P. v.
Gutierrez
Filed 12/4/12 P. v. Gutierrez CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH ANTHONY GUTIERREZ,
Defendant and Appellant.
B233724
(Los Angeles
County
Super. Ct.
No. KA086653)
APPEAL from
a judgment of the Superior Court
of
County. David C.
Brougham, Judge. Affirmed with
directions.
Mark Alan Hart, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *
Appellant Joseph Anthony Gutierrez appeals from a judgment
entered after a jury convicted him of one count of
subd. (a))
personally used and intentionally discharged a firearm that caused great bodily
injury and death (§ 12022.53, subds. (b), (c), and (d)). The trial court sentenced appellant to a term
of 40 years to life in prison, consisting of 15 years to life for the murder,
plus 25 years to life for the firearm enhancement found true pursuant to
section 12022.53, subdivision (d). The
enhancements found true within the meaning of subdivisions (b) and (c) were
stayed pursuant to section 654. The
court awarded appellant 779 days of actual custody
credit.
Appellant
contends (1) the trial court erred in excluding evidence concerning the state
of mind of the deceased, (2) the additional term of 25 years to life imposed
under section 12022.53, subdivision (d) constituted double jeopardy, and (3) he
is entitled to an additional day of custody credit. We modify the abstract of judgment to reflect
an additional day of custody credit, but otherwise affirm the judgment.
FACTS
Prosecution Case
In April 2009,
Hassan, had been dating for approximately one year. They were living together in a house in Covina,
with appellant’s grandfather, Anthony Ciorlieri. Ciorlieri’s friend Daniel Ruiz also lived in
the house.
On the
morning of April 20, 2009,
Ruiz saw Hassan sitting on the couch wearing pajamas. She was smiling and playing with the
dogs. Ciorlieri was mopping the floor
and also saw Hassan playing with the dogs.
Appellant was sleeping in his bedroom.
Ruiz left the house to run some errands.
He saw Hassan later that morning in the kitchen while he and Ciorlieri
were watching television. She was
wearing a black dress and had makeup on.
She spoke with Ruiz and appeared to be “happy-go-lucky, like
always.†Hassan retrieved an empty trash
bag from the kitchen and went to the bedroom she shared with appellant. She went outside to throw away the trash bag
which she had filled and then returned to the bedroom.
Ruiz and
Ciorlieri were watching television when they heard a noise and looked toward
the hallway. Appellant came out of the
bedroom screaming and crying, and was on his knees in the hallway. He yelled “Grandpa, grandpa, she shot
herself. I didn’t do it, grandpa. She shot herself.†Ciorlieri went into the bedroom for a few
seconds and then came back out. He told
Ruiz to call 9-1-1, and
instructed appellant to stay in the house until the police arrived. There was a lot of noise and confusion and
Ruiz could not hear clearly so he went to the backyard to call 9-1-1.
Ciorlieri also went to the backyard because the 9-1-1 operator insisted on speaking with him. When Ruiz returned to the house, appellant
was no longer there.
City of Covina
police officers responded to the 9-1-1
call. They searched the residence and
surrounding neighborhood for appellant but were unable to locate him. Detective Michael Robison found Hassan lying
on her back in the bedroom. Her arms
were across her body and her legs were “folded up underneath her.†She had a gunshot wound to the head and her
right eye was outside her orbital socket and attached only by veins. A pool of blood had formed by her head and it
was “obvious†to Detective Robison that she was dead. There was no weapon in sight.
A black
.357 revolver with a brown handle was found between the mattress and the box spring,
approximately five feet from Hassan’s body.
The gun was loaded with five live rounds and one spent casing which had
recently been fired. Hassan suffered a
“through-and-through†gunshot wound and Detective Robison located the bullet
above a dresser in the bedroom. A
sunglasses case found near the dresser contained 11 more live rounds similar to
those in the gun and an identification card bearing appellant’s name and
picture. A crumpled photograph of
appellant and three females was found on the ground by the closet.
Los Angeles
County Sheriff’s Department senior criminalist
Marco Iezza testified that the expended bullet recovered from above the dresser
had been fired from the gun found in appellant’s bedroom. He testified that the gun had both a single
and double action trigger pull and required significant pressure to fire in
either mode. The gun had a built-in
safety mechanism and was not the type that went off accidentally.
A press
release broadcast on both radio and television on the day of the shooting
advised the public that appellant was wanted for questioning in connection with
Hassan’s murder. The following day,
appellant, accompanied by his attorney, turned himself in at the Covina Police
Station.
Yolanda
Alvarado dated appellant for approximately 11 months in 2006 and 2007. She was afraid of him and described him as
possessive and jealous. He was “clingyâ€
and she tried to break up with him about 10 times in the 11 months they were
together. On at least six occasions she
saw appellant with a gun similar to the one used to shoot Hassan. Appellant pulled out the gun during one
argument when Alvarado told appellant she wanted to break up with him and
pointed it to his own head. He told her
“You know, if you break up with me, you know, this is what can happen.†Appellant constantly called Alvarado’s cell
phone and when she did not answer left voicemail messages calling her “bitchâ€
and “whore.â€
On March
24, 2007, appellant called Alvarado’s phone approximately 80 times while she
was at a party with friends. He asked
her to contact him. Alvarado left the
party and went to appellant’s house.
Appellant entered the passenger side of Alvarado’s car. When she told him that she wanted to end their
relationship he hit her in the face and tried to choke her. She got out of the car and ran towards
appellant’s house. Appellant caught and
grabbed her as she was knocking on the door but released her when his aunt
opened the door. Alvarado filed a report
with the Pomona Police Department. Her
injuries consisted of facial
bruising, a bloody nose, and scratches on her arms and legs.
Defense Case
Los Angeles County Sheriff’s
Department senior criminalist Jill Licht tested the gun that caused Hassan’s
death for the presence of DNA. The gun
contained a mixture of DNA from two contributors. The major contributor matched the profile for
Hassan. There was not enough DNA to
detect a second entire profile but appellant could not be “conclusively
included or excluded as a contributor.â€
Steven
Dowell, a criminalist with the Los
Angeles County Coroner’s Office, testified that Hassan’s hands tested positive
for gunshot residue. In his opinion,
Hassan “may have discharged a firearm or otherwise had her hands in an
environment of gunshot residue.†He
testified that it was “not uncommon†to find gunshot residue on the victims of
shootings especially when the weapon was fired at close range.
Deputy
Medical Examiner Yulai Wang of the Los Angeles County Coroner’s Office
conducted Hassan’s autopsy and determined that Hassan died from a single
gunshot wound to the head. The gun was
in direct contact with the skin when the bullet entered the right temple and
exited the left side of the head moving front to back and slightly
upwards. Dr. Wang acknowledged that in
his experience it is more common than not for a contact wound to be self-inflicted.
Dr. Wang
based his opinion that Hassan’s death was a homicide rather than a suicide on a
number of factors, and after he consulted with the Chief Medical Examiner and
discussed the case with a third coroner.
He spoke with the investigating officers regarding the circumstances of
her death. He concluded that Hassan
could not have hidden the gun used to cause her death in the mattress of the
bed because her death was immediate. He
learned the gun belonged to appellant who had a history of domestic violence,
was present during Hassan’s shooting, did not call the police, and left the
location very quickly. He noted that
Hassan was not depressed and did not have suicidal ideation. She had put on makeup and was preparing to go
to work. Dr. Wang further opined that
“women less likely use a weapon to commit suicide than other means†and “more
commonly use []medication.â€
Hassan’s
MySpace profile described her mood as “feeling bomb†and contained no
references to appellant. But the
custodian of records for MySpace testified that
e-mails in Hassan’s account had been read on April 21, 22, and 30, of 2009, and
that someone had logged into the account on August 29, 2009.
Vanessa
Amaya knew appellant and Hassan and saw them together quite often. She testified that they had a “tender, loving
type of relationship.†Amaya and
appellant were “very close friends†and she considered him “like family.â€
Anthony
Ciorlieri testified that appellant and Hassan were “always happy†and “always
having fun.†He did see Hassan upset
about a week prior to the shooting. At
that time she told him that she was upset with her mother.
At
approximately 2:15 p.m. on the day of the shooting Carmelina Ciorlieri,
appellant’s aunt, received a call that appellant was at her home. Ms. Ciorlieri’s residence was approximately
seven minutes from her father Anthony Ciorlieri’s home. Ms. Ciorlieri returned home and found
her brother-in-law holding appellant who was crying and appeared to be very
upset. She called an attorney who
advised her to take appellant to a safe place until the following afternoon
when the attorney could personally take appellant to the police station. Ms. Ciorlieri drove appellant to his mother
in Bellflower.
Catherine
Roxanne Gonzalez, appellant’s mother, testified that she was cleaning her friend
Melissa Marquez’s house when her sister, Carmelina Ciorlieri, arrived with
appellant. He was screaming and crying
in the back seat of the car, and continued to do so when he was brought into
the house. Marquez arrived at the house
approximately one hour later. Marquez
took appellant and Gonzalez to a motel down the street where they stayed until
the next morning. Gonzalez testified
that she saw no blood on appellant, and that he did not take a bath or wash his
clothes while he was with her.
Rebuttal
Hassan
worked as a sales agent for Sprint and was described by coworkers as
enthusiastic, friendly, and outgoing, and “always positive about
everything.†Luis Carlos Rivera,
Hassan’s manager, testified that on Sunday, April 19, 2009, Hassan asked if she
could come into work the following day even though she was not scheduled to
work until Tuesday. Hassan was planning
to get a cell phone when she received her paycheck at the end of April.
Melissa
Marquez testified that she drove appellant and his mother to a Motel 6. He appeared to be acting normal and she did
not remember seeing appellant crying or hysterical.
Covina
Police Officer Michael Taron interviewed Ruiz at the scene of the shooting,
shortly after it occurred. Ruiz told
Officer Taron that immediately after the shooting, appellant stated, “I don’t
want to go to jail.â€
DISCUSSION
I. The Trial Court Did Not Abuse Its
Discretion in Excluding the Victim’s Statements About Her Mother
Appellant
contends that the trial court denied his right to present a defense by not
permitting Anthony Ciorlieri to testify regarding statements Hassan made to him
approximately one or two weeks prior to her death. Appellant contends that the defense theory of
the evidence was that Hassan shot herself and the problems between Hassan and
her mother were critical evidence on the issue of her state of mind leading up
to her death. He contends the statements
were admissible under the state-of-mind exception to the hearsay rule (Evid.
Code, § 1250) and were not more prejudicial than probative (Evid. Code, § 352).
The abuse of discretion standard
of review applies to
any ruling by a trial court on the admissibility of evidence. (People
v. Rowland (1992) 4 Cal.4th 238, 264.)
This standard is particularly appropriate when, as here,
the trial court’s determination of admissibility involved questions of
relevance and the state-of-mind exception to the hearsay rule. (Ibid.) Under this standard, a trial court’s ruling
will not be disturbed, and reversal of the judgment is not required, unless the
trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage
of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10.)
Principles
Evidence Code
section 1200, subdivision (a) provides that ‘“Hearsay evidence’ is evidence of
a statement that was made other than by a witness while testifying at the
hearing and that is offered to prove the truth of the matter stated.†Except as provided by law, hearsay evidence
is inadmissible. (Evid. Code, § 1200,
subd. (b).)
Evidence Code
section 1250, subdivision (a) provides that:
“. . . evidence of a statement of the declarant’s then
existing state of mind, emotion, or physical sensation (including a statement
of intent, plan, motive, design, mental feeling, pain, or bodily health) 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.â€
Evidence Code
section 352 provides, “The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.†A trial court
enjoys broad discretion under Evidence Code section 352, in assessing whether
probative value outweighs undue prejudice, confusion, or consumption of time. (People
v. Brown (2000) 77 Cal.App.4th 1324, 1337.)
The trial court conducted an Evidence Code section 402 hearing during
which the defense called Anthony Ciorlieri to testify. He testified that he had a conversation with
Hassan approximately one or two weeks before the shooting. According to Ciorlieri, Hassan was crying and
was upset with her mother because her mother always wanted to be the center of
attention with Hassan’s friends and went after Hassan’s boyfriends. Hassan also told Ciorlieri that her mother
asked Hassan’s friends to obtain methamphetamines for her.
The
People called Hassan’s grandmother, Julia Salcido. Salcido testified that approximately one
month before the shooting Hassan said she wanted to live with Salcido. Salcido agreed on condition that Hassan end
her relationship with appellant, return to school to get her high school
diploma, and get a job to pay for her cell phone. Hassan agreed, and when she got a job Salcido
took her shopping for clothes.
The
People also called Cheyanne Andrade who described herself as “a very close
friend†of Hassan’s who had known her for two years. Andrade testified that Hassan had problems
with her mother. She did not like her
mother’s drug use or her mother’s boyfriend.
Andrade also testified that Hassan was afraid of appellant and that he
had hit her. Appellant threatened Hassan
with a gun when she tried to leave him.
Andrade last saw Hassan alive on the Wednesday before she died and at
that time Hassan was her “happy, normal self.â€
The
trial court denied the defense motion to present Ciorlieri’s testimony of the
statements made by Hassan concerning her relationship with her mother. The court found that the Evidence Code
section 1250 hearsay exception did not apply because
Hassan’s relationship with her mother was “really not an issue†in the case,
and her state of mind in that regard was not relevant. The court also excluded the proffered
statements under an Evidence Code section 352 analysis because any potential
relevance was outweighed by the potential for prejudice.
As earlier stated, Evidence Code section 1250 provides that an
out-of-court statement to prove the declarant’s state of mind, is not made
inadmissible by the hearsay rule when the declarant’s state of mind “is itself
an issue in the action†or if the evidence “is offered to prove or explain acts
or conduct of the declarant.†(Evid.
Code, § 1250, subd. (a)(1)-(2).) The
threshold for admissibility of such evidence is its relevance. There was no dispute Hassan and her mother
had a poor relationship. But there was
no evidence that Hassan’s feelings about her mother was a possible cause of a
possible suicide. There was no evidence
to suggest that Hassan was in fact suicidal.
Aside from Ciorlieri’s testimony
that on the day of the incident appellant claimed that Hassan shot herself and
the Coroner’s criminalist’s testimony that there was gunshot residue on
Hassan’s hands, there was no evidence that Hassan committed suicide. Furthermore, there was absolutely no evidence
that Hassan ever considered suicide in connection with her mother.
Appellant relies
on a recent California Supreme Court decision, People v. Riccardi (2012) 54 Cal.4th 758 (Riccardi), to support his argument for the admission of Hassan’s
statements to Ciorlieri about her mother.
In Riccardi, the defendant was
convicted of killing Connie Navarro, his ex-girlfriend, and her best
friend. (Id. at p. 765.) During the
trial of the double homicide the prosecution sought to admit evidence of
Connie’s fear of defendant and evidence of his stalking her. Connie told another friend that “she wanted
to end her relationship with defendant, and that defendant was no longer
welcome in her condominium†(id. at
p. 813) and that she had changed her locks and installed an alarm system because
she was frightened that defendant would hurt her. (Ibid.) Connie also related another incident to her
of defendant breaking into her condominium and kidnapping her. (Ibid.) The defense sought to exclude this evidence
asserting that it was inadmissible hearsay, irrelevant, and prejudicial under
Evidence Code section 352. (
identified by the prosecution were admissible to show Connie’s fearful state of
mind and her actions in conformity with that fear. (Id.
at p. 812.)
The Supreme Court
discussed the threshold requirement of relevance in the context of evidence of
a murder victim’s state of mind offered under Evidence Code section 1250. The specific question the Court addressed was
whether a decedent’s out-of-court statements expressing fear of a defendant are
relevant under Evidence Code section 1250 to prove the defendant’s motive in
the crimes against the victim. (
816–817.) The Court found ample
foundational evidence independent of Connie’s statements that the defendant was
aware that Connie “was fearful of him, no longer desired a relationship with
him, and took actions in conformity with her fear. In addition to the eyewitness testimony
describing defendant’s numerous acts of stalking Connie, all of which would
unquestionably cause her to become fearful, defendant admitted he was
despondent over the end of the relationship, acknowledged he had disabled her
newly installed home alarm, claimed he had stolen a letter describing Connie’s
fears, and admitted to Connie that, despite her precautions, he could hurt her
if he wanted to. Defendant also
complained to Young that Connie seemed ‘real brave’ over the telephone and she
appeared willing to ‘get mean.’ He
admitted to Young that he ‘couldn’t stand it’ and that her behavior ‘just
enrages’ him.†(Id. at p. 819.) The Court
held that evidence of a decedent’s state of mind can be relevant to a
defendant’s motive, but only if there is independent, admissible evidence that
the defendant was aware of the decedent’s state of mind before the crime and
may have been motivated by it. (
Appellant argues
that if Connie’s state of mind was admissible because it had some relevant effect
on Riccardi’s behavior where Riccardi’s motive was at issue, then Hassan’s
state of mind should be admissible if it has some effect on her own behavior
where the defense is that she killed herself.
Appellant’s contention fails because unlike Riccardi, where the court found “ample foundational evidence†that
motivated the defendant to act as he did, and thereby support admission of the
statements, there is no evidence that Hassan was motivated to commit
suicide. The evidence pointed to a
contrary conclusion. Hassan had recently
started a new job and made plans to get her own cell phone. Rivera testified that Hassan was happy the
day before the shooting. Ruiz testified
that she was “happy-go-lucky, like always†on the morning she died. Even appellant’s grandfather testified that
on the day she died she was laughing and giggling while playing with the dogs
and he “didn’t see nothing that was indicating something was wrong.†Ciorlieri further testified that he “didn’t
see why [Hassan] had any reason†to take her life.
The statements
Hassan made to Ciorlieri concerning her mother’s drug use and conduct indicated
that Hassan was upset with her mother, but there was no evidence that her
mother’s conduct had a relevant effect on Hassan’s behavior. We are satisfied that the trial court did not
abuse its discretion in ruling that Evidence Code section 1250 was inapplicable
and excluding the statements.
Appellant also
argues that the trial court erred in concluding under section 352 that the
statements were inadmissible. “Under
. . . section 352, the trial court enjoys broad discretion in
assessing whether the probative value of particular evidence is outweighed by
concerns of undue prejudice, confusion or consumption of time. [Citation.]â€
(People v. Rodrigues (1994) 8
Cal.4th 1060, 1124.) In light of the
preceding discussion finding the statements were not relevant, and applying the
deferential standard of review applicable to a trial court’s evidentiary
rulings under section 352, we find no abuse of discretion.
II. The Additional Term of 25 Years to Life
Does Not Violate Double Jeopardy by Relying on the Same Fact Pertaining to the
Murder Conviction and the Attendant Firearm Enhancement
Appellant
contends that the imposition of a 25-years-to-life sentence enhancement imposed
pursuant to section 12022.53, subdivision (d), in addition to his sentence for
murder, violates principles of double
jeopardy. As defendant acknowledges,
the California Supreme Court rejected this argument in People v. Izaguirre (2007) 42 Cal.4th 126, 133–134. We are bound by the Supreme Court’s
holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
title="">[3] We find no error.
III. Appellant Should be
Awarded One Additional Day of Actual Custody Credit
Appellant
contends, and the People concede, that he is entitled to one additional day of
actual custody credit.
Pursuant to
section 2900.5, subdivision (a), a defendant convicted of a felony is entitled
to credit against a state prison term for actual time spent in custody before
commencement of the prison sentence, including the day of sentencing. (§ 2900.5, subd. (a);
523, 526.) Generally, an appellant may
not appeal an error in the calculation of presentence custody credit unless the
claim is first presented in the trial court, which did not occur here. (§ 1237.1.)
However, the Court of Appeal may address a presentence custody credit
issue if other claims are also raised on appeal. (People
v. Mendez (1999) 19 Cal.4th 1084, 1100–1101; People v. Acosta (1996) 48 Cal.App.4th 411, 420–421.)
As a general
rule, the time credited includes the date of arrest, the date of sentencing,
and every day in between. (
at p. 526 [“Since section 2900.5 speaks in terms of ‘days’ instead of ‘hours,’
it is presumed the Legislature intended to treat any partial day as a whole
dayâ€].) The probation report states that
appellant was arrested on April 21, 2009 and he was sentenced on June 9, 2011,
a span of 780 days. Because the trial
court awarded appellant 779 days of custody credit, the abstract of judgment
must be amended to reflect 780 days of actual custody credit.
The trial court
is directed to amend the abstract of judgment to reflect 780 days of actual
custody credit and to forward the amended abstract to the Department of
Corrections and Rehabilitation. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
_____________________, J.
DOI TODD
We
concur:
____________________________,
P. J.
BOREN
____________________________,
J.
CHAVEZ
further statutory references are to the Penal Code unless otherwise stated.
trial court also ruled that the statements made by Hassan to Salcido and
Andrade were inadmissible under Evidence Code sections 1250, and 352. Only the statements made to Ciorlieri are at
issue in this appeal.
