Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07CF0298 Gary S. Paer, Judge. Affirmed.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William Wood and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted defendant Francisco Santiago Naba of one count of attempted murder with deliberation and premeditation (Pen. Code, §§ 187, subd. (a), 664, subd. (a)), and one count of dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). As to the attempted murder conviction, the jury made findings defendant personally used a knife (§ 12022, subd. (b)(1)) and inflicted great bodily injury (§ 12022.7, subd. (a)). The court sentenced defendant to life in prison with the possibility of parole, plus four years. Defendant appeals on four grounds: (1) the prosecutor violated defendant’s due process rights by not entering defendant’s videotaped interrogation into evidence; (2) the prosecutor violated defendant’s right to a fair trial by eliciting victim testimony about the “Mexican Mafia” during his testimony; (3) there was insufficient evidence to sustain the jury’s finding of deliberation and premeditation; and (4) the court abused its discretion by refusing to strike the jury’s factual findings aggravating the attempted murder conviction. We affirm the judgment.
All statutory references are to the Penal Code, unless otherwise stated.
FACTS
Bruce Emel lived at the Sunland Motel in Santa Ana in January 2007. He was smoking in bed the night of January 21. He had taken strong medication earlier, and fell asleep. A fire began in his bed early in the morning of January 22, although Emel testified there were not any actual flames, only smoke.
Defendant, who lived in a unit above Emel, knocked on Emel’s door. Defendant was hostile towards Emel, and said Emel offended his mother. Defendant’s mother’s significant other (whom defendant also considered to be a parent and called “mommies”) testified defendant was aware of her medical issues - asthma, coughing, and wheezing. Defendant then called 911 at 1:20 a.m.; the 911 transcript was introduced into evidence as an exhibit. The fire department and police arrived at Emel’s residence and addressed the problem.
Defendant later returned to Emel’s unit in the early morning hours of January 22. At that time, Emel, by his own account, “was trying to put out this little smoldering fire, and... was carrying water outside in a pitcher to dump on the piece of material that [he] had hauled outside. And the first thing [he] remember[ed was defendant] jumping on [his] back and pinning [him].” According to Emel, defendant then attacked him with a weapon. “He attacked me for a long time.... I can’t give you the exact amount of time that went on....” Emel described the attack as “being hacked by a weapon - home-made weapon - of some sort.” “I wasn’t being stabbed.”
Defendant screamed at Emel while the attack occurred. Emel told a police officer after the incident that defendant repeatedly told Emel during the attack, “You are fucking dead.” Emel pleaded with defendant not to kill him. Emel told a police officer it seemed like something he said to defendant about going to prison seemed to penetrate defendant’s mind and caused him to stop the attack.
After the attack, defendant took Emel’s driver’s license and social security card and threatened to track Emel and kill him if Emel said anything about the attack. One controversial piece of testimony by Emel was that defendant referenced ties to the Mexican Mafia while threatening Emel; Emel did not mention this fact to the investigating officers after the incident. Emel, after attempting to clean himself, walked to a nearby clinic for medical assistance. Someone at the clinic called 911 and the paramedics and police arrived to care for and question Emel.
The responding police officer described Emel as “pretty much full of blood, multiple wounds throughout his face and upper torso, back, shoulders.” The officer authenticated a series of photographs depicting the extent of Emel’s injuries. In the course of his investigation, the officer observed Emel’s room at the motel, and noticed the smell of smoke and a mattress outside the unit that looked like it had been burnt. After tracking down defendant at his job, the officer searched defendant’s backpack, and found a bloodstained jacket as well as Emel’s driver’s license and social security card inside. After arresting and questioning defendant, the officer found the knife used in the attack in one of the motel rooms occupied by defendant and his mother. Defendant cooperated during the police interview and told the officer exactly where he could find the knife. The officer described the knife to the jury: “Basically, it’s one of the weapons you can put around your knuckles, like you can make a fist out of it. It has the actual knives you can put it back inside and still use this kind of like a punching tool. But they fold inside, both ends.”
The parties stipulated to the following testimony of the doctor who treated Emel at the hospital trauma unit: Emel suffered “multiple stab wounds to the left face, right neck, right shoulder, and left back. 20 to 25 stab wounds. [¶] Nine stab wounds to the right shoulder. [¶] The left pneumothorax, which means collapsed lung. [¶] Bilateral hand lacerations with tendon involvement in the left hand only. [¶] Corneal injury.... [¶] Blunt head trauma, cerebral concussion. That there were lacerations to both of... Emel’s hands, which were defensive wounds.” The stipulation also noted “[t]here’s no medical evidence to support Mr. Emel’s statements in court that his liver was punctured, that his eyeball came out, or that Mr. Emel’s retina was cut off or removed.”
DISCUSSION
In his appellate brief, defendant describes the case in the following terms: “There was no question that [defendant] attacked the victim with a knife. The only question was the degree of guilt. Was this a deliberate attempt at murder? Or, did the combustible mix of home-family-fire cause [defendant] to snap and attack in the heat of passion, making the crime not attempted murder but attempted manslaughter?” Defendant makes several arguments for either granting defendant a new trial or reducing defendant’s punishment for his actions, which we will address in turn.
Prosecutor’s Decision Not to Introduce Videotaped Interview
Defendant first argues the prosecutor prejudicially breached her ethical duties by opting not to introduce video evidence of the post-arrest police interview of defendant. In the video, defendant admits to attacking Emel and forthrightly answers questions about the crime and the location of the knife used in the attack. Defendant’s manner is calm and polite. When asked to explain his conduct, defendant repeatedly claimed he “snapped” and “just lost it.” Defendant said, “My mind went blank and I just snapped.”
At the sentencing hearing, defendant requested a reduction in sentence in part on the grounds that the jury was not able to review the videotape and therefore did not have the opportunity to weigh all of the evidence. Defendant acknowledged the Evidence Code allowed the prosecutor to use the video evidence against defendant as a party admission, but did not authorize defendant to use his own out-of-court statements for the truth of such statements. (See Evid. Code, § 1220.) As the court noted the prosecutor “put on the case without using the statement. That was a tactical decision on the [prosecutor’s] part. They didn’t want the jury to really watch that statement.” Defendant also acknowledged he turned down the opportunity to testify on his own behalf. Trial counsel argued his testimony would not have been as compelling as the video interview from the day of the attack. Having reviewed the video, the court rejected defendant’s argument for a sentence reduction, finding the jury specifically rejected the heat of passion defense put on by defendant.
“Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.” (Evid. Code, § 1220.)
Defendant’s argument on appeal is different from trial counsel’s sentencing argument. Defendant posits here for the first time that the prosecutor was obligated by her professional duties to use the videotaped evidence because it aided the defense theory of the case. “‘It is a prosecutor’s duty “to see that those accused of crime are afforded a fair trial.” [Citation.] “The role of the prosecution far transcends the objective of high scores of conviction; its function is rather to serve as a public instrument of inquiry and, pursuant to the tenets of the decisions, to expose the facts.”’” (People v. Daggett (1990) 225 Cal.App.3d 751, 759.) In essence, defendant asserts the prosecutor was required to use her ability to enter the videotape into evidence as a party admission because the admissions aided the defense view that the mens rea supporting an attempted murder charge (with premeditation and deliberation) was not present.
Even assuming this argument was not forfeited, defendant’s claim fails. Defendant’s right to a fair trial does not entitle him to have his cake and eat it too. He opted not to testify and subject himself to cross-examination. Had he testified and been cross-examined as to the sincerity of such testimony, he conceivably could have sought to introduce the video evidence of his interrogation as a prior consistent statement. (See Evid. Code, § 791.)
Defendant points to no authority for the proposition that the Evidence Code as applied to the facts of this case violated his right to a fair trial. (See People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [application of rules of evidence generally “‘does not impermissibly infringe on a defendant’s right to present a defense’”].) Indeed, it does not violate a defendant’s constitutional right for a court to exclude the defendant’s hearsay statements made in videotaped post-arrest interrogations, as trial courts are entitled to find such statements self-serving and not particularly reliable. (See People v. Williams (2006) 40 Cal.4th 287, 318-319; People v. Jurado (2006) 38 Cal.4th 72, 130; People v. Edwards (1991) 54 Cal.3d 787, 818-821.) We decline to hold the prosecutor’s ethical duties required her to introduce the video evidence.
Emel’s Testimony About “Mexican Mafia” Threat
Next, defendant contends Emel’s testimonial reference to the Mexican Mafia deprived defendant of a fair trial. Before trial, the prosecutor conceded she had no evidence defendant was a member of a gang; she agreed she would not mention gangs during the trial. As noted above, the investigating officer testified Emel did not say anything to him about the Mexican Mafia. Nonetheless, in response to the question, “Do you remember him threatening you at all?” Emel testified, “Well, yeah. He said - he took my driver’s license and my social security card, and he said that he was a member of the Mexican Mafia, and he would use that to track me and kill me if I said anything about him.”
Defendant claims prosecutorial misconduct “in eliciting gang-related testimony and/or in not warning her witness not to make any gang references.” “‘It is, of course, misconduct for a prosecutor to “intentionally elicit inadmissible testimony.”’” (People v. Smithey (1999) 20 Cal.4th 936, 960.) But there is no indication in the record that the prosecutor had any forewarning Emel would mention the Mexican Mafia in his testimony. The question certainly did not mention gangs in general or the Mexican Mafia in particular; indeed, there was no objection to the question by defendant’s counsel and no motion to strike the response. The prosecutor did not follow up on the reference to the Mexican Mafia. And defendant’s counsel ably pointed out during his cross-examinations of Emel and the police officer that there was no prior record of Emel making such a statement. Even assuming defendant did not forfeit this argument, we find no prosecutorial misconduct.
Substantial Evidence Supporting Conviction for Premeditated Attempted Murder
Defendant also claims there is insufficient evidence to support defendant’s conviction of attempted murder with deliberation and premeditation. We review the entire record in the light most favorable to the judgment, and decide whether there exists substantial evidence from which any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Chatman (2006) 38 Cal.4th 344, 389.) Where the evidence of guilt is primarily circumstantial, the standard of review is the same. (People v. Holt (1997) 15 Cal.4th 619, 668.)
“‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.] ‘... “The true test [of premeditation and deliberation] is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....”’” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) Courts consider evidence of prior planning or motive, as well as the manner of attack, to assess whether the evidence supports an inference of premeditation and deliberation. (Id. at p. 1081.)
Substantial evidence supports the jury’s verdict. The evidence supports a finding that defendant, familiar with Emel from their earlier interaction, approached Emel and forced him to the ground. Defendant then wounded Emel with a knife approximately 20 to 25 times in the face, neck, shoulder, and back. Defendant had a motive (his anger with Emel for Emel’s inexplicable actions). Defendant also took time to arm himself with the knife before seeking out and attacking Emel, supporting an inference of planning. (See Koontz, supra, 27 Cal.4th at p. 1082.) It is irrelevant for our purposes whether the jury believed defendant formed his intent immediately prior to the attack or earlier in the morning (after the first incident). The manner of attack - “hacking” with a knife on Emel’s upper body - is indicative of intent to kill, as are defendant’s repeated statements to Emel that “You are fucking dead.”
Defendant suggests Emel’s testimony may have improperly influenced the jury, in that he inaccurately testified his liver had been punctured and his eyeball came out. But the jury was clearly informed (through the expert testimony of a doctor) that the medical evidence did not support Emel’s testimony on the severity of his injuries. The record certainly suggests Emel was not an exceedingly trustworthy witness. The jury was aware of the fires in Emel’s room and Emel’s inexact testimony as to his injuries. Yet the jurors still chose to believe Emel’s basic account of the attack. Regardless of Emel’s shortcomings as a witness, the jury was not obligated to ignore all of his testimony. (People v. Maury (2003) 30 Cal.4th 342, 403.)
Degree of Attempted Murder Conviction
Defendant devotes a separate section of his brief to an argument that is not a separate ground for reversal. Defendant claims this court, rather than reversing his attempted murder with premeditation and deliberation conviction and remanding for a new trial, could reduce the conviction to simple attempted murder (without premeditation or deliberation) or attempted manslaughter. As we disagree with each of defendant’s three claims of error above, we need not entertain these proposed alternative remedies.
Court’s Refusal to Strike Jury’s Aggravating Factual Findings
Finally, defendant claims the court abused its discretion under section 1385 when it refused to strike the jury’s findings of premeditation and deliberation. As at his sentencing hearing, defendant points to the video evidence of his post-crime confession as supporting a departure from the jury’s verdict.
Section 1385, subdivision (a), provides in relevant part: “The judge... may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” Section 1385, subdivision (c)(1), provides: “If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).” A court’s ruling under section 1385 is reviewed for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.)
Here, the court did not abuse its discretion. The court indicated the jury had the opportunity to consider defendant’s heat of passion defense but rejected such defense. The court then noted there was “plenty of evidence of premeditation for the jury to consider. I can certainly understand how they came to their decision, based on the facts.” Ultimately, given the conduct of the defendant, the harm done to the victim, the jury’s findings, and the punishments prescribed by statute, the court opted not to exercise discretion under section 1385 to reduce defendant’s punishment. The court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J. O’LEARY, J.