P. v. Romero
Filed 1/15/13 P. v. Romero
CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff
and Respondent,
v.
FERNANDO ROMERO et al.,
Defendants
and Appellants.
B232533
(Los Angeles County
Super. Ct. No. YA074783)
APPEAL from
judgments of the Superior Court of
County, James R. Brandlin, Judge. Affirmed.
Joseph Shipp, under appointment by the Court of
Appeal, for Defendant and Appellant Fernando Romero.
John Steinberg,
under appointment by the Court of Appeal, for Defendant and Appellant Eric De
La Cruz.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Steven D. Matthews and Herbert S.
Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendants and
appellants, Fernando Romero and Eric De La Cruz, appeal their convictions for
commit murder, with a principal-armed firearm enhancement (Pen. Code,
§§ 187, 182, 12022).
name="_ftnref1" title="">[1] They were each sentenced to prison terms of
26 years to life.
The judgments are affirmed.
Viewed in accordance with the usual
rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1.
Overview.
Sonia Rios Riskin married Earl
Bourdeau, a U.S. Naval officer serving in the Philippines, and they moved to Lomita,
Sonia asked him to go to the Philippines and talk to her family.
Bourdeau went to the Philippines in 1987 and he was shot dead while visiting Sonia’s family. Sonia subsequently married Larry Riskin,
another U.S. Naval officer. When Riskin
later said he wanted a divorce, Sonia asked him to go to the Philippines and talk to her family.
Riskin did so in 2006 and he, too, was shot dead while visiting Sonia’s
family. Although Sonia was suspected of
involvement in both murders, she was never charged. The media referred to her as The Black Widow
of Lomita.
Sonia operated a beauty salon in Lomita. In April 2007, a man tried to force his way
into her salon. Two days after that, the
man returned and shot at her, but the gun apparently misfired. A week later Sonia’s body was discovered by
her son, John Bourdeau, inside in her Lomita home. She had been shot once in the head. Bourdeau was initially the prime suspect, but
police then discovered that defendant De La Cruz, Sonia’s great nephew, had
been trying to extort money from Larry Riskin’s family. Investigators eventually theorized De La Cruz
and codefendant Romero, a fellow Navy sailor, had murdered Sonia in the hope of
benefitting from her will.
The evidence against the defendants
was entirely circumstantial, but very powerful.
Highlights included the following.
A bank account intended for the deposit of money extorted from Riskin’s
family belonged to De La Cruz’s girlfriend, Maria Perez. The cell phone used to call Sonia just before
the man tried to force his way into her salon belonged to Romero. De La Cruz and Romero were on leave from the
aircraft carrier U.S.S. Ronald Reagan when Sonia was killed, and cell phone
records showed they made numerous calls to each other the night of her death
from locations very close to her house.
Both defendants lied to investigators on numerous occasions and De La
Cruz tried to provide a false alibi for Romero.
2.
The extortion attempt.
Following Larry Riskin’s death in
April 2006, his sister, Sherry Jackson, tried to have his ashes returned
to the United States for burial. She was told by
the embassy that Riskin’s ashes were in the possession of Sonia’s family in the
Philippines. Riskin’s family tried,
without success, to obtain his remains.
Then, on January 6, 2007, Jackson received an e-mail purporting to
be from Sonia’s son, John Bourdeau, offering to help arrange a return of
Riskin’s remains. This initial offer of
help evolved into a request for $35,000 to be deposited into an account at
Washington Mutual bank. There followed
other e-mails, ranging from an offer to assist in the return of Riskin’s Navy
plaques and awards, to a proposal that Sonia’s murder could be arranged and paid
for on credit.
title="">[2] Jackson forwarded all these e-mails to the
FBI.
A few weeks before Sonia’s death,
Jackson received an e-mail from the same source saying Sonia had a nephew in
the Navy and providing the nephew’s e-mail address. Jackson was instructed to contact the nephew,
but not to mention Bourdeau’s name. It
turned out this e-mail address was associated with De La Cruz’s Navy e-mail
account. After Sonia’s murder, Jackson
began receiving e-mails from De La Cruz himself. The first said, “Are you responsible for the
death of Sonia? My name is Eric, and I
need to know.†Subsequent e-mails
asserted that: John Bourdeau was
responsible for Sonia’s death; Bourdeau could not help with the return of
Riskin’s remains; the remains could be obtained if Riskin’s family paid a judge
in the Philippines $180,000; and, the sum could be reduced to $52,300 because
De La Cruz had now raised most of the money himself. Jackson never sent him any money.
3.
Sonia’s death.
On April 19, 2007, Los Angeles
County Deputy Sheriff Jeffrey Farmar responded to a 911 call from Sonia’s
beauty salon. Sonia reported that at
9:00 a.m. a clean-cut, light-skinned Hispanic man with a military-style
haircut, who was five eight or nine, 140-150 pounds and 24-26 years
old, had walked into the salon and pointed a gun at her face. She ducked under her desk, began screaming
and heard a gunshot. The man said, “I
will get you,†and ran out. Sonia’s
description turned out to generally match Romero’s physical appearance.
Sonia told Farmar she recognized
this man from an incident on the day before.
(It was subsequently established the first incident had actually
taken place two days earlier, on April 17.) Sonia received a phone call at the salon from
a man who said his name was Frank and that he had been referred to her shop for
a haircut. Sonia told him the shop was
closed. A few minutes later a man
arrived at the salon, pulled on the locked door and pounded on the glass. Sonia did not open the door and the man
left. She thought it was suspicious this
person wanted a haircut because his hair “looked freshly cut and he was
clean-shaven,†so she retrieved his number from her telephone’s caller-I.D.
function. She had written the number
down on a piece of cardboard and she gave this to Farmar, who looked at Sonia’s
phone himself and confirmed the number she had given him. This phone number turned out to be Romero’s
cell phone number.
John Bourdeau testified he found
Sonia in her home, lying face down on the living room floor in a pool of
blood. Homicide Detective Michael
Rodriguez examined the crime scene.
There were no signs of burglary or forced entry. Sonia had been shot once in the back of the
head. There was a nine-millimeter shell
casing on the living room rug and a nine-millimeter bullet in a door. The house was neat and nothing seemed to have
been disturbed. Sonia was wearing
jewelry and there was $1,700 in her purse.
On a shelf in the bedroom was an empty gun case for a nine-millimeter
semiautomatic Beretta. The parties stipulated
Sonia had been killed on the evening of April 26.
Robert Stone was Sonia’s estate
planning attorney. She had initially
employed him to collect on Riskin’s life insurance policy. When Stone arrived to open his office the
Monday morning following the Thursday night on which Sonia had been killed, De
La Cruz and Maria Perez were waiting outside in the hall. De La Cruz asked if Sonia had a will and if
she had left anything to him. When Stone
said he did not think Sonia had a will, De La Cruz appeared to be “surprisedâ€
and “disappointed.†De La Cruz said he
believed John Bourdeau had something to do with Sonia’s death.
4.
The investigation.
The Los Angeles County Sheriff’s
Department and the United States Navy Criminal Investigation Service (NCIS)
worked together to investigate Sonia’s murder.
Their investigation revealed the following.
The account used to send the e-mails
to Jackson beginning on January 6, 2007, had been created by De La Cruz in
the name of John Bourdeau. These e-mails
were sent by someone onboard a Navy ship that was part of the Pacific Fleet,
and the U.S.S. Ronald Reagan was operating in the Pacific Fleet at the
time. On multiple occasions De La Cruz’s
Navy e-mail account was used to access the Yahoo e-mail account he had created
in John Bourdeau’s name.
The bank account at Washington
Mutual, into which Larry Riskin’s sister was supposed to deposit $35,000 to
obtain his remains, belonged to Maria Perez, De La Cruz’s then-girlfriend whom
he subsequently married.
Cell phones cannot be used on Navy
ships in the middle of the ocean because there is no reception, so the Navy
provides onboard pay phones which can be used with calling cards. From April 13 until April 20, 2007,
De La Cruz was at sea. On April 20,
the U.S.S. Ronald Reagan returned to San Diego.
On April 19, a military calling card was used on the U.S.S. Ronald
Reagan to call Romero’s cell phone. The
same calling card was subsequently used to place calls from De La Cruz’s cell
phone once he was in port. There were
many calls from De La Cruz’s cell phone to Romero’s cell phone on April 17
and 19.
On the morning of April 17, a
call was made from Romero’s cell phone to Sonia’s salon in Lomita. This call was placed from a location less
than one mile from the salon, and it was made shortly before the man showed up
and banged on the window. On the morning
of April 26, a call was made from Romero’s cell phone in San Bernardino to
De La Cruz’s cell phone in San Diego County. On the night of April 26, multiple calls
were made from Romero’s cell phone to De La Cruz’s cell phone. At 9:00 p.m., both defendants’ cell phones were transmitting through the same
cell phone tower, which was located just 0.3 miles from Sonia’s Lomita
house. At 9:21 p.m., there was a
call from De La Cruz’s cell phone in Harbor City to Romero’s cell phone in
Downey. The pattern of these phone calls
showed Romero and De La Cruz heading toward Sonia’s house before 9 p.m. on
the night she was murdered, and then moving away from her house shortly thereafter.
5.
Police interviews with De La Cruz
and Romero.
When detectives first interviewed De
La Cruz on May 2, 2007, John Bourdeau was the prime suspect in Sonia’s
death and they considered De La Cruz to be merely a family member who might
provide helpful background information.
De La Cruz said Sonia owned a nine-millimeter Beretta. He said Sonia and John Bourdeau argued about
Bourdeau using drugs and that Sonia did not trust him. De La Cruz had arrived in Los Angeles a few
days before Sonia was killed, but he did not see her before she died. On the following Sunday, Bourdeau and De La
Cruz went to her house. Bourdeau took
off his shoes and borrowed De La Cruz’s slippers to walk through the
house. Later that day, Bourdeau asked De
La Cruz if he knew the password to Sonia’s computer, where her will was
located, or the identity of her attorney.
That night, Bourdeau called De La Cruz and said Sonia had given him her
nine-millimeter gun. He asked De La Cruz
to take the gun to San Diego, but he later called back and said he was going to
keep it.
On
July 3, 2007, detectives interviewed De La Cruz again. He was now a suspect, but they pretended
otherwise. De La Cruz said he believed
Bourdeau had sent the e-mails to Riskin’s sister and that Bourdeau’s friends
had killed Sonia. De La Cruz said he had
spoken to Sonia when he was in Hawaii about the salon shooting incident, but
the detectives knew this was impossible.
De La Cruz was interviewed for a
third time on May 14, 2008.
Detectives showed him a photograph of Romero and said they believed this
man had been involved in Sonia’s death.
De La Cruz looked shocked and became very nervous. He said Sonia had given him the phone number
of the person who shot at her in the salon.
De La Cruz said he called the number and discovered it belonged to
Romero, a friend of his from the Navy.
Romero told De La Cruz he had called the salon because he wanted a
haircut and because he was looking for De La Cruz. De La Cruz told the detectives Romero could
not have been the person who tried to shoot Sonia at the salon because Romero
had been on a ship with him in Hawaii at the time. In fact, however, Romero was on shore leave
at the time of the salon incidents and had flown from Hawaii to Los Angeles on
April 10.
The detectives also interviewed
Romero on May 14, 2008. They told
him there had been a shooting in Lomita and that his phone number had been
recorded by the caller-I.D. system at the shooting location. Romero said he had never been to Lomita.
Luis Marquez was in the Navy with
the defendants and was close friends with De La Cruz. While at sea with De La Cruz in early 2007,
Marquez mentioned he hated his ex-wife and sometimes wished she would die. De La Cruz said he could arrange to have her
killed, he knew someone who could kill her, and he would even loan Marquez the
money to pay for it. Marquez declined
the offer. When Marquez made similar
remarks on another occasion, De La Cruz repeated the offer. Marquez did not believe De La Cruz was
joking because he had a very serious look on his face.
On May 16, detectives
interviewed Romero a second time. They
told him phone records showed he had been in Lomita on April 17, 19 and
26. Romero denied it. Detectives showed him a police sketch based
on his own driver’s license photograph and falsely told him it had been
prepared from Sonia’s description of the suspect. Romero denied he was the person depicted in
the sketch. In an interview with Naval
investigators, Romero falsely said he had been at sea between April 13 and
20, 2007.
On February 3, 2009, De La Cruz
was interviewed a final time. Detectives
said they knew he had sent the e-mails to Riskin’s sister and that one of the
e-mails had referenced Perez’s Washington Mutual account. De La Cruz denied sending the e-mails. He denied having killed Sonia, but he also
said he could not tell detectives the truth because he was concerned about his
family.
6.
Perez’s statements and prior
testimony.
Detectives interviewed Perez on two
occasions and she testified at the preliminary hearing. She did not testify at trial, but her
admitted into evidence.
Perez said that when Sonia died, De
La Cruz and Perez were living in Carson with De La Cruz’s grandmother,
Celestina. De La Cruz and Sonia were
very close; he saw her every weekend and “treated [her] like his real
grandma.†On the night she died, De La Cruz
and Perez were staying at Sonia’s second house in Apple Valley. They had arrived about 11:00 p.m. and
they left early the next morning. They
went to the salon and then to Sonia’s house in Lomita, looking for her. There were police cars outside when they
arrived at the house, and De La Cruz started crying before the police informed
them Sonia had been shot in the head.
De La Cruz and Perez then drove to
Celestina’s house in Carson. During
Perez’s police interview, detectives asked her what De La Cruz had told
Celestina happened at Sonia’s house, and Perez responded: “Like he kill somebody.†At the preliminary hearing, Perez denied she
had meant De La Cruz was confessing to Sonia’s murder; rather, De La Cruz was
just informing Celestina that the police considered him a suspect in her death.
Regarding the Washington Mutual bank
account referenced in the e-mails sent to Larry Riskin’s family, Perez said
someone at the salon must have gotten their hands on her account information
and used it in the e-mails.
The defendants did not put on any
evidence.
1.
There was insufficient evidence to sustain Romero’s convictions.
2.
The trial court erred by admitting a portion of De La Cruz’s police
statement relating to Sonia’s account of the salon incidents.
3.
The trial court gave an erroneous accomplice liability instruction.
4.
The prosecutor committed misconduct during closing argument.
5.
The trial court gave an erroneous reasonable doubt instruction.
6.
There was cumulative error.
1.
Sufficient evidence to sustain
Romero’s convictions.
Romero contends there was
insufficient evidence for the jury to have found him guilty in this case. This claim is meritless.
a. Legal
principles.
“In assessing a claim of insufficiency of evidence, the reviewing court’s
task is to review the whole record in the light most favorable to the judgment
to determine whether it discloses substantial evidence – that is, evidence that
is reasonable, credible, and of solid value – such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.]
The federal standard of review is to the same effect: Under principles of federal due process,
review for sufficiency of evidence entails not the determination whether the
reviewing court itself believes the evidence at trial establishes guilt beyond
a reasonable doubt, but, instead, whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. [Citation.]
The standard of review is the same in cases in which the prosecution
relies mainly on circumstantial evidence.
[Citation.] ‘ “Although it
is the duty of the jury to acquit a defendant if it finds that circumstantial
evidence is susceptible of two interpretations, one of which suggests guilt and
the other innocence [citations], it is the jury, not the appellate court[,]
which must be convinced of the defendant’s guilt beyond a reasonable
doubt. ‘ “If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.†’ [Citations.]†’ [Citation.]â€
(People v. Rodriguez (1999) 20
Cal.4th 1, 11.)
The reviewing court is to presume
the existence of every fact the jury could reasonably deduce from the
evidence. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) Even if the reviewing court believes the
circumstantial evidence might be reasonably reconciled with the defendant’s
innocence, this alone does not warrant interference with the jury’s
verdict. (People v. Towler (1982) 31 Cal.3d 105, 118.) As our Supreme Court said in
1, while reversing an insufficient evidence finding because the reviewing court
had rejected contrary, but equally logical, inferences the jury might have
drawn: “The [Court of Appeal] majority’s
reasoning . . . amounted to nothing more than a different weighing of
the evidence, one the jury might well have considered and rejected. The Attorney General’s inferences from the
evidence were no more inherently
speculative than the majority’s; consequently, the majority erred in
substituting its own assessment of the evidence for that of the jury.†(Id.
at p. 12, italics added.)
b. Discussion.
Romero argues there was insufficient
evidence he entered into an agreement with De La Cruz to murder Sonia. He argues the evidence showed no real motive
for his involvement because “he had no relation to the family whatsoever and
certainly gained nothing from the killing.â€
We disagree. There was compelling
circumstantial evidence the defendants planned to murder Sonia in the hope De
La Cruz would inherent from her estate, and Romero obviously expected to be
compensated for his part in this plot.
The prosecution theory was that De
La Cruz wanted Romero to kill Sonia while De La Cruz was at sea so he would
have an alibi and could blame the murder on John Bourdeau. However, when the shooting at the salon went
awry De La Cruz came home and, together with Romero, murdered Sonia at her
house. During closing argument, the
prosecutor said: “We said De La Cruz has
Sonia’s trust. Key to her house. Access to her firearms. . . . [¶]
Crooks don’t go into houses, not steal anything, find a gun that’s in a
closed location, then use that gun to kill somebody. [¶]
But I’ll tell you who does do that.
Someone who is a part of the family, knows where that gun is, and then
takes it with them. [¶] . . . [¶] The reasonable inference, based on the phone
conversations between Mr. De La Cruz and Mr. Romero while he is at
sea, [is that] Fernando Romero was supposed to get that done while Eric was at
sea. When it didn’t happen, Eric had to
come home and do the job himself.â€
The circumstantial evidence of
Romero’s role in the conspiracy was overwhelming. He and De La Cruz were friends in the Navy
and they served together on the U.S.S. Ronald Reagan. About a week before Sonia was murdered, a man
entered her beauty salon, pointed a gun at her and apparently tried to shoot
her. When he departed, the man uttered a
death threat. The evidence showed this
man was Romero. His cell phone number
had been recorded on Sonia’s caller-I.D. system and phone records showed his
close proximity to her salon. De La Cruz
made five phone calls to Romero that day from the U.S.S. Ronald Reagan. Telephone records demonstrated that, on the
night Sonia was murdered, the defendants started out from different locations,
traveled toward Sonia’s house, came within at least 0.3 miles of it, and
then traveled away from it in different directions. During the ensuing investigation, Romero lied
to detectives about never having been to Lomita and he lied to Naval
investigators about having been at sea during the salon incidents. De La Cruz gave detectives a false alibi for
Romero regarding the salon incidents.
Romero’s reliance on
408 F.3d 1262, is misplaced. In that
case, the minor’s brother shot the victims and there was insufficient evidence
the minor intended to facilitate the shootings or even knew his brother
intended to carry them out. The Ninth
Circuit reasoned “the circumstantial evidence presented does no more than establish
that a rational trier of fact could conclude that Juan H. knew his brother was
armed and ready to confront Magdelano and Ramirez if the family and home of
Juan H. were again threatened. That Juan
H. stood behind his older brother after the family home had been attacked, even
if he knew his brother was armed, does not permit the rational inference that
he knew his brother would, without provocation, assault or murder the
victims.†(Id. at p. 1278, fn. omitted.)
As the Attorney General points out:
“Unlike Juan H., where
the events unfolded quickly and the juvenile’s brother suddenly shot the victim
without provocation, the evidence in the instant case strongly suggested a
preconceived plan by appellants to kill†Sonia, “including an attempt to frame
a third party for [her] murder before she was killed, a prior unsuccessful
attempt to kill [her], and an execution-style murder . . . in her
home.â€
There was sufficient evidence to
sustain Romero’s convictions.
2.
Trial court did not err by
admitting evidence of De La Cruz’s police statement.
Romero contends the trial court
improperly allowed the jury to learn from De La Cruz’s police statement that
Sonia had given him Romero’s phone number and said this was the person who
tried to kill her. Romero argues this
evidence was inadmissible hearsay and violated his confrontation clause
rights. These claims are meritless.
a. Background.
Prior to trial, the prosecutor told
the trial court: “[C]ounsel and I have
. . . gone through the issues in the case. I’m offering the same evidence that I did at
[the] preliminary hearing. [¶] I’ll be bringing in both defendants’
statements. Counsel and I are in
agreement that because both defendants deny any involvement, we don’t have an
So we won’t have a need for dual juries or for edits.†Neither defense attorney disagreed with the
prosecutor’s representations.
During the opening statements,
however, Romero’s attorney objected that the prosecutor was referring to
hearsay statements made by De La Cruz that incriminated Romero and implicated
already been discussed, and argued there was no Aranda-Bruton problem because both defendants had denied
culpability when they spoke to the police, and the statements were not being offered
for their truth. The trial court
overruled Romero’s objection and said it
would give a limiting instruction if appropriate.
When the prosecutor subsequently
introduced evidence of De La Cruz’s police statements, Romero objected to this
portion: Detectives told De La Cruz
there had been a break in the case and showed him a photograph of Romero,
saying this person might have been involved in the salon shooting. De La Cruz responded by saying, “No. I know him,†and “I work with the guy.†De La Cruz said Sonia had given him the phone
number of the person who tried to shoot her at the salon, that when De La Cruz
called the number he discovered it was Romero, and that Romero said he had
called the salon because he was trying to get a haircut and also because he was
trying to get in touch with De La Cruz.
The prosecutor argued this evidence was not being offered for its truth,
but rather to show De La Cruz had been lying to detectives.
because it had not been made pretrial, and overruled his hearsay objection.
The trial court subsequently gave
the jury this limiting instruction:
“During Mr. De La Cruz’s interviews with investigators, he made
certain assertions regarding statements the victim had allegedly made to
him. [¶]
Those statements attributed to the victim were not admitted to prove the
content of what she allegedly said was true, but instead, were admitted for use
in determining the credibility or lack of credibility of Mr. De La Cruz.â€
b. Legal
principles.
As our Supreme Court explained in
415: “A criminal defendant has a
right, guaranteed by the confrontation clause of the Sixth Amendment to the
United States Constitution, to confront adverse witnesses. The right to confrontation includes the right
to cross-examination. [Citation.] A problem arises when a codefendant’s
confession implicating the defendant is introduced into evidence at their joint
trial. If the declarant codefendant
invokes the Fifth Amendment right against self-incrimination and declines to
testify, the implicated defendant is unable to cross-examine the declarant
codefendant regarding the content of the confession.
“In Bruton [v. United States (1968)
391 U.S. 123 [88 S.Ct. 1620], the United States Supreme Court held that the
admission into evidence at a joint trial of a nontestifying codefendant’s
confession implicating the defendant violates the defendant’s right to
cross-examination guaranteed by the confrontation clause, even if the jury is
instructed to disregard the confession in determining the guilt or innocence of
the defendant. [Citation.] The high court reasoned that although juries
ordinarily can and will follow a judge’s instructions to disregard inadmissible
evidence, ‘there are some contexts in which the risk that the jury will not, or
cannot, follow instructions is so great, and the consequences of failure so
vital to the defendant, that the practical and human limitations of the jury
system cannot be ignored.’
[Citation.] Such a context is
presented when ‘the powerfully incriminating extrajudicial statements of a
codefendant, who stands accused side-by-side with the defendant, are
deliberately spread before the jury in a joint trial.’ [Citation.]
“Three years before
conclusion on state law grounds [in People
v. Aranda (1965) 63 Cal.2d 518], but we also concluded that the
codefendant’s confession may be introduced at the joint trial if it can be
edited to eliminate references to the defendant without prejudice to the
confessing codefendant. [Citation.] If not, and the prosecution insists on
introducing the confession, the trial court must sever the trials. [Citation.]
“The high court limited the scope of
the Bruton rule in
[95 L. Ed. 2d 176,107 S. Ct. 1702] . . . . There, defendant Marsh was jointly tried with
one Williams for murder. Williams’s
confession was introduced into evidence, but it was edited to remove any
reference to Marsh. The high court held
that admission of Williams’s confession with a limiting instruction did not
violate Marsh’s confrontation rights.
The court explained that Bruton
recognized a narrow exception to the general rule that juries are presumed to
follow limiting instructions, and this narrow exception should not apply to
confessions that are not incriminating on their face, but become so only when
linked with other evidence introduced at trial.†(People
v. Lewis, supra, 43 Cal.4th at pp. 453-454.)
“The United States Supreme Court
decisions on the Bruton rule, and
most of the state decisions on the issue, concern extrajudicial confessions by
a nontestifying codefendant. And both
acknowledgment of intentional participation in a crime. However, both cases use the broad term
‘statement’ and the narrow term ‘confession’ interchangeably, and all
statements inculpating the declarant codefendant and the other defendant appear
to fall within the rationale of the rule.
Accordingly, the California Supreme Court has found the rule applicable
to any statement that incriminates a
nondeclarant defendant as well as the declarant. [Citations.]â€
(5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crim Trial,
§ 432, p. 691.)
c. Discussion.
We conclude the trial court did not err by admitting De La Cruz’s
statement that Sonia gave him Romero’s phone number and said this was the
person who tried to shoot her. The
statement did not violate Aranda-Bruton because
it facially incriminated neither the declarant-codefendant, De La Cruz, nor the
nondeclarant-codefendant, Romero, in either Sonia’s murder or the conspiracy to
murder her. (See Richardson v.
[accomplice statement that incriminates defendant only when considered in
conjunction with other evidence does not violate confrontation clause].) As the Attorney General argues: “This was not a situation where appellant De
La Cruz confessed to the crime and in doing so implicated appellant Romero as
his partner in the crime. . . .
[A]ppellant De La Cruz’s statement was not a confession and he did not
state that he committed criminal acts with appellant Romero.†At most, the statement facially incriminated
Romero in the April 19 shooting at Sonia’s salon, an act which implicated
Romero in the charged conspiracy and murder only when linked to
Moreover, far from this evidence being powerfully incriminating, De
La Cruz tried to exculpate his codefendant by insisting to detectives that he
could not believe Romero had tried to shoot Sonia.
extrajudicial statement at issue in this appeal that facially incriminates
Ojito is Garcia’s statement . . . that he and Ojito ‘went looking for
the guy that [Garcia] had a fight with.’
However, we do not find this statement to be powerfully incriminating because it facially incriminates Ojito only by showing that he and Garcia were
looking for Barajas; it is not direct
evidence that Ojito intended Barajas would be assaulted or murdered when they
found him.â€].)
As for Romero’s hearsay claim,
Sonia’s statement to De La Cruz, and De La Cruz’s statement to the police, were
not offered for the truth of the matters asserted; rather, they were offered to
attack De La Cruz’s credibility because they showed he had been withholding
information from the police.
“Out-of-court statements that are not offered for their truth are not
hearsay under California law [citations], nor do they run afoul of the
confrontation clause.†(
775-776.)
Even assuming arguendo this evidence
was inadmissible, it was cumulative and therefore harmless beyond a reasonable
doubt. (See People v. Burney (2009) 47 Cal.4th 203, 234 [“Aranda/Bruton error is not reversible per se, but rather is
scrutinized under the harmless-beyond-a-reasonable-doubt standard.â€].) The evidence was merely cumulative because
Officer Farmar testified Sonia had told him the same thing, had given him a
piece of cardboard with Romero’s phone number on it, and had allowed Farmar to
see for himself Romero’s phone number on the caller-I.D. system. In these circumstances, we cannot believe the
jury would have convicted Romero even if this portion of De La Cruz’s police
statement had been withheld.
name="_ftnref7" title="">[7]
In sum, we conclude there was no
error in admitting this evidence, and even had there been error it would have
been harmless.
3.
The trial court did not err by
giving CALCRIM No. 400 on accomplice liability.
Both defendants contend the trial
court erred by instructing the jury with CALCRIM No. 400 regarding
accomplice liability. This claim is
meritless.
a. Legal
principles.
“A person aids and abets the commission of a
crime when he or she, (i) with knowledge of the unlawful purpose of the
perpetrator, (ii) and with the intent or purpose of
committing, facilitating or encouraging commission of the crime, (iii) by
act or advice, aids, promotes, encourages or instigates the commission of the
crime.†(
1164.) “When the crime at issue
requires a specific intent, in order to be guilty as an aider and abettor the
person ‘must share the specific intent of the [direct] perpetrator,’ that is to
say, the person must ‘know[] the full extent of the [direct] perpetrator’s
criminal purpose and [must] give[] aid or encouragement with the intent or
purpose of facilitating the [direct] perpetrator’s commission of the crime.’ [Citation.]â€
(People v. Lee (2003) 31
Cal.4th 613, 624.)
“Because aiders and abettors may be criminally liable for acts not
their own, cases have described their liability as ‘vicarious.’ [Citation.]
This description is accurate as far as it goes. But, as we explain, the aider and abettor’s
guilt for the intended crime is not entirely vicarious. Rather, that guilt is based on a combination
of the direct perpetrator’s acts and the aider and abettor’s
Cal.4th 1111, 1117.) “Aider and
abettor liability is . . . vicarious only in the sense that
the aider and abettor is liable for another’s actions as well as that person’s
own actions. When a person ‘chooses to
become a part of the criminal activity of another, she says in essence, “your
acts are my acts . . . . †’ [Citation.]
But that person’s own acts are
also her acts for which she is also liable.
Moreover, that person’s mental state is her own; she is liable for her
mens rea, not the other person’s.†(
In People v. Nero (2010)
181 Cal.App.4th 504, this court pointed out that in McCoy “our California Supreme Court held that an aider and abettor
may be found guilty of greater
homicide-related offenses than those the actual perpetrator committed. Extending that holding, we conclude that an
aider and abettor may be found guilty of lesser
homicide-related offenses than those the actual perpetrator committed.†(Nero,
at p. 507.) We found error in
clarification of this issue and the trial court failed to provide it: “[W]here, as here, the jury asks the specific
question whether an aider and abettor may be guilty of a lesser offense, the
proper answer is ‘yes,’ she can be. The
trial court, however, by twice rereading CALJIC No. 3.00 [predecessor
instruction to CALCRIM No. 400] in response to the jury’s question,
misinstructed the jury.†(
b. Discussion.
In the case at bar, the trial court
instructed the jury with CALCRIM No. 400, as follows: “A person may be guilty of a crime in two
ways. One, he or she may have directly
committed the crime. I will call that
person the perpetrator. [¶] Two, he or she may have aided and abetted a
perpetrator who directly committed the crime.
[¶] A person is equally guilty of
the crime whether he or she committed it personally, or aided and abetted the
perpetrator who committed it.â€
name="_ftnref8" title="">[8]
Defendants contend this instruction
was erroneous because it failed to explain an aider and abettor could be guilty
of either a greater or a lesser crime than the direct perpetrator. De La Cruz argues: “[T]he jury was mis-instructed that each
principal, regardless of the extent or manner of participation is equally
guilty. Applying this erroneous and misleading
instruction, once the jury concluded that Romero was the killer and that he was
guilty of first-degree murder, appellant was also guilty of first-degree
murder, even though he may have only aided and abetted a lesser crime.†Romero argues: “The prosecutor theorized appellant may have
been the triggerman, but neither defendant was charged with personal use of a
firearm; and in arguing aiding and abetting, the prosecutor stressed he did not
have to prove which defendant ‘pulled the trigger’ or that both defendants were
in the house.â€
However, it is well-recognized that
CALCRIM No. 400 is, in almost all situations, a correct instruction. “ ‘Generally, a person who is found to
have aided another person to commit a crime is “equally guilty†of that
crime.’ (People v. Lopez (2011) 198 Cal.App.4th 1106, 1118
. . . , citing § 31 and 1 Witkin & Epstein, Cal.
Criminal Law (3d ed. 2000) Introduction to Crimes, § 77, pp.
122-123.) Because it is generally true
that an aider and abettor is as equally guilty as the direct perpetrator of a
crime, the instruction that the court gave was generally accurate. [Citation.]
Given that the instruction was generally accurate, but potentially
incomplete in this case since there was evidence from which the jury could have
concluded that Jeanne had a mental state different from John’s with respect to
Rintalan’s killing, it was incumbent on Jeanne to request a modification if she
thought that the general instruction would be misleading under the
circumstances of this case. By failing
to request a modified instruction, Jeanne has forfeited this claim. [Citation.]â€
(People v. Loza (2012) 207
Cal.App.4th 332, 349-350.) Hence, if
Romero and De La Cruz believed the instruction was inappropriate to the facts
of their case, they were obliged to ask for a modification.
In any event, it is clear that in
the circumstances of this case CALCRIM No. 400 was not incomplete. As the Attorney General points out, the jury
necessarily found the defendants possessed the requisite mental state for first
degree murder under other instructions.
For example, the jury was instructed the prosecution had to prove an
aider and abettor knowingly intended
to facilitate the perpetrator’s crime,
and that “the members of the alleged conspiracy had an agreement and intent to
commit murder.†By convicting defendants
of first degree murder and conspiracy under these instructions, the jury
necessarily found they both acted with the requisite mental state for first
degree murder. This is not at all a case
like People v. Samaniego (2009)
172 Cal.App.4th 1148, 1162, relied on by defendants, which found CALCRIM
No. 400 inappropriate where the prosecution theorized the defendants had
intended to kill victim No. 1, but not finding him at home killed
victim No. 2 instead, and there were no eyewitnesses and thus no evidence
showing which defendant had been the direct perpetrator. In the case at bar, the jury found the
defendants had conspired together to murder Sonia and then carried out their
plan.
The trial court did not err by
giving CALCRIM No. 400.
4.
There was no prosecutorial
misconduct.
Defendants contend the prosecutor
committed misconduct during closing argument by commenting on their failure to
present alibi witnesses. This claim is
meritless.
a. Legal
principles.
“ ‘Under
California law, a prosecutor commits reversible misconduct if he or she makes
use of “deceptive or reprehensible methods†when attempting to persuade either
the trial court or the jury, and it is reasonably probable that without such
misconduct, an outcome more favorable to the defendant would have
resulted. [Citation.] Under the federal Constitution, conduct by a
prosecutor that does not result in the denial of the defendant’s specific
comment upon the defendant’s invocation of the right to remain silent – but is
otherwise worthy of condemnation, is not a constitutional violation unless the
challenged action “ ‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’ †’ [Citations.]
In addition, ‘ “a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion – and on the same ground –
the defendant made an assignment of misconduct and requested that the jury be
admonished to disregard the impropriety.
[Citation.]†’
[Citation.] Objection may be excused
if it would have been futile or an admonition would not have cured the
harm.†(People v. Dykes (2009) 46 Cal.4th 731, 760.)
“When we review a claim of
prosecutorial remarks constituting misconduct, we examine whether there is a
reasonable likelihood that the jury would have understood the remark to cause
the mischief complained of. [Citation.]†(People
v. Osband (1996) 13 Cal.4th 622, 689.)
“Griffin
[v. California (1965) 380 U.S.
609 [85 S.Ct. 1229]] forbids argument that focuses the jury’s attention
directly on an accused’s failure to testify and urges the jury to view that
failure as evidence of guilt.†(
443.) “A prosecutor may not
directly or indirectly comment on a defendant’s failure to testify in his or
her own defense. [Citation.] But the prosecutor may comment on the state
of the evidence, including the failure of the defense to introduce material
evidence or to call witnesses.†(
446; see, e.g., People v. Medina
(1995) 11 Cal.4th 694, 756 [no Griffin
violation where “prosecutor’s comments were directed to the general failure of
the defense to provide an innocent explanation as to why defendant was armed .
. . at the time of the robberiesâ€].)
b. Discussion.
Prior to closing argument, the trial
court sustained a defense objection to the prosecutor’s intention to address
Romero’s failure to call his wife as an alibi witness. The trial court reasoned this would
constitute “a back-door comment on the assertion of a [marital]
privilege.†The prosecutor agreed “not
to mention Mrs. Romero directly.â€
During closing argument, the prosecutor
said: “[I]n the end, this is not
complicated. In the end, you can walk
back there, and you can say oh, my gosh, [De La Cruz] set this up in
advance. Said he was going to kill her
as John Bourdeau. [¶] Set the deal up with Romero. Romero is there on all the days that
count. Sonia gives them the phone
number. Gives them his physical
description. [¶] They match up on the night of the
murder. They lie afterwards. Neither one of them has an alibi. Neither one of them presented an alibi. [¶] By
the way, if they had an alibi to present, don’t you think that there would have
been people standing up here saying ‘they were with me that night?’ [¶]
Maria Perez tried. You saw what
happened. So in the end, don’t make this
more complicated than what it is.â€
Despite having made no objection to
these remarks at trial, the defendants now contend the comments constituted
prosecutor from arguing Romero’s failure to call his wife as an alibi witness,
in view of her assertion of a marital privilege,†and “[w]hile the prosecutor
did not mention Mrs. Romero, he did allude to Maria Perez’s preliminary
hearing testimony when he argued that both defendants failed to call alibi
witnesses, leaving the unmistakable
implication that the defendants failed to call their wives as alibi
witnesses, and directly commenting on the failure of appellant’s wife, Maria
Perez, to testify at trial.†(Italics
added.) Romero argues the prosecutor’s
references “to both defendants’ (plural) failure to call alibi witnesses, and
the accompanying reference to coappellant’s wife, unmistakably signaled appellant’s failure to call his own wife as
well; this is especially so given the prosecutor’s pointed examination of the
detective geared toward eliminating any alibi from appellant’s wife.†(Italics added.)
We are not persuaded. As the Attorney General rightly asserts,
although the trial court ordered the prosecutor not to comment on the failure
to call Romero’s wife to testify, the court “expressly permitted the prosecutor
to comment on the defense’s failure to produce an alibi.†“The prosecutor’s comment on appellants’
failure to produce alibi witnesses did not violate the trial court’s order
because the prosecutor never referred to appellant Romero’s wife or commented
on her failure to testify.â€
We
find rather far-fetched defendants’ assertion the prosecutor’s reference to
De La Cruz’s wife “unmistakably†signaled to the jury that the prosecutor
was also really talking about Romero’s wife.
We do not think it reasonably likely (see People v.
jury would have gleaned that meaning when the prosecutor said: “By the way, if they had an alibi to present,
don’t you think that there would have been people standing up here saying ‘they
were with me that night?’ [¶] Maria Perez tried. You saw what happened. So in the end, don’t make this more
complicated than what it is.â€
As for Romero’s reference to
Detective Rodriguez’s testimony about questioning Romero’s wife, the detective
merely explained he had interviewed her pursuant to his usual investigative
protocol of locking potential witnesses into their statements as early as
possible. There was no defense objection
to this testimony, and we do not think it reasonable to conclude the jury would
have made a subliminal connection between Rodriguez’s testimony and the prosecutor’s
closing argument.
As for De La Cruz’s complaint about
the prosecutor directly commenting on the failure of Perez to testify at trial,
De La Cruz does not even try to suggest what would have made this
improper. Contrary to De La Cruz’s
assertion, Perez did not assert the marital privilege at trial.
of her preliminary hearing testimony, De La Cruz decided it would be
counter-productive to call her at trial.
There was nothing wrong with the prosecutor commenting on this.
In sum, the prosecutor here did no
more than comment on defendants’ failure to present logical witnesses and
evidence. “The Fifth Amendment does not
prohibit the prosecution from commenting on the state of the evidence presented
at trial, or on the defense’s failure to introduce material evidence or to call
witnesses other than the defendant.†(
633.) “A prosecutor is permitted
. . . to comment on a defendant’s failure to introduce material
evidence or call logical witnesses.
[Citation.] By directing the
jury’s attention to the fact defendant never presented evidence that he was
somewhere else when the crime was committed, the prosecutor did no more than
emphasize defendant’s failure to present material evidence. He did not capitalize on the fact defendant
failed to testify.†(
518, 554.)
Defendants’ reliance on
821, is misplaced. Contrary to De La
Cruz’s assertions, Gaines did not
hold it was improper to comment on a defendant’s failure to call alibi
witnesses if the defendant did not put on an alibi defense. Rather, in that case comments regarding the
failure to produce a particular defense witness were held improper because the
prosecutor referred to matters not in evidence, essentially informing the jury
what the missing witness would have said on the basis of no evidence
whatsoever. (See id. at p. 825.) Here, the
prosecutor did not refer to any matter outside the evidence when he commented
on the defendants’ failure to produce alibi witnesses.
There was no prosecutorial
misconduct.
5. The
reasonable doubt instruction was not erroneous.
Romero contends the
trial court’s reasonable doubt instruction was erroneous. This claim is meritless.
The trial court
gave the jury CALCRIM No. 220: “The
fact that a criminal charge has been filed against the defendants is not
evidence that the charge is true. [¶] You must not be biased against the defendants
just because they have been arrested, charged with a crime, or brought to
trial. [¶] A defendant in a criminal case is presumed to
be innocent. This presumption requires
that the People prove a defendant guilty beyond a reasonable doubt. [¶]
Whenever I tell you the People must prove something, I mean they must
prove it beyond a reasonable doubt.
[¶] Proof beyond a reasonable
doubt is proof that leaves you with an
abiding conviction that the charge is true.
[¶] The evidence need not
eliminate all possible doubt, because everything in life is open to some
possible or imaginary doubt. [¶] In
deciding whether the People have proved their case beyond a reasonable doubt,
you must impartially compare and consider all the evidence that was received
throughout the entire trial.
[¶] Unless the evidence proves
the defendants guilty beyond a reasonable doubt, they are entitled to an
acquittal, and you must find them not guilty.â€
(Italics added.)
Romero contends this instruction was
erroneous for two reasons. First, by
telling “jurors reasonable doubt must arise from evidence presented at trial,â€
the instruction ignored the fact reasonable doubt can sometimes “be based upon
absence of evidence, not just the evidence presented in court.†Second, the “abiding conviction†language
“convey[s] an insufficient standard of proof akin to clear and convincing
evidence and going only to jurors’ duration of belief in guilt, not their
degree of certainty.â€
However, both of these claims have
been repeatedly rejected by other courts, with whose reasoning we agree.
The admonition to consider all the evidence received at trial
“informs the jury that the People may not meet their burden of proof based on
evidence other than that offered at trial.
The instruction does not tell the jury that it may not consider any perceived
lack of evidence in determining whether there is a reasonable doubt as to a
defendant’s guilt.†(
Cal.App.4th 1500, 1509; accord People v.
Garelick (2008) 161 Cal.App.4th 1107, 1117; People v. Campos (2007) 156 Cal.App.4th 1228, 1238;
1088, 1093; People v. Hernandez Rios (2007)
151 Cal.App.4th 1154, 1157.)
Attacks on the “abiding conviction†language have also been
repeatedly rejected. “[D]efendant’s
assertions on the deficiencies of the phrase ‘abiding conviction’ must give way
to the great weight of legal authority approving that very language.†(People
v. Stone (2008) 160 Cal.App.4th 323, 334; accord, People v. Zepeda (2008) 167 Cal.App.4th 25, 31, fn. 4
[“Our state Supreme Court and the Courts of Appeal in every appellate district
consistently rejected defendant’s argument as it applied to the ‘abiding
conviction’ phrase in CALJIC No. 2.90.
[Citations.] Those rulings apply
with equal force to the language of CALCRIM No. 220.â€];
163 Cal.App.4th 1028, 1039 [rejecting objection to “abiding convictionâ€
language because “the propriety of the instruction . . . has been
upheld many timesâ€].)
Romero’s instructional claims are meritless.
6. There was no cumulative error.
contends the cumulative prejudicial effect of the various trial errors he has
raised on appeal requires the reversal of his convictions. However, we have found at most a single
insignificant error that was clearly harmless; hence, Romero’s trial was not
fundamentally unfair. (See
[“Because we identified only one harmless error
. . . the claim of cumulative
the cumulative prejudicial effect of the various errors he has raised on appeal
requires reversal of the guilt and penalty judgments. We have rejected his assignments of error,
with limited exceptions in which we found the error to be nonprejudicial. Considered together, any errors were
nonprejudicial. Contrary to defendant’s
contention, his trial was not fundamentally unfair, even if we consider the
cumulative impact of the few errors that occurred.â€].)
DISPOSITION
The
judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN,
P. J.
We concur:
KITCHING,
J.
ALDRICH, J.
references are to the Penal Code unless otherwise specified.
stated: “I have a friend in L.A. and he
can find a way to kill Sonia Rios Riskin.
All I need is your permission.
You don’t have to pay him right now.
He will kill her first, and then you can pay him later.â€
