P. v. Cortez
Filed 5/30/13 P. v. Cortez CA2/8
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
NORMA LILIAN CORTEZ et al.,
Defendants and Appellants.
B233833
(Los Angeles
County
Super. Ct.
No. BA345971)
APPEAL from
the judgment of the Superior Court
of
County. Dennis J. Landin,
Judge. Affirmed as to Bernal; reversed
as to Cortez.
Robert E.
Boyce, under
appointment by the Court of Appeal, for Defendant and Appellant Norma
Lilian Cortez.
Eric R.
Larson, under
appointment by the Court of Appeal, for Defendant and Appellant Rodrigo
Alonso Bernal.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Steven D. Matthews and Zee Rodriguez, Deputy
Attorneys General, for Plaintiff and Respondent.
* * * * * * * * * *
Defendants
Norma Lilian Cortez and Rodrigo Alonso Bernal were charged by amended
information with premeditated murder (Pen. Code, § 187, subd. (a); count
1)
and attempted premeditated murder (§§ 664/187, subd. (a); count 2). It was alleged that Bernal personally used a
firearm, discharged a firearm, and discharged a firearm causing great bodily
injury or death. (§ 12022.53,
subds. (b), (c), (d); counts 1 & 2).
As to both Cortez and Bernal, it was alleged that a principal personally
used a firearm, discharged a firearm, and discharged a firearm causing great
bodily injury or death.
(§ 12022.53, subds. (b), (c), (d), (e)(1); counts 1 & 2). The information also included gang
allegations (§ 186.22, subd. (b)(1)(C), (4)). The defendants were found guilty by the jury,
and all special allegations were found to be true. They were each sentenced to an aggregate term
of 50 years to life.
On appeal,
Cortez contends her attorney provided her with ineffective assistance of
counsel by failing to object to the admission of evidence of the meaning of her
tattoo; the prosecutor lowered its burden of proof by misrepresenting the
beyond a reasonable doubt standard of proof; the trial court erroneously
instructed the jury with CALCRIM No. 361; the admission of Bernal’s
out-of-court statements to his nephew violated her right to confront and
cross-examine witnesses, and was error under Evidence Code sections 1230 and 352;
the trial court failed to instruct the jury to view Bernal’s out-of-court
statements with caution; cumulative error; and that the trial court applied the
wrong legal standard in ruling on her motion for a new trial.
Bernal
contends the trial court erred by refusing to instruct on self-defense,
imperfect self-defense, and provocation for both
manslaughter. Appellants each join in
the other’s arguments that may inure to their benefit.
Finding
merit in Cortez’s contentions regarding prosecutorial
conduct, CALCRIM No. 361, Evidence Code section 1230, and cumulative error,
we reverse her conviction on these grounds.
We affirm as to Bernal.
On
September 3, 2008, childhood friends Miguel Guzman, 16 years old, and Emanuel
Z., 19 years old, lived in the neighborhood near the intersection of 5th and
Bonnie Brae Streets in Los Angeles.
There was a lot of 18th Street gang graffiti in the area, and gang
members frequented the neighborhood.
Guzman and Emanuel were not gang members. As they were crossing 5th Street near the
corner of Bonnie Brae Street, Emanuel heard a woman ask, “Where you guys
from?†Emanuel saw a car driven by Cortez,
with Bernal in the passenger seat, and a male in the back seat. The driver’s window was down. Guzman and Emanuel did not respond and kept
walking.
Emanuel
heard the same woman’s voice say, “Let them have it.†He saw the car driven by Cortez stop. Guzman asked Emanuel, “Are they going to shoot
or no[?]†Bernal got out of the
car. He pulled a dark-colored gun from
his waist, put his left hand on top of the car, and started shooting across the
roof of the car at Guzman and Emanuel.
Emanuel ran as soon as he saw the gun.
Guzman appeared startled and put up his hands. Bernal shot five or six times, killing
Guzman. Guzman did not have a gun and no
one shot back at Bernal.
Emanuel ran
inside a building at 504 South Bonnie Brae Street. Guzman was behind him, but Emanuel did not
know if Guzman made it to the building.
When Emanuel went to the building’s balcony, he saw Guzman on the
pavement below, being tended to by paramedics.
Emanuel tried to leave but police would not let anyone out of the building. He did not immediately speak with police
because he was “shocked†and afraid to talk to police. He spoke with detectives about a week after
the shooting, when they encountered him unexpectedly at Guzman’s house while
Emanuel was visiting with Guzman’s family.
Emanuel identified Bernal as the shooter from a six-pack photo array and
during the preliminary hearing, but not at trial. He identified three women in a six-pack photo
array as resembling Cortez.
David R.
also lived in the neighborhood near 5th and Bonnie Brae Streets. He heard the sound of brakes slamming, and
saw a light beige car driven by Cortez, with Bernal as a passenger, stop
suddenly. He thought a child was in the
back seat. He saw defendants yelling at
Guzman, but could not tell what was being said because they were yelling over
each other. Guzman may have responded
“18th Street,†but continued walking.
Bernal got out of the car and pulled a gun from his waist and started
shooting. Guzman put up his hands and
looked scared. After the final gunshot,
the beige car moved a couple of feet forward, and stopped when Bernal said,
“Hold on, . . . hold
on.†Once Bernal got in the car, he
said, “Let’s go, let’s go.†The car
drove south on Bonnie Brae Street. David
called 911, giving the operator a partial license plate number, and then
noticed Guzman lying on 5th Street, not moving or breathing. Police spoke to David on the day of the
shooting as they went door to door canvassing the neighborhood.
Marvin B.
also lived in the neighborhood. He was
in his apartment when he heard a gunshot and, from his window, saw Bernal
standing next to a parked car and firing shots.
He heard more shots and saw Bernal chase someone across the street. He heard more gunshots after Bernal left his
line of sight. Marvin walked outside and
saw defendants’ car on 6th Street, turning right on Alvarado Street. He saw the female driver’s face. He spoke with police at the scene shortly
after the shooting and provided a description of Cortez to police. That same day, he identified Cortez in a
field showup.
Los Angeles
Police Officer Javier Ramirez responded to the scene at 4:15 p.m. Guzman was bleeding from his mouth and not
breathing. Because the shooting happened
in 18th Street gang territory, responding officers drove to rival gang
Rockwood’s nearby turf. They saw a car
matching the description and license plate of the suspect, double-parked in the
middle of the street in front of 401 Witmer Street, with its hazard lights
on. Cortez was in the driver’s seat and
was taken into custody. A live round was
found on the passenger side of the car, of the same caliber and brand of
several found at the scene of the shooting.
Cortez was
interviewed by police on the evening of September 3, 2008. A recording of the interview was played for
the jury. She said that on the day of
the shooting, Bernal asked for a ride to pick up some money. They stopped and picked up a friend of
Bernal’s, who was “very young†and dressed in “gangster attire.†Bernal sat in the front passenger seat, and
his friend sat in the back. Bernal
instructed her to “just drive around.â€
He then told her to stop at 3rd and Bonnie Brae Streets so he and his
friend could get out, and to keep on driving as they would catch up with
her. As she was driving, she heard some
gunshots from two blocks away at 5th and Bonnie Brae Streets. Bernal and his friend then got back in her
car. She did not know what had happened,
and she did not ask them about the gunshots.
She drove to where she was ultimately arrested, where Bernal and his
friend got out of her car and told her to wait.
Cortez had known Bernal for about a year. They were friends, even though she was in her
40’s and he was in his 20’s. She did not
believe Bernal was a gang member, but he did associate with the Rockwood
gang. She admitted that Bernal had a gun
that he “always carries.â€
Later in
the interview, Cortez changed her story, admitting her previous story was not
true. She said that before the shooting,
she heard Bernal yelling “Where you from?†to two young men whom Cortez
believed to be gang members. They
responded, “18th Street.†Bernal yelled,
“Rockwood.†Cortez told Bernal to “[l]et
it go.†But Bernal jumped out of the
car, and then she heard gunshots. The
back-seat passenger did not get out of the car.
Cortez kept driving, but did not get far because of traffic. Bernal ran and jumped back in the car. She started to “cuss[] him out.†He said nothing to her except, “drive.†She kept driving, and she was scared. Bernal told her to stop, and she parked and
put on her hazard lights. Bernal and his
friend took off to stash the gun.
Detective
John Motto investigated the shooting. He
testified that six bullet casings, and one expended bullet, were found at the
scene. There were casings found on
Bonnie Brae and 5th Streets. They were
all nine-millimeter. It could not be
determined where the shooter was standing from the casings alone because they
can discharge from the gun in different directions, and could roll downhill to
a different location. The casings were
from two different brands of bullets.
However, it was common for officers to find casings from multiple
manufacturers at one crime scene that were discharged from the same gun.
On
September 4, 2008, police interviewed Bernal’s 17-year-old nephew, Oscar
Tejeda. Tejeda’s taped interview was
played for the jury. The interviewing
officer falsely told Tejeda that Bernal had confessed to the shooting. Tejeda told the officer that Bernal was a
member of the Rockwood gang and goes by the moniker “Scooby.†Tejeda had seen Cortez socializing with
Bernal and other members of the Rockwood gang.
According to Tejeda, Bernal stopped by his apartment on September 3 to
drop off some marijuana that he did not want to get caught with. While at the apartment, Bernal told Tejeda
“he went shooting with some ‑‑ somebody at some woman I
think.†He said “he went with some lady
to go shoot somebody.†Bernal said “[h]e
was shooting.†Bernal told Tejeda
“yesterday we went and we shot at two 18s.â€
He said the “driver was a girl.â€
Tejeda could not remember the female’s name, but knew that she lived in
his apartment building, and he knew who she was. Tejeda believed she was dating another member
of Rockwood.
When
Detective Michael Arteaga asked Tejeda to tell him exactly what Bernal said,
Tejeda responded, “I don’t remember how he told me
exactly . . . . He’s
like, we went, me and this woman, don’t know her name, we went to ‑‑
we went shooting some 18s, like at some 18s.â€
Bernal did not tell Tejeda what he had done with the gun. Bernal told Tejeda he “shot two 18s.†Bernal also said that police had caught
Cortez in her car while she waited for him.
Tejeda
identified Cortez from a six-pack photo array.
Detective Arteaga asked whether Cortez’s name was “Stephanie,†“Sylvia,â€
“Nancy,†“Mickey,†“Martha,†or “Norma.â€
Tejeda said he believed her name is Norma, which is in fact Cortez’s
first name.
At trial,
Tejeda testified that police came to his house with their guns drawn and handcuffed
him and his sister. Some hours later
police asked him for a gun and said that if he did not hand it over, he would
be arrested for aiding a murder suspect.
Tejeda told police he did not know what they were talking about. He was scared. Police took Tejeda to the station. At the station, he lied to police about what
Bernal had told him. In fact, Bernal did
not say anything about a shooting.
Tejeda felt pressured by the police to lie.
Tejeda did
testify that Bernal was a member of the Rockwood gang. He admitted that the detective who
interviewed him was friendly and polite.
He also admitted that he had seen Cortez and Bernal socializing before
with members of the Rockwood gang.
Gang expert
Antonio Hernandez testified that the Rockwood and 18th Street gangs are enemies
and occupy adjacent territories. Gang
members would not casually enter the territory of a rival gang. Bernal was a member of Rockwood, with the monikers
“Scooby†or “Woody.†The primary
activities of the Rockwood gang are robberies, assaults, extortion, criminal
threats, felony vandalisms and narcotics sales.
Hernandez did not know Cortez to be a member of the Rockwood gang.
Cortez has
a triangular, three-dot tattoo on her arm.
According to Hernandez, both gang members and nongang members may have
this tattoo. However, it is a common
tattoo for gang members and associates.
The tattoo signifies the “crazy life,†suggesting that its bearer is
living a life of doing drugs, drinking, and committing crimes. Victim Guzman also had such a tattoo. Hernandez did not believe that Cortez and
Guzman were gang members. However,
someone is a gang associate if they hang out with gang members, but have not been
formally admitted into the gang.
Hernandez did not believe Emanuel was a gang member either.
When a gang
member asks, “Where are you from,†it is a challenge, intended to initiate a
confrontation. Based on a hypothetical
mirroring the facts of this case, Hernandez believed the shooting was for the
benefit of the Rockwell gang.
While
Bernal was in jail, he tried to send a letter to a Rockwell gang member, Jose
Birrueta. In the letter, Bernal told
Birrueta Cortez’s full name and booking number, and asked if he “could go and
see her at Lynwood jail and talk to her to see what she’s saying with me or
against me. If she’s against me write to
me and let me know what’s up so I can make a game plan. If she’s with me let me know what she’s
saying and tell her to change her story because they don’t have anything on
both of us to say that I wasn’t with her that day to let me go. She’s the only one holding me back so when I
get out I could help her with a lawyer.â€
Bernal asked Birrueta to “convince her to say I was not with her, that
they scare her, the police did, and she was just nervous and she just
confused.†Bernal also wrote “here’s the
name of the other fool who’s snitching me out.
Emanuel Z[.] [¶] . . . [¶] My nephew talked to him to say the police
scare him and threatened him. So when
the detectives came he said what he say, so to say different. He was scared, but it was a lie, what he said
when he gets to court. My sister’s kid.â€
Cortez
testified in her own defense. She was
not a member of a gang, and was not involved in any kind of gang mission on the
day of the shooting. Bernal asked her
for a ride so he could pick up some money he had loaned to someone. Cortez told him she would need gas money if
she gave him a ride, and he agreed. They
started driving on 6th Street near Bonnie Brae and Alvarado Streets, and picked
up Bernal’s teenage friend, who got in the back seat. Bernal did not ask for permission to give his
friend a ride, and Cortez did not ask why he got into the car. She figured he was Bernal’s friend and he was
probably in the car because he owed Bernal the money. She did not care and did not see anything
wrong in the situation. Bernal told
Cortez to continue driving, and he would direct her where to go.
As they
neared the intersection of 5th and Bonnie Brae Streets, Cortez saw two young
men in the street, yelling “18th Street†and making signs with their
hands. No one in her car responded to
the young men. However, Bernal jumped
out of her still moving car without saying a word. Cortez saw one of the young men “reaching
like a motion like to getting a gun.â€
She was still driving, and then heard gunshots. Bernal then got back into the car and said,
“let’s go.â€
Bernal
directed Cortez to another location. She
stopped where Bernal told her to, and Bernal and his friend got out of the
car. Cortez knew that something bad had
happened but did not want to ask what because she was scared. She put on her hazard lights and waited for
Bernal to return. She was a “bundle of
nerves†and did not go home because she was not thinking. She was “frozen†and did not know what to
do. The police arrived 10 minutes later,
and she was arrested. She initially was
not truthful with the police because she was scared.
Cortez
believed Bernal to be a nice, helpful person, and she did not think he was a
gang member. She met him when she moved
into her apartment, and Bernal and some of his friends offered to help her with
her groceries. She testified that was
“how we developed . . . a friendship.†Their relationship was platonic. However, she admitted telling police that
Bernal talked a lot about the Rockwood gang and was proud of it, and that she
knew him to get in fights and carry a gun at all times. Cortez also admitted that she knew she lived
in Rockwood gang territory, but later denied that there was gang activity in
her neighborhood or the neighborhood where the shooting occurred.
Cortez’s
son, Steven McBride, knew Bernal and assumed he was a gang member. He had seen his mother and Bernal hang out
together.
Cortez’s
ex-husband, Schuyler McBride, testified that when he first started dating
Cortez, he “[did]n’t believe she was a [gang] member,†although she had friends
who were gang members. They both
socialized with gang members in their community. Because Cortez and McBride socialized with
gang members, they had “street smarts about gangs,†and knew “what gangs were
all about.†When asked whether it would
surprise McBride to learn that Cortez was friends with Bernal, he responded,
“No.â€
The pastor
and a member of Cortez’s church, New Hope Ministries, testified that Cortez
attended Bible study and was involved in some of the church’s outreach
programs. According to pastor Troy Nakama, the ministry “is very unique because
it reaches out to people that normally wouldn’t attend churches. We target individuals that are struggling in
life and such.†The ministry runs a gang
outreach program, including a men’s rehabilitation. Pastor Nakama could not recall Cortez being
involved in any of the ministry’s outreach programs, but Susana Rodriguez,
Cortez’s friend and a member of her church, believed Cortez did some outreach
work, although Cortez was not involved in gang outreach specifically.
Kimi Lent,
a gang interventionist, testified that gangs are more prevalent in low income
communities, and that people in such communities had fewer resources, and would
rely on each other for transportation.
In gang culture, a “mission†is a planned crime. Driveby shootings can be conducted as part of
a mission. Gang members would not
normally carry out a mission with a nongang member.
Bernal
presented the testimony of Dr. Mitchell Eisen, a psychologist with expertise on
eyewitness identifications and suggestibility, who opined that witness
identifications when weapons are involved may be less reliable because
witnesses tend to focus on the weapons rather than the suspect, and that police
administering identification procedures may influence those identifications.
Cortez and
Bernal raise a number of claims of error on appeal. Cortez contends the prosecutor lowered the
burden of proof by misrepresenting the beyond a reasonable doubt standard; the
trial court erroneously instructed the jury with CALCRIM No. 361; and the
admission of Bernal’s out-of-court statements to his nephew violated her right
to confront and cross-examine witnesses, and was error under Evidence Code
section 1230. We find merit in these
contentions and find the cumulative errors prejudiced her. We reverse her conviction on these
grounds. For this reason, we need not
address her remaining contentions, except to the extent they inure to Bernal’s
benefit and Bernal joins in them.
Bernal, for his own part, contends the trial court erred by refusing to
instruct on self-defense, imperfect self-defense, and provocation. We find no merit in Bernal’s contention or
Cortez’s contentions as they apply to him.
We therefore affirm his conviction.
Argument
Cortez
contends the prosecutor misrepresented the beyond a reasonable doubt standard
of proof during his rebuttal argument when he said, “The court told you that
proof beyond a reasonable doubt is not proof beyond all possible doubt or
imaginary doubt. Basically, I submit to
you what it means is you look at the evidence and you say, ‘I believe I know
what happened, and my belief is not imaginary.
It’s based in the evidence in front of me.’ †We agree with Cortez that the prosecutor’s
statements constituted misconduct and were prejudicial.
“A
prosecutor who uses deceptive or reprehensible methods to persuade the jury commits
misconduct, and such actions require reversal under the federal Constitution
when they infect the trial with such unfairness as to make the resulting
conviction a denial of due process.
[Citation.] Under state law, a
prosecutor who uses such methods commits misconduct even when those actions do
not result in a fundamentally unfair trial.â€
(People v. Ellison (2011) 196 Cal.App.4th 1342, 1352-1353.) The prosecutor’s improper conduct need not be
intentional to constitute reversible error.
(People v. Bolton (1979) 23 Cal.3d 208, 214.)
“It is
improper for the prosecutor to misstate the law generally, and in particular,
to attempt to lower the burden of proof.â€
(People v. Ellison, supra,
196 Cal.App.4th at p. 1353.)
“[W]hen the claim [of prosecutorial misconduct] focuses upon comments
made by the prosecutor before the jury, the question is whether there is a
reasonable likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion.†(People v. Samayoa (1997) 15 Cal.4th
795, 841.) We reverse a defendant’s
conviction because of prosecutorial misconduct when “it is reasonably probable
the result would have been more favorable to the defendant in the absence of
the misconduct.†(People v. Ellison,
supra, at p. 1353.)
The
prosecutor’s remarks in the present case misrepresented the “beyond the
reasonable doubt standard†and constituted a fundamental misstatement of the
law. Proof beyond a reasonable doubt ‑‑
that is, “proof that leaves you with an abiding conviction that the charge is
true†(CALCRIM No. 220) ‑‑ is a qualitatively different and higher
standard than a “not imaginary†belief based on the evidence. Something so little as a strong suspicion may
support the statement “I believe I know what happened based on the evidence in
front of me,†but it cannot be disputed that a conviction based on a mere
belief (imaginary or otherwise) or strong suspicion does not comport with due
process. (Victor v. Nebraska (1994) 511 U.S. 1, 5 [beyond a reasonable doubt
standard a requirement of due process].)
A preponderance of the evidence may also support a nonimaginary belief,
though that means only that the evidence on one side outweighs the evidence on
the other side. (People ex rel. Brown
v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567; CACI No.
200.) Clearly, it is a lower standard
than proof beyond a reasonable doubt and is also insufficient to support a
criminal conviction. (People v.
Gaytan (1940) 38 Cal.App.2d 83, 87.)
The prosecutor committed misconduct when he misstated the reasonable
doubt standard. (See, e.g., People v. Ellison, supra, 196 Cal.App.4th at
p. 1353 [prosecutor committed misconduct by arguing to the jury that
reasonable doubt standard required jury “to determine whether defendant’s
innocence was reasonableâ€]; People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1268 [prosecutor’s use
of puzzle analogy “convey[ed] an impression of a lesser standard of proof than
the constitutionally required standard of proof beyond a reasonable doubtâ€
and constituted misconduct]; People v. Nguyen (1995) 40 Cal.App.4th 28,
36 [prosecutor’s argument that people apply reasonable doubt standard
“ ‘every day’ †and that it was same standard people used in deciding
whether to change lanes trivialized the standard and was improper].)
Moreover,
when viewed in context, there is a reasonable likelihood the jury construed the
prosecutor’s remarks in a fashion that lowered the People’s burden of
proof. It is true the court properly
instructed the jurors on proof beyond a reasonable doubt and told them that if
the attorneys’ comments on the law conflict with the instructions, they must
follow the instructions. And while we
presume the jury followed the
court’s instructions, that presumption applies only absent a contrary showing
in the record. (People v. Burch
(2007) 148 Cal.App.4th 862, 869.) There
is such a showing here. The court first
gave the pertinent instructions, and then the parties proceeded to make their
closing arguments. Cortez’s counsel
equated proof beyond a reasonable doubt with proof sufficient for a mother to
convict her child. In rebuttal, the
prosecutor argued that defense counsel’s characterization of the standard was
“ridiculous.†He then invoked the
court’s instruction on reasonable doubt and purported to tell the jury what it
meant. (“The court told you that proof
beyond a reasonable doubt is not proof beyond all possible doubt or imaginary
doubt. Basically, I submit to you what
it means is you look at the evidence and you say, ‘I believe I know what
happened, and my belief is not imaginary.’â€)
Defense counsel objected that the prosecutor had misstated the law, and
the court overruled the objection without any further comment.
The jury
observed a dispute over what the reasonable doubt standard meant. Defense counsel said one thing and the
prosecutor said another. When defense
counsel objected to the prosecutor’s statements, the court’s ruling signaled to
the jury that the prosecutor’s description of the standard was unobjectionable. The court did not give a curative
instruction, admonish the jury to follow the court’s instructions, or read the
reasonable doubt instruction after closing arguments. The jury went directly into deliberations
with the court’s implicit endorsement of the prosecutor’s misstatement. Under these circumstances, it was reasonably
likely the jury construed the prosecutor’s misstatement of the burden of proof
in an objectionable fashion.
These
circumstances distinguish this case from those relied on by respondent. In People
v. Katzenberger, supra, 178
Cal.App.4th at page 1268, and People v.
Nguyen, supra, 40 Cal.App.4th at
page 36, the courts determined the prosecutors’ arguments misstating the burden
of proof did not prejudice the defendants.
In People v. Katzenberger, the
jury was alerted to the dispute over the prosecutor’s improper argument, and
the court told the jury “it would ‘clarify’ the issue by reading the jury
instruction on reasonable doubt.†(
p. 1268.) In People v. Nguyen, the defendant did not object to the misstatement
and the prosecutor directed the jury to read the reasonable doubt instruction,
despite the misstatement. (
implicitly endorse the prosecutor’s misstatement to the degree it did here.
Bernal
joined in Cortez’s arguments (Cal. Rules of Court, rule 8.200(a)(5)), but we
find no reversible error with regard to him.
The evidence against Bernal was especially strong. He brought a gun along for the ride with
Cortez, admitted to his cousin that he committed the shooting, made
incriminating statements in his letter to a fellow gang member, and Emanuel
identified him as the shooter.
Cortez
contends the trial court erred when it instructed the jury with CALCRIM No.
361. CALCRIM No. 361 provides: “If the
defendant failed in (his/her) testimony to explain or deny evidence against
(him/her), and if (he/she) could reasonably be expected to have done so based
on what (he/she) knew, you may consider (his/her) failure to explain or deny in
evaluating that evidence. Any such
failure is not enough by itself to prove guilt.
The People must still prove the defendant guilty beyond a reasonable
doubt. [¶] If the
defendant failed to explain or deny, it is up to you to decide the meaning and
importance of that failure.†We
review this assertion of instructional error de novo. (People v. Lamer (2003) 110
Cal.App.4th 1463, 1469.) Having done so,
we are persuaded the trial court erred in this
instance.
In order
for the court to give this instruction, there must be facts or evidence in the
prosecution’s case within the defendant’s knowledge that the defendant failed
to explain or deny. (
Cal.App.4th at p. 1469.)
This instruction has been the target of some hostility. As one court has emphasized, “it should not
even be requested by either side unless there is some specific and significant
defense omission that the prosecution wishes to stress or the defense wishes to
mitigate. In the typical case it will
add nothing of substance to the store of knowledge possessed by a juror of
average intelligence.†(People v.
Haynes (1983) 148 Cal.App.3d 1117, 1120.)
Mere conflict between the defendant’s testimony and that of prosecution
witnesses is not a failure to explain or deny, nor is a failure to recall
specific details. (People v. Saddler (1979) 24 Cal.3d 671, 682; People v. Roehler (1985) 167 Cal.App.3d
353, 393.) Neither one paves the way for
giving this instruction. (
supra, at p. 682; People v.
Roehler, supra, at p. 393
Moreover, “the test for giving the instruction is not whether the
defendant’s testimony is believable. [The instruction] is unwarranted when a
defendant explains or denies matters within his or her knowledge, no matter how
improbable that explanation may appear.â€
(People v. Kondor (1988) 200
Cal.App.3d 52, 57; see also People v. Lamer, supra, 110 Cal.App.4th at p. 1469.)
Here, Cortez did not fail to explain
or deny any fact or evidence within her personal knowledge. She generally explained her actions the day
of the shooting. She explained why she
gave Bernal a ride (to pick up some money), why she drove to the area of the
shooting (she was following Bernal’s directions), and why she waited for Bernal
after the shooting (she was scared, nervous, and not thinking straight). Respondent is simply incorrect when it
asserts that Cortez failed to explain a number of things within her knowledge. For instance, respondent argues Cortez did
not explain a three-hour discrepancy between the time she said the shooting
occurred (approximately 1:00 p.m.) and the time prosecution witnesses said
it occurred (approximately 4:00 p.m.).
A conflict in the evidence does not equate to a failure to explain. (People v. Saddler, supra, 24 Cal.3d at p. 682.) Still, when confronted with the discrepancy
on cross-examination, she explained it.
She admitted that she was not “quite sure†the shooting occurred around
1:00 p.m., and it was probable she had been mistaken when she said that it
occurred early in the day. Respondent
also argues she did not explain whether she thought Bernal’s friend was dressed
like a gang member. But Cortez explained
the friend’s dress, and if there was any failure to explain, it was only
because the prosecutor cut her off. The
prosecutor asked if Bernal’s friend was “dressed like a gangsterâ€; Cortez
responded that he was wearing a very loose shirt, “[t]he way kids dress now.†The prosecutor slightly reworded the question
to ask if Cortez thought he was
dressed like a gangster, and she replied, “I see so many kids that dress like
him.†He then asked, “Are you just going
to refuse to answer my question?†She
responded, “No, because ‑‑,†after which the prosecutor cut her off
and asked another question. In yet
another instance, respondent argues Cortez failed to explain why she did not
stop the car to let Bernal in after the shooting. To the contrary, she explained she was not
going to “stop and check†because gunfire had just occurred and she was
scared. As a final example, respondent
maintains she failed to explain how a live bullet ended up on the floorboard of
her car. In fact, she testified she did
not put the bullet there, she had no idea how it got there, and she did not
know if it was there before Bernal got into the car because she did not check
the car before then. Cortez explained
that the bullet’s presence was not within her personal knowledge. She need not have speculated how the bullet
came to be there. (See
defendant fails to explain matters within his or her knowledge].)
Respondent further asserts that
several of Cortez’s statements were implausible and therefore justified the
instruction. Whether respondent found
her statements plausible is not the test, however. (People
v. Lamer, supra, 110 Cal.App.4th
at p. 1469.) The instruction should not have been given.
Section 1230
Cortez
contends that evidence of Bernal’s statements to his nephew were inadmissible
under Crawford v. Washington (2004)
541 U.S. 36 (Crawford) because they
were out-of-court statements implicating her, and she was not able to
cross-examine Bernal, violating her rights under the Sixth Amendment
confrontation clause.
The
confrontation clause is violated only by the admission of testimonial hearsay statements, which the statements here were
not. (People v. Loy (2011) 52 Cal.4th 46, 66.) In our recent decision in
556 (Arceo), we rejected the
defendant’s objection to statements as a violation of his Sixth Amendment
confrontation rights. The defendant
sought to exclude out-of-court statements by nontestifying codefendants that
implicated him in the crimes. As Cortez
does here, the defendant claimed the statements were inadmissible under
123 and People v. Aranda (1965) 63
Cal.2d 518. We held the confrontation
clause has no application to nontestimonial out-of-court statements by
codefendants. (Arceo, at p. 571.) In
Cal.App.4th 162 (Cervantes), the
court held that when it was not reasonably anticipated that a statement would
be used at trial, the statement was not “testimonial†within the meaning of
at p. 174.) When Bernal confided in
his nephew, he did not speak with the belief that his statements would be used
at trial. His statements to his nephew
were casual remarks made to a family member, in the family home, and were not
testimonial under Crawford. (People
v. Loy, at pp. 66-67.)
Still, the
California codified rules of evidence apply to nontestimonial statements. Bernal’s statements were admissible against
Cortez only if they fell within an exception to the hearsay rule and “otherwise
satisfie[d] the constitutional requirement of trustworthiness.â€
(Cervantes,
to his nephew were reliable and were admissible as declarations against penal
interest. We disagree that Bernal’s
out-of-court statements were admissible against Cortez.
A trial
court’s admissibility ruling under Evidence Code section 1230 is reviewed on
appeal for abuse of discretion. (
out-of-court declaration of an unavailable witness may be admitted for its
truth if the statement, when made, was against the declarant’s penal
interest. The proponent of such evidence
must show ‘that the declarant is unavailable, that the declaration was against
the declarant’s penal interest, and that the declaration was sufficiently
reliable to warrant admission despite its hearsay character.’†(People
v. Lucas (1995) 12 Cal.4th 415, 462.)
Generally, this hearsay exception is “inapplicable to evidence of any
statement or portion of a statement not itself specifically disserving to the
interests of the declarant.†(
442.) “There is no litmus test for the
determination of whether a statement is trustworthy and falls within the
declaration against interest exception.
The trial court must look to the totality of the circumstances in which
the statement was made, whether the
declarant spoke from personal knowledge, the possible motivation of the
declarant, what was actually said by the declarant and anything else relevant
to the inquiry.†(Greenberger, supra, 58
Cal.App.4th at p. 334, italics added.)
In the
present case, Bernal’s statements to the effect that he and a woman went to
commit a shooting were not sufficiently trustworthy to be admitted against
Cortez. Bernal apparently told his
nephew this in several different statements.
(E.g., “we went, me and this woman, don’t know her name, we went
to ‑‑ we went shooting some 18s, like at some 18sâ€; “yesterday we
went and we shot at two 18sâ€; “he went with some lady to go shoot
somebody.â€) The references to a woman or
lady and the phrase “we went†necessarily implied that he and Cortez went to go shoot someone that day. The statements suggest Cortez knew of a plan
to commit the shooting and went along with it.
Indeed, the prosecutor argued to the jury that Bernal’s statements were
evidence Cortez knew of Bernal’s purpose and had the intent to assist him. The prosecutor stated: “And when the nephew talked to the police
about what his uncle told him, he repeatedly said that his uncle told him we
went, we went and shot at some 18ths.
That is how you know she had the knowledge of his purpose going there
and she had the intent to assist him.†However, Bernal could not speak from personal
knowledge in describing Cortez’s state of mind. His statements in that respect were
speculation and hence not trustworthy. (People
v. Valencia (2006) 146 Cal.App.4th 92, 103-104 [“In the absence of personal
knowledge, a witness’s testimony or a declarant’s statement is no better than
rank hearsay or, even worse, pure speculation.â€].) References to “we,†a lady, or a woman could
have easily been redacted from Bernal’s statements, leaving other relevant
portions that amounted to a confession on his part. For example, his statement that “he went with
some lady to go shoot somebody†could have been redacted to say “he
went . . . to go shoot somebody.†We agree with the notion that his statements
were admissible against him because they were against his penal interest, were
made in a setting that promoted truthfulness (a discussion in the family home
between close family members), and were trustworthy to the extent he reported
on this own actions and thoughts. As
against Cortez, though, they lacked a guarantee of trustworthiness, and they
should not have been admitted without at least redacting the portions that
specifically implicated her.
Cortez
contends that even if no individual errors were prejudicial alone, the
cumulative effect of multiple errors require reversal. When a defendant claims cumulative error the
“test is whether defendant received due
process and a fair trial.†(
Cal.App.3d 314, 349.) “[W]e review each
allegation and assess the cumulative effect of any errors to see if it is reasonably
probable the jury would have reached a result more favorable to defendant in
their absence.†(Ibid.) The cumulative effect
of the errors discussed ante ‑‑
prosecutorial misconduct, instructing the jury with CALCRIM No. 361, and the
admission of Bernal’s out-of-court statements against Cortez ‑‑
require reversal.
The case
against Cortez was close and not particularly strong. Her conviction was based on aiding and
abetting liability. Cortez admitted that
she drove Bernal around the afternoon of the shooting and was present when the
shooting occurred. There was no real
dispute about her conduct on the day of the shooting. But the People had to also prove that Cortez
and she intended to aid and abet him
in that crime. (CALCRIM No. 401.) Thus, the primary issue with which the jury
had to grapple was whether she had the requisite knowledge and intent.
On the one
hand, Emanuel testified he heard a woman say, “Where you guys from?†and “Let
them have it,†right before the shooting.
On the other hand, Cortez’s testimony suggested that she did not have
knowledge of Bernal’s purposes or intend to aid him in committing a crime. She testified that she was not a gang member
and was not involved in any kind of gang mission on the day of the
shooting. She drove Bernal because he
asked for a ride to pick up some money, and in exchange he was to give her gas
money. She said Bernal jumped out of her
moving car without announcing what he was doing, she heard gunshots, and then
he got back into the car. She knew
something bad had happened but did not want to ask questions because she was
scared. While her out-of-court
statements to police were not entirely consistent with her trial testimony, she
was consistent that she believed she was giving Bernal a ride to pick up money
and did not seem to know of any plan to commit a shooting. Her pastor and church friend testified that
she attended Bible study and was involved in the ministry’s outreach
programs. In short, only circumstantial
evidence supported Cortez’s knowledge of Bernal’s purpose and intent to aid
him, and her testimony was direct evidence to the contrary.
The jury
likely understood a nonimaginary belief in Cortez’s guilt was sufficient to
convict her, given the prosecutor’s misstatement lowering the People’s burden
of proof. CALCRIM No. 361 suggested to
the jury that Cortez might have failed to explain or deny evidence against her
and invited the jury to draw a negative inference on that basis, even though
there was no such failure on her part.
And the admission of Bernal’s speculative and untrustworthy statements
to his nephew about Cortez’s state of mind permitted the prosecutor to in turn
speculate about Cortez’s knowledge and intent.
The prosecutor’s argument suggested these statements were the best
evidence of her knowledge and intent. In
a close case against Cortez, it is reasonably probable that misadvising the
jury on the burden of proof, calling attention to a negative inference that has
no applicability, and admitting untrustworthy statements as to Cortez combined
to tip the balance against her. We must
reverse Cortez’s conviction on this basis.
Bernal
contends the trial court erred when it denied his counsel’s request for
instructions on self-defense, imperfect self-defense, and provocation (for both
second degree murder and voluntary manslaughter). At trial, defense counsel contended the
evidence warranted the instructions because the victims may have initiated a
gang confrontation by “throwing gang signs [and] yelling,†and because there
were shell casings scattered about, implying that the victims may have been
shooting as well. The trial court
concluded that its role was to determine “whether there was evidence which, if
believed by the jury, is sufficient to raise a reasonable doubt. [¶]
And frankly, based on the state of the evidence, I don’t see that in
this case.†We agree with the trial
court here.
A trial
court must instruct on an asserted defense, including self-defense, if there is
sufficient evidence from which a reasonable juror could find the defense
applicable. (People v. Koontz (2002) 27 Cal.4th 1041, 1046; People v. Breverman (1998) 19 Cal.4th 142, 154 (
instruction for lack of
evidence, we review the record de novo to determine whether the record contains
substantial evidence to warrant the instruction. (People
v. Manriquez (2005) 37 Cal.4th 547, 581, 584; People v. Cruz (2008) 44 Cal.4th 636, 664.) Substantial evidence is
“ ‘ “evidence from which a jury composed of reasonable [persons]
could . . . conclude[]†’ †that the particular facts
underlying the instruction did exist. (
16.)
Self-defense
requires that a defendant actually and reasonably believes in the need to
defend against imminent bodily injury or death.
(People v. Humphrey (1996) 13
Cal.4th 1073, 1081; Breverman,
is accomplished in defense of self or others], 198 [circumstances excusing
homicide must be “sufficient to excite the fears of a reasonable person, and
the party killing must have acted under the influence of such fears aloneâ€].) A jury must consider what “ ‘would
appear to be necessary to a reasonable person in a similar situation and with
similar knowledge . . . .’ †(Humphrey,
but objectively unreasonable belief he or she is in imminent danger of great
bodily injury or death, the killing is considered to have resulted from
“imperfect self-defense.†That is, the
defendant “ ‘is deemed to have acted without malice and cannot be
convicted of murder,’ †but can be convicted of the lesser-included
offense of voluntary manslaughter. (
994 [“Imperfect self-defense mitigates, rather than justifies, homicide; it
does so by negating the element of malice.â€], overruled on other grounds in
1201; People v. Wilson,
self-defense doctrines may be invoked by a “a defendant who, through his own
wrongful conduct (e.g., the initiation of a physical assault or the commission
of a felony), has created circumstances under which his adversary’s attack or
pursuit is legally justified.†(
768, 773, fn. 1.)
The trial
court properly refused both instructions because the evidence was too
insubstantial to support either defense theory.
(See People v. Strozier (1993)
20 Cal.App.4th 55, 63.) First, the
evidence showed Bernal provoked the confrontation between his group and the
victims. Bernal drove into rival gang
territory and yelled “Where are you from?†to the victims, a known gang
confrontation. It is irrelevant that
shell casings of different brands were found near the shooting, because there
was no evidence that the victims fired a gun.
To draw an inference that the victims were shooting is pure
speculation. (People v.
Valdez (2004) 32 Cal.4th 73, 116 [speculation is insufficient to warrant an
instruction; the evidence must be substantial].)
Second,
there was no evidence, direct or circumstantial, that showed that Bernal “
he was in imminent danger of death or great bodily injury.†(In re
Christian S., supra, 7
Cal.4th at p. 771; see People v.
Minifie (1996) 13 Cal.4th 1055, 1065 [defendant claiming self-defense must
“ ‘ “prove his own frame of mind†’ â€].) According to Cortez, Bernal was calm both
before and after the shooting, and was focused on avoiding capture, directing
Cortez to drive to a specific location after the shooting. There was no evidence that he was shaken by
the encounter with the victims.
Therefore, we find that no substantial evidence warranted instructions
on self-defense or imperfect self-defense.
Bernal also
contends the trial court should have given provocation instructions. Provocation operates in two ways. First, it can reduce first degree murder to
second degree murder if the defendant formed the intent to kill in direct
response to provocation and acted immediately without deliberation or
premeditation. Second, it can reduce
murder to manslaughter if the defendant was subjectively provoked to kill, and
a person of average disposition (an “objective†person) would have been
provoked to kill. Provocation to reduce
a killing to second degree murder is a purely subjective inquiry whereas
provocation in the context of voluntary manslaughter contains both a subjective
and objective element. (
Cal.App.4th 1285, 1295-1296.)
We first
examine provocation sufficient to reduce a murder to voluntary
manslaughter. “Where an intentional and
unlawful killing occurs ‘upon a sudden quarrel or
(a)), the malice aforethought required for murder is negated, and the offense
is reduced to voluntary manslaughter ‑‑ a lesser included offense
of murder.†(People v. Carasi (2008) 44 Cal.4th 1263, 1306.) Heat of passion will also reduce attempted
murder to attempted voluntary manslaughter.
(People v. Williams (1988) 199 Cal.App.3d 469, 475.) Heat of passion has both objective and
subjective components. (
1158, 1215.) The defendant must
subjectively act in the heat of passion.
(Ibid.) But the claimed provocation must be
sufficient to cause a reasonable person under the same circumstances to act
rashly, without deliberation and reflection, from passion rather than from
judgment. (Carasi, at p. 1306.) The
provocation must be such that a “reasonable person in defendant’s position
would have reacted with homicidal rage.â€
(People v. Koontz, supra,
27 Cal.4th at p. 1086.) A defendant
may not “ ‘ “set up his own standard of conduct and justify or excuse
himself because in fact his passions were aroused
. . . .†’ †(
Here, there
was no evidence of legally sufficient provocation to warrant a voluntary
manslaughter instruction.
Notwithstanding the evidence that the victims and Bernal may have
engaged in “where are you from†gang banter, and gang members are prone to violent overreactions, an
ordinary person does not become homicidally enraged when another person claims
an affiliation with a rival “organization.â€
Requiring the instruction would effectively adopt a
which is clearly not the law.
We next
examine provocation sufficient to reduce deliberate and premeditated first
degree murder to second degree murder (when the evidence is not sufficient to
reduce the crime to involuntary manslaughter).
If the jury finds that the defendant “formed the intent to kill as a
direct response to . . . provocation and . . . acted
immediately†without deliberation or premeditation, the offense is reduced to
second degree murder. (
307, 329 (Wickersham), disapproved on
another ground by People v. Barton
(1995) 12 Cal.4th 186, 200-201.)
Provocation sufficient to mitigate a murder to second degree murder
requires only a finding that the defendant’s subjective mental state was such
that he did not deliberate and premeditate before deciding to kill. (People
v. Fitzpatrick, supra, 2
Cal.App.4th at pp. 1295-1296.)
Here, there
was overwhelming evidence that Bernal harbored the intent to kill before any
exchange between him and his victims.
Although there was some evidence of an exchange of gang challenges
between Bernal and his victims (see
exchanged between the victim and the accused before the fatality may be
sufficient to raise a reasonable doubt in the minds of the jurors regarding
whether the accused planned the killing in advance]), there is no evidence that
this exchange provoked Bernal to kill Guzman and attempt to kill Emanuel. (People
v. Johnson (1993) 6 Cal.4th 1, 42-43 [provocation
instruction only warranted if defendant formed the intent to kill as a
acted immediately to carry it
out].) Bernal went into rival gang
territory with a gun, and initiated a confrontation with supposed rival gang
members. It is clear from this evidence
that he had formed his intent to kill before any provocation by his victims.
Moreover,
there is no reasonable probability that Bernal would have received a more
favorable outcome if the instruction had been given. (See Breverman,
supra, 19 Cal.4th at p. 165;
836.) Provocation causes the defendant
to act rashly, impulsively or without careful consideration. The jury here was instructed with CALCRIM No.
521, which explains the degrees of murder.
That instruction tells the jury that a “decision to kill made rashly,
impulsively, or without careful consideration is not deliberate and
premeditated.†Thus, the jury was aware
that if Bernal acted rashly or impulsively, he was guilty of only second degree
murder. Nevertheless, the jury convicted
Bernal of first degree murder, showing they did not believe he acted rashly or
impulsively. (People v. Chatman (2006) 38 Cal.4th 344, 392 [error in failing to
give lesser included offense instruction is harmless when jury necessarily
decides the factual question posed by the omitted instructions adversely to
defendant under other properly given instructions].)
Cortez
contends the trial court should have instructed the jury, sua sponte, to view
Bernal’s comments to Tejeda with caution, as set forth in CALCRIM
No. 334. We need not address this
argument as to Cortez, having already determined that other errors prejudiced
her. Still, Bernal joins in this
argument (Cal. Rules of Court, rule 8.200(a)(5)). He did not provide any individualized
analysis about how Cortez’s testimony (or which testimony) tended to
incriminate him. Therefore, any claim of
error was waived. (People v. Stanley (1995)
10 Cal.4th 764, 793 [a brief must contain reasoned argument and legal authority
to support its contentions or the court may treat the claim as waived].) In any event, as discussed
the case against him was much stronger than the case against Cortez, and
any error was necessarily harmless.
The
judgment against Cortez is reversed. The
judgment against Bernal is affirmed.
FLIER,
J.
I CONCUR:
RUBIN, Acting P. J.
GRIMES,
J., Concurring and dissenting.
I
concur in the affirmance of the judgment of conviction of defendant Rodrigo
Bernal. However, I respectfully disagree
with my colleagues’ conclusion that defendant Norma L. Cortez’s conviction must
be reversed.
1.
Prosecutorial
Misconduct
I do not
find the prosecutor’s statements during his rebuttal, when viewed in context,
amount to prosecutorial misconduct.
After correctly stating “proof beyond a reasonable doubt is not proof
beyond all possible doubt or imaginary doubt,†the prosecutor exhorted the jury
to consider the evidence when he then argued, “I submit to you what it means is
you look at the evidence and you say, ‘I believe I know what happened, and my
belief is not imaginary. It’s based in
the evidence in front of me.’ †This
comment did not lower the burden of proof; it emphasized imaginary doubt is not reasonable
doubt, and such a characterization of the burden of proof is a correct
statement of the law. (See CALCRIM No.
220.)
I am not persuaded there is a
reasonable possibility the jury construed the prosecutor’s comments to permit
conviction despite reasonable doubts.
The court properly instructed the jury on the correct standard of proof. The jury was instructed that “[p]roof 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.†The jury
was also instructed that “[y]ou must follow the law as I explain it to
you . . . . If you
believe that the attorneys’ comments on the law conflict with my instructions,
you must follow my instructions.†We
presume the jury followed the court’s instructions absent evidence to the
contrary. (People v. Nguyen (1995) 40 Cal.App.4th 28, 37.)
The conclusion the trial court
“implicitly endorse[d]†the prosecutor’s statement of the law by overruling
defendant’s objection is unwarranted.
The prosecutor made the challenged statement only after defense counsel
equated proof beyond a reasonable doubt with proof sufficient for a mother to
convict her own son. Given these
conflicting statements of the standard, the jury likely discounted counsels’ comments
as argument, and followed the trial court’s instructions.
2.
CALCRIM No.
361
My colleagues conclude Cortez did
not fail to explain or deny the evidence against her. I disagree, finding Cortez failed to explain
or deny a considerable body of evidence against her. Cortez failed to plausibly
explain the peculiar circumstance that, as an innocent church-going woman, she
agreed to take a man half her age, whom she had known only a year, and who she
knew associated with the Rockwood gang and always
carried a gun, “for a ride to pick up some moneyâ€; then permitted an
unfamiliar teenage friend of his dressed in gang attire to get in the car
without anything being said about why he was there; then, instead of going
directly to a location where the money was to be paid, she took directions from
Bernal where to drive without knowing the destination; and finally,
| Description | Defendants Norma Lilian Cortez and Rodrigo Alonso Bernal were charged by amended information with premeditated murder (Pen. Code, § 187, subd. (a); count 1)[1] and attempted premeditated murder (§§ 664/187, subd. (a); count 2). It was alleged that Bernal personally used a firearm, discharged a firearm, and discharged a firearm causing great bodily injury or death. (§ 12022.53, subds. (b), (c), (d); counts 1 & 2). As to both Cortez and Bernal, it was alleged that a principal personally used a firearm, discharged a firearm, and discharged a firearm causing great bodily injury or death. (§ 12022.53, subds. (b), (c), (d), (e)(1); counts 1 & 2). The information also included gang allegations (§ 186.22, subd. (b)(1)(C), (4)). The defendants were found guilty by the jury, and all special allegations were found to be true. They were each sentenced to an aggregate term of 50 years to life. |
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