P. v. Perna

Filed 7/23/07 P. v. Perna CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Francisco P. Briseno, Judge. Affirmed.

Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and Deana L. Bohenek, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Deborah Ann Perna appeals from her conviction for first-degree murder with special circumstances. She challenges the sufficiency of the evidence against her, contending her conviction was based on uncorroborated accomplice testimony. She further contends the court erroneously instructed the jury on the felony-murder special circumstance and witness credibility.

We disagree. The accomplices testimony was corroborated by physical evidence tying defendant to the actual killers and defendants statements indicating consciousness of guilt. The court properly instructed the jury on the felony-murder special circumstance, omitting only an unwarranted clarification from the standard form instruction. The court also properly instructed the jury on witness credibility. The challenged form instruction does not lower the prosecutions burden of proof. We affirm.

FACTS

The Murder

The victim, David Montemayor, managed a trucking company in Rancho Dominguez. He held a 45 percent interest in the company. His father held the other 55 percent. It appeared Montemayor was stealing from the company and operating a side business under the table. A rumor spread through the company that Montemayor had thousands of dollars in cash stored in a coffee can at his house.

Montemayors father hired defendant, who is his daughter and Montemayors sister, to try to rein in Montemayor. Defendant repeatedly confronted Montemayor over the companys finances and his stealing. The confrontations were heated. They would scream and swear at each other. Defendant told others she hated Montemayor, and called him a one-armed bastard and a one armed fuck he had lost an arm as a young man. She wished Montemayor would choke on something, have a heart attack, or drop dead. Defendant once warned Montemayor, if you fuck with me, I will cut you at your knees.

At some point, Montemayors father decided to sell his share of the company to Montemayor. Defendant was upset about this development and worried about her future with the company.

Defendants assistant at the trucking company was a woman named Edelmira Corona, known as Mira. Corona had a photograph of a heavily tattooed man on her desk. Corona took a disability leave in September 2002. An agency that provided child care to Corona called the trucking company to verify her employment. Montemayor refused to do so, temporarily depriving Corona of child care.

Montemayor left his Buena Park home for work one morning in October 2002. Although he made it to work, unlocking a door, he was gone before the first employee arrived. Instead, he was back in Buena Park, driving toward his house, with a blue truck following him. Montemayor, whose wife and children were still at home, drove past his house and got out of his vehicle. Two men also got out of the car, and began screaming at Montemayor. Montemayor pleaded with them. The men shot Montemayor in the head, killing him.

The men drove off with a third man in the blue truck. Bystanders notified the police, who pursued and ultimately apprehended the men. The men were Pacoima Flats gang members.[1] Their blue truck contained gang graffiti, including the word Droopy, the moniker of a senior Pacoima Flats gang member named Anthony Navarro. One of the gang members dropped a cell phone belonging to Navarros girlfriend. The cell phone had been used to place several calls that morning to a telephone registered to someone with the same address as Navarro. Other calls had been placed to Coronas cell phone.

Police later searched Navarros car. They found a note written on stationary used at the trucking company. The note had Montemayors address and telephone number written on it in defendants handwriting. It contained the words, one hand. The police also found a photo of Corona.

On the day of the murder, the police asked defendant whether there [i]s any reason anybody . . . would say that [defendant] had some involvement in this . . . . Defendant responded, I dont know these people I saw them on TV I dont know. (The police pursuit had been covered on local television.) Later that day, defendant told her niece that one of the guys who had shot my uncle Dave looked like the man in the photograph on Coronas desk. The niece asked whether defendant had told this to the police. Defendant stated she had not, explaining Montemayor had interfered with Coronas disability benefits. The niece encouraged defendant to contact the police, noting Corona had a motive to kill Montemayor. Defendant replied, even if [Corona] was involved, look what [Montemayor] did to her. She stated she gave the police a list of the trucking companys employees without Coronas name on it. Defendant made her niece swear not to tell anyone about Corona or their conversation.

The police called defendant later that night, asking her to return to the tucking company so they could seize Coronas belongings. Defendant lied to the police, telling them she was at a bar and too drunk to drive to work. Actually, she was with family and had not been drinking. Defendant told her family members she was scared of being arrested.

Corona eventually turned herself in to the police, who arranged for her to make recorded telephone calls to defendant. Corona told defendant the police had arrested Navarro and found defendants handwritten note. Defendant asked Corona what she was talking about, and denied having anything to do with Montemayors death. Defendant asked Corona what telephone she was using. When Corona stated she was using a telephone at someones house, defendant replied, Mira. Goddammit, dont say what you said to me. She later told Corona, Shut up. Shut up. You know nothing. Fuck. Defendant told Corona she would call Corona back from the car, placing the call to Coronas cell phone.

When defendant called Corona back, she suggested an explanation why Navarro had the note. Defendant stated, Theres lots of papers. Anybody couldve got papers from the trash from anyway [sic], okay? Defendant told Corona, Youre not gonna say nothing, Mira. She repeated that anyone could have pulled the note out of the trash. Defendant instructed Corona, You cant say shit. You dont know shit. She then asked, You cant . . . you think they can tap the cell phones?

The Trial

The People filed an information charging defendant with one count of first degree murder (Pen. Code, 187, subd. (a)).[2] The information alleged special circumstances of murder for financial gain ( 190.2, subd. (a)(1)) and murder committed during the commission or attempted commission of a robbery ( 190.2, subd. (a)(17)(A)). It further alleged sentence enhancements of active participation in a criminal street gang ( 186.22, subd. (b)(1)) and vicarious discharge of a firearm by a gang member causing death ( 12022.53, subds. (d) & (e)(1)).

Corona testified against defendant. She stated defendant asked Corona in June 2002 whether she knew anyone who would kill Montemayor. Corona said she did not know anyone who would do that. Defendant asked, Cant the guy with the tattoos do it? Defendant gave Corona a note with Montemayors name and address on it to give to the man. Corona replied that the man with the tattoos would not kill Montemayor. Corona left the note in her desk.

According to Corona, she later arranged for Navarro to come to the trucking company to sell methamphetamine to defendant. After meeting Navarro, defendant asked Corona whether Navarro would kill Montemayor in exchange for the cash hidden in Montemayors house. Defendant picked up the note from Coronas desk and gave it to her so Corona could give it to Navarro. Corona passed along defendants offer to Navarro. She later gave the note to Navarro and reiterated defendants offer. Navarro told Corona he would kill Montemayor.

The parties stipulated that Navarro and the three men directly involved in the shooting were members of the Pacoima Flats criminal street gang.

Corona testified defendant began pestering her about Navarro, asking when he would kill Montemayor. Corona relayed messages between defendant and Navarro about the murder.

When Corona learned the police were looking for her in early October 2002, she called defendant to find out why. Defendant told her Montemayor had been killed. Defendant warned Corona the police had taken her possessions from the trucking company.

The jury found defendant guilty of first degree murder, and found true the special circumstance of murder committed in the attempted commission of a robbery. The court granted defendants motion to dismiss the murder for financial gain special circumstance and the sentence enhancements. ( 1118.1.) The court sentenced defendant to life in state prison without the possibility of parole.

DISCUSSION

Defendant contends insufficient evidence supported her first degree murder conviction. The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576 (Johnson).) We view the evidence in favor of the verdict, and presume the existence of every fact the jury might reasonably deduce from it. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

The prosecution presented two theories of first degree murder: conspiracy to commit murder and murder committed in the attempted perpetration of a robbery. ( 187, subd. (a), 189.) The court instructed the jury on each theory.[3] The jury had no need to unanimously adopt one of these theories in finding defendant guilty of first degree murder. (People v. Pride (1992) 3 Cal.4th 195, 249.) Each juror could have relied on either theory, as long as each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by the statute. (People v. Milan (1973) 9 Cal.3d 185, 195.)

Defendant does not dispute the evidence at trial taken as a whole  including Coronas testimony sufficiently shows she conspired to murder Montemayor and aided and abetted a murder committed in the perpetration of an attempted robbery.

Rather, defendant contends Coronas testimony cannot support her conviction because it is uncorroborated. (See 1111 [accomplice testimony must be corroborated].) To corroborate the testimony of an accomplice, the prosecution must present independent evidence, that is, evidence that tends to connect the defendant with the crime charged without aid or assistance from the accomplices testimony. [Citation.] 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. [Citations.] [T]he corroborative evidence may be slight and entitled to little consideration when standing alone. (People v. Avila (2006) 38 Cal.4th 491, 562-563 (Avila).)

Under this liberal standard, Coronas testimony was amply corroborated. Defendants handwritten note with Montemayors address and telephone number on it, found in Navarros car, tends to implicate defendant. (Avila, supra, 38 Cal.4th at p. 563.) The presence of the note in Navarros car ties defendant to the Pacoima Flats gang members who killed Montemayor. The jury could have reasonably rejected defendants attempt to innocently explain the note: it contained directions to a party at Montemayors house, and Corona must have fished it out of the trash.

Evidence of defendants consciousness of guilt further corroborated Coronas testimony. (See Avila, supra, 38 Cal.4th at p. 563.) In her recorded telephone calls, defendant directed Corona to shut up, rather than discussing the crime, tried out an innocent explanation for the handwritten note, and took futile efforts to avoid a police wiretap. Though defendant professed to have no idea what Corona was talking about, she did not report Coronas incriminating statements to the police. Defendant also took extreme measures to protect Corona. She refused to tell police about the photograph on Coronas desk or Coronas motive to kill Montemayor, refused to identify Corona by name on the employee list she provided to the police, and lied to the police to avoid helping them obtain Coronas belongings. Once defendant learned the police were interested in Corona, defendant told others she was afraid of being arrested. Defendants own conduct shows a consciousness of guilt sufficient to corroborate Coronas testimony.

Because Coronas testimony was corroborated, the jury could have relied upon it (and the corroborating evidence, too) in reasonably concluding defendant conspired to murder Montemayor or aided and abetted a murder committed in the perpetration of an attempted robbery. (Johnson, supra, 26 Cal.3d at p. 576.) Substantial evidence supports defendants first degree murder conviction.

The Court Properly Instructed the Jury on the Felony-Murder Special Circumstance

Defendant contends the court wrongly omitted the second paragraph of the standard form instruction on the felony-murder special circumstance. The court instructed the jury pursuant to the first paragraph of CALJIC No. 8.81.17, To find that the special circumstances referred to in these instructions as murder in the commission of robbery [sic] is true, it must be proved, one, the murder was committed while the defendant was an accomplice or co-conspirator in the attempted commission of a robbery. (CALJIC No. 8.81.17.) The second paragraph of CALJIC No. 8.81.17, which the court did not give to the jury, provides: The murder was committed in order to carry out or advance the commission of the crime of [attempted robbery] or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the [attempted robbery] was merely incidental to the commission of the murder. (Ibid.)

The omitted paragraph is not a separate element of the felony-murder special circumstance. (People v. Kimble (1988) 44 Cal.3d 480, 501.) It merely clarifies what it means to commit a murder while engaged in the commission or attempted commission of a felony. (Ibid.) The second paragraph of CALJIC No. 8.81.17 is appropriate where the evidence suggests the defendant may have intended to murder his victim without having an independent intent to commit the felony that forms the basis of the special circumstance allegation. In other words, if the felony is merely incidental to achieving the murder the murder being the defendants primary purpose then the special circumstance is not present, but if the defendant has an independent felonious purpose (such as burglary or robbery) and commits the murder to advance that independent purpose, the special circumstance is present. (People v. Navarette (2003) 30 Cal.4th 458, 505 (Navarette).)

No evidence in this case supported instructing the jury with the second paragraph of CALJIC No. 8.81.17. No evidence suggested defendant and the gang members lacked the independent felonious purpose of robbing Montemayor of his coffee can full of cash. (Navarette, supra, 30 Cal.4th at p. 505.) No evidence suggested the gang members decided to rob Montemayor only after they killed him. (See, e.g., People v. Green (1980) 27 Cal.3d 1, 55, 61-62 [defendant stole victims clothes and jewelry after murder to prevent identification].)

Instead, the evidence showed defendant had an independent intention that the gang members would rob Montemayor. She provided them with his home address on the handwritten note, showing she intended them to take Montemayor to his house to retrieve the rumored coffee can full of cash. The gang members did not kill Montemayor at his work, but forced him to drive to the location where he kept the rumored coffee can full of cash. Thus, the evidence did not warrant instructing the jury with the second paragraph of CALJIC No. 8.81.17.[4] (People v. Valdez (2004) 32 Cal.4th 73, 113-114 [no error in omitting second paragraph when the evidence does not support it].)

The Court Properly Instructed the Jury on Witness Credibility

Finally, defendant contends the court erred by giving CALJIC No. 2.21.2. The court instructed the jury, A witness who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence you believe the probability of truth favors his or her testimony in other particulars. She asserts the instruction allowed the jury to accept Coronas testimony based on probabilities, reducing the prosecutions duty to show guilt beyond a reasonable doubt.

As defendant concedes, the California Supreme Court has rejected this claim. (People v. Hillhouse (2002) 27 Cal.4th 469, 493.) The instruction is merely a statement of the obvious that the jury should refrain from rejecting the whole of a witnesss testimony if it believes that the probability of truth favors any part of it. (People v. Beardslee (1991) 53 Cal.3d 68, 95.) The general instructions on reasonable doubt and burden of proof make it clear that CALJIC No. 2.21.2 does not shift any burden to defendant. (People v. Maury (2003) 30 Cal.4th 342, 429; People v. Riel (2000) 22 Cal.4th 1153, 1200.) The court properly instructed the jury on these general principles by giving CALJIC No. 2.90.[5] There is no error.

DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

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[1] One of the men was Gerardo Lopez. We affirm his conviction for first degree murder with special circumstances in People v. Lopez (July 23, 2007, G037163) nonpublished opinion.

[2] All further statutory references are to the Penal Code.

[3] Whether the felony-murder instruction correctly stated the law will be discussed post.

[4] Thus, counsel did not render ineffective assistance by failing to request the second paragraph of the instruction.

[5] The court instructed the jury: A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether her guilt is satisfactorily shown, she is entitled to a verdict of not guilty. [] This presumption places upon the people the burden of proving her guilty beyond a reasonable doubt. [] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, if after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. (CALJIC No. 2.90.)