Opinion
A156884
06-29-2021
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. OSCAR ALVAREZ CARRILLO, Defendant and Appellant.
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCUKCRCR201685533
NEEDHAM, ACTING P.J.
Oscar Alvarez Carrillo appeals from a judgment of conviction and sentence imposed after a jury found him guilty of first degree murder (Pen. Code, § 187, subd. (a)). Carrillo contends his trial attorney provided ineffective assistance because he did not object to the prosecutor's rebuttal argument. We will affirm the judgment.
All statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL HISTORY
An amended information charged Carrillo with first degree murder and alleged an enhancement for personal use of a weapon resulting in death. (§§ 187, subd. (a), 12022 subd. (b)(1).) The matter proceeded to a jury trial.
A. Prosecution Evidence
Carrillo lived in Apartment 2 of the Toplak Apartments in Ukiah. Victim Salvador Hernandez lived in Apartment 3 of the Toplak Apartments, along with roommates Mario Fuentes and Daniel Escamilla.
The court referred to Fuentes as Mario Fuentes Garcia, but at trial the witness identified his surname as Fuentes. We therefore refer to him as Fuentes.
1. April 23 Conduct
On April 23, 2016, Mendocino County Sheriff's Deputy Orell Massey responded to a 911 call at the Toplak Apartments at approximately 9:00 p.m. Fuentes had called police to report harassment by Carrillo, who had entered Apartment 3 without permission and possessed a knife. Massey observed that Carrillo appeared intoxicated. He instructed Carrillo to go to sleep, and Carrillo agreed to do so.
2. April 24 Murder
The next evening, Carrillo entered Apartment 3, stabbed Hernandez and, as Hernandez fled outside, pursued him and ultimately stabbed him to death.
a. Eyewitness Orozco
Miguel Orozco, Carrillo's cousin, testified that he lived at the Toplak Apartments in Apartment 6. At approximately 7:00 p.m. on April 24, 2016, Orozco heard people screaming “no!” and lots of loud crashing and banging outside his apartment. He walked outside and observed Carrillo stab Hernandez as Hernandez knelt on the ground outside Apartment 3. Hernandez tried to flee, but Carrillo pursued him; when Hernandez fell to the ground again, Carrillo continued to stab him. Orozco yelled Carrillo's name and told him to stop, and another man with a baseball bat ran towards Carrillo and Hernandez and tried to halt the attack.
Carrillo made eye contact with Orozco and ceased his assault. He said to Orozco, “he cut off my finger.” Orozco could not see Carrillo's hands to see if that was true. Carrillo then ran from the scene. Hernandez crawled towards Orozco's front door and collapsed at Orozco's feet. Orozco's wife called 911; the recorded call was played for the jury.
b. Eyewitness Wilkinson
Anthony Wilkinson testified that just before 7:00 p.m., he went to his storage unit near the Toplak Apartments and heard a loud fight. He grabbed a baseball bat, went to investigate, and saw a man (Carrillo) stabbing Hernandez. As Wilkinson approached with his bat, Carrillo fled. A few minutes later, Wilkinson spotted Carrillo running toward a nearby trailer park and alerted police officers who had responded to the scene.
c. Responding Deputy Andrade
Approximately 6:48 p.m., Mendocino County Sheriff's Deputy Jeffrey Andrade responded to a 911 call reporting a stabbing at the Toplak Apartments. He observed a man (Hernandez) lying on the ground in the parking lot, surrounded by a lot of blood. The man had no pulse and was unresponsive. After paramedics arrived, Andrade and other officers searched a vacant house in a nearby trailer park and apprehended Carrillo, who was hiding in a closet. Another sheriff's deputy retraced the path of Carrillo's flight and recovered a large knife.
d. Forensic Investigation
Dr. Jacqueline Benjamin conducted an autopsy on Hernandez's body. She observed at least 67 incised wounds (cuts), 29 of which were on Hernandez's head and face (nine of those cut bone), and a total of eight stab wounds. The multiple incised wounds and stab wounds were the cause of Hernandez's death.
Mendocino County Sheriff's Deputy Clint Wyant processed the crime scene. He found blood “[e]verywhere” in Hernandez's bedroom, including a large pool of blood on the mattress. DNA analysis demonstrated that Hernandez was the major source of the blood on the mattress; Carrillo was eliminated as a source. The large amount of Hernandez's blood on the mattress indicated that he was in that spot for a sustained period of time during the assault.
There was also blood on both sides of the bedroom door and on the wall adjacent to the door. Hernandez was the major source of a blood sample taken from the interior side of the door (inside the bedroom), and Carrillo was eliminated as a source. Another blood smear on the interior side of the door was not sampled. Hernandez was the major source, and Carrillo was a minor source, of the blood on the exterior side of the bedroom door. Hernandez was a major source of the blood in the living room and kitchen, while Carrillo was eliminated as a source.
B. Defense Case
1. Carrillo's Testimony
At trial, Carrillo admitted killing Hernandez but claimed that Hernandez attacked him first. He acknowledged that he had a 2009 conviction for perpetrating a battery with serious bodily injury.
According to Carrillo, on the night of the killing he was working on his car in the parking lot in front of Apartment 2, wearing gloves and a backpack that contained a knife. He was approached by Daniel (Escamilla), one of Hernandez's roommates, who asked Carrillo if he had any methamphetamine. Carrillo said that he did, and they went to Apartment 3 and used methamphetamine in Escamilla's and Hernandez's bedroom. Carrillo immediately began to feel the effects of the methamphetamine. Then “somebody” (apparently Hernandez) approached Carrillo from behind and put “something” to his throat and said in Spanish, “ ‘[t]his time you are going to pay[, ] you son of a bitch.' ” Carrillo pushed away the item, which turned out to be a knife, and Carrillo's hand was badly cut in the process. Hernandez left the bedroom, and Carrillo placed his bleeding hand on the back (interior side) of the door, trying to hold it closed and prevent Hernandez and Escamilla from entering. Believing that Hernandez and Escamilla were going to kill him, Carrillo pulled his own knife out of his backpack. Hernandez then reentered the room, and Carrillo “lost all control, ” “snapped, ” and began stabbing him. Carrillo could not recall further struggles inside or outside the apartment, describing “the whole thing” as an “out of body experience.”
The next thing Carrillo recalled was Orozco screaming at him. He told Orozco that “he cut my fingers off” (or, “they cut my hand”). He looked down and saw Hernandez on his knees covered in blood. He fled from the scene to the trailer park because he was scared, and he hid in a closet in a house under construction until police came. He was later taken to the hospital, where he thought the doctors and nurses were trying to kill him, and he kept attempting to pull out his intravenous tubes. He testified that doctors later told him he was in a “meth-induced psychosis.”
2. Blood Splatter Expert
Chris Coleman testified as an expert on bloodstain pattern analysis. He opined that when blood samples were collected in this case, there had not been enough effort to differentiate between blood deposit patterns, an insufficient number of samples were collected, the labeling of the samples was inadequate, and insufficient measurements were taken at the scene. He also opined that the bedroom door where Carrillo's blood was found was likely held closed when the blood was deposited, because drips (as opposed to spatter patterns) on the carpet near the door indicated that whoever deposited the blood was in a stationary position. In addition, he opined that the unsampled blood smear on the inside of the door was likely Carrillo's blood and was consistent with Carrillo's testimony that he held the door shut to attempt to prevent Hernandez from entering the room. However, because no sample was taken of that blood smear, there was no way to determine whose blood it was. On cross-examination, Coleman admitted that the blood on the interior side of the door was also consistent with someone holding the door closed to prevent the victim from escaping.
3. Other Witnesses
Travis Mendoza testified that on July 4, 2015-about 10 months before Hernandez's killing-he and Carrillo were approached by a group of men, including an older man who resembled Hernandez, and a fight ensued and Carrillo was knocked to the ground. A few weeks later, a group of armed, young, Hispanic males approached Mendoza and Carrillo; Carrillo went inside, and the males asked Mendoza if he knew Carrillo and if he had been involved in the July 4th fight. One of the men pointed a gun at Mendoza's wife and asked for Carrillo's location.
Carrillo's brother Rudolfo testified that their father physically abused them and their siblings regularly, and Carrillo started carrying a knife in his backpack.
C. Jury Verdict and Sentence
The jury convicted Carrillo of first degree murder and found true the enhancement for personal use of a weapon resulting in death. The court sentenced Carrillo to 30 years-to-life in prison, based on his conviction in this case and his plea to a charge of making criminal threats (§ 422) in another case. This appeal followed.
II. DISCUSSION
Carrillo argues that his defense attorney did not provide effective assistance of counsel because he did not object to remarks by the prosecutor during rebuttal argument. A defendant claiming ineffective assistance of counsel must establish both that “counsel's representation fell below an objective standard of reasonableness” and that counsel's deficient performance prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 215.)
A. Counsel's Performance
Carrillo contends his defense attorney's performance was inadequate because he failed to object to the prosecutor's statements that Carrillo believes constituted prosecutorial misconduct: statements that Carrillo's self-defense theory was “fabricated;” and statements that Carrillo should be found guilty because his theory was not as reasonable as the prosecutor's theory, rather than because the prosecutor had proven each element of the crime beyond a reasonable doubt.
“A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Jackson (2016) 1 Cal.5th 269, 349, internal quotations omitted.) A prosecutor is given wide latitude during argument, and the argument may be vigorous if it amounts to fair comment on the evidence, including reasonable inferences or deductions that may be drawn from the evidence. (People v. Guerra (2006) 37 Cal.4th 1067, 1153; People v. Hill (1998) 17 Cal.4th 800, 819.)
1. Fabrication Argument
In his rebuttal argument, the prosecutor attacked Carrillo's version of events and his self-defense theory by noting instances in which Carrillo's testimony was contradicted by other evidence or was inherently implausible. He referred to “the defendant's own fabricated story” and called it “a lie.”
These remarks were plainly within the scope of permissible argument. “[B]y choosing to testify, [a] defendant put[s] his own veracity in issue.” (People v. Tafoya (2007) 42 Cal.4th 147, 179.) The prosecutor may call the defendant a liar or otherwise strongly impugn his credibility. (People v. Boyette (2002) 29 Cal.4th 381, 433; People v. Edelbacher (1989) 47 Cal.3d 983, 1030 [no misconduct when the prosecutor described the defendant as “ ‘a pathological liar,' and ‘one of the greatest liars in the history of Fresno County' ”].) “The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence... [and] to argue on the basis of inference from the evidence that a defense is fabricated.” (People v. Pinholster (1992) 1 Cal.4th 865, 948 [no misconduct when prosecutor referred to a defense witness as a “weasel, ” called another defense witness a “perjurer, ” accused another witness of failing to follow the defense “script, ” and said defendant had been “caught in some lies [that were] ‘doozies' ”], overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.)
Carrillo contends the prosecutor did more than attack his veracity, by telling the jury that Carrillo's “version of events [is] being fabricated by the defense.” In Carrillo's view, this argument impugned defense expert Coleman's testimony that the blood drops and bloody glove print on the inside of the bedroom door supported Carrillo's testimony that he had held the door closed when Hernandez tried to enter. Carrillo argues there was no evidence that the defense expert had fabricated his testimony, and his testimony about Carrillo being in an altered state was not fabricated either.
The prosecutor did not, however, say that the defense expert had “fabricated”his testimony. He argued that the expert's testimony was unsupported by the evidence and based on speculation-that is, not worthy of belief, as opposed to an artifice to deceive. For example, the prosecutor noted that the expert had limited expertise in the area of blood spatter analysis, and there was no blood sample showing that the blood on the back of the door belonged to Carrillo (as the expert asserted).
Carrillo relies on cases holding it is misconduct for a prosecutor to argue, without support, that defense counsel fabricated a defense. (E.g., People v. Bain (1971) 5 Cal.3d 839, 846 [prosecutor “left the clear impression with the jury that the defendant had been coached” and “made numerous other remarks about race and the defense counsel's lack of integrity”]; People v. Woods (2006) 146 Cal.App.4th 106, 116-117 [improper for prosecutor to say that defense counsel “conjured up” witnesses, suggesting fabrication of testimony and subornation of perjury]; People v. Seumanu (2015) 61 Cal.4th 1293, 1337-1338 [prosecutor impugned personal integrity of defense counsel by suggesting counsel knew his client was guilty and asserting that defense counsel “ ‘put forward' ” a “sham” defense].) These cases, however, are inapposite. At no time did the prosecutor in this case impugn defense counsel's integrity or accuse counsel of fabricating evidence.
The upshot of the prosecutor's argument was merely that Carrillo's version of events and self-defense theory were fabricated or “made up, ” in the sense of being a product of Carrillo's lies, inconsistent with the evidence, implausible, and not really what happened. This is not misconduct. (People v. Pinholster, supra, 1 Cal.4th 865, 948 [prosecutor may “argue on the basis of inference from the evidence that a defense is fabricated”]; see People v. Seumanu, supra, 61 Cal.4th at pp. 1337-1338 [distinguishing between prosecutor arguing that “the defense was unsupported by facts and thus a sham” and improperly implying that “counsel was personally dishonest” by stating that “defense counsel ‘put forward' a sham”], italics added.)
Because the prosecutor's “fabrication” remarks did not constitute misconduct, counsel's decision not to object to them did not fall below an objective standard of reasonableness. (People v. Lucero (2000) 23 Cal.4th 692, 732 [“‘Counsel may not be deemed incompetent for failure to make meritless objections.'”].)
2. Burden of Proof
Carrillo next argues that his lawyer should have objected when the prosecutor urged the jury to accept the People's theory of the case as more “reasonable” than the defense version. Specifically, Carrillo contends, it was “improper for the prosecutor to argue that, because the prosecution's theory of the case was reasonable, guilt had been proven beyond a reasonable doubt.” But that is not what the prosecutor did.
a. Prosecutor's Remarks
Before closing arguments, the court instructed the jury regarding proof beyond a reasonable doubt, directing the jury that Carrillo was entitled to an acquittal “[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, ” and if the attorneys' comments on the law conflicted with the court's instructions, the jury had to follow the instructions.
During his closing argument, the prosecutor challenged Carrillo's self-defense theory, urging that Carrillo's version of events was untrue and inconsistent with other testimony. He also argued that the defense expert's conclusion-that Carrillo was holding the bedroom door shut with an injured hand-was not “a reasonable certification of the evidence.” Defense counsel then argued that Carrillo did act in self-defense and should be acquitted or, alternatively, Carrillo used unreasonable force in self-defense and was guilty only of voluntary manslaughter.
In rebuttal, the prosecutor responded by reiterating that Carrillo lied in his testimony and that his account was implausible in light of the evidence. In so doing, he made the following statements Carrillo now claims were improper.
The prosecutor pointed to the jury's task of deciding between competing versions of the evidence: “The judge has provided you some of the law. He's going [to] instruct you a little bit more when I get done. I presented my case, the defense has presented their version of events, then your job will be carefully weighing and considering the evidence, determine what is true, what is a fabrication. What is reasonable. And what is unreasonable.” (Italics added.)
In discussing the jury instruction on circumstantial evidence, the prosecutor argued: “However, when considering the circumstantial evidence, you must only-you must accept only reasonable conclusions and reject any that are unreasonable. You can only consider the reasonable conclusions. I submit to you that the defendant's version of events has what transpired in 2016 are unreasonable interpretations of the evidence.” (Italics added.)
Lastly, the prosecutor argued that Carrillo lied about being attacked from behind by Hernandez: “A reasonable interpretation of the evidence, folks, he waited until [Hernandez] was alone inside his own bedroom, went in there with a knife and started stabbing him.” The prosecutor later repeated that Carrillo's version was an “[u]nreasonable interpretation of the evidence.”
b. Analysis
The prosecutor did not commit misconduct in arguing that the jury was to “carefully weigh[] and consider[] the evidence, determine what is true, what is a fabrication, ” and what is “reasonable” and “unreasonable.” That is, in fact, what a jury does. (CALCRIM No. 200 [jury's duty to decide the facts based on the evidence].) Nor was it misconduct to argue that the “defendant's version of events” was an “unreasonable interpretation[] of the evidence, ” while the prosecutor's version was a “reasonable interpretation of the evidence.” (People v. Centeno (2014) 60 Cal.4th 659, 672 (Centeno) [“It is permissible to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory.”]; CALCRIM No. 224 [“when considering circumstantial evidence, [the jury] must accept only reasonable conclusions and reject any that are unreasonable”]; CALCRIM No. 226 [in evaluating a witness's testimony, the jury may consider “[h]ow reasonable” the testimony is in light of the other evidence in the case].)
Carrillo's argument that the prosecutor's remarks lessened the burden of proof is meritless. In People v. Romero (2008) 44 Cal.4th 386 (Romero), a prosecutor had told the jury in closing argument that the reasonable doubt standard asked jurors to “ ‘decide what is reasonable to believe versus unreasonable to believe' and to ‘accept the reasonable and reject the unreasonable.' ” (Id. at p. 416.) Our Supreme Court held: “Nothing in the prosecutor's explanation lessened the prosecution's burden of proof. The prosecution must prove the case beyond a reasonable doubt, not beyond an unreasonable doubt.” (Ibid.) Here, the prosecutor argued the relative reasonableness of the parties' competing versions of events, but he did not link the reasonableness of the prosecutor's theory to the reasonable doubt standard.
Carrillo's reliance on Centeno, supra, 60 Cal.4th 659, is unavailing on this point. There, the court reiterated the teaching of Romero: “It is permissible to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory.” (Centeno, supra, 60 Cal.4th at p. 672.) It then contrasted a different scenario: “Conversely, it is error for the prosecutor to suggest that a ‘reasonable' account of the evidence satisfies the prosecutor's burden of proof.” (Ibid., italics added.) The prosecutor had argued, “ ‘Is it reasonable to believe that the defendant is being set-up in what is really a very unsophisticated conspiracy led by an officer who has never met the defendant or [that] he['s] good for it? That is what is reasonable. He's good for it.' ” (Ibid., italics added.) The court found that this argument conflated the prosecution's reasonable inferences from the evidence with the need to prove guilt beyond reasonable doubt, impermissibly leaving the jury “with the impression that so long as her interpretation of the evidence was reasonable, the People had met their burden.” (Ibid.)
Here, the prosecutor did not leave the jury with the impression that it should convict Carrillo merely because the prosecutor's factual theory was the reasonable interpretation of the evidence, without regard to the court's burden of proof instruction. A reasonable juror under the circumstances, having been instructed by the court that Carrillo must be acquitted unless the prosecutor proved the charge beyond a reasonable doubt, would have understood the prosecutor was simply arguing that the prosecutor's inference was the correct one-in the sense of what really happened factually-and it remained the jury's task to decide whether those facts established each element of the crime beyond a reasonable doubt, as the court had instructed.
Because the prosecutor did not engage in misconduct, it was reasonable for defense counsel not to object. Carrillo therefore has no claim for ineffective assistance of counsel. (Lucero, supra, 23 Cal.4th at p. 732.)
Carrillo also notes that the prosecutor argued Hernandez had been held down in his bed and stabbed, or held up against the wall and stabbed, but claims that none of the prosecution witnesses had suggested these possibilities. Here is what the prosecutor said: “What we do know, the left side of the wall as you exit the bedroom, he's obviously being pushed up against the [wall], probably repeatedly stabbed, and he's held there for some period of time because look at the blood trail from Sal Hernandez as he's bleeding out in his own bedroom.” The prosecutor's statement was a fair comment on the evidence.
B. Prejudice
Even if counsel had failed to meet the standard of reasonableness in choosing not to object to the prosecutor's remarks, Carrillo would not be entitled to relief unless he was prejudiced as a result. In this context, prejudice means “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, supra, 466 U.S. at p. 694.)
There is no reasonable probability that the result in the case would have been different if defense counsel had objected to the prosecutor's remarks. In the first place, because the prosecutor's statements did not constitute misconduct, there is no indication that defense counsel's objection would have been or should have been sustained, or would have resulted in a reversal on appeal.
Second, Carrillo fails to establish that the court's sustaining the objection or admonishing the jury would have made a difference anyway. Even without the prosecutor's objection and a judicial admonishment, the jury was properly instructed on the prosecutor's burden and proof beyond a reasonable doubt. (CALCRIM No. 220.) The court also informed the jury that if any comments of counsel conflicted with the instructions, the jury must follow the instructions given by the court. (CALCRIM No. 200.) Jurors are presumed to follow the court's instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
Third, the evidence overwhelmingly established Carrillo's guilt. The prosecutor presented evidence that Carrillo got into a dispute the night before the murder with Hernandez and his roommates, but denied it at trial; the next day, he was carrying a large knife and wore gloves as he entered Hernandez's apartment, inferably with the intent to kill Hernandez (rather than to work on his car and cut lines of methamphetamine); according to the forensic evidence, Carrillo pinned Hernandez to the mattress in Hernandez's bedroom and stabbed him repeatedly before Hernandez fled outside; and multiple eyewitnesses saw Carrillo chase Hernandez out of the apartment, repeatedly stab him, and then flee the scene. While Carrillo contends that his credibility was unfairly affected by the prosecutor's statements that his defense was “fabricated” and the prosecutor's version was more reasonable, it was the evidence itself, including the implausibility of Carrillo's story, that harmed Carrillo's credibility. Furthermore, the prosecutor's version of events did, in fact, establish the elements of murder and negated self-defense, and Carrillo does not show otherwise. There is no reasonable probability that counsel's objection would have resulted in a more favorable outcome for Carrillo. Carrillo fails to establish error.
Carrillo submitted an untimely reply brief in this appeal, along with a motion asking that it be filed. We grant that motion, and we have considered his brief. Carrillo also filed a petition for a writ of habeas corpus on the general ground asserted in this appeal. By separate order filed on the same date as this opinion, we deny the petition.
III. DISPOSITION
The judgment is affirmed.
We concur. BURNS, J., RODRIGUEZ, J. [*]
[*] Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.