P. v. Deras
Filed 5/28/13 P. v. Deras CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOSE T. DERAS,
Defendant and
Appellant.
2d Crim. No.
B240067
(Super. Ct.
No. VA118244-01)
(Los
Angeles County)
Jose T. Deras was
convicted of beating his nine-month-old child to death and of forcibly sodomizing
his wife, the mother of their child. He
confesses the killing to her, to the arresting authorities and confesses to it
at his trial. He contends, however, that
the trial court's failure to properly admonish the jury concerning the use of
the translation of his statements from Spanish into English constituted
the evidence against him the error, if any, is harmless under any
standard.
Jose T. Deras appeals
from the judgment following his conviction by jury of
§ 187, subd. (a)),
name="_ftnref1" title="">[1]
assault on a child causing death (§ 237ab, subd. (b)), and sodomy by use of
force (§ 286, subd. (c)(2)). The jury
also found true knife use and tying and binding allegations. (§ 667.61, subds. (a), (e)(3) &
(5).) The trial court sentenced
appellant to prison for 50 years.
name="_ftnref2" title="">[2]
Appellant contends that
the trial court committed reversible error by allowing the jurors to hear a
Spanish language audio recording of his confession, along with an English
transcript, although many jurors did not comprehend Spanish; by failing to
instruct jurors with CALCRIM No. 121 or its equivalent, that they must accept
the English translation of the interrogation as the evidence even if they would
translate it differently; and by failing to instruct the jury on the allegation
that appellant used a knife in the commission of the sodomy. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution
Case
In January 2011,
appellant lived in an apartment with his wife, Leidy S., her two-year-old son,
O.S., and their nine-month-old daughter, Valerie. On Saturday, January 15, Leidy went to
school, where she was studying to become a medical assistant. She left Valerie and O.S. with
appellant. At about 1:40 p.m., she
received a text message from appellant that said, "Forgive me. I failed you." Leidy tried to call appellant but he did not
answer. She rushed home, and arrived at
about 2:30 p.m. Leidy's son was there,
but Valerie was gone. Leidy asked if
everything was "fine."
Appellant said that Valerie was with his sister.
Leidy went into the
bedroom and sat on the bed. Appellant
followed. When she tried to stand, he
pushed her, threw her on the bed, and straddled her, with his legs over her
stomach. She asked, "Why are you
doing this?" Appellant answered,
"Shut up, damn it." He tied
Leidy's hands above her head with curtain ties, covered her mouth with his hand,
and asked why she was "in that condition." She asked him where Valerie was. He answered, "I killed her." He said Valerie had been crying a lot and he
hit her chest with his fist. He next
said he put gasoline on Valerie and burned her.
Appellant left the
bedroom briefly and returned with a knife.
He then straddled Leidy, while holding the knife. He told her she had a pretty face but it
would look better with a mark on it.
Leidy tried to calm him down, and said that her Cesarean section scar
hurt. He moved the knife to that scar
and said she would be in no more pain.
Appellant then stabbed the mattress with the knife, told Leidy to shut
up, and choked her. He untied her hands,
turned her onto her stomach, and tied her hands behind her. He penetrated her anus with his penis, and
withdrew before ejaculating on her buttocks.
At some point, Leidy
lost consciousness. When she awoke,
appellant was hitting her chest. She
started crying and asked him to bring Valerie to her. He tied Leidy's feet with a scarf, and used
bungee cords to attach her feet to her bound hands. He told her to be quiet while he went to get
Valerie, and threatened to take her son if she made noise. Appellant went outside, returned shortly with
Valerie, and placed her near Leidy's face.
Valerie was cold, and she was not breathing. Leidy knew she was dead. In her effort to break free Leidy told
appellant that she could revive Valerie.
When appellant untied her, she yelled for Valerie to wake up then asked
appellant if she could get her stethoscope.
Leidy then pretended to search for it but grabbed her son and fled to a
nearby auto shop. She told its occupants
what had happened and that appellant was chasing her. She hid in the auto shop restroom and stayed
there until the police arrived.
South Gate Police
Officer Pellerin took Leidy from the auto shop to her apartment. He found Valerie's body lying "on the
bed, face up." Her chest and legs
were covered with bruises. He took
Valerie to St. Frances Medical Center. A
forensic sexual assault specialist nurse examined Leidy at St. Francis. Leidy's external anal region had two large
tears, as well as redness, bruises, and abrasions. Her injuries were consistent with recent
penal penetration of the anus. Leidy's
neck, skin, and wrists were also red and bruised.
On January 16, 2011,
South Gate Police Officer Manuel Arana met with Leidy at her mother's
house. Leidy had received several text
messages and phone calls from appellant.
Arana, who spoke Spanish, read the messages. Leidy used her telephone speaker so Arana
could hear her conversations with appellant.
Leidy told him Valerie was alive, but in serious condition. She asked why he hit Valerie. Appellant replied, "Because she had
cried too much." He also said he
punched her chest, and she stopped breathing and turned purple. Appellant asked Leidy to help him by picking
up two pay checks from his employer, and getting a passport and an airline
ticket.
Appellant fled to Mexico
but he was captured there and returned to California. On January 19, 2011, South Gate Police
Sergeant Howard Cooper, his partner, Detective Donna Cheek, and a
Spanish-speaking detective, Margarita Berron, questioned appellant. The interview was conducted in Spanish,
recorded, translated and transcribed.
Appellant admitted that
he hit Valerie on the chest several times.
At Cooper's request, appellant demonstrated how hard he hit her by
hitting Cooper's hand. Using his fist,
he struck Cooper's hand with "a great force" that knocked it backward,
and caused a "loud slapping sound."
He said that Valerie kept crying after he hit her. He took her to the bedroom and threw her on
the bed, face down. He hit the back of
her head several times with his hand and a tennis shoe. When Valerie stopped breathing, he tried to
revive her. He then put her body in his
car and moved it around the corner. He
also admitted tying and binding Leidy.
After denying that his penis penetrated her anus, he said "I think
that I did try."
Los Angeles Coroner Deputy
Medical Examiner Job Augustine testified that Valerie had multiple bruised
areas on her chest and lower back, as well as multiple skull fractures. Her chest bruises were consistent with
someone hitting her chest. Multiple
blunt force injuries to Valerie's head and chest caused her death.
Defense
Case
Appellant testified that
Valerie would not stop crying on January 15, 2011, when his wife, Leidy, was at
school. He struck Valerie's chest
several times, and struck her head with a shoe.
After she stopped breathing, he put her body in his car, and moved the
car so he would not "get caught."
When Leidy returned, he said that Valerie was with his sister. He admitted that he tied Leidy's hands in the
bedroom, and threatened her with a knife.
He did not remember that he had any sexual contact with Leidy that day,
but admitted that he ejaculated on her buttocks.
DISCUSSION
Audio
Tape and Transcript
Appellant contends that
the trial court deprived him of due
process and a fair trial by admitting a recording of his Spanish language
interrogation, with an English translation, so that members of the jury did not
all receive the same evidence. We
disagree.
"A recording in
English normally constitutes the evidence of what was said, and a transcript of
the tape is used only as an aid in following and understanding the tape. If the tape and the transcript conflict, the
tape controls. (People v. Brown (1990) 225 Cal.App.3d 585, 598–599.) However, when the tape is in a foreign
language, the English translation controls and is the evidence of what was
said. (People v. Cabrera (1991) 230 Cal.App.3d 300, 304.) Any other rule would be 'nonsensical' and
have 'the potential for harm where the jury includes bilingual jurors.' (U.S.
v. Fuentes – Montijo (9th Cir. 1995) 68 F.3d 352, 355–356; accord,
at pp. 303-304.)" (
Cal.App.4th 1465, 1471 (Arancibia).)
Appellant's supplemental
brief cites Arancibia, an inapposite
case in which jurors heard a taped interrogation of the defendant, in Spanish,
and received a transcript of the English translation. The trial court "essentially invit[ed]
Spanish-speaking jurors to translate the recording [of defendant's Spanish
interrogation] for themselves and the non-Spanish-speaking jurors." (Arancibia,
supra, 213 Cal.App.4th at p.
1470.) Just before jurors received the
transcript and heard the tape, the trial court instructed them as follows: "The evidence in this case is the CD
[i.e. the audio recording]. The
transcript is offered to you as an aid to help you understand what's on the
CD. However, I can't vouch for whoever
transcribed that particular CD, and so it's not the actual evidence. The actual evidence is the tape
itself." (Ibid.) The reviewing court
concluded that the trial "court's error undermine[d] one of the
fundamental tenets of our justice system—that a defendant's conviction may be
based only on the evidence presented at trial," and reversed the
defendant's convictions. (
In contrast, before the
jury heard the recording of appellant's Spanish language interrogation and
received a transcript of the English translation,
the trial court instructed the jury as follows:
"Ladies and gentlemen, we're going to be handing you a
transcript. A transcript is a typed up
version of an oral audio interview.
You'll be able to listen to the audio.
I would caution you, though, those of you who do speak Spanish, please
do not listen to the Spanish that you hear on the audio. Follow along in the transcript which has been
translated into English." In
essence, the court below instructed jurors to ignore the Spanish, and follow
the English translation. Contrary to
the risk that appellant's conviction could be based on any evidence other than
that presented to all jurors at trial.
(See Arancibia, supra, 213
Cal.App.4th at p. 1471.) We are not
persuaded by appellant's claim that it would be impossible for Spanish-speaking
jurors to ignore the Spanish on the recording.
We presume that jurors followed the court's instruction that they should
not listen to the Spanish on the recording. (People
v. Ibarra (2007) 156 Cal.App.4th 1174, 1189-1190.)
Instructional
Errors
CALCRIM
No. 121
Appellant further
contends that the trial court violated his rights to due process and a fair
trial by failing to instruct jurors with CALCRIM No. 121 or its equivalent,
that they were required to accept the English translation of his Spanish
interrogation as the evidence even if they would translate it differently. We disagree.
In reviewing a claim of
instructional error, we consider whether there is a reasonable likelihood that
the jury misconstrued or misapplied the law.
(People v. Kelly (1992) 1
Cal.4th 495, 525.) The independent
standard of review is applicable in assessing whether instructions correctly
state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) We presume that jurors follow the court's
instructions. (People v. Ibarra, supra, 156 Cal.App.4th 1174, 1189-1190.)
"The Judicial
Council's Bench Notes to [CALCRIM No. 121 ] recommend that, if a recording in a
foreign language is used, the court should give the Ninth Circuit's model
criminal instruction 2.8 which states:
'You are about to [hear] [watch] a recording in the [specify the foreign
language] language. A transcript of the
recording has been admitted into evidence.
The transcript is an official English-language translation of the
recording. [¶] Although some of you may know the [specify
the foreign language] language, it is important that all jurors consider the
same evidence. Therefore, you must
accept the English translation contained in the transcript even if you would
translate it differently.' (Ninth
Circuit Manual of Model Criminal Jury Instructions (2010) Criminal Cases, Jury
Instruction No. 2.8; Judicial Council of Cal.Crim. Jury Instns. (2011) Bench
Notes to CALCRIM No. 121, p. 22.)"
(Arancibia, supra, 213
Cal.App.4th at p. 1470.)
The better practice
would have been for the trial court to have read to the jury CALCRIM No. 121,
with appropriate modifications. The
court's less formal comments, however, did instruct the jury that it should
ignore the Spanish it heard on the recording and follow the English
transcript. We presume that it followed
the court's instruction. (
App.4th at pp. 1189-1190.) Moreover,
there was physical evidence of appellant's fatal assault on Valerie,
corroborated by his multiple admissions to Leidy on the day of the assault, and
the following day. He also testified at
trial and admitted the murder and the fatal assault. Leidy gave detailed testimony describing how
appellant used a knife, tied and bound her hands, choked her, and sodomized
her. Her testimony was corroborated by
physical evidence, and to a great extent, by appellant's testimony and
admissions he made during his interrogation.
In addition, he fled the country shortly after his crimes. Given the overwhelming evidence of
appellant's guilt, any error in failing to instruct the jury with CALCRIM No.
121 was harmless under any standard of review.
(Chapman v. California (1967)
386 U.S. 18, 24 [applying beyond-a- reasonable-doubt standard of review to
errors of constitutional magnitude]; People
v. Ross (2007) 155 Cal.App.4th 1033, 1054-1055 [recognizing that
instructional errors are reviewed under the deferential standard articulated in
People v. Watson (1956) 46 Cal.2d
818, 836].)
Section
667.61, subdivision (e)(3) One Strike Knife Use Instruction
The information alleged,
and the jury found, that appellant used a knife, and tied and bound Leidy,
while forcibly sodomizing her.
(§ 667.61, subds. (a), (e)(3) & (5).)
impose a sentence of 25 years to life for forcible sodomy under the one-strike
law. (§ 667.61, subd. (a).) Appellant contends that because the court
failed to instruct the jury regarding the knife use circumstance, we must
strike the knife use finding, and reduce his sentence for forcible sodomy to 15
years to life. (§ 667.61, subd.
(b).) We disagree.
A trial court has a sua
sponte duty to instruct on the circumstances specified in section 667.61,
subdivision (a), which must be found to be true to invoke the
"One-Strike" law. (
693, 709.) We apply the
18, 24 harmless beyond-a-reasonable-doubt standard of review to an
"instructional error that improperly describes or omits an element of an
offense." (People v. Flood (1998) 18 Cal.4th 470, 502-503.) "One situation in which instructional
error removing an element of the crime from the jury's consideration has been
deemed harmless is where the defendant concedes or admits that element." (Id. at
p. 504.)
The jury had been
informed of the charge and returned a verdict that included the knife use
finding. While the jury should have been
instructed on the specifics of the knife use, the virtually uncontroverted
evidence established precisely what it found.
Moreover, there was little nuance to be explicated by the
instruction. Under these unique
circumstances the court's error was plainly harmless. (People
v. Flood, supra, 18 Cal.4th at pp. 503, 504.)
DISPOSITION
The judgment is
affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
Philip
H. Hicock, Judge
Superior
Court County of Los Angeles
______________________________
Richard D. Miggins,
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, Senior Assistant Attorney General, Victoria B. Wilson, Supervising
Deputy Attorney General, Erika D. Jackson, Deputy Attorney General, for
Plaintiff and Respondent.
otherwise stated.
second degree murder (which was stayed pursuant to section 654); 25 years to
life for assault on a child causing death; and 25 years to life for committing
forcible sodomy, with knife use and tying and binding circumstances.
