Opinion
F084764
09-15-2023
THE PEOPLE, Plaintiff and Respondent, v. ABEL ISAIAS ECHARTEA, Defendant and Appellant.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F22900304. Gary R. Orozco, Judge.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P. J.
INTRODUCTION
Abel Isaias Echartea (appellant) shot and killed Phillip Ozuna. A jury convicted appellant of second degree murder (Pen. Code, § 187, subd. (a)) and found true an enhancement for the personal and intentional discharge of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). The trial court sentenced him to 40 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, appellant raises claims of instructional error related to the corpus delicti requirement (CALCRIM No. 359) and justifiable homicide based on self-defense (CALCRIM No. 505). We conclude no such error occurred, and that any presumed error was harmless. We affirm.
BACKGROUND
I. Ozuna is shot and killed.
Appellant and Rose Najera were in a dating relationship. They lived together in her apartment with her children. Ozuna, the victim, was dating Julia Sandoval, a close friend of Najera.
On the afternoon of December 23, 2020, appellant and Najera got into an argument because she would not give him access to her tablet. Appellant threw the tablet against the wall, breaking it. Najera became upset and went to Sandoval's residence, leaving her 17-year-old son at the apartment with appellant. Ozuna was at Sandoval's residence when she arrived.
Najera received a call or a text message from her neighbor that appellant was putting her clothing into the apartment complex dumpsters. Later, appellant sent her a text message stating he was going to throw away their Christmas presents. Najera became upset and asked Sandoval to take her home, and Ozuna and Sandoval drove her back to her apartment complex. Ozuna parked in the parking lot near her apartment, and Najera and Sandoval got out of the car. Sandoval testified Ozuna waited in the car, but Najera testified he left with the car to "go pick up somebody."
Najera and Sandoval walked to the dumpsters to look for Najera's clothes. Najera testified that as they approached, she saw appellant putting her clothes into one of the dumpsters. After appellant went back inside of her apartment, Najera and Sandoval went to the dumpster and pulled out her clothing.
Sandoval testified Najera then walked toward her apartment to get her son, who was still inside. Sandoval went back to the car, and she and Ozuna moved it to a parking lot further away from Najera's apartment because they "did not want to be involved." After they moved the car, Ozuna asked Sandoval if he should go check on Najera. They moved the car again, then Ozuna got out and walked toward Najera's apartment. Sandoval lost sight of him as he walked through the apartment complex. Soon after, she heard six or seven gunshots in rapid succession. She ran toward the sound of the gunshots and found Ozuna lying on the ground in a courtyard. Ozuna had been shot multiple times and later died from his injuries.
II. Crime Scene Evidence
ShotSpotter, an automated gunshot detection system, detected seven gunshots in Najera's apartment complex close to her apartment. Law enforcement personnel located seven expended .40-caliber cartridge casings at the entrance to a breezeway near Najera's apartment. The breezeway runs from the parking lot and dumpster area through the first floor of her apartment building to a courtyard on the other side. The expended cartridge casings were on the parking lot and dumpster side of the breezeway. Ozuna's body was found on the opposite side of the breezeway in the courtyard. Law enforcement personnel located bullet fragments and blood drops in the breezeway, and a bullet strike mark on a window on the opposite side of the courtyard.
Ozuna was shot six times. His body had entrance wounds on the back, buttocks, right forearm, the back of the legs, and the right side of the abdomen. There was a high level of methamphetamine in his system. No weapons were located on or near his body.
III. Najera identifies appellant as the shooter.
After the shooting, while a police officer was speaking to Sandoval near the scene, Najera approached Sandoval and stated: "He said I'm next." Another officer followed Najera to her apartment at his request. Najera appeared upset about the condition of her apartment, complaining that appellant "had taken all of the gifts." The officer asked Najera if her boyfriend was the shooter. She said "yes," and later identified him to the officer by name.
The next day, Najera went to her cousin's house. The cousin testified Najera told her there was a shooting at her apartment complex the previous night. Najera appeared nervous, and later stated she needed to tell her something. The cousin asked her what was going on, and Najera replied, "[s]ome guy got killed at my apartment yesterday," and "[i]t was [appellant]."
Later that day, Najera sent Facebook messages to a friend stating that Ozuna had died, and appellant was the shooter. A copy of Najera's Facebook records containing the messages were admitted into evidence.
Najera was interviewed by detectives on three different days. The audio recordings of the interviews were admitted into evidence at trial and played for the jury. The first interview occurred on the night of the shooting. During the interview, Najera denied seeing appellant at the apartment complex after she returned with Sandoval. She also denied making the statement that appellant told her she was "next."
Najera was interviewed again on January 5, 2022. She continued to deny that she saw the shooting. When asked about her Facebook messages stating appellant was the shooter, she stated she did not want to talk about it while being recorded.
Najera requested to meet with detectives on January 10, 2022. During this interview, she stated that on the night of the shooting, after Sandoval walked away from the dumpsters, appellant came outside of her apartment and told her to "come here." She heard footsteps in the nearby breezeway but could not see who was approaching. Appellant turned and fired several shots into the breezeway. Najera ran and hid on an upstairs balcony. She did not see where appellant went.
Najera stated that several hours after the shooting, she spoke to appellant on the phone, then met with him in person. According to Najera, appellant stated he believed Ozuna was at the apartment complex with other people, and that "they were going to either get me or, you know, I got to get them first."
Appellant went to Indiana two days after the shooting. Najera and appellant continued their relationship, and she traveled back and forth to California with him. Najera told detectives that appellant threatened to kill her and her children if she told anyone about the shooting, and that she was scared for her life.
At trial, Najera denied seeing appellant shoot Ozuna. She also denied that appellant threatened her. She testified Ozuna had a gun in his waistband when he dropped her and Sandoval off at the apartment complex, and that he told her he wanted to "take [appellant] out." However, she did not share these details during any of her three law enforcement interviews.
IV. Additional Eyewitnesses
A maintenance worker at the apartment complex testified that on the night of the shooting he was sitting in his truck in the parking lot near one of the apartment buildings. He saw a woman walking backwards as if she was trying to get away from something. At trial, he claimed he did not recognize the woman, but in a prior statement to police, he stated he recognized her as a tenant in the same apartment where Najera lived. He heard several gunshots but did not see anyone shooting. He then saw a man fleeing holding a gun. The man ran past his truck and got into the passenger's seat of a car, which then left. He was shown a photographic lineup that included a photograph of appellant. He did not make a positive identification but set appellant's photograph aside as looking more like the person he saw with the gun than the people in the other photographs.
The defense's sole witness was a resident at the apartment complex. The resident testified that on the evening of the shooting she returned from grocery shopping with her sister and daughter. She heard several gunshots, then saw a Hispanic woman running away from the direction of the gunshots. She did not recognize the woman. She also saw two men who appeared to be chasing the woman. One of the men was carrying a gun.
DISCUSSION
I. The corpus delicti instruction (CALCRIM No. 359) did not erroneously suggest that appellant's extrajudicial statements proved he was the shooter.
The jury was instructed with CALCRIM No. 359 (Corpus Delicti: Independent Evidence of a Charged Crime). Appellant contends the portion of the instruction clarifying that the identity of the perpetrator "may be proved by the defendant's statements alone" was misleading. He argues this language improperly suggested to the jury that the extrajudicial statements made by appellant in this case proved he was the person who shot Ozuna, thereby alleviating the People of their burden of proof. We disagree. Considering the language of the instruction as a whole and the context in which it was given, there is no reasonable possibility the jury understood and applied the instruction in such an impermissible manner.
A. Background
CALCRIM No. 359 was requested by both parties. The instruction was given as follows. We highlight in bold the disputed language that appellant challenges on appeal:
Respondent does not contest appellant's assertion the claim is properly before this court on appeal because the alleged error affected appellant's "substantial rights." (See § 1259.)
"The defendant may not be convicted of any crime based on his out-ofcourt statements alone. You may rely on the defendant's out-of-court statements to convict him only if you first conclude that other evidence shows that the charged crime was committed.
"That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed.
"This requirement of other evidence does not apply to proving the identity of the person who committed the crime and the degree of the crime. If other evidence shows that the charged crime was committed, the identity of the person who committed it and the degree of the crime may be proved by the defendant's statements alone.
"You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt."
B. Standard of Review
We review a claim of instructional error de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210.) "A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (People v. Cross (2008) 45 Cal.4th 58, 67-68; People v. Bacon (2010) 50 Cal.4th 1082, 1110.) "We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation, and we presume jurors can understand and correlate all instructions given." (People v. Vang (2009) 171 Cal.App.4th 1120, 1129.)
C. Instructional error did not occur.
"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself-i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause." (People v. Alvarez (2002) 27 Cal.4th 1161, 1168.) "The corpus delicti rule requires that the corpus delicti of a crime be proved independently from an accused's extrajudicial admissions." (People v. Jennings (1991) 53 Cal.3d 334, 364.) The purpose of this requirement is "to ensure that a defendant is not convicted of a crime that never occurred." (People v. Ledesma (2006) 39 Cal.4th 641, 721.) However, "[t]he identity of the defendant as the perpetrator is not part of the corpus delicti; identity may be established by the defendant's words alone." (People v. Valencia (2008) 43 Cal.4th 268, 297.) A trial court has a sua sponte duty to instruct on the corpus delicti rule if the prosecution presents evidence of the defendant's extrajudicial statements. (People v. Howk (1961) 56 Cal.2d 687, 707.)
Appellant does not contend that CALCRIM No. 359 as given incorrectly stated the corpus delicti rule. Rather, he argues the language of the instruction undercut the People's burden of proof by effectively telling the jury that, in this case, his extrajudicial statements alone provided a sufficient quantum of evidence to convict him.
We do not agree that the challenged portion of CALCRIM No. 359 was susceptible to this interpretation. Nothing in the instruction stated or implied appellant's statements alone established he was the perpetrator. The third paragraph of the instruction began by specifying that the corpus delicti requirement-that other evidence independent of the defendant's out-of-court statements show that a crime was committed-does not apply to proving the identity of the perpetrator. The next sentence clarified that if the corpus delicti requirement is otherwise met, the identity of the perpetrator "may be proved by the defendant's statements alone." (CALCRIM No. 359.) Considered in context, the challenged portion of the instruction merely delineated the scope of the corpus delicti rule. It did not, as appellant contends, operate as a judicial endorsement of the sufficiency of the evidence.
Moreover, the jury was not told, in this instruction or elsewhere, that it could convict based on a lower standard of proof. In fact, the jury was reminded at the end of the instruction that it "may not convict [appellant] unless the People have proved his guilt beyond a reasonable doubt." We also observe the jury was instructed with CALCRIM No. 220, which defined proof beyond a reasonable doubt, informed the jury that it must consider all of the evidence, and directed the jury that appellant was entitled to an acquittal unless the evidence proved guilt beyond a reasonable doubt. Accordingly, there is no reasonable likelihood the jury understood the instruction to relieve the People of their burden of proof.
Appellant's reliance on People v. Rivas (2013) 214 Cal.App.4th 1410 (Rivas) is misplaced. In Rivas, the appellate court criticized a prior version of CALCRIM No. 359 as "deficient to the extent it lends itself to an interpretation that criminal defendants could be convicted on the basis of extrajudicial statements alone that they committed a crime." (Rivas, supra, 214 Cal.App.4th at pp. 1427-1428.) The court explained, "[T]he reference to identity in CALCRIM No. 359 presents a risk of confounding the jury by telling jurors that a defendant's inculpatory extrajudicial statements, taken alone, do not suffice to allow the jury to convict the defendant of a charged crime-and yet those statements, again taken alone, are entertainable to prove the defendant's 'identity [as] the person who committed the crime' (CALCRIM No. 359, 3d par.), which to any juror can only mean the defendant's identity as the perpetrator, i.e., the guilty party. The instruction requires reconsideration." (Id. at p. 1429.) Thus, Rivas criticized the prior version of CALCRIM No. 359 for its potential to mislead the jurors into believing a defendant may be convicted based on his or her extrajudicial statements alone, undermining the purpose of the corpus delicti rule. (Rivas, supra, 214 Cal.App.4th at p. 1429.) It did not hold, as appellant claims, that the language of the instruction in effect told the jury that the defendant's out-of-court statements alone proved the identity of the perpetrator beyond a reasonable doubt. In fact, Rivas expressly rejected this argument, concluding that "at most, the jury may have understood that [the appellant's] inculpatory extrajudicial statements could justify convicting him." (Id. at p. 1430.)
In any event, as we noted above, Rivas dealt with a prior version of CALCRIM No. 359. In that prior version, the third paragraph of the instruction only included the following language: "The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendant's statement[s] alone." (Rivas, supra, 214 Cal.App.4th at p. 1428, fn., 5; CALCRIM No. 359, 2013 ed.) In response to Rivas, the Judicial Council of California modified the instruction by adding the additional language to the third paragraph that is present in its current version. (Bench Notes to CALCRIM No. 359.) This additional language further clarifies the distinction between the corpus delicti requirement and proof of the identity of the perpetrator, making clear that "[i]f other evidence shows that the charged crime ... was committed," the identity of the perpetrator "may be proved by the defendant's statement[s] alone." (CALCRIM No. 359.)
Based on this record, appellant has not demonstrated a reasonable likelihood that the jury understood the instructions in the way he asserts. Thus, the challenged instruction is not subject to an erroneous interpretation. Therefore, our de novo review reveals that instructional error did not occur, and this claim is without merit.
II. The trial court properly instructed the jury that to be justified in killing in self-defense, appellant must have acted only because of his belief that he was in danger of death or great bodily injury. Any presumed error was harmless.
The trial court instructed the jury with CALCRIM No. 505 (Justifiable Homicide: Self-Defense), which included the requirement that the defendant "must have acted only because of [his] belief" that he was in imminent danger of death or great bodily injury. Appellant claims this portion of the instruction misstates the law, arguing that if a defendant kills out of an honest and reasonable fear, whether the defendant also acted for another reason is irrelevant to the issue of self-defense. However, as appellant concedes, we expressly rejected this argument in People v. Trevino, holding that "an instruction which states that the party killing must act under the influence of such fears alone, is a correct statement of the law." (People v. Trevino (1988) 200 Cal.App.3d 874, 879 (Trevino).) We see no basis to deviate from this holding, and we decline to do so. In any event, we conclude any presumed error was harmless,
A. Background
The challenged portion of CALCRIM No. 505 read as follows: "The defendant must have believed there was imminent danger of death or great bodily injury to himself. Defendant's belief must have been reasonable and he must have acted only because of that belief."
B. Standard of Review.
We independently review the wording of the challenged jury instruction and assess whether it accurately states the law. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) We consider whether a reasonable likelihood exists that the challenged instruction "caused the jury to misapply the law in violation of the Constitution. [Citations.] The challenged instruction is viewed 'in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.' [Citation.]" (Ibid.)
C. Instructional error did not occur.
Appellant contends CALCRIM No. 505's requirement that the defendant "must have acted only because of [the] belief" that "there was imminent danger of death or great bodily injury to himself" is not an accurate statement of the law as reflected in sections 197 (justifiable homicide) and 198 (requiring reasonable fear). According to appellant, section 198's requirement that "the party killing must have acted under the influence of such fears alone" does not apply where the defendant is resisting an actual, as opposed to apparent or inchoate, attempt to kill or inflict great bodily injury. Thus, he argues the instruction should have made clear that if the jury found he killed out of an honest and reasonable fear that he was going to be killed or severely injured, "the separate question of whether [he] may have also acted for another reason should have formed no part of the self-defense determination."
We rejected this argument in Trevino. There, the appellant contended the trial court erred in giving CALJIC No. 5.12, the predecessor instruction to CALCRIM No. 505, and argued that there was evidence from which the jury could have concluded he acted both out of reasonable fear and animus toward the victim. (Trevino, supra, 200 Cal.App.3d at p. 877.) After observing that "no case authority recognizes the distinctions [the appellant] seeks to draw," we concluded that the law is "settled that '[t]o be exculpated on a theory of self-defense one must have an honest and reasonable belief in the need to defend. [Citations.] A bare fear is not enough; "the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone." (Pen. Code, § 198.)'" (Trevino, supra, 200 Cal.App.3d at pp. 878-879, quoting People v. Flannel (1979) 25 Cal.3d 668, 674-675.) Accordingly, we held that "an instruction which states that the party killing must act under the influence of such fears alone, is a correct statement of the law." (Trevino, supra, 200 Cal.App.3d at p. 879.) We clarified, however, that "we do not mean to imply that a person who feels anger or even hatred toward the person killed, may never justifiably use deadly force in self-defense." (Ibid.) "Instead, the law requires that the party killing act out of fear alone." (Ibid.)
Appellant provides no subsequent authority that persuades us to reconsider Trevino. Specifically, we reject appellant's assertion that our Supreme Court suggested in People v. Nguyen that Trevino should be reconsidered. (People v. Nguyen (2015) 61 Cal.4th 1015 (Nguyen).) In Nguyen, the appellant contended the evidence established as a matter of law that he acted in self-defense. (Id. at p. 1042.) In rejecting this claim, the Supreme Court affirmed our conclusion in Trevino that the "fears alone" language in the instruction was a correct statement of law and was consistent with the long line of cases interpreting section 198. (Nguyen, at p. 1045.) The Supreme Court then noted the appellant did not claim "that the jury should have been instructed that acting based on mixed motives is permissible so long as reasonable fear was the but-for cause of his decision to kill," and therefore the court had "no occasion to consider whether such a rule would be consistent with section 198 as interpreted in Trevino or other cases." (Nguyen, supra, 61 Cal.4th at p. 1046.) We read this statement as a clarification of the scope of Nguyen's ruling, not an invitation to revisit Trevino.
Appellant also relies on People v. Young, but it is not relevant here. (People v. Young (1963) 214 Cal.App.2d 641 (Young).) In Young, the defense theory at trial was that the appellant acted in self-defense while resisting the victim's robbery attempt, but the trial court refused to instruct on this theory. (Id. at pp. 643-644.) The appellate court held this was error, because if the jury accepted the defense evidence, it "established the basis for a justifiable homicide provided he did not indulge in more force than necessary to recapture his money." (Id. at p. 649.) While the jury in Young was instructed with the "fears alone" language from section 198, the validity of the instruction was not at issue on appeal. (Young, at p. 644, fn. 2.) Rather, the issue in Young was whether there was substantial evidence to instruct on the defense theory. (Id. at pp. 644-646.) Accordingly, Young is inapplicable here.
Based on our reasoning in Trevino, the trial court's self-defense instruction that appellant must have acted only because of his belief that he was in danger of death or great bodily injury was a correct statement of law. Instructional error did not occur, and this claim lacks merit.
D. Any presumed error was harmless.
Even if we concluded the trial court committed instructional error, any presumed error was harmless. Depending upon the basis of the claimed error, instructional error is reviewed under either Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), or People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). Under the more stringent Chapman standard, which applies to errors of constitutional dimension, reversal is required unless the reviewing court can conclude beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman, supra, 386 U.S. at p. 24.) Under the alternative Watson standard, which applies to errors of state law, reversal is not required unless it is reasonably probable the defendant would have obtained a more favorable result had the error not occurred. (Watson, supra, 46 Cal.2d at p. 836.)
We need not decide whether the Chapman or Watson standard for prejudicial error applies here because the error was harmless under either standard. At appellant's request, the jury was also instructed on imperfect self-defense. The trial court gave CALCRIM No. 571, which stated that appellant acted in imperfect self-defense if he actually but unreasonably believed he was "in imminent danger of being killed or suffering great bodily injury" and "the immediate use of deadly force was necessary to defend against the danger." Notably, the imperfect self-defense instruction did not include the challenged language from CALCRIM No. 505 that appellant "acted only because of [his] belief" he was in danger of death or great bodily injury.
In convicting appellant of second degree murder and rejecting imperfect selfdefense, the jury necessarily found appellant did not actually believe Ozuna posed an imminent danger of death or great bodily injury when he killed him. This finding conclusively demonstrates that the challenged language in the complete self-defense instruction (CALCRIM No. 505) that appellant must have "acted only because of that belief" had no impact on the trial. Because the jury found appellant did not actually harbor such a belief, the question of whether he "acted only because of that belief" was irrelevant to the verdict. (CALCRIM No. 505.) Thus, even if the trial court had excised the challenged language from CALCRIM No. 505, the outcome of the trial would not have been different.
We also agree with respondent that the evidence that appellant did not act in selfdefense was overwhelming. (See Neder v. United States (1999) 527 U.S. 1, 17-18 [noting overwhelming evidence of guilt rendered alleged instructional error harmless beyond a reasonable doubt]; People v. Covarrubias (2015) 236 Cal.App.4th 942, 954 [same].) Appellant fired seven shots, striking Ozuna five times in his backside and once on his right side. There was no evidence appellant shot in response to an aggressive act by Ozuna or anyone else, and no firearm or other weapon was discovered on or near Ozuna's body. After the shooting, appellant fled to Indiana and threatened to kill Najera and her children if she told anyone about the shooting, strongly suggesting his consciousness of guilt. The only suggestion appellant acted in self-defense came from appellant's self-serving statements to Najera, and from portions of Najera's testimony that were inconsistent with her prior statements to law enforcement. The jury's verdict demonstrates it did not find appellant's statements or these portions of Najera's testimony credible, and that finding is amply supported by the record.
Given the nature of the jury's findings and the lack of self-defense evidence, there is no basis to conclude the jury would have returned a different verdict if the challenged language had been omitted from the self-defense instruction. The guilty verdict rendered in this trial was surely unattributable to the purported error. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Therefore, any presumed error was harmless under any standard, and this claim fails.
Because we conclude any error was harmless beyond a reasonable doubt, we need not separately address appellant's ex post facto claim that the challenged language in CALCRIM No. 505 "effectively abolished" preexisting self-defense doctrine. Such a claim is also evaluated for harmless error under Chapman, supra, 386 U.S. 18. (People v. Hiscox (2006) 136 Cal.App.4th 253, 261.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: FRANSON, J. SNAUFFER, J.