Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles Super. Ct. No. NA067070. Richard R. Romero, Judge
Donald R. Tickle, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Michael Gutierrez appeals from the judgment entered following his conviction by a jury of the first degree murder of Joseph Carbajal. (Pen. Code, §§ 187, subd. (a), 189.) The jury found true an allegation that appellant had personally discharged a firearm proximately causing death. (§ 12022.53, subd. (d).) The trial court found true allegations of one prior prison term (§ 667.5, subd. (b)), one prior conviction of a serious felony (§ 667, subd. (a)(1)), and one prior conviction of a serious or violent felony within the meaning of California's "Three Strikes" law. (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) Appellant was sentenced to prison for 5 years plus 75 years to life. He contends that the trial court erroneously instructed the jury. We affirm.
All statutory references are to the Penal Code.
Facts
Monica Cervantes had two teenage children: Robert T. and Matthew R. Appellant had been Cervantes's boyfriend. They had known each other for about seven or eight years. Appellant had lived "off and on" with Cervantes and her children at her home.
In August 2005 Cervantes acquired a new boyfriend: Joseph Carbajal, the murder victim. On approximately August 17, 2005, Cervantes was with Carbajal when she saw appellant outside her home. Carbajal introduced himself to appellant, and they conversed with each other. After the conversation ended, appellant walked up to Cervantes and asked to talk to her. Cervantes "just said [she] wanted to be friends with [appellant]." Carbajal told appellant that they "were gonna handle this like men" and "whoever [Cervantes] chooses, then the other person walks like a man." Appellant got mad, pointed at Cervantes, and threatened: "Just watch, Bitch, watch." Appellant "socked" a nearby wall and walked away down the street. Carbajal followed appellant, engaging in "loud" conversation with him.
A week later, on August 24, 2005, Carbajal, Cervantes, Robert T., and Matthew R. were in Cervantes's bedroom, which was attached to a garage. A door led from the garage into the bedroom. Appellant kicked the door open and entered the bedroom. He was holding "a gun with a long barrel." Appellant pointed the gun at Carbajal and said "You wanna fuck with me? You wanna fuck with me? I'm gonna fucking kill you." Appellant shot Carbajal in the neck and ran out of the bedroom through the garage door. Carbajal "fell to the floor and died."
Shortly after the shooting, uniformed police officers driving a marked patrol vehicle saw appellant walking on the street. Since it was nighttime, the officers illuminated him with a spotlight. One of the officers said to appellant, "Excuse me. Let me talk to you for a second." Appellant replied, "What did I do?" The officer asked appellant to turn around and put his hands on top of his head. Appellant did not comply and ran away.
Appellant presented an alibi defense. Defense witnesses testified that, at the time of the shooting, appellant was sleeping on a bed in the living room at his mother's house.
Circumstantial Evidence
The trial court gave CALCRIM No. 224 on circumstantial evidence. The instruction provides in part: "If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence." Appellant refers to this provision as the "benefit of the interpretation rule." He contends: "The trial court erred by failing to explain that the benefit of the interpretation rule applies to all evidence, including . . . direct evidence such as eyewitness testimony."
Appellant's contention lacks merit. The benefit of the interpretation rule does not apply to direct evidence. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186-1187; People v. Anderson (2007) 152 Cal.App.4th 919, 931-932.) "Circumstantial evidence involves a two-step process: presentation of the evidence followed by a determination of what reasonable inference or inferences may be drawn from it. By contrast, direct evidence stands on its own. It is evidence that does not require an inference. Thus, as to direct evidence, there is no need to decide whether there is an opposing inference that suggests innocence." (Id., at p. 931.)
Appellant argues that "expert opinion testimony is a form of circumstantial evidence. . . . Accordingly, the trial court erred by failing to instruct the jury [sua sponte] that expert testimony was a form of circumstantial evidence to which the benefit of the interpretation rule applied." The trial court did not err. It gave CALCRIM No. 223, defining direct and circumstantial evidence. This instruction was sufficient. Appellant does not cite any case requiring a sua sponte instruction identifying particular evidence as circumstantial evidence. " '[S]uch a pinpoint instruction does not involve a "general principle of law" as that term is used in the cases that have imposed asua sponte duty of instruction on the trial court.' [Citation.]" (People v. San Nicolas (2004) 34 Cal.4th 614, 669.)
CALCRIM Nos. 220 and 222
CALCRIM No. 220 provides in part: "In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." CALCRIM No. 222 provides in part: "You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom or during a jury view." Appellant argues that the above quoted language limited the jury's determination of reasonable doubt to the evidence adduced at trial and "improperly led the jury to believe that the lack of evidence on a given point was insufficient to find reasonable doubt of the charge." Reasonable doubt may "grow out of the lack of evidence in the case as well as the evidence adduced." (People v. Simpson (1954) 43 Cal.2d 553, 566.)
Appellant's identical argument was rejected in People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093; and People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510. We find the reasoning of these cases persuasive. No reasonable jury would interpret CALCRIM Nos. 220 and 222 as precluding it from acquitting the defendant because of a reasonable doubt arising from a lack of evidence.
Appellant further argues that CALCRIM No. 220 is unconstitutional insofar as it provides that, to find the defendant guilty beyond a reasonable doubt, "[t]he evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt." Appellant contends that "a possible doubt is a valid basis for finding a reasonable doubt."
CALCRIM No. 220 sets forth the standard reasonable doubt instruction, which our Supreme Court has repeatedly upheld. (People v. Slaughter (2002) 27 Cal.4th 1187, 1204; People v. Bradford (1997) 14 Cal.4th 1005, 1054-1055; People v. Freeman (1994) 8 Cal.4th 450, 501.) We therefore "regard the issue as conclusively settled adversely to [appellant's] position. [Citation.]" (People v. Hearon (1999) 72 Cal.App.4th 1285, 1287.)
CALCRIM No. 358
CALCRIM No. 358 provides in part: "You must consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded." "When the evidence warrants, the court must give the cautionary instruction sua sponte. [Citations.]" (People v. Carpenter (1997) 15 Cal.4th 312, 392.) " 'The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.' [Citation.] This purpose would apply to any oral statement of the defendant, whether made before, during, or after the crime." (Id., at p. 393.) But the instruction is appropriate only when a defendant's oral statement constitutes an admission. (See People v. Dickey (2005) 35 Cal.4th 884, 905; People v. Slaughter, supra, 27 Cal.4th at p. 1200; People v. Flores (1992) 7 Cal.App.4th 1350, 1363-1364.) "[A]n admission simply is any extrajudicial statement - whether inculpatory or exculpatory - 'which tends to prove [the defendant's] guilt when considered with the rest of the evidence.' [Citation.]" (People v. Mendoza (1987) 192 Cal.App.3d 667, 676, fn. omitted.)
Appellant contends that three oral statements warranted a sua sponte cautionary instruction. The first statement was made approximately one week before the shooting, when appellant pointed at Cervantes and said to her in a threatening manner, "Just watch, bitch, watch." The second statement was made immediately before appellant shot Carbajal. Appellant said to him: "You wanna fuck with me? You wanna fuck with me? I'm gonna fucking kill you." The third statement was made after the shooting when a police officer asked to speak with appellant. He responded, "What did I do?"
The third statement did not warrant a sua sponte cautionary instruction because it did not tend to prove appellant's guilt. The first and second statements, on the other hand, are admissions. They tended to prove that the killing was not only intentional, but also deliberate and premeditated. Thus, as to these statements, the trial court had a duty to give a cautionary instruction sua sponte.
The failure to give a cautionary instruction sua sponte does not constitute reversible error unless "it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given. [Citations.]" (People v. Carpenter, supra, 15 Cal.4th at p. 393.) " 'Since the cautionary instruction is intended to help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. [Citations.]' [Citation.] [¶] Where there was no such conflict in the evidence, but simply a denial by the defendant that he made the statements attributed to him, we have found failure to give the cautionary instruction harmless. [Citation.]" (People v. Dickey, supra, 35 Cal.4th at pp. 905-906.)
Here there is no conflict in the evidence concerning the first statement, "Just watch, bitch, watch." Accordingly, as to this statement, the omission of the cautionary instruction was harmless error.
A conflict in the evidence exists concerning the second statement, "You wanna fuck with me? You wanna fuck with me? I'm gonna fucking kill you." At trial Cervantes testified that appellant had made this statement. Prior to the trial, however, Cervantes testified that appellant had not said anything before shooting Carbajal.
Despite this conflict in the evidence, it is not reasonably probable that the jury would have reached a result more favorable to appellant had the cautionary instruction been given. The statement attributed to appellant supported the prosecution's theory that the killing was deliberate and premeditated. But during closing argument, appellant's counsel never disputed this theory. Instead of arguing that the killing was not deliberate and premeditated, counsel argued that appellant was not the killer: "[Appellant] is not guilty because he did not shoot Joseph Carbajal. He did not murder him. He did not have anything to do with this crime. He was asleep at his mother's house on her bed in the living room."
Furthermore, the evidence of premeditation and deliberation is overwhelming. Appellant had a motive to kill Carbajal because he had supplanted appellant's place as Cervantes's boyfriend. "This motive . . . suggested that [appellant was] the perpetrator[], and that he intended and premeditated [Carbajal's] death[]." (People v. Lewis (2006) 39 Cal.4th 970, 1001.) Prior planning activity is evidenced by appellant's entry into Cervantes's bedroom with a loaded gun when Carbajal was present. (See People v. Morris (1988) 46 Cal.3d 1, 22, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.) "The manner of killing . . . shows a calculated design to ensure death rather than an unconsidered explosion of violence. [Citation.]" (People v. Horning (2004) 34 Cal.4th 871, 902.)
In addition, as appellant acknowledges, Cervantes's sons (Robert T. and Matthew R.) corroborated her trial testimony that appellant had made the incriminating statement in question. "Moreover, the court fully instructed the jury on judging the credibility of a witness [pursuant to CALCRIM Nos. 226 and 315], thus providing guidance on how to determine whether to credit the testimony. Accordingly, there is no reasonable probability the error was prejudicial; indeed, we would even find the error harmless beyond a reasonable doubt." (People v. Carpenter, supra, 15 Cal.4th at p. 393.)
In his opening brief, appellant alleges: "Monica [Cervantes] and both her sons testified in virtually identical terms that before the shooting, appellant said to Carbajal, ' "You wanna fuck with me? You wanna fuck with me? I'm gonna fucking kill you." ' "
Disposition
The judgment is affirmed.
We concur: COFFEE, J. PERREN, J.