P. v. Romero
Filed 2/4/13 P. v. Romero CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
HECTOR ROMERO,
Defendant and Appellant.
D061411
(Super. Ct.
No. SCE309573)
APPEAL from
a judgment of the Superior Court
of
County, Gary M. Bubis, Judge.
Affirmed.
A jury
convicted Hector Romero of first degree
murder (Pen. Code, § 187, subd. (a)) and found true an allegation
that he used a deadly weapon (knife) to commit the offense (Pen. Code,
§ 12022, subd. (b)(1)).
Romero was
sentenced to an indeterminate term of 26 years to life in prison.
Romero
appeals contending the trial court erred in excluding certain character
evidence regarding the victim which was offered to demonstrate the victim was
the aggressor in this case. We find the
trial court acted well within its discretion under Evidence Code
section 352 to exclude the offered evidence.
Accordingly, we will affirm the judgment.
STATEMENT
OF FACTS
The offense
in this case occurred on March 16,
2011. Prior to that time
Romero and the victim, Roque Varela, had a number of encounters. In December 2010, Varela was outside of
Romero's house, talking loudly on a cell phone.
Romero came outside and told Varela to be quiet. Romero reached for his waistband and Varela
punched Romero, knocking him unconscious.
Later on
the same day, Varela arrived at the house of a friend, Patricia Retes. Varela was not wearing a shirt and was sweaty
and breathless. He told Retes that three
men were chasing him. Retes saw three
men outside of her house, one of whom was Romero.
Varela went
out the back door and came to the front where Romero and the others were
standing. Retes screamed for help from
her neighbor, Nathan Hampton, who came outside and saw the three men in Retes's
front yard.
Varela had
his back to the wall and he and the men were exchanging insults. Hampton
got in between the men and Varela. About
that time Romero came around a parked car toward the location where Varela was
standing. Romero was holding a three-to
eight-inch kitchen knife. Varela later
said that Romero threatened to stab him with the knife.
Retes
screamed at Romero about the knife and, after further arguing between Romero
and Varela, Romero and his companions left.
Varela told
Hampton that he had at least two
prior confrontations with Romero. In
each instance, Varela said he had hit Romero and knocked him out.
On March 16, 2011, Varela was at the
house of Sherisse Hurlburt, who was a mutual friend of both Varela and
Romero. Hurlburt's two sons and one or
both of her daughters were also present in the house.
While
Varela was at the house, Hurlburt received a phone call from Romero. Romero said he wanted to come over to
purchase some marijuana from Hurlburt.
Hurlburt told Romero that Varela was there, that they would be leaving
soon and that it was not a good idea for Romero to come over. Romero said he was coming over anyway.
When
Hurlburt and Varela were leaving the house, they came face to face with Romero
and another man.
Varela and
Romero stared at each other and talked angrily in Spanish. Then they both said "no mas" and
shook hands. Romero immediately pulled
an eight- to nine-inch knife in a plastic case out of his pocket. He lunged at Varela with the covered knife
and struck him in the left
shoulder area.
Romero
removed the cover from the knife as Varela backed away. As Romero lunged at him, Varela pushed a
plastic chair in the way. Romero was,
however, able to stab Varela.
Hurlburt's
son, Daniel Gordon, attempted to help Varela.
He hit Romero's companion in the head because they were starting to
chase Varela who was running away. At
that point, Romero and his companion got into their truck and drove away.
Varela died
at the scene as a result of six
Defense
Romero
testified and admitted stabbing Varela, but said he did so in
self-defense. Romero said he was afraid
of Varela as a result of the prior altercations. He knew that Varela had a reputation as a
violent person.
Romero said
that Varela was always the aggressor in their encounters and that Varela
threatened to beat "the hell out of" him in 2009. Romero also testified about the December 2010
event where Varela knocked him out.
Romero
testified he did go to Retes's house that day to speak to Varela. He denied having a knife and said that he and
the other men left after Varela threatened him.
On March 16, 2011, Romero called
Hurlburt to arrange a purchase of marijuana.
He testified that Hurlburt told him to come to her house that
night. He did not know that Varela would
be there.
When Romero
arrived at the house he encountered Varela who pushed him and threatened to
kill him. When Varela came at him with a
chair, Romero pulled a knife and stabbed Varela a number of times. Romero said he had always carried a knife
since he was stabbed in 2008.
DISCUSSION
During the
hearing on various pretrial motions, Romero offered evidence of two events
involving Varela which Romero contends demonstrate Varela's character for
violence and were relevant to prove Varela's role as the aggressor in the fatal
encounter between them. Although Romero
did not contend he was aware of the two events prior to stabbing Varela, he
argues that such evidence was admissible pursuant to section 1103.
abused its discretion in excluding the evidence under section 352. As we will discuss, the record does not
support a finding of abuse of discretion.
Offer of Proof
During the
in limine motions, the defense offered to introduce evidence of two acts of
violence by Varela as relevant under section 1103 to prove Varela's character
for violence and to show he was the aggressor in the current offense. Romero conceded he was not aware of these two
incidents prior to stabbing Varela.
The first
incident involved sheriff's deputies being called to a liquor store where they
found Varela banging a stick on the ground, detained him and later found a
throwing star in his pocket. Defense
counsel said:
"And what my offer of proof would be is that the
sheriff deputy that responded to that call could come in and testify that they
responded to a call of multiple gunshots in the area. As they arrived near this area -- and its on Gillespie
Avenue . . . which is an avenue that we might hear
about several times in this case.
There's a liquor store on the corner there -- that they -- while this
deputy was arriving, he sees two male subjects standing near the
intersection. [¶] As he gets closer, he could see one of the
subjects that's later identified as Rocky Varela, banging a stick on the ground
and waving it in the air, so the deputy stops his car. The other guy runs south on Gillespie. He stays with Varela, and he hears Mr. Varela
yelling back toward the area of Jamacha Lane
as he bangs and waves the stick. He's
told to drop the stick and lay down on the ground. He drops the stick but he ignores the
officer's commands. And then he takes a
few steps and throws an unknown object.
They later find it is a throwing star.
It's not the facts of the -- well, I don't know what they found.
"[Prosecutor]:
It was a can of beer that he threw.
The throwing star was in his pocket.
"[Defense counsel]:
I saw the next paragraph. So here
we have -- I'm not so interested in the conviction itself, but it's another
factual scenario where violence, alcohol, and Mr. Varela are all involved. It would only require one witness, so it
wouldn't be a lot of time consumption, and I think it goes to the heart of the
character evidence that I intend to admit as to Mr. Varela."
The offer
of proof did not inform the court of what caused the incident or whether Varela
engaged in any violent acts. No
information was offered regarding the report of shots being fired, who fired
them or what precipitated Varela banging a stick on the ground.
The second
incident was offered with almost no detail.
Counsel said: "Well, I do
have witnesses that have been a victim of his violence, at least one witness
that was beaten by Mr. Varela--the gentleman in custody--and we need to talk
about him too, judge."
The
prosecutor identified the witness as Shukri Sahiti and advised the court that
from the police report "apparently they never even got into a fight, just
Mr. Varela was mean or intimidating toward him. . . ." Defense counsel did not disagree with the
prosecutor's representation.
Standard of Review
Where a
defendant asserts self-defense, evidence of the victim's violent character may
be admissible to support the defense position that the victim was the
aggressor. (People v. Wright (1985)
39 Cal.3d 576, 587.) The
admissibility of such evidence is conditioned both on relevance and on the
trial court's weighing of the prejudicial effect of the evidence as against its
probative value. (People v. Gutierrez (2009) 45 Cal.4th 789, 827-828.)
We review
the trial court's decision under section 352 to admit or reject character
evidence under the abuse of discretion standard. We will not overturn the court's decision in
the absence of a clear showing the court abused its discretion. (People
v. Rodrigues (1994) 8
Cal.4th 1060, 1124.)
Section 1103
Evidence of
a victim's character for violence can be proved both by reputation and by
evidence of specific acts of violence that are sufficiently similar to the
current offense that a jury could infer that the victim was the aggressor in
the charged offense. If the defendant
was aware of the incidents such awareness could also be relevant to show his or
her state of mind at the time of the offense.
Even if the defendant was unaware of such incidents, the evidence may
still be relevant to prove the victim's character. (People
v. Smith (1967) 249
Cal.App.2d 395, 404; People v. Cash
(2002) 28 Cal.4th 703, 726.)
Where the
defendant was unaware of the incidents, the nature of the activity in such
incidents should be sufficiently similar to the events in the charged crime in
order for such evidence to have any meaningful probative value. (People
v. McAlpin (1991) 53 Cal.3d 1289, 1306, fn. 11.)
Section
1103 specifically recognizes the trial court's responsibility to apply a
section 352 analysis to any such offer of proof. (People
v. Hamilton (2009) 45 Cal.4th 863, 930.)
In making its analysis the court could rationally consider whether the
defendant was aware of the incidents such that they may have influenced his or
her state of mind. Further the court
could consider the clarity or lack of clarity of the offer of proof in order to
determine if the evidence will be confusing, unduly inflammatory, or will
involve an undue consumption of time.
The court could also consider the fact that other evidence of the
victim's character for violence has or will be presented to the jury. (People
v. Shoemaker (1982) 135
Cal.App.3d 442, 449-450.) As we
have already noted, the court's decision to admit or reject this form of
evidence is reviewed under the deferential abuse of discretion standard.
Analysis
The record
demonstrates the trial court made a careful weighing of the defense offers of
proof and exercised its discretion under section 352. Romero argues the trial court erred because
it focused on the fact Romero was not aware of either incident before the
events in the charged crime. The record
does not support his argument.
The court
reviewed the points and authorities and read the cases cited by counsel. Defense counsel clearly advised the court of
the authority holding that section 1103 evidence can be admissible even in the
absence of knowledge by the defendant.
The court's focus on the defendant's lack of knowledge was not
unreasonable in this case.
The prior
incidents were only vaguely described and it would likely take a "trial
within a trial" to clearly understand what happened. The liquor store incident involved reference
to multiple gun shots and the fact that Varela possessed a martial arts weapon. However, there was nothing offered to explain
the context. The jury would be left to
speculate about who was responsible for the gunshots and the significance of
Varela possessing, but not displaying a weapon.
Further, the proposed evidence regarding the liquor store incident
provides very little to demonstrate that Varela was an aggressor or that he had
a character for violence, thus the probative value of the evidence in this case
is minimal at best. The unexplained
events could, however, be unduly prejudicial in that it could confuse the jury
or cause it to form opinions based on inadequate information. For example, jurors would be left to
speculate as to who was responsible for any gunshots. Or the jury would have to speculate as to
whether Varela was involved in some act of violence, other than banging a stick
on the ground.
We find it
reasonable for the trial court to focus on Romero's lack of knowledge of the
events. Had Romero known about the
incidents, there would be some added relevance regarding the issue of
self-defense. Absent such knowledge, the
probative value of the proffered evidence was minimal and the prejudicial
effect could easily be found to predominate.
Finally,
there is virtually no probative value to the offer of proof regarding Mr.
Sahiti. We have no idea what happened in
any incident involving him and Varela.
Given the prosecutor's unchallenged offer, the maximum value of the
evidence might be that Varela was "mean" to him. Clearly the trial court was well within its
discretion to reject such evidence.
We are
satisfied that the trial court acted within its discretion under section 352 to
exclude evidence of the two incidents at issue here
DISPOSITION
The
judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES,
J.
McINTYRE,
J.
name="_ftn1" title="">[1] All further statutory references are to the Evidence Code
unless otherwise specified.
provides: "(a) In a criminal
action, evidence of the character or a trait of character (in the form of an
opinion, evidence of reputation, or evidence of specific instances of conduct)
of the victim of the crime for which the defendant is being prosecuted is not
made inadmissible by Section 1101 if the evidence is:
[¶] (1) Offered by the defendant to prove
conduct of the victim in conformity with the character or trait of
character."
