Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCS218717, David M. Rubin, Judge.
AARON, J.
I.
INTRODUCTION
Defendant Eduardo Duarte appeals from a judgment of conviction entered after a jury convicted him of second degree murder and child endangerment. Duarte's ex-girlfriend died after Duarte pushed or threw her over a balcony railing at her apartment.
On appeal, Duarte contends that the trial court erred in admitting testimony by one of his coworkers about a statement Duarte made to the coworker approximately a month before the murder. The coworker testified that Duarte said that he "wished he had a gun, that he would shoot [his ex-girlfriend] in the pussy." According to Duarte, the highly inflammatory and unduly prejudicial nature of this evidence outweighed what he contends is its limited probative value. Duarte maintains that the trial court abused its discretion under Evidence Code section 352 in admitting the evidence. He further contends that the admission of this statement amounted to a violation of his right to due process and fair trial.
Further statutory references are to the Evidence Code unless otherwise indicated.
We conclude that the trial court did not abuse its discretion in ruling that the coworker's testimony relating Duarte's statement about his desire to shoot his ex-girlfriend "in the pussy" was admissible because the court properly concluded that the probative value of the statement outweighed its potential prejudicial impact. We reject Duarte's claim that the admission of this statement amounted to a violation of his constitutional rights, and affirm the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution's case
Duarte began dating Ana Valdez in 1999. The two eventually moved in together with Valdez's four children. In 2005, the couple had a son. In 2006, Valdez and Duarte broke up, and Duarte moved out of the apartment that they had been sharing. In December 2007, Valdez began dating Gabriel Ojeda.
On the morning of April 11, 2008, at approximately 6:30 a.m., Valdez woke up her 12-year-old daughter, K.R., for school. Ojeda and J.R., Valdez's 17-year-old son, were also present in the apartment that morning. Duarte arrived at the apartment to drop off the couple's son with Valdez before going to work, which he often did.
K.R. was in the bathroom when she heard Duarte and Valdez "yelling." K.R. came out of the bathroom and went into the kitchen. From her vantage point in the kitchen, K.R. could see Duarte and Valdez on the balcony of the apartment. K.R. saw Duarte use "both arms" to push Valdez on her chest, causing her to go over the balcony railing and fall to the ground below. Valdez screamed as Duarte pushed her and tried to hold onto the balcony railing with one hand. However, the force of Duarte's push lifted Valdez up and over the railing.
K.R. ran downstairs to Valdez. Valdez could not speak. K.R. saw Duarte walk down the stairs, talking on his cellular telephone. According to K.R., Duarte appeared to be "upset" and "[l]ike mad." Valdez's son, J.R., came downstairs to the parking lot and began to argue with Duarte. Duarte pushed J.R. away.
Ojeda was asleep during the argument between Valdez and Duarte, and during Valdez's fall from the balcony. After Valdez's fall, J.R. banged on the bedroom door to get Ojeda. When Ojeda responded, he saw J.R. on the telephone. J.R. was crying and saying, "my mom, my mom." J.R. then rushed downstairs, and Ojeda followed him. Ojeda saw Valdez lying in the parking lot, and noticed Duarte standing near Valdez, holding Valdez and Duarte's son. Duarte looked at Ojeda, tapped the back of his own head, and told Ojeda that he was "next."
At the time of the incident, Faustino Gutierrez, a teacher at a nearby school, was standing in the school parking lot talking with Elmer Harlow, a school custodian. The apartment complex was approximately 40 yards away from where Gutierrez and Harlow were located. Gutierrez heard a woman who sounded upset. As he turned in the direction of the voice, he saw a man throwing something off the balcony of an apartment. Gutierrez called 911 once he realized that the object that had been thrown off the balcony was a body, and not, as he originally believed, a blanket or a "large rug." Gutierrez later saw the man who had thrown the person over the balcony carrying a child in his arms, pacing.
San Diego Police Officer William Hernandez was the first police officer to arrive at the scene. He found Valdez lying on the ground, unresponsive, and bleeding from the back of her head. Ojeda told Hernandez that Duarte had pushed Valdez off of the balcony. When Hernandez asked Duarte if this was true, Duarte responded by telling Hernandez that Ojeda was the one who had pushed Valdez off of the balcony. J.R. jumped into the conversation and began to argue with Duarte. Hernandez had to separate J.R. and Duarte. As Duarte walked away from J.R., Duarte told Hernandez that he wanted to confess. Duarte then told Hernandez that he pushed Valdez off the balcony "because she didn't want anything to do with him anymore." After Duarte made this statement, Hernandez placed Duarte in handcuffs and detained him until detectives arrived.
When paramedics arrived at the scene, they found "an unresponsive patient that was on the ground." Paramedics transported Valdez to the University Of California San Diego Medical Center, where she was placed on life support and a ventilator system. Valdez was determined to be brain dead four days later, on April 15, 2008. The following day, she was taken off life support and died.
Detective Robert Meisner interviewed Duarte at the police station. Duarte waived his Miranda rights, and told Meisner that he "did a horrible thing, " and that "there has been like rage in my... mind." Duarte explained that he and Valdez had broken up approximately a year and a half before the incident. According to Duarte, sometime in the past two weeks he learned that Valdez had a new boyfriend, but she seemed to be hiding the new boyfriend from him. That morning, he went to Valdez's apartment to drop off their son. Although he had no intention of starting a fight with Valdez, when he saw her, he asked her if she would give him another chance, and became "super angry" when Valdez told him that their relationship was over. He put their son on the sofa, and then "kinda like shoved" Valdez over the balcony. He explained that "everything was really fast." Duarte said that Valdez had been facing with her back toward the balcony railing when he put one hand on her shoulder and another hand on her leg and lifted her over the railing. Duarte admitted that he had lied when he told an officer at the scene that Ojeda was the one who had thrown Valdez off the balcony.
Miranda v. Arizona (1966) 384 U.S. 436.
Terry Zinter, a coworker of Duarte's, had known Duarte for just over a year. Zinter knew that Duarte and Valdez had a child together, that they had broken up, and that Valdez had been dating someone else. Duarte first mentioned the fact that Valdez was dating another man approximately a month before the incident. It appeared to Zinter that Duarte was bothered by the fact that Valdez was seeing someone else. Zinter testified about a discussion he had with Duarte in which Duarte seemed angry that Valdez had a new boyfriend: "One time when he seemed bothered that you know, she had this boyfriend... he said something about, you know, he wished he had a gun, that he would shoot her in the pussy. He said he didn't want to kill or hurt her, he just wanted to hurt her so she would suffer." After Duarte made this statement, he laughed and said he was just kidding. However, Zinter was left with the impression that Duarte was upset that Valdez was dating someone else.
Guillermo Betancourt, another of Duarte's coworkers, testified that he had known Duarte for approximately three months prior to the incident. According to Betancourt, Duarte appeared "really stressed" about his relationship with Valdez. Duarte told Betancourt that Valdez was dating someone else, and appeared angry and upset about it. When asked whether Duarte had ever mentioned wanting a gun, Betancourt testified that Duarte had told him that "he would like to have a gun."
A third coworker, Kevin Severns, testified that he had known Duarte for approximately a year and a half prior to the incident. Severns estimated that about a month before the incident, Duarte mentioned that Valdez was dating someone else. Duarte indicated that he was upset about the fact that Valdez appeared to be ending their relationship "for good."
2. The defense case
Duarte testified at trial. He confessed to having killed Valdez, but claimed that the reason he had pushed Valdez was because she was blocking his path.
Duarte testified that he had known about Valdez's new boyfriend for approximately two weeks before the incident, but that he had been surprised to find another man sleeping in Valdez's bed when he arrived to drop off their son. Duarte explained that when he said to Valdez, "You're not coming back to me, " she told him, "I don't need you anymore, idiot." Duarte felt hurt, insulted and "somewhat angry." Duarte wanted to leave, but Valdez was standing in the doorway, obstructing his exit. Duarte said that he pushed Valdez in the chest, and she fell backward, toward the balcony railing. Valdez refused to move, so he pushed her harder, and she went over the railing.
Duarte testified that he was so upset at the time that he could not remember whether he had just pushed Valdez, or whether he had lifted or thrown her over the railing. He testified at trial that he believes he only pushed Valdez, and that he did not throw her over the railing.
After Valdez went over the railing, Duarte grabbed their son and went downstairs. He called the police for help. Duarte remembered telling Ojeda that Ojeda was next, but said that he did not remember what he meant by that.
B. Procedural background
By amended information filed December 8, 2008, Duarte was charged with murder (Pen. Code, § 187, subd. (a) (count 1)), and two counts of misdemeanor cruelty to a child by endangering the child's health (Pen. Code, § 273a, subd. (b) (counts 2 and 3)). On December 10, count 3, in which Valdez and Duarte's son was identified as the victim, was dismissed pursuant to section 1118.1.
K.R. was identified as the victim in count 2.
On December 15, 2008, a jury found Duarte guilty of second degree murder (count 1) and child endangerment (count 2). On January 14, 2009, the trial court sentenced Duarte to 15 years to life in state prison.
Duarte filed a notice of appeal on January 15, 2009.
III.
DISCUSSION
Duarte challenges the trial court's admission of Zinter's testimony about Duarte's statement to Zinter that "he wished he had a gun, that he would shoot her in the pussy." Duarte contends that the trial court abused its discretion under Evidence Code section 352 because the statement was unduly prejudicial and only minimally probative. He argues that the court failed to engage in the proper weighing of the statement's probative value against its prejudicial impact, and maintains that if the court had properly considered the evidence under section 352, it would not have admitted the statement in evidence. Duarte further contends that this evidence was so prejudicial and so minimally probative that its admission violated his right to due process and fair trial.
A. Additional procedural background
Prior to trial, the prosecutor sought to admit statements that Duarte made to his coworkers in the weeks before the offense to the effect that Duarte was angry at Valdez for dating another man, and that he wanted to hurt her. The prosecutor sought to admit the statements to show Duarte's state of mind at the time of the offense, under section 1250. According to the prosecutor, the statements demonstrated Duarte's animosity toward Valdez. The prosecutor also argued that the testimony showed that Duarte had prior knowledge that Valdez had a new boyfriend, and that he had been angry about this fact for some time prior to the incident. The prosecutor contended that this evidence provided support for the prosecution's theory that Duarte had the requisite intent to be found guilty of murder. Defense counsel objected to this evidence under sections 352 and 1101.
The trial court concluded that the statements were "relevant and they do show [Duarte's] violent attitude towards the victim." After determining that the statements were relevant, the court continued,
"The question then becomes, are these really more prejudicial than probative. I've done the weighing analysis pursuant to 352 and I find they are not, so I find these statements admissible, even if they ─ and I don't really find they properly fall under 1101. I think the closest one would be the specific statement he said about shooting her I guess could qualify as a 422, but I don't find it does. So I find these statements admissible, so I am going to allow them in."
B. Relevant law
Section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." An appellate court "review[s] a trial court's decision whether to exclude evidence pursuant to Evidence Code section 352 for abuse of discretion. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 49.) "For this purpose, '"prejudicial" means uniquely inflammatory without regard to relevance.' [Citation.] 'Evidence is substantially more prejudicial than probative [citation] if... it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].' [Citation.]" (Ibid.)
1. The trial court did not abuse its discretion in concluding that the evidence was admissible pursuant to section 352
Duarte contends that the trial court abused its discretion in admitting his coworker's testimony that "he wished he had a gun, that he would shoot her in the pussy" because (1) the testimony was of limited probative value; (2) the court failed to engage in a balancing of the prejudicial effect of the evidence against its limited probative value; (3) the testimony was cumulative of other less inflammatory evidence; and (4) the testimony confused the issues and tended to mislead the jurors. We reject these contentions.
a. The statements were probative as to Duarte's intent
Duarte maintains that "the statement 'he wished he had a gun, that he would shoot her in the pussy' fails to establish[] a material fact, " and that the statement was therefore of limited probative value. He asserts that this evidence "required the jury to make impermissible inferences about Mr. Duarte based on one isolated off-handed comment." Duarte also suggests that the statement did not really go to his state of mind or his knowledge that Valdez had a new boyfriend, and, therefore, that evidence of this statement was "too attenuated to allow a jury to draw a proper inference." We disagree with Duarte's assessment.
Duarte's statement that he wished he had a gun and wanted to shoot Valdez demonstrates that he harbored anger toward Valdez, and shows that he had expressed a desire to harm her in the weeks leading up the homicide. This evidence was clearly relevant to the jury's assessment of Duarte's mental state at the time of the incident. In particular, this evidence contradicted Duarte's claim at trial that he had harmed Valdez in the heat of passion. If Duarte had been thinking about hurting Valdez for several weeks, the jury could have reasonably inferred that the actions he took on April 11, 2008, were not simply an unconsidered reaction to being provoked, but rather, that Duarte's anger toward Valdez had been building for some time, and that this homicide resulted from something other than an "unconsidered explosion of violence" (People v. Pride (1992) 3 Cal.4th 195, 248).
b. The trial court weighed the probative value of the statement against its potential prejudice
Duarte contends that the trial court failed to "conduct[] the requisite balancing test, " arguing that the court's "conclusory statement" that it "had 'done the analysis pursuant to 352'" was insufficient to allow "this [c]ourt the ability to conduct a meaningful[] review." (Italics and bolding omitted.) Duarte claims that the trial court did not "mention or discuss the prejudicial impact" of the statement in question, asserts that there is no evidence that the trial court engaged in "careful consideration" of the testimony in question, and concludes that the court "failed to consider the potential prejudice of the testimony in question."
We disagree with Duarte's contention that the trial court failed to sufficiently engage in a weighing of the probative value of the evidence against its potential prejudicial effect. "'[O]n a motion invoking [Evidence Code section 352] the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value....' [Citations.]... Contrary to defendant's implication, no more is required. Certainly, the trial judge need not expressly weigh prejudice against probative value ─ or even expressly state that he has done so [citation]." (People v. Mickey (1991) 54 Cal.3d 612, 656.)
The trial court clearly understood its discretion under section 352, as indicated by the court's statement, "The question then becomes, are these [statements] really more prejudicial than probative." The court then expressly stated, "I've done the weighing analysis pursuant to 352 and I find they are not, so I find these statements admissible...." (Italics added.)
c. Duarte's statement to Zinter about wanting to shoot Valdez "in the pussy" was not merely cumulative to other evidence that the prosecutor presented
Duarte claims that his statement to Zinter about wanting a gun and wanting to shoot Valdez "in the pussy" was merely cumulative to other, less inflammatory evidence. He contends that the repetitive nature of this evidence created additional prejudice.
According to Duarte, the prosecution called three witnesses, all of whom testified that Duarte knew about Valdez's boyfriend in the months before her death and that he appeared to have been upset about the fact that Valdez had a new boyfriend. Duarte also points out that the prosecution played a videotape of his interview with an investigator shortly after Valdez's death, during which Duarte stated that he knew about Valdez's new boyfriend, and admitted that he was upset about the boyfriend. Duarte argues that the testimony of his coworkers, together with his own admissions, rendered his statement that he wished he had a gun and that he would "shoot her in the pussy" cumulative of this other, less inflammatory evidence.
The statement at issue was not merely cumulative to the other evidence that Duarte cites. Rather, the statement uniquely demonstrated that Duarte was not only angry at Valdez, but that he had expressed a desire to hurt her in the weeks leading up to her death. The statement was clearly probative in a way different from the other evidence to which Duarte points. The trial court was well within its discretion in determining that the probative value of this particular statement outweighed the prejudice that might result from its admission.
d. The evidence did not create undue prejudice, confuse the issues, or mislead the jury
Duarte contends that the statement at issue was so "vulgar and inflammatory" that it "had the potential to arouse the jury, such that prejudice was inevitable." This argument is essentially a rehashing of Duarte's previous arguments that his statement about wishing he had a gun and wanting to shoot Valdez "in the pussy" was not sufficiently probative, was highly prejudicial, and was cumulative of other evidence of Duarte's state of mind in the weeks before the crime.
Duarte suggests that this statement could have confused and misled the jury. He argues that since he did not shoot Valdez, and there was no evidence that he had a gun or used one, the "testimony in question concerned a potential future criminal act wholly unrelated to the circumstances surrounding Ms. Valdez's death – ultimately lacking probity while creating confusion."
There is no reason to believe that this evidence confused or misled the jury. The statement is easily understood as demonstrating Duarte's displeasure with the fact that Valdez no longer wanted to be in a relationship with him, and his desire to hurt her in some way. We reject Duarte's contention that the trial court should have excluded this evidence because it was confusing or might have misled the jury.
2. Admission of the evidence as a due process violation
Duarte contends that the trial court violated his state and federal rights to due process by "admitting marginally probative but highly inflammatory evidence without first conducting a proper balancing test." He argues that the admission of this evidence rendered his trial fundamentally unfair.
As we have already concluded, the trial court did not abuse its discretion in admitting evidence of Duarte's statement to Zinter to the effect that he "would shoot [Valdez] in the pussy." Because we have concluded that the evidence was properly admitted, we reject Duarte's contention that the admission of this evidence violated his right to due process of law.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: BENKE, Acting P. J. HUFFMAN, J.