueâ€
which has no bearing on the substantive guilt or innocence of the accused or on
any element of the charged offense. (
Similarly,
defendant fails to persuade us that corroboration of accomplice testimony is a
fact which subjects a defendant to increased punishment, thus bringing it
within the Apprendi line of
cases. It is not. The punishment remains the same, whether the
defendant is convicted by corroborated accomplice testimony or by other
evidence. Accordingly, the rule that
“slight†evidence suffices to corroborate the testimony of an accomplice does
not violate the federal Constitution.
5.
DEFENDANT FAILS TO
DEMONSTRATE THAT THERE IS
INSUFFICIENT EVIDENCE TO
SUPPORT THE CONVICTION
AND SPECIAL CIRCUMSTANCE
FINDING
Defendant
contends that even if the accomplice testimony was corroborated, the evidence
is nevertheless insufficient to support the conviction and special circumstance
finding.
We presume
that an order or judgment is supported by the evidence, and it is the
appellant’s burden to show that it is not.
(See Foreman & Clark Corp. v.
Fallon (1971) 3 Cal.3d 875, 881.)
“‘A party who challenges the sufficiency of the evidence to support a
particular finding must summarize the evidence on that point, favorable and
unfavorable, and show how and why it is insufficient.’†(Schmidlin
v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738, italics
omitted.) It is the appellant’s burden,
not the court’s, to identify and establish deficiencies in the evidence: An appellate court is not required to conduct
an independent search of the record to determine the sufficiency of the
evidence. (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.) Consequently, an appellant who fails to state
the facts fairly forfeits evidentiary claims.
(Foreman & Clark Corp. v.
Fallon, at p. 881.) Here,
defendant discusses only the evidence which, if believed, might undermine the
verdict and finding. Accordingly, we need
not address his contention, and we decline to do so.
6.
OTHER CRIMES OR PRIOR BAD
ACTS EVIDENCE CONCERNING
ANDREA GARCIA WAS PROPERLY
ADMITTED
Prior to
trial, the prosecution sought admission pursuant to Evidence Code section 1101,
subdivision (b), of two items of evidence:
an incident of domestic violence between defendant and Garcia which took
place in March 2006, about two months before the murder; and the incident on
May 12, 2006, when defendant assaulted Garcia with a handgun, tied her hands
with zip ties, and threatened to kill her if she did not admit that Torres had
raped her. Over defense objection, the
trial court ruled that both incidents were admissible. It instructed the jury using CALCRIM No. 375,
the standard instruction on evidence admitted under Evidence Code section 1101,
subdivision (b) (hereafter section 1101(b)).
Defendant
now contends that the trial court erred in admitting the evidence of both
incidents. (Arguments VI and VII.)
“‘Evidence
that a defendant committed crimes other than those for which he is on trial is
admissible when it is logically, naturally, and by reasonable inference
relevant to prove some fact at issue, such as motive, intent, preparation or
identity. [Citations.] The trial court judge has the discretion to
admit such evidence after weighing the probative value against the prejudicial
effect. [Citation.] When reviewing the admission of evidence of
other offenses, a court must consider:
(1) the materiality of the fact to be proved or disproved, (2) the probative
value of the other crime evidence to prove or disprove the fact, and (3) the
existence of any rule or policy requiring exclusion even if the evidence is
relevant. [Citation.] Because this type of evidence can be so
damaging, “[i]f the connection between the uncharged offense and the ultimate
fact in dispute is not clear, the evidence should be excluded.†[Citation.]’
[Citation.] ‘“We review for abuse
of discretion a trial court’s rulings on relevance and admission or exclusion
of evidence under Evidence Code sections 1101 and 352.†[Citation.]’
[Citation.]†(
667-668.)
Defendant
contends that the trial court abused its discretion in admitting the
May 12 incident involving Garcia on the issues of perpetrator identity and
common plan or scheme. At trial,
however, he objected to the evidence solely on two grounds: first, that because Garcia lacked
credibility, the prosecution could not prove by a preponderance of the evidence
that the incident occurred; and second, on grounds of undue prejudice under
Evidence Code section 352. The court
rejected the first argument, stating that the witness’s credibility was for the
jury to decide. As to the second, the
court held that the evidence “that the day before or two days before the
homicide the defendant uses the same technique—zip ties, gun to the head,
threats—is highly probative and it outweighs the prejudicial effect.†Defense counsel did not disagree that the
evidence was relevant under section 1101(b).
Rather, she argued only that it was so prejudicial as to outweigh its
probative value, in that “[o]nce the jury believes that [defendant] has had zip
ties in the past . . . that’s an automatic conviction.â€
“Evidence of
uncharged offenses ‘is so prejudicial that its admission requires extremely
careful analysis. [Citations.]’ [Citations.]
‘Since “substantial prejudicial effect [is] inherent in [such]
evidence,†uncharged offenses are admissible only if they have
[¶] . . . [T]o be admissible such evidence ‘must not
contravene other policies limiting admission, such as those contained in
Evidence Code section 352.
[Citations.]’†(
404.) Nevertheless, a trial court has
broad discretion in determining whether evidence should be excluded under
Evidence Code section 352. (
1214.) A decision will not be reversed
merely because reasonable people might disagree, and an appellate court is not
authorized to substitute its judgment for that of the trial court. An exercise of discretion “‘grounded in
reasoned judgment and guided by legal principles and policies appropriate to
the particular matter at issue’†must be upheld on appeal. (People
v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) On appeal, the burden is on the appellant to
show clearly how the ruling was an abuse of discretion. (Ibid.)
Defendant
argues that the May 12 incident was inflammatory because it “branded [him] a
dangerous criminal predisposed to committing violent crimes.†He argues that it was especially inflammatory
because the victim was his pregnant “common law wife†and the incident involved
a threat not only to her but also to his unborn child. However, because prior crimes evidence is
inherently inflammatory and prejudicial (People
v. Ewoldt, supra, 7 Cal.4th at p.
404), to say that this evidence was inflammatory does not amount to a reasoned
argument as to why it was an abuse of discretion to admit it.
Under
Evidence Code section 352, “prejudice†applies to evidence which “‘“uniquely
tends to evoke an emotional bias against the defendant as an individual
has very little effect on the issues.â€â€™â€
(People v. Gionis,
effect on the issues in part because Garcia’s testimony served to corroborate
the testimony of Chavarria. As an
accomplice who got a deal for testifying, Chavarria’s credibility was
questionable.
Garcia’s description of defendant’s abuse of
her on the morning before the killing, if believed, corroborated Chavarria’s
testimony that defendant was angry while they were waiting for Torres and also
supports the prosecution’s theory that defendant did not kill Torres on the
spur of the moment but rather as part of a premeditated scheme. Garcia’s testimony was also significant
because it showed that despite defendant’s statement to the police that he was
not angry at Torres because of the rumor, defendant most certainly was not
“over†the rumors that Torres had raped Garcia.
Because the May 12 incident with Garcia had significant probative value,
it was not an abuse of discretion to admit it.
Garcia
testified that in March 2006, defendant questioned her about a rumor that she
had had sex with his friend, Gordi.
Defendant beat her up, using a gun to beat her. Garcia reported the incident to police.
The
prosecutor sought permission to elicit testimony from Garcia concerning that
incident if, during cross-examination, the defense sought to discredit Garcia
because of discrepancies between her trial testimony and statements she made to
police in May 2006 or between her statements to police in 2009 and her
statements in 2006. The prosecutor
argued that the evidence was admissible to explain that Garcia was afraid of
defendant because of the domestic violence incident in March 2006 and was
therefore not willing to tell the police what had actually happened on May 13,
2006. Defense counsel objected that
under section 1101(b) the facts of the prior incident were too dissimilar to be
probative, and argued that her research had failed to disclose any cases which
hold that evidence of prior domestic violence could be introduced involving a
witness who was not the victim in the current case. The court ruled that if the defense
cross-examined Garcia about her inconsistent statements, the prior domestic
violence evidence was admissible for the purpose of explaining why her
statements were inconsistent.
Rather than
waiting for cross-examination about Garcia’s inconsistent statements, the
prosecutor questioned Garcia on direct examination about the March 2006
domestic violence incident. The defense
did not object or request a limiting instruction.
Defendant
now contends that the trial court abused its discretion in admitting the
evidence and not giving a limiting instruction.
There was
no abuse of discretion in ruling the March 2006 domestic violence incident was
admissible for the purpose stated by the court, i.e., to explain that Garcia’s
fear of defendant caused her to make false statements, giving defendant an
alibi and failing to tell the police what she saw on the night of May 13, when
she was questioned in 2006 about Torres’s murder. Evidence of prior crimes or acts of
misconduct is admissible when it is relevant to prove some material fact at
issue, other than the defendant’s propensity to commit crimes. (§ 1101(b).)
The material facts referred to in section 1101(b) are not limited to the
specific facts enumerated in the statute.
Rather, the facts at issue may include the state of mind of a witness or
victim.
In
877, a prosecution for rape, the defendant asserted that the alleged victim had
consented to sexual intercourse with him.
The court held that evidence of prior acts of violence committed by the
defendant was admissible because the victim’s knowledge of those incidents was
relevant to determining whether she freely consented or consented out of fear
of the defendant. (Id. at pp. 881, 885-886.)
Here, as the trial court concluded, the domestic violence evidence was
relevant to explain Garcia’s 2006 statements to the police and was relevant to
her credibility. And, for the reasons
stated above, there was no abuse of discretion under Evidence Code section 352
in finding the evidence more probative than prejudicial.
Defendant
also contends that the trial court’s failure to give a limiting instruction on
the use of the 1101(b) evidence was prejudicial error. The record does not show that the defendant
requested any limiting instruction beyond that which is contained in
CALCRIM No. 375.
In the absence of a request, a trial court is not required to give a
limiting instruction on the use of section 1101(b) evidence. (People
v. Maury (2003) 30 Cal.4th 342, 397, fn. 11.)
Defendant
contends that during the conference on jury instructions, the trial court
“reaffirmed its ruling and concluded there was no need for an Evidence Code
1101 limiting instruction.†This appears
to imply that he requested a limiting instruction, which the court
refused. The record refutes this. During the conference, the court affirmed its
ruling that the March 2006 domestic violence incident was admissible to explain
why Garcia might not have wanted to be truthful with the police when she was
questioned in 2006. The court went on to
state that the incident was “[not] necessarily 1101(b) evidence,†although
“some paragraphs†of the standard instruction on the use of Evidence Code
section 1101(b) evidence might apply.
However, upon the request of defense counsel for additional time to
review the instruction, the court agreed that further discussion as to the
instruction would occur later. The court
did not conclude at that time that
there was no need for a limiting instruction.
As far as
we are aware, there is no further discussion on the record concerning the
instruction, and we have not found either a request by the defense for any
further limiting instruction beyond that found in the standard instruction, or
for a pinpoint instruction explaining the particular issue as to which the
domestic violence incident was relevant.
Clarifying instructions or pinpoint instructions are required, if at
all, only upon request. (
581; People v. Hughes,
limiting instruction was not error.
7.
KIDNAPPING INSTRUCTION
Defendant
contends that the kidnapping instruction given to the jury “incorrectly defined
the crime, confused the doctrines of ‘fear’ and ‘consent,’ and permitted the
jury to erroneously conclude that kidnapping may be based solely on ‘verbal
coercion.’†(Arguments XI and XII.)
Defendant
did not challenge the kidnapping instruction in the trial court. However, a defendant may assert instructional
error on appeal if the error affected his or her substantial rights. (§ 1259.)
We review claims of instructional
error de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210.)
Respect to Force Was Not Prejudicial.
Using
CALCRIM No. 1215, the court defined the elements of kidnapping in the following
terms: “1. The defendant took, held, or detained another
person by using force or by instilling reasonable fear; [¶] 2.
Using that force or fear, the defendant moved the other person or made
the other person move a substantial distance; [¶] AND
[¶] 3. The other person did not consent to the
movement.†Section 207, subdivision (a),
however, provides: “Every person who
forcibly, or by any other means of
instilling fear, steals or takes, or holds, detains, or arrests any person
in this state, and carries the person into another country, state or county, or
into another part of the same county, is guilty of kidnapping.†(Italics added.) Defendant contends that the kidnapping
instruction improperly disassociates force from fear and permits a conviction
based on a finding that the defendant used force alone to compel the victim’s
movement. He cites In re Michele D. (2002) 29 Cal.4th 600 and
for the proposition that if the alleged victim is capable of consenting to
movement and of resisting force, it is necessary to show that the defendant
used force as a means of instilling fear.
In
In re Michele D., supra, 29
Cal.4th 600, the court held that although the language of section 207,
subdivision (a) implies that “something more than the quantum of physical force
necessary to effect movement of the victim from one location to another,â€
namely fear, is generally required for a conviction for kidnapping, in the case
of an infant or a child who is too young to give or withhold consent, it is
sufficient if the child is asported for an improper purpose.
33 Cal.4th 321, the court held that since the 1990 amendment which added the
phrase “‘or by any other means of instilling fear,’†the concepts of force and
fear are intertwined in section 207, subdivision (a), and implied, at least,
that force which is not objectively sufficient to instill fear does not
suffice. (Id. at pp. 326-327, 331.)
Consequently, by stating that kidnapping may be committed by “force or
fear†rather than “‘by force or by any other means of instilling fear,’â€
CALCRIM No. 1215 is incorrect.
Nevertheless,
the error does not require reversal. An
instructional error that relieves the prosecution of the burden of proving
beyond a reasonable doubt each essential element of the charged offense, or
that improperly describes or omits an element of an offense, violates the
defendant’s rights under both the United States and California Constitutions,
and is subject to review under Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman). (People
v. Larsen (2012) 205 Cal.App.4th 810, 829.)
Under Chapman, reversal is
required unless the reviewing court can say beyond a reasonable doubt that the
error did not contribute to the verdict.
(Chapman, at p. 24.)
Here,
Chavarria testified that defendant had a revolver and that when defendant and
Torres arrived at the church parking lot, Torres’s hands were bound with zip
ties. This is a circumstance which would
cause an objectively reasonable fear of bodily harm, and a juror who believed
Chavarria’s testimony would not have found otherwise. Moreover, there was no evidence that
defendant caused Torres to accompany him by means of force which was
fear. The only other theory supported by
the evidence was that Torres accompanied defendant voluntarily. Michele Valenzuela testified that Torres’s
hands were not bound when he left the laundry room and that he walked away with
defendant after defendant said, “If you have nothing to hide, then come with
me.†She did not see that Torres’s hands
were bound, although she believed that from her vantage point, she would have
seen that his hands were bound if that were the case. She also did not see a gun. She did not perceive Torres to be in any
danger. Valenzuela’s testimony supports
either the conclusion that Torres went voluntarily with defendant or, perhaps,
that Torres went out of fear that defendant would shoot him if he did not go
with him, based on Torres’s statement, “[I]f you are going to shoot me,
then shoot me.†Neither interpretation
of Valenzuela’s testimony supports the inference that defendant used force
which did not instill fear.
Consequently, there is no reasonable likelihood that the jury based the
kidnapping finding on the use of force which did not instill fear. Accordingly, we are convinced beyond a
reasonable doubt that the instructional error did not contribute to the
verdict. (Chapman, supra, 386 U.S.
at p. 24.)
Defined Fear.
Defendant
also contends that the instruction, which stated that kidnapping can be
committed by “instilling reasonable fear,†was insufficient because it failed
to inform the jury of the nature of the fear which is required. He contends that you must instill fear of
some serious consequence, such as death or serious injury.
Although defendant is correct that the
threat must be to impose some serious consequence, a threat of physical harm is
not required. In People v. Majors, supra,
33 Cal.4th 321, for example, the court held that “an implicit threat of arrest
satisfies the force or fear element of section 207(a) kidnapping if the
defendant’s conduct or statements cause the victim to believe that unless the
victim accompanies the defendant, the victim will be forced to do so, and the
victim’s belief is objectively reasonable.â€
(Id. at p. 331.)
As given in
this case, the kidnapping instruction adequately informed the jury that the victim’s
movement must be induced by an objectively reasonable fear. If defendant wished clarification or
amplification, it was his burden to request it.
In the absence of a request, the court was not required to give any
further instruction. (
v. Hughes, supra, 27 Cal.4th at
p. 361.)
Consent.
Defendant contends that the kidnapping
instruction erroneously included lack of consent as a separate element of
kidnapping.
Although defendant is correct that
“consent†does not appear in the statutory definition of kidnapping, consent is
“inextricably intertwined†with the elements of force and fear, in that the
gravamen of the offense is asportation against the victim’s will. (People
v. Majors, supra, 33 Cal.4th at
pp. 326-327, 331.) Consequently,
although lack of consent is not explicitly an element of the offense as defined
by statute, it is nevertheless part of the prosecution’s burden to prove that
the asportation was against the victim’s will, i.e., without consent.
consent is a defense to kidnapping, and a trial court has a sua sponte duty to
instruct on that defense if the evidence warrants it and it appears that the
defendant is relying on it. (
516-518.) Here, defendant contends that
the evidence did not show that Torres unwillingly accompanied him from the
laundry room but rather showed that he went voluntarily. Consequently, the instruction on consent was
mandatory.
Defendant also contends that the
kidnapping instruction erroneously allowed the jury to conclude that “anything
that the jury perceives as interfering with the person acting freely and
voluntarily may constitute lack of consent.â€
He does not elaborate on this contention, and we may accordingly deem it
forfeited. (People v. Weaver (2001) 26 Cal.4th 876, 986-987 [court need not
consider contentions of error unaccompanied by legal argument].) Nevertheless, we note that the instruction
correctly stated the general principles of law applicable to a defense of
consent.
title="">[14]
Again, if defendant had wished for clarification or for a pinpoint
instruction relating the general principles to the facts of this case, he was
required to request it. (
v. Hughes, supra, 27 Cal.4th at
p. 361.)
8.
THE COURT’S RESPONSE TO A
JURY QUESTION WAS APPROPRIATE
During
deliberations, the jury submitted the following question to the court: “‘If you’re going to shoot me’ Verbal
coercion? [Sic.] Is that an element of
kidnapping—reasonable fear? Without
visual proof of a gun?†After discussion
with the parties and the approval of the defense, the court replied, “The elements
for kidnapping are listed in CALCRIM No. 1215.
The remaining questions are questions of fact that must be determined by
the jury.â€
Defendant now contends that the court
should have instructed the jury that “verbal coercion†is not an element of
kidnapping. He also contends that the
court should have amplified its previous instruction on the definition of fear
and should have instructed the jury that “verbal coercion, moral coercion,
deceit, fraud and trickery were insufficient to support a finding of
kidnapping.â€
A trial court has a duty to clear up any “instructional
confusion†expressed by the jury. (
97; § 1138.) However, this does not mean
that the court must elaborate on the standard instructions. Where the instructions are full and complete,
“the court has discretion . . . to determine what additional explanations are
sufficient to satisfy the jury’s request for information.†(People
v. Beardslee, at p. 97.) Here, the
court’s response was not an abuse of discretion. The jury’s question asked whether the “verbal
coercion†implicit in Torres’s statement, “[I]f you are going to shoot me,
then shoot me,†satisfied the element of force or fear in the absence of
evidence that defendant displayed a gun.
The court’s response was correct—it was a question of fact w
| Description | Defendant Concepcion Rodriguez appeals his conviction for first degree murder with the special circumstance of murder committed during the course of a kidnapping. We find no reversible error, and we will affirm the conviction. The prosecution appeals from the sentence, contending that the trial court’s decision to suspend the order for victim restitution rendered the sentence unauthorized. We agree. Further, we conclude that the imposition of a parole revocation fine was unauthorized. We will direct the trial court to take corrective action with respect to both sentencing issues. |
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