Opinion
C076606
12-27-2017
THE PEOPLE, Plaintiff and Respondent, v. DONALD ORTEZ-LUCERO et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11F06729)
An attempted home invasion robbery of a drug dealer in 2007 resulted in the shooting deaths of a young father and his infant son. In 2014, a jury found defendants Donald Ortez-Lucero and Christopher Strong guilty of two counts of murder with three special circumstances (murder in the commission of a burglary, murder in the commission of attempted robbery, and multiple murders), first degree burglary, and attempted robbery with firearm enhancements. The trial court sentenced Ortez-Lucero, the shooter, to two indeterminate sentences of life without the possibility of parole plus 25 years to life, plus a determinate term of 26 years. The court sentenced Strong to two indeterminate sentences of life without the possibility of parole, plus a determinate term of 36 years.
On appeal, defendants contend their felony-murder convictions are not supported by the law because the killings did not occur during the commission of the felony, and the trial court erred in failing to instruct sua sponte on this point of law. They further contend it was error to exclude evidence supporting the third party culpability defense and to refuse a pinpoint instruction on this defense. Ortez-Lucero raises other claims of evidentiary and instructional error, and argues cumulative error. Strong claims he received ineffective assistance of counsel and contends the evidence did not support any of the counts of conviction.
We find no merit in defendants' contentions and affirm.
FACTS
The Crimes
Frederick Gill was a drug dealer who lived in south Sacramento. On September 14, 2007, the day of the killings, Anthony Palmer was staying with Gill. Around noon, Phi Bui came over to exchange narcotic mushrooms and money for cocaine. While Gill and Bui were discussing business, Gill's friend, Sean Aquitania, called and said he was coming over so Gill could see his baby.
Ortez-Lucero and Strong were in the vicinity and intended to rob Gill that day, having heard that he had kilos of cocaine. They saw Aquitania in his car outside Gill's house. Ortez-Lucero approached and hit Aquitania in the head with a gun through the open car door in order to get him out of the car to assist in gaining access to Gill's house. The gun discharged and a bullet hit the baby in the head as he sat in the back seat.
Defendants approached the house with Aquitania. As Gill went to open the front door, an arm came through and hit Gill with a gun. Strong, wearing a mask, entered and threw Gill and Palmer to the ground and tied them up with zip ties. He demanded money. Ortez-Lucero held Aquitania at the door at gun point. Bui was in the back of the house. He saw the two robbers and left the house through a window.
Aquitania said he needed to go to his son outside. Defendants let him go, telling him they would deal with him later. Moments later, Aquitania returned and kicked the door off its hinges. He was angry about what had happened to his son and began punching Ortez-Lucero. Strong got off Gill and went to Ortez-Lucero's aid; Palmer got up and ran outside. Gill followed and ran to a neighbor's where the zip ties were removed. When Aquitania went after Strong's gun, Strong told Ortez-Lucero to shoot Aquitania. Ortez-Lucero fired twice, hitting Aquitania both times. One bullet went through Aquitania and hit Strong in the leg. Defendants fled.
Gill returned to the house and found Aquitania "all blue." Before he called the police, he told Palmer to take away the gun and drugs and gave him car keys. Gill then went to Aquitania's car and found the baby shot in the head. He picked up the baby and ran, flagging down an empty school bus for help. He gave the baby to the bus driver and returned home, where he tried to call 911 and then waited for the police.
Evidence Identifying Defendants
Neither Gill nor Palmer was able to identify the robbers, described as an African-American man and a Hispanic man. Gill described the African-American as over six feet tall and medium stocky, wearing a black hoodie and a bandana over his face. He had a chrome revolver. The Hispanic man was lighter than Gill (who was also Hispanic), and a few inches taller than Aquitania, who was five foot nine inches tall. The Hispanic man wore a white and green Oakland A's hat and a white shirt. Palmer described the African-American as over six feet tall and stocky. He wore a mask and a red hoodie and had a big chrome revolver. The Hispanic man wore a green, gold, and white Oakland A's hat and a pullover A's jersey.
Breaks in the case came from women in current and former relationships with Richard Noguera, who had been living with defendants at the time of the shootings at Ortez-Lucero's house in West Sacramento near Interstate 80. These women told the police what they had learned from Noguera about the shootings. Under a grant of use immunity, Noguera testified at trial that defendants had told him they had shot the victims, describing the events. Noguera was the only witness who directly tied defendants to the shootings; however, he was possibly an accomplice and had significant credibility problems. As we describe, at one time Noguera had even claimed that he himself shot the victims. The People's case consisted of multiple witnesses, including many girlfriends or former girlfriends of Noguera or defendants, many with definite biases, who corroborated parts of Noguera's story. The prosecution also provided cell phone records to establish the whereabouts of defendants and Noguera at the time of the shootings. A key piece of evidence was uncontested expert testimony that DNA under Aquitania's fingernails matched Ortez-Lucero's profile.
Forensics
Both Aquitania and his son died from gunshot wounds. The baby had been shot in the head. Aquitania suffered two through-and-through gunshot wounds, as well as multiple blunt force injuries. All of the bullets were fired by the same gun, a Glock. Three cartridges were recovered, but only two bullets despite an extensive search. The failure to find the third bullet eventually led to the conclusion that one of the intruders had been shot.
Noguera's Testimony
After Noguera asserted his Fifth Amendment privilege, he was granted use immunity to testify. Noguera was five foot five inches tall; he owned a Glock handgun. At the time of the shootings, Noguera had a rental car, provided by his insurance company after he reported his motorcycle stolen. Defendants had been driving the rental car, and drove it on the day of the murders. Noguera had lived down the street from Ortez-Lucero with his girlfriend; after he and she broke up, Noguera moved in with Ortez-Lucero and Strong. He was living with them at the time of the murders.
Noguera testified Ortez-Lucero had a green and yellow Oakland A's cap. Ortez-Lucero had multiple handguns, including a black Glock. Strong had a long-barreled chrome revolver.
On September 14, 2007, the day of the shootings, Noguera was upstairs with girlfriend Janey Hughes when he heard pounding on the door. Ortez-Lucero was holding Strong, who was limping and had blood on his pants. Ortez-Lucero had a scratch on his cheek. He was wearing an Oakland A's hat and shirt; Strong had on a black hooded sweatshirt. Later Noguera noticed Aquitania's identification on the counter next to Ortez-Lucero's wallet.
Noguera took Hughes home and, at Ortez-Lucero's direction, drove Strong to an apartment in the Bay Area. There, Ortez-Lucero asked Noguera to take apart a black handgun. Later, the three drove back to Sacramento. While they were watching a television news story about the shootings of Aquitania and his son, defendants told Noguera they had shot the victims and described what had happened. The next day, Noguera cleaned up the blood in the rental car and returned it three days later. Two days later, Jermaine Hollie came over with a woman who took the bullet out of Strong's leg.
In 2009, Noguera was involved in a domestic violence incident with Kameka Grant during which he hit her with a Glock in his hand. Noguera was drunk and enraged; he told her that he had committed the Aquitania murders to terrorize her. The police subsequently arrested Noguera on this case and charged him with murder. Noguera told the police many lies about this case, claiming he was scared to relate the whole story. He admitted certain things, such as the trip to the Bay Area and how the bullet was removed from Strong, only after his lawyer explained immunity to him. Noguera admitted he had lied about many other things unrelated to the murders. Eventually, the charges against him were dismissed.
Neighbor Sarah Roberts
A few days after the shootings, Detective Brian Meux interviewed Sarah Roberts. Roberts lived across the street from Noguera and defendants. Noguera had called her several times the day of the shooting. That afternoon Noguera called and said something bad had happened; he was driving to the Bay Area and needed to get rid of some Ecstasy pills. In another call, Noguera told Roberts that Strong had been shot. Roberts told Noguera to take Strong to the hospital, but Noguera said he could not. That evening, Noguera came over. When a news story about the shootings came on, Noguera acted weird and left. After the shootings, Noguera stopped coming by as often and was anxious. When Roberts saw the composite sketch of the Hispanic suspect, she thought it was Noguera. Roberts never saw Strong injured; Noguera later told her Strong got hurt playing basketball.
The Girlfriends
A variety of girlfriends, past and present, of Ortez-Lucero, Strong, and Noguera testified. Some of their testimony addressed whether Strong had been shot, as detailed post. Other testimony established the close relationship between Ortez-Lucero and Strong; the two considered themselves brothers.
Alma Mejia lived near Modesto and dated Strong during the summer of 2007. Strong had a big, silver "cowboy" gun. Defendants once asked her if she knew any place to rob in Modesto. She thought they were joking. After she had a son with Strong, they drifted apart; later, they had a custody battle over the son. In August of 2009, Mejia agreed to meet Strong at a BART station to give him the baby for the weekend. Strong was accompanied by his then-girlfriend Elizabeth Ramirez. Mejia was upset to see Ramirez, took the baby back, and an altercation ensued. An off-duty BART police officer stepped in and used a Taser twice on Strong. At the time, Strong limped and complained of pain in his right knee.
With Detective Meux listening, Mejia made a pretext call to Strong in October 2011. In the call, Mejia asked Strong why the police were at her house and asked about his leg. Strong said he did not know what it was about and the scar on his leg was from surgery. When Mejia asked about his gun, Strong first said "what gun?" and then referred to his antique gun. Strong denied any involvement in whatever the police were investigating.
Azaria Ting also dated Strong that summer. She had seen him with a gun more than once. She was friends with a woman who dated Gill; she and Strong had picked the woman up at Gill's house.
Catherine Ignacio was the girlfriend of Ortez-Lucero from 2003 until May 2007, and again since August 2011. She had seen Ortez-Lucero with a gun more than five times. The gun was L-shaped and not a "cowboy" gun; it might have been black. In 2010, Ortez-Lucero told her that detectives had been to his grandmother's house asking about Noguera and Strong. He said if they came back, he might be gone.
Kameka Grant was Noguera's girlfriend from October 2007 through the end of 2009. When she first began dating him, he always watched the news. She was living with Noguera on December 21, 2009, when he insinuated she was cheating on him. She replied that she was done with him. Noguera hit her in the head with a gun in his hand and threatened to kill her. He told her he had committed the murders of Aquitania and his son; he said he had nightmares about the baby screaming. He said he had had to kill the father because he had already killed the baby. They were not supposed to be there. Noguera described tying the other people up and Strong getting hurt. He also described the altercation with the father, hitting him in the head with the gun, and the gun going off and killing the baby in the car seat. Noguera said Strong and Ortez-Lopez were involved and Strong got shot in the leg. Noguera claimed he had killed 27 people; he killed for greed and money.
When Noguera passed out, Grant called the police. The responding officer found Noguera on the bed with a Glock handgun. He took Noguera into custody. Grant told the officer Noguera's story about the shooting of the baby. The officer passed the information along to the Sheriff's office.
Evidence that Strong was Shot
The major evidence that Strong was involved in the crimes, supporting Noguera's testimony, was evidence that he had been shot in the leg. This evidence came from those who saw Strong around that time as well as medical professionals who reviewed subsequent medical records, and it was contradicted by evidence from both sources presented by the defense.
The various girlfriends testified Strong had a leg injury around the time of the shooting. Janey Hughes dated Noguera from August to December 2007. She backed up Noguera's testimony that she was with him when defendants returned home after the shooting and upon his return home, Strong was limping and had blood on his pants. Before she left, she saw two women come in with a first aid kit. At a Halloween party that year, Strong was on crutches and said he had been shot.
Mejia testified Strong missed her birthday party on September 15; he said he had hurt his knee. When she saw him a few days later, he was limping. His knee had a hole in it the size of a nickel; the wound was recent, still showed blood, and looked like a bullet wound. Strong laughed and said it was from knee surgery. She saw Strong again the last week of September; at that time he was unable to go up and down stairs
Ting testified Strong had once told her he had gotten shot at a party while fooling around with a gun. Grant testified when she first met Strong in October 2007, he was limping. Strong and Noguera laughed about it. Noguera said he had to superglue the wound back together. She remembered Strong limping after Noguera told her Strong was shot in the leg during the shootings.
Hollie's wife Lashaun Burch was a nurse and testified that Hollie asked her to help a friend. He took her to a house near the freeway where she cleaned a man's injured leg and put gauze on it. She told the man he needed to see a doctor. The leg had a hole in it, the size of a nickel to a quarter. The injured man was black and there was a Hispanic man in the room, but she could not identify either. Burch did not see or remove a bullet.
Strong's girlfriend Ramirez testified she saw him a few days after the shootings and Strong was not injured. Strong's sister was a nurse and testified she had never assisted a sibling with a bullet wound. She claimed Strong was not limping on September 15 at their nephew's birthday party.
Strong had played both football and basketball and had had two surgeries on his knees, the right knee in 2005 and the left knee in January 2007. He had seen a nurse practitioner in January 2008, complaining of knee pain and asked to have his left knee checked by Dr. Akizuki who had performed his past surgeries. Strong had no swelling and was able to move his knee. He was given a referral to Dr. Akizuki, but did not see him. Strong was in a car accident in 2008 and x-rays were taken.
Strong called an expert forensic pathologist who had reviewed a June 21, 2008 x-ray of Strong's knees and found no indication he had been shot. He found no scars to match a nickel-sized wound and believed the white lines shown on the x-ray were most likely arthritis.
In rebuttal, an orthopedic surgeon reviewed Strong's x-rays and a color photograph of the left knee. In the surgeon's opinion, both the x-rays and the photograph showed an irregularity on the left knee that had been caused by a penetrating injury, such as falling on rebar or from shrapnel, a knife, or a bullet. He found no evidence of arthritis.
A defense radiologist also reviewed the x-rays. He found some irregularities on the left knee, which could have been caused by athletic injuries. He opined that if the bullet had hit the bone, he would expect to see small bone fragments.
DNA Evidence
During the autopsy, fingernail scrapings were taken from Aquitania. A DNA profile from these fingernail scrapings matched Ortez-Lucero's profile. The profile was found in one in 10 quadrillion of the Hispanic population. The defense DNA expert did not dispute the profile or statistics. Instead, the expert opined the DNA under Aquitania's fingernails could have been from a secondary transfer from Noguera who was sharing a house with Ortez-Lucero. On cross-examination, the People presented peer reviewed articles to show a transfer of DNA to under the fingernails was unlikely.
The People's expert also opined that defendants could be minor contributors to the DNA found on the zip ties. Noguera was included as a potential contributor at some loci, but excluded at one. The partial profile was fairly common, slightly over one percent of the population. This aspect of the DNA evidence was disputed by the defense.
Cell Phone Records
Cell phone records from September 2007 for number 650-271-3455, the phone associated with Noguera, were admitted into evidence. Based on the location of cell towers handling the calls, Noguera's phone was in West Sacramento--the city where he and defendants lived, but not where the murder took place--until after 2:30 p.m. the day of the shootings. The phone did not leave the greater Sacramento area until after 4:00 p.m., traveling to San Mateo and arriving at 6:00 p.m., and returning to West Sacramento at 9:28 p.m. Mejia had given the police a list of phone numbers; the number for "Don" (Ortez-Lucero) was 415-756-7656. This phone called Noguera's phone many times on September 14 and left Sacramento at 1:56 p.m., shortly after the shootings. The phone traveled through Stockton, Lodi, Tracy, and San Leandro, to Foster City/San Mateo. It returned to Sacramento that night after 10:00 p.m.
Additional Defense Evidence
Sloan Kozsan was a jail nurse who had treated Thai Dang in December 2007. Dang told her he needed to speak to a detective about a shooting of a man and his son. Dang said he was present for the shootings and his gun was used, but he did not do the shooting. The parties stipulated that a detective would testify he viewed a MySpace account entitled "Famous Life Thai," that showed Dang with firearms, pictures of Glocks, and a book entitled "Living with Glocks."
Frank Dearwester was serving a 32-year sentence for child molestation and solicitation to commit murder. When he was in the Sacramento County jail, he was housed near Noguera. Noguera told Dearwester he was getting out soon because had an alibi. Noguera said he had left his phone with his wife and had her call his "baby mama" while he was away. Noguera stated no jury would believe his wife had called his baby mama for 10 minutes. He had also left his SUV in his wife's garage as part of his alibi. Noguera told Dearwester there were five to seven Norteño involved in the home invasion. According to Dearwester, Noguera always denied killing the baby.
Noguera had asked Roberts to park his Cadillac Escalade in her garage because it was about to be repossessed.
Dearwester told law enforcement that Strong had tried to get him to say negative things about Noguera. Dearwester admitted he had contacted law enforcement in hopes of cutting a deal. Dearwester claimed Strong called him a snitch and threatened him.
Strong testified in his defense; he was six foot five inches tall and had weighed 285 to 290 pounds when arrested. He denied he had ever been to Gill's house, claiming (in response to Ting's testimony that Strong had been to Gill's) that he had picked up Ting's friend around the corner. He denied he was at Gill's the day of the killings and that he had ever been shot. He admitted he had owned an antique gun, referred to in the pretext call, but claimed he had sold it to an antique store. He denied he ever solicited Dearwester to say bad things about Noguera.
DISCUSSION
I
Felony Murder Convictions
This case was prosecuted as two first degree murders under the felony-murder rule, killings during the commission of a burglary and attempted robbery. Defendants contend the shootings were not felony murders because there was a lack of a causal and temporal relationship between the shootings and the burglary and attempted robbery. They phrase this contention as both a legal and factual insufficiency of the evidence claim. Defendants assert the shootings were unrelated to the burglary and attempted robbery. In their view, the shooting of the baby was an accident that occurred before any entry into Gill's house and thus before the commencement of either burglary or attempted robbery. The shooting of Aquitania, they contend, was an act of self-defense when Aquitania attacked defendants in revenge for the shooting of his son.
A. The Felony-Murder Rule
"Under the felony-murder rule of section 189 of the Penal Code, a killing committed in the perpetration of, or attempt to perpetrate, [robbery or burglary] is murder of the first degree. This is true whether the killing is willful, deliberate, and premeditated or merely accidental and whether or not the killing is planned as a part of the commission of the robbery." (People v. Lookadoo (1967) 66 Cal.2d 307, 314.) "The person killed need not be the object of the felony." (People v. Welch (1972) 8 Cal.3d 106, 118-119.)
"The purpose of the felony-murder rule is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony." (People v. Cavitt (2004) 33 Cal.4th 187, 197 (Cavitt).)
" 'Under the felony-murder rule, a strict causal or temporal relationship between the felony and the murder is not required; what is required is proof beyond a reasonable doubt that the felony and murder were part of one continuous transaction.' " (People v. Wilkins (2013) 56 Cal.4th 333, 340 (Wilkins).)
In Cavitt, supra, 33 Cal.4th at page 196, our Supreme Court described the causal relationship required where defendant was an accomplice: "[T]he felony-murder rule does not apply to nonkillers where the act resulting in death is completely unrelated to the underlying felony other than occurring at the same time and place. Under California law, there must be a logical nexus—i.e., more than mere coincidence of time and place—between the felony and the act resulting in death before the felony-murder rule may be applied to a nonkiller. Evidence that the killing facilitated or aided the underlying felony is relevant but is not essential." (Italics added.)
These causal and temporal relationships are summarized in Wilkins, supra, 56 Cal.4th at pages 346-347: "Our opinion in Cavitt made clear, however, that 'the felony-murder rule requires both a causal relationship and a temporal relationship between the underlying felony and the act resulting in death.' [Citation.] The causal relationship is established by a 'logical nexus' between the felony and the homicidal act, and '[t]he temporal relationship is established by proof the felony and the homicidal act were part of one continuous transaction.' [Citation.]"
B. Analysis
Defendants' argument is premised on their view that two unrelated series of events occurred at Gill's house. One was the burglary and attempted robbery; the other was the two shootings. We reject this premise, as the events were all related. There was both a causal and temporal relationship between the burglary and attempted robbery and the killing of both Aquitanias. There was a logical nexus between the underlying felonies and the two homicides and all acts occurred as part of one continuous transaction.
Baby Aquitania was accidentally shot when Ortez-Lucero pistol-whipped Aquitania to force Aquitania to come with him in order to facilitate admittance to Gill's residence. Ortez-Lucero told Noguera he "smacked" Aquitania in the head with the gun to get him out of his car to get access to Gill's house. Thus, the act that caused the baby's death (pistol-whipping resulting in accidental discharge of the gun) actually facilitated the underlying felonies of burglary and attempted robbery. Defendants argue there was no burglary until they made some effort to enter the house. But they gained entry by beating Aquitania so that he would accompany them to Gill's house and facilitate their entry (as Gill knew Aquitania and would let him inside).
The shooting of Aquitania occurred inside the house during the crimes' commission. After discovering that his son had been shot, Aquitania returned to the house and attacked first Ortez-Lucero and then Strong. Ortez-Lucero shot Aquitania so that defendants could escape from the crime scene. Defendants contend Aquitania's return to attack them and accompanying motive of revenge broke the continuous transaction and establishes that there was no logical nexus between the burglary or attempted robbery and the killing. We disagree.
Cavitt, supra, 33 Cal.4th 187 is instructive on this point in particular. There, three teenagers, Mianta and two boys, plotted to burglarize Mianta's home and steal whatever they could find. After Mianta let the other two in, they beat and tied up Mianta's step-mother, Betty, and ransacked the house. Then the two boys pretended to tie up Mianta so she would look like a victim. At some point, either during the robbery or shortly thereafter, Betty died. (Id. at pp. 194-195.) The boys were tried separately for felony murder; they argued Betty was alive when they left and Mianta must have killed her for the unrelated reason that Mianta hated Betty. (Id. at p. 195.) Our high court found a logical nexus between the burglary-robbery and the killing, even under the defense theory. "Betty, the murder victim, was the intended target of the burglary-robbery. As part of those felonies, Betty was covered in a sheet, beaten, hog-tied with rope and tape, and left facedown on the bed. Her breathing was labored at the time defendants left. These acts either asphyxiated Betty in themselves or left her unable to resist Mianta's murderous impulses. Thus, on this record, one could not say that the homicide was completely unrelated, other than the mere coincidence of time and place, to the burglary-robbery." (Id. at p. 204.)
Here, there the logical nexus was even more evident than that in Cavitt. Aquitania's assault on defendants was not even arguably due to an unrelated animus. Rather, as explained ante, the shooting of his baby (giving rise to his distress and the subsequent attack) was directly connected to the burglary and attempted robbery. Therefore, Aquitania's response to that shooting was also connected to the underlying felonies. Further, Aquitania was shot to permit defendants to escape from the house, another reason related to the felonies.
Defendants contend Aquitania's involvement (as a victim) in the attempted robbery ended once they allowed him to leave the house and tend to his child. At this point, defendants claim, they had retreated as aggressors as to Aquitania. They further contend that when Aquitania returned and attacked them, they had a right to use self-defense and respond with deadly force. This argument is also premised on the assertion that the event (or "happening," as characterized by Strong in his briefing) encompassing the two shootings was distinct and separate from the event encompassing the burglary and attempted robbery. As we have explained, there were not two separate events, but rather one continuous transaction where all acts had a logical nexus to the burglary and attempted shooting. This conclusion defeats any claim of self-defense. "When a burglar kills in the commission of a burglary, he cannot claim self-defense, for this would be fundamentally inconsistent with the very purpose of the felony-murder rule." (People v. Loustaunau (1986) 181 Cal.App.3d 163, 170.)
II
Failure to Give Sua Sponte Clarifying Instruction
on Relationship between Felony and Murder
The trial court gave pattern instructions CALCRIM Nos. 540A and 540B on felony murder. Both instructions required the jury to find defendant or a coparticipant caused the death of another person "while committing burglary and/or attempted robbery." This instruction describes both the temporal connection (during the felonies) and logical nexus (while committing the felonies) required. (See Cavitt, supra, 33 Cal.4th at p. 203.) "If the court has properly instructed on the required relationship between the felony and the murder, which relationship is an element of the crime, the trial court has no sua sponte duty to clarify or amplify the scope of that element if the evidence does not raise an issue as to whether that relationship exists." (Wilkins, supra, 56 Cal.4th at p. 347.)
Relying on their faulty premise that the shootings were completely independent of the burglary and attempted robbery, defendants contend the evidence here does raise an issue as to whether the proper relationship between murder and the other crimes existed, so the court was required to give a clarifying instruction sua sponte. Defendants do not propose a clarifying instruction or explain specifically what they think the judge should have told the jury, although they reference former CALCRIM No. 549.
At the time of Wilkins, see discussion post, there was pattern instruction defining one continuous transaction for purposes of felony murder, CALCRIM No. 549. In 2013, the Judicial Council's Advisory Committee on Criminal Jury Instructions recommended deleting the instruction based on the problem it caused in Wilkins and the acknowledgement in Cavitt that it is necessary only in unusual circumstances. The Judicial Council deleted the instruction in August 2013.
In Cavitt, supra, 33 Cal.4th at p. 204, fn. 5, the court noted "cases that raise a genuine issue as to the existence of a logical nexus between the felony and the homicide 'are few indeed.' " Indeed, other than in a case where defendant shoots and kills his life-long enemy who he coincidentally sees outside through the window of the house during the burglary-robbery, it is unlikely "that a genuine dispute could arise when the victim was killed during the escape from the felony or was killed negligently or accidentally during the perpetration of the felony." (Ibid.)
Defendants rely on Wilkins, supra, 56 Cal.4th 333, in which defendant stole several large appliances during a burglary of a residence; while he was transporting them, a large stove fell off his truck onto the freeway. Later, a driver swerved to avoid hitting the stove, struck a big rig, and died as a result. (Id. at p. 339.) Our Supreme Court held a clarifying instruction on the escape rule was necessary because defendant was 62 miles from the burglary when the stove fell off and the jury could have concluded that he had reached a place of temporary safety before then. (Id. at pp. 347-348.) The error was compounded because the court gave an instruction on the continuous transaction element of felony murder that was incomplete and misleading in the absence of an instruction on escape, which was former CALCRIM No. 549. (Id. at pp. 349-350.) Here, the escape rule does not come into play. Wilkins does not assist defendants.
As we have explained at length ante, this is not one of the unusual cases, such as the killing of an enemy completely unrelated to the underlying felony, where further instruction on the relationship of the killing and felony was necessary.
III
Exclusion of Evidence of Third Party Culpability
Both defendants relied on the defense that someone else committed the crimes. In closing argument, Ortez-Lucero named Noguera as the killer. Strong argued the killer was an Oak Park Blood, and was noncommittal as to whether it was Noguera. On appeal, both defendants contend the trial court erred in hampering their ability to show someone else committed the crimes by excluding evidence of Aquitania's background. Presumably, although never completely developed, the theory was that because Aquitania had been involved in a gang and committed violent crimes, he was more likely to be the victim of a targeted killing (by someone other than defendants) than if his background were pristine.
A. Background
Before trial the People moved to exclude any third party culpability evidence, except as to Noguera, unless the defense made a proper pre-trial showing. The People wanted the defense to specify what evidence they intended to elicit about Aquitania's background.
In response, Ortez-Lucero sought to admit evidence elicited at the preliminary hearing that Aquitania was a Norteño gang member, he had committed a home invasion robbery weeks before his death, and in that robbery he used a firearm (borrowed from Gill) to pistol-whip the victim and stole drugs and cash. The defense theory for admitting this evidence was that the motive for the murders was retaliation for Aquitania's criminal activity. This theory was bolstered by Gill's statements to police at the scene that Aquitania gangbanged, Gill thought the attackers were after Aquitania, and that one intruder said "This is Oak Park Blood."
The testimony about the statement varied. At trial Gill admitted he had told the detective the African American intruder said "Oak Park Bloods," but denied he had actually heard it. Palmer did not hear that intruder reference Bloods.
Ortez-Lucero told the court he was also investigating the role of Thai Dang who had sold cocaine to Gill the night before. Dang had told a nurse his gun was used in the killings. It was agreed that this angle was too undeveloped at that time and should be revisited later.
The People stated they would present evidence that Gill's residence was a drug house, but Aquitania's background was a separate issue. They argued such background evidence was character evidence, inadmissible under Evidence Code section 1101, subdivision (a). The court granted the People's motion to exclude the background evidence, noting there was no evidence that Aquitania went to Gill's house that day for any nefarious purpose and the introduction of the background evidence would give rise to speculation.
In arguing for a pinpoint instruction on third party culpability after the evidence was complete, Ortez-Lucero brought up the evidence of Dang's statement that his gun was used in the killings, Dang's MySpace page displaying weapons and his possession of a book entitled "Living with Glocks." Further, Dang had been at Gill's the night before the shootings conducting a drug deal. All of this evidence was before the jury. The trial court did not want to entertain a motion to re-open the evidence on third party culpability and said that the evidence concerning Dang was insufficient to warrant an instruction thereon.
B. Analysis
"To be admissible, the third-party evidence need not show 'substantial proof of a probability' that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability. As this court observed in [People v. Mendez (1924) 193 Cal. 39], evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (People v. Hall (1986) 41 Cal.3d 826, 833.) "In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352." (People v. Bradford (1997) 15 Cal.4th 1229, 1325.)
The trial court did not abuse its discretion in excluding evidence of Aquitania's unsavory past. Evidence that Aquitania was a gang member and had recently committed a violent robbery, using a gun and stealing drugs and money, was insufficient to link someone other than defendants to the crimes. At most, it suggests a possible motive by another unknown person, which is not enough to merit an instruction. The instant case is similar to People v. Edelbacher (1989) 47 Cal.3d 983, where the defense offered evidence that the murder victim had asked about buyers for marijuana and her mother had been unhappy that she spent time with " 'Hell's Angel-type people.' " This evidence was offered " 'to show by circumstantial evidence the possible motive of third parties to commit the crime and circumstantial evidence as to possible identity of third parties to commit the crime.' " (Id. at p. 1017.) Our Supreme Court held the evidence was properly excluded. "[D]efendant's proposed evidence did not identify a possible suspect other than defendant or link any third person to the commission of the crime. The evidence did not even establish an actual motive but only a possible or potential motive for [the victim's] murder." (Id. at p. 1018.) The same is true here.
Nor did the exclusion of this evidence constitute a refusal to allow defendants to present a third party culpability defense. There was considerable evidence linking Noguera to the crimes. The prosecutor told the jury to assume that Noguera was an accomplice and focused his argument on the corroborating evidence. The prosecutor conceded there was evidence suggesting that Noguera "is in this up to his eyebrows," but argued he was not the murderer because he was not at the scene.
Strong argues the trial court erred in not allowing defendants to develop a defense theory of third party culpability as to Dang. The exact nature of the alleged error is not clear. Strong does not argue that the trial court's assessment of the Dang evidence as insufficient for third party culpability was in error. Nor does he identify what additional evidence the defense proposed to offer on Dang. Strong has failed to show error.
IV
Denial of Third Party Culpability Instruction
Defendants contend the trial court erred in denying the request to instruct the jury on third party culpability because that was the crux of the defense. Recognizing that one reason the court declined the instruction was that it was proposed after the trial court's deadline for instruction submissions had passed, Ortez-Lopez contends that if counsel was untimely in proposing the instruction, he was denied effective assistance of counsel.
A. Background
The day after the trial court instructed the jury, Ortez-Lucero requested a pinpoint instruction on third party culpability. Counsel claimed he had intended to include it with the package of instructions and had told the court he had an additional one. The court disagreed with that history, recalling that when counsel asked if he could think about the instructions overnight, the court said no, they were final. The People objected to the instruction because it was untimely and thus would highlight the defense theory. The People argued the instruction was unnecessary as the reasonable doubt instructions were sufficient. The trial court denied the motion to add the third party culpability instruction.
The proposed instruction read: "If you find that there is direct or circumstantial evidence that links another perpetrator or perpetrators to the charged crime, you may consider that evidence in determining whether the People have proved the defendant's guilt beyond a reasonable doubt."
Ortez-Lucero raised the failure to give the third party culpability instruction in his motion for a new trial. The trial court denied the motion.
B. Analysis
Because Ortez-Lucero claims trial counsel was ineffective if the request for the instruction was untimely, we do not address the timeliness issue; instead, we focus on any prejudice that might have resulted from counsel's failure to request the instruction. In other words, we analyze whether the instruction's absence was prejudicial to defendants. This is the same analysis as we would apply to the question of whether the trial court prejudicially erred in refusing to give the instruction. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland v. Washington (1984) 466 U.S. 668, 697 [80 L.Ed.2d 674, 699].)
" '[I]n appropriate circumstances' a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case by, among other things, relating the reasonable doubt standard of proof to particular elements of the crime charged. [Citations.] But a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation]. An instruction that does no more than affirm that the prosecution must prove a particular element of a charged offense beyond a reasonable doubt merely duplicates the standard instructions defining the charged offense and explaining the prosecution's burden to prove guilt beyond a reasonable doubt. Accordingly, a trial court is required to give a requested instruction relating the reasonable doubt standard of proof to a particular element of the crime charged only when the point of the instruction would not be readily apparent to the jury from the remaining instructions." (People v. Bolden (2002) 29 Cal.4th 515, 558-559.)
Evidence of third party culpability simply supports a theory that defendant did not commit the criminal act charged--that is, the prosecution did not prove its case beyond a reasonable doubt. When our Supreme Court encountered the failure to give a requested pinpoint instruction on third party culpability, it concluded any error from not giving the pinpoint instruction was harmless because the trial court had adequately instructed the jury on reasonable doubt, and the jury understood from defense counsel's argument defendant's theory that someone else committed the crime. (People v. Earp (1999) 20 Cal.4th 826, 886-887.) In People v. Hartsch (2010) 49 Cal.4th 472, our Supreme Court noted third party culpability "instructions add little to the standard instruction on reasonable doubt," and further "that even if such instructions properly pinpoint the theory of third party liability, their omission is not prejudicial because the reasonable doubt instructions give defendants ample opportunity to impress upon the jury that evidence of another party's liability must be considered in weighing whether the prosecution has met its burden of proof." (Id. at p. 504.) "It is hardly a difficult concept for the jury to grasp that acquittal is required if there is a reasonable doubt as to whether someone else committed the charged crimes." (Ibid.; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 907-908; People v. Mackey (2015) 233 Cal.App.4th 32, 111.)
Strong contends this line of cases is distinguishable because here the jury knew that although Noguera had been arrested for these crimes, all charges against him had been dismissed. Strong argues there was no reasonable probability that the jury would have found Noguera culpable for the crimes because the State had vindicated him and removed him as possible culprit. This argument fails to persuade. In every case where defendant asserts third party culpability, the jury knows the State does not believe the third party was the sole culprit, because the State is prosecuting defendant, not the third party. Moreover, here there was no vindication of Noguera because the People did not claim Noguera was without any responsibility for the crimes. Instead, the People admitted Noguera's possible culpability in closing argument. Finally, the jury was told that Noguera was granted use immunity to testify, which clearly indicated his possible culpability in at least some aspects of the charged crimes.
V
Failure to Object to Evidence that Noguera's Charges Were Dismissed
Continuing the previous argument, Strong contends his trial counsel was ineffective in failing to object to the evidence that the charges against Noguera had been dismissed. He contends the evidence was irrelevant; while evidence that charges were filed may have been relevant to Noguera's credibility, that taint was removed by the evidence the charges were dismissed. Strong further contends the evidence was prejudicial because it told the jury that Noguera was not a viable suspect and thus undercut Strong's third party culpability defense.
First, the decision to allow certain evidence to be admitted without objection is in most instances a tactical decision. In reviewing trial counsel's performance in examining a claim of ineffective assistance of counsel, we defer to counsel's reasonable tactical decisions and presume counsel's conduct " ' "falls within the wide range of reasonable professional assistance." ' " (People v. Weaver (2001) 26 Cal.4th 876, 925.) "[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance." (People v. Hillhouse (2002) 27 Cal.4th 469, 502.) Here, the decision could easily be a tactical one, within objective standards of reasonableness under prevailing professional norms. Arguably, had trial counsel successfully argued to the trial court that evidence of the dismissal should be precluded, the very same counsel would have been open to ineffective assistance criticism for that decision.
Second, Noguera's credibility was an issue at trial and the contested evidence was relevant to his credibility. Evidence relating to a witness's credibility is relevant testimony. (Evid. Code, § 210.) Noguera testified Ortez-Lucero and Strong told him they committed the crimes and he provided certain details about the crimes, but there was significant evidence he was involved and that he lied many times about various things. Evidence of his possible criminal liability for the crimes was relevant to assess his credibility; for example, to show or refute that he had a motive to shade his testimony in favor of himself or the prosecution. The fact that he was charged is clearly evidence of possible liability, as was the grant of immunity, regardless of the fact that the charges were later dismissed. And once evidence that he was charged was admitted, the charges' outcome was properly admitted to explain why he was not a co-defendant in the trial.
Finally, Strong has failed to show the probative value of the evidence that the charges were dismissed was substantially outweighed by the probability of undue prejudice such that the trial court would have sustained an objection. (See Evid. Code, § 352.) Accordingly, the evidence of dismissal was properly admitted. "Representation does not become deficient for failing to make meritless objections." (People v. Ochoa (1998) 19 Cal.4th 353, 463.) Any prejudice to the defense from evidence that the charges had been dismissed was tempered by evidence that Noguera testified under a grant of use immunity. The need for immunity suggested Noguera was possibly culpable for the crimes, despite the dismissal of charges. This point was reinforced by the prosecutor's argument that Noguera could be considered an accomplice and the evidence, particularly the phone records, showed that he was involved. The dismissal was of minimal import, and the fact that the jury heard about it, under all the circumstances of this case, had no prejudicial impact.
VI
Hollie's Refusal to Testify
Ortez-Lucero contends the trial court erred in telling the jury that Jermaine Hollie refused to testify. He argues he was prejudiced because the jury would consider Hollie's refusals as evidence of his guilt. Although the court also told the jury not to draw any negative inference from Hollie's refusal to testify, Ortez-Lucero contends that was "too much" to ask of jurors.
A. Background
Hollie was serving a prison sentence and was brought to court multiple times to testify. He repeatedly refused to testify, despite the finding of both the court and his appointed attorney that he had no Fifth Amendment privilege and the court repeatedly holding him in contempt and fining him. Hollie claimed the reason he was not testifying was because he had a problem with granting immunity to Noguera who had admitted he had "beat his girlfriend" and committed "these 27 murders and these murders right here."
Hollie was a logical witness for the prosecution, particularly as to whether Strong had been shot. Noguera testified that Hollie brought a woman to Ortez-Lucero's house to remove the bullet from Strong's leg. Hollie's wife testified Hollie asked her to help a friend and took her to a house where she cleaned a man's injured leg that had a hole in it.
The parties and court discussed how to handle Hollie's refusal to testify. Ortez-Lucero proposed telling the jury that Hollie was unavailable as a witness and the jury was not to draw an adverse inference against either side. The prosecutor disagreed that Hollie was unavailable. Later, the court cited case law that the jury could draw a negative inference from a witness's refusal to testify where there was no valid privilege. The prosecutor asked for an instruction that the jury was to draw no inference from Hollie not testifying, but he emphasized he wanted to explain to the jury why he had not called Hollie as a witness. Ortez-Lucero continued to request that the jury be told Hollie was unavailable as a witness; he argued no negative inference could be drawn because the reason Hollie's refused to testify was not to protect the defendants. The court proposed two possible solutions: the People could call Hollie as a witness and if he refused to be sworn, he would not be allowed to make any statements, or the court would adopt the People's proposal. Counsel conferred and came up with what Ortez-Lucero's counsel called a "livable solution."
The court admonished the jury in the language on which counsel had agreed: "Ladies and gentlemen of the jury, on multiple occasions during this trial Jermaine Hollie has been called to the witness stand outside your presence. On each such occasion, he has refused to take the oath and be questioned, in spite of my orders to do so and in spite of my finding that his actions constituted a contempt of court. [¶] You are not to draw any adverse inferences against either side by virtue of Mr. Hollie's refusal to testify."
B. Analysis
Ortez-Lucero contends it was prejudicial error to tell the jury that Hollie had refused to testify because that fact was irrelevant. A witness's silence is relevant only if it leads to a reasonable inference. Here, Ortez-Lucero contends, the reason for Hollie's silence was speculative, so his silence was irrelevant. (See People v. Babbitt (1988) 45 Cal.3d 660, 682 [evidence that produces only speculative inferences is irrelevant evidence].) He argues that once the jury was told Hollie refused to testify, it could not ignore that fact, despite the admonition not to draw any negative inferences.
"Once a court determines a witness has a valid Fifth Amendment right not to testify, it is, of course, improper to require him to invoke the privilege in front of a jury; such a procedure encourages inappropriate speculation on the part of jurors about the reasons for the invocation. . . . But where a witness has no constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony." (People v. Lopez (1999) 71 Cal.App.4th 1550, 1554.)
Strong admitted on cross-examination that Hollie was "kinda" an older brother to him and a friend to Ortez-Lucero, so it would have been reasonable for the jury to draw the inference that Hollie refused to testify to protect defendants. To prevent this, counsel agreed the court should instruct the jury not to draw any negative inference. We presume the jury follows the court's instructions. (People v. McKinnon (2011) 52 Cal.4th 610, 670.)
Ortez-Lucero's agreement to the instruction bars his claim of error. When a defense attorney makes a conscious and deliberate tactical decision to request a particular instruction, the invited error doctrine bars an argument on appeal that the instruction was error. (People v. Wader (1993) 5 Cal.4th 610, 657-658.) Here, the decision on instructing the jury about Hollie's refusal to testify was a deliberate tactical decision, as the matter was discussed and the option chosen was agreed-upon by all, to the exclusion of other options.
Ortez-Lucero asserts he did not agree to the instruction, but only accepted it as the less objectionable of the two proposals offered by the trial court. The record does not support this view that Ortez-Lucero did not fully agree to the instruction or maintained his objection. Counsel stated the agreement on the language to instruct the jury on Hollie's refusal to testify was a "livable solution." His argument on appeal to the contrary is precluded by his agreement below.
VII
Exclusion of Wiretapping Evidence
A. Background
During the investigation of the murders, several wiretapping operations were conducted. The People sought to exclude any reference to wiretapping under Evidence Code section 352. While the People opined it was relevant that wiretapping occurred, they claimed the admission of the many recorded messages would consume too much time. In response, Ortez-Lucero argued the failure of the extensive wiretapping operation to produce incriminating evidence was exculpatory and should be admitted as circumstantial evidence of innocence.
The People withdrew the objection to admission of the wiretapping evidence. The trial court, however, expressed concern about making the jury listen to multiple wiretaps to prove a negative, and conducted its own relevance inquiry. After the People declined to stipulate that the wiretaps produced no incriminating evidence, the trial court ruled there would be no mention of the wiretapping unless a specific wiretap was identified and a basis for its admission established.
The issue was revisited the next day. Strong wanted to admit evidence that there was wiretapping over a period of time after he was identified as a suspect and nothing fruitful was obtained. Ortez-Lucero wanted to question law enforcement about the wiretaps, that they had been "tickled," and that nothing of evidentiary value was gained from them. The court remained unpersuaded. It found no relevance to the wiretaps and to the extent there was any relevance it was outweighed by the prejudicial effect of causing speculation as to why there was no discussion of the crimes on the wiretaps.
"Tickling the wire" refers to conducting follow-up interviews and serving search warrants in hopes of generating phone conservations about the crime.
B. Analysis
Ortez-Lucero contends the trial court erred in excluding the wiretapping evidence. He contends the absence of incriminating evidence is relevant as a circumstance pointing to innocence. He argues the trial court misunderstand the defense intentions in finding the evidence too time consuming. He intended only to ask a few questions about the existence of the wiretapping and failure to obtain useful information.
First, evidence of a lack of incriminating evidence is not always admissible. The general problem with such absence evidence is that there usually exists a variety of reasons to explain the absence, and some of those reasons are not exculpatory. For example, while evidence of flight is admissible to prove a consciousness of guilt, evidence a defendant did not flee has been held inadmissible because "the absence of flight is so ambiguous, so laden with conflicting interpretations, that its probative value on the issue of innocence is slight" and it creates a substantial danger of confusing the issues, or of misleading the jury. (People v. Green (1980) 27 Cal.3d 1, 38-39, overruled on another point in People v. Martinez (1999) 20 Cal.4th 225; see also People v. Harvey (1984) 163 Cal.App.3d 90, 114-115 [following Green, evidence of defendant's general cooperation with police was properly excluded].)
Here, the probative value of the absence of incriminating statements on the wiretaps was slight. Defendants could have simply been exercising understandable caution in discussing the murders with each other and others, particularly over the telephone. The potential for confusion or an undue consumption of time was significant. Defendants did not make a specific showing as to what law enforcement witnesses would say if permitted to testify about the results of the wiretap; they did not, for example, proffer a report that concluded there were no incriminating or even useful statements recorded. The prosecutor's refusal to so stipulate may have reflected that the wiretap evidence was not as unambiguously clear and helpful to the defense as defendants suggested. Thus, it may have taken more than a few questions to establish (if it was true) that there was nothing on the wiretaps relating to these crimes. This evidence would require an undue consumption of time given the limited probative value of the evidence.
For example, excerpts from the wiretaps were included in the affidavit in support of the arrest warrant for Strong.
Given the slight probative value of the evidence, and the danger that it would be time consuming or unclear and thus confusing or otherwise misleading, the trial court did not abuse its discretion in excluding the evidence under Evidence Code section 352.
VIII
Cumulative Error
Ortez-Lucero contends the cumulative effect of the errors prejudiced him and denied him a fair trial. But "[i]n the absence of error, there is nothing to cumulate." (People v. Duff (2014) 58 Cal.4th 527, 562.)
IX
Sufficiency of the Evidence
Finally, Strong contends there is insufficient evidence to support the convictions. He contends this was a close case because no eyewitness identified him. He claims the jury was swayed by sympathy for Aquitania and his son and ignored credible and substantial evidence offered by the defense. He argues the credible evidence does not support the convictions. This contention has no merit.
We have already addressed and rejected the contentions that the murders do not qualify as felony murders. Strong does not contend the evidence does not establish a burglary or attempted robbery or the firearm enhancements. His claim of insufficiency relates only to the evidence that he was the perpetrator.
"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]
"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" (People v. Jones (1990) 51 Cal.3d 294, 314.)
Strong argues that given the lack of an affirmative identification and the conflicting and inconclusive evidence that he had been shot in the leg, the "real damage" to his case came from Noguera, who had serious problems as shown by the testimony of Grant and Dearwester that Noguera had admitted his involvement in the crimes.
In asking this court to discount Noguera's testimony, Strong is improperly asking us to reweigh the evidence. Further, he is ignoring the ample evidence that supports Noguera's testimony about the crimes. Ortez-Lucero and Strong were as close as brothers and they fit the general description of the perpetrators provided by Gill and Palmer. There was eyewitness evidence that Strong suffered a gunshot wound around the time of the shootings, supported by medical evidence. Meija had seen Strong with a silver revolver, similar to the one Palmer described the African-American intruder as carrying. Only the African-American intruder wore a mask. Ting testified Strong been to Gill's, providing a reason he might need a disguise. Noguera's testimony was adequately supported; together with the other evidence, it permitted the jury to come to the conclusion that it did.
DISPOSITION
The judgments are affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Mauro, Acting P. J. /s/_________
Murray, J.