Opinion
D057573 Super. Ct. No. SWF012120
08-25-2011
THE PEOPLE, Plaintiff and Respondent, v. FABIAN CAYETANO URREA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Riverside, F. Paul Dicker son III, Judge. Affirmed.
A jury convicted Fabian Cayetano Urrea of first degree murder with a firearm (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) The court sentenced Urrea to prison for 50 years to life, consisting of a term of 25 years to life for the murder, consecutive to a term of 25 years to life for the firearm enhancement.
Statutory references are to the Penal Code unless otherwise specified.
Urrea appeals, contending the court violated his Sixth Amendment right to confrontation when it allowed Diana Estrada (Diana) to assert a Fifth Amendment privilege not to testify and then found her unavailable as a witness and admitted her preliminary hearing testimony. Urrea also contends the court erred in failing to instruct the jury consistent with CALJIC No. 8.71. We affirm.
FACTS
On the morning of June 9, 2005, Urrea went to see his three-day-old daughter at his ex-girlfriend's (Diana) apartment. As he often did, Urrea was carrying a nine-millimeter handgun in his waistband. He parked in the parking lot of Diana's apartment complex. Diana and her husband, Jorge Estrada (Jorge), met Urrea in the parking lot with the baby. Jorge immediately went back to his apartment and returned with a blanket for the baby. Diana handed Urrea the baby while Urrea was sitting in his truck. After Jorge returned with the blanket, Diana gave the blanket to Urrea for the baby.
According to the prosecution, Diana and Jorge spoke to Urrea about him remaining a part of his daughter's life and that they were not going to take the child away from him. Urrea got irritated at Jorge providing input with respect to the child. Urrea told Jorge to mind his own business because he was not the father, and he cursed. In response, Jorge told Urrea that Urrea did not know how to be a parent yet. Urrea then got out of his truck, and he and Jorge walked to the back of the truck where they argued. Jorge extended his hand to shake Urrea's hand and said everything should be okay for the baby's sake and he wanted to avoid a confrontation. Urrea then pulled out his gun and shot Jorge three times. Urrea said, "I told you I was going to get you."
According to the defense, Diana brought Urrea the baby and let him hold her. Jorge then showed up and told Urrea to stop calling Diana. Urrea asked Jorge who he was, and Jorge told Urrea that he was Diana's husband, which Urrea had not known prior to that time. Jorge also told Urrea that Urrea was lucky Diana and Jorge were letting him see his daughter, which led to Urrea getting out of his truck and arguing with Jorge. Jorge came toward Urrea, and Urrea thought Jorge was going to swing something at him, so he pulled his gun and shot Jorge. Jorge died from the gunshot wounds.
After shooting Jorge, Urrea got in his truck and drove off. He called his sister and told her he shot someone. He also told her, "I shot that fool." Urrea then met with family members, and he ultimately got a ride to the Mexican border where he walked into Mexico and stayed for 18 months until he was arrested and extradited to Riverside.
DISCUSSION
I
DIANA'S ASSERTION OF THE FIFTH AMENDMENT
Urrea contends that his Sixth Amendment right to confront witnesses against him was violated when the court found that Diana was unavailable as a witness at trial because she could assert a Fifth Amendment right not testify and then admitted Diana's preliminary hearing testimony at trial. We disagree.
A. Background
The People planned to call Diana at trial. Shortly before trial, however, Diana was arrested and charged with felony child abuse and torture. She also had a pending probation violation matter based on a previous conviction for felony child abuse.
During a hearing to determine if Diana would and could invoke a Fifth Amendment privilege against self-incrimination, Diana's attorney stated he would advise Diana to invoke her Fifth Amendment right not to testify at trial. He further emphasized that Diana was facing a minimum of 12 years on the probation violation and a possible life sentence on the pending child abuse and torture charges. Even if the court did not find Diana could invoke the Fifth Amendment, Diana's attorney made it clear he would advise Diana not to testify despite the risk of contempt.
Diana, who was in custody at the time, was then sworn and asked if she would assert her Fifth Amendment privilege if called as a witness at trial. Diana said she would do so. Accordingly, the court found Diana had invoked her Fifth Amendment privilege. In response, Urrea argued Diana should have to take the stand at trial and invoke her Fifth Amendment right in response to specific questions. The People argued that this was not required and invocation should be taken out of the presence of the jury. The court found that should Diana be forced to testify, much of her testimony possibly could be used against her with respect to the pending charges. As such, the court ruled, under Evidence Code section 404, it "cannot say that it clearly appears to its satisfaction that the proffered evidence cannot possibly have a tendency to incriminate her." The court therefore found Diana invoked her Fifth Amendment privilege, and she was unavailable for trial.
After finding Diana unavailable for trial, the court ruled that Diana's preliminary hearing transcript was admissible at trial because Urrea had the opportunity to cross-examine Diana, noting that Urrea's counsel thoroughly did so and was permitted wide latitude in all areas potentially impeaching Diana. Over the People's objection, the court ruled it would not sterilize the transcript and would allow it to be read to the jury in its entirety.
B. Law
The principle that a witness may not be compelled to incriminate herself is a "bedrock principle" of American law embedded in the federal and state Constitutions. (People v. Seijas (2005) 36 Cal.4th 291, 304 (Seijas).) A witness may properly assert the privilege who has " 'reasonable cause to apprehend danger from a direct answer.' [Citations.]" (Ibid.) The privilege is liberally interpreted. A witness may not avoid testifying simply by stating that to do so would be incriminating. However, " '[t]o sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or explanation of why it cannot be answered might be dangerous because injurious disclosure could result.' [Citation.]" (Ibid.)The assertion of the privilege must be allowed unless after careful consideration of all the circumstances the answers sought "cannot possibly" have a tendency to incriminate. (Id. at pp. 304-305; see also Evid. Code, § 404.)
In deciding whether the privilege is properly invoked, a court is not permitted to consider the likelihood of an actual prosecution in which the witness's statements would be offered. The sole question is whether the answers sought might tend to incriminate the witness. (Seijas, supra, 36 Cal.4th at p. 305.) It is not even necessary that the answers sought would incriminate the witness. It is enough that the witness "had reasonable cause to apprehend danger from the testimony." (Id. at p. 306.) A court may not be skeptical about a witness's apprehension that the testimony sought would be incriminating. The court "must . . . be acutely aware that in the deviousness of crime and its detection incrimination may be approached and achieved by obscure and unlikely lines of inquiry." (Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 326-327, fn. 9; italics omitted; abrogated on different grounds in Izazaga v. Superior Court (1991) 54 Cal.3d 356, 370-372.) In addition, a witness may be able to assert a valid Fifth Amendment privilege with respect to a criminal offense at issue in a trial, notwithstanding that the witness is not a defendant in the case in which she is invoking the privilege. (People v. Cudjo (1993) 6 Cal.4th 585, 617; People v. Mincey (1992) 2 Cal.4th 408, 441.)
Also, we are mindful that once a witness testifies, the privilege against self-incrimination is waived with regard to relevant cross-examination. Any other rule would result in a distortion of the judicial process. Thus, while direct examination might be tailored to avoid self-incrimination, reasonable cross-examination might not be so benign. (See Mitchell v. United States (1999) 526 U.S. 314, 321-322.)
In reviewing a trial court's ruling on a witness's assertion of the privilege against self-incrimination, we view its factual determinations deferentially but independently review the ultimate issue of whether the privilege was properly invoked. (Seijas, supra, 36 Cal.4th at p. 304.)
C. Analysis
Diana had reasonable cause to "apprehend danger" from testifying at trial. At the time of trial, Diana was facing a parole violation and new charges for child abuse and torture. On cross-examination, Urrea planned to impeach her with her prior conviction of child abuse. Urrea also planned to impeach Diana regarding the pending charges. Obviously, any responses that Diana would give to questions about her previous conviction for child abuse or the current charges against her could tend to incriminate her.
Further, even if Diana was only asked about the morning of Jorge's death, she had reasonable cause to be apprehensive. Her testimony would necessarily involve her child. In describing what occurred on the morning Jorge was killed, she would testify that she handed her newborn baby to Urrea. However, she testified during the preliminary hearing that Urrea raped her, told her that she could never be with anyone else, and she knew he sometimes carried a gun and had seen him take it out in public when someone disrespected him. Thus, Diana's testimony that she allowed Urrea to hold her newborn baby might tend to incriminate her, especially in light of the pending charges and parole violation.
Accordingly, we are not satisfied that if Diana testified at trial, the answers sought "cannot possibly" have a tendency to incriminate her. (Seijas, supra, 36 Cal.4th at pp. 304-305; see also Evid. Code, § 404.) The court therefore properly found Diana had a right to assert her Fifth Amendment privilege.
Because the court correctly determined that Diana could assert her Fifth Amendment privilege, it appropriately found Diana unavailable at trial and admitted her preliminary hearing testimony. (See Evid. Code, §§ 240, subd. (a)(1), 1291, subd. (a); Seijas, supra, 36 Cal.4th at p. 303; People v. Smith (2003) 30 Cal.4th 581, 609.) Moreover, Urrea's Sixth Amendment rights were not violated because he had the opportunity to extensively cross-examine Diana during the preliminary hearing. (See Crawford v. Washington (2004) 541 U.S. 36, 59.)
Urrea also argues that the court erred in allowing Diana to assert a "blanket privilege" out of the presence of the jury. Instead, Urrea contends the proper procedure was to call Diana as a witness at trial and require her to invoke the privilege in response to specific questions. We reject this contention.
We are satisfied with the procedure the court used. The court considered the parties' respective briefing on the issue. The court heard argument from the parties as well as Diana's counsel. Outside the presence of the jury, Diana was sworn and questioned by the court. Diana unequivocally indicated that she was asserting her Fifth Amendment right and would not testify if called at trial. It makes little sense to require Diana to appear at trial under these circumstances only to assert her privilege against self- incrimination yet again. (See, e.g., People v. Johnson (1974) 39 Cal.App.3d 749, 760.) Moreover, it would not have been proper to allow Urrea to force Diana to invoke the Fifth Amendment in response to specific questions, and then, under the guise of cross-examination, "get before the jury what is tantamount to devastating direct testimony." (People v. Shipe (1975) 49 Cal.App.3d 343, 349.)
Further, none of the cases cited by Urrea compel a different conclusion. All are factually distinguishable and do not address the issue here. (See People v. Ford (1998) 45 Cal.3d 431, 435 ["We conclude that a witness who has not exercised his privilege against self-incrimination is not an 'unavailable' witness."]; In re Marriage of Sachs (2002) 95 Cal.App.4th 1144, 1147 [a parent who fails to make court-ordered support payments cannot invoke the Fifth Amendment in response to questions about personal income at a judgment debtor examination]; Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1045 [holding a blanket assertion of privilege under the Fifth Amendment was improper in response to questions in a deposition and document requests in a civil action].)
II
JURY INSTRUCTIONS
Urrea contends the court erred in failing to the instruct the jury that if it believed he was guilty of murder, but had a reasonable doubt as to whether the murder was of the first or second degree, they had to give him the benefit of that doubt and return a verdict of second degree murder. We disagree.
A. Background
The court instructed the jury, under CALCRIM No. 521:
"If you decide the defendant has committed murder, you must decide whether it is murder in the first or second degree.
"The defendant is guilty of first-degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death.
"The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.
"All other murders are of the second degree.
"The People have the burden of proving beyond a reasonable doubt that the killing was first-degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first-degree murder."
The court also instructed the jury, under CALCRIM No. 522, that provocation may reduce a murder from first degree to second degree and may reduce murder to manslaughter. In addition, the court instructed the jury on the lesser included offenses of voluntary and involuntary manslaughter (CALCRIM Nos. 570, 571, 580).
During deliberations, the jury asked for more information regarding the definition of premeditation. The court met with counsel to discuss the jury's question. The court indicated its inclination to instruct the jury to reread the premeditation instruction. Urrea's counsel disagreed stating premeditation could be defined as "the act of speculating and applying in advance, contemplation of a crime well enough in advance to show deliberate intent to commit the crime, aforethought." In response, the People urged the court to tell the jury to reread the premeditation instruction. Urrea's counsel then requested that the court instruct the jury to "reread the lesser instruction, what does not constitute premeditation." The court declined and told the jury: "Please reread CALCRIM 521 in its entirety."
The jury sent the court a note stating: "We would like to know more information about premeditation. We are in need of further understanding of premeditation. We understand that premeditation occurs if a decision to kill was made prior to commit[t]ing the act that caused death. We also understand that the decision had to be carefully weighed and calculated. Is there any further information that can be provided to help us understand the definition of premeditation?"
B. Analysis
Urrea contends that the court erred when it did not instruct the jury consistent with the principals of CALJIC No. 8.71, which states: "If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by a defendant, but you unanimously agree that you have a reasonable doubt whether that murder was of the first or of the second degree, then you must give defendant the benefit of that doubt and return a verdict affixing the murder as of the second degree." Urrea's trial counsel did not request CALJIC No. 8.71 at trial. To avoid forfeiture, Urrea now argues the court had a duty to sua sponte give the instruction. However, Urrea does not cite to, nor have we found, any authority supporting his contention that the court must sua sponte give the CALJIC No. 8.71 instruction. In the absence of such authority, we analyze whether Urrea forfeited this contention on appeal.
By failing to request a specific jury instruction at trial, Urrea forfeited this claim on appeal, unless the claimed error affected Urrea's substantial rights. (See § 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim -- at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) We conclude that Urrea has not shown that the claimed error affected his rights; thus, he has forfeited his claim.
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In determining whether error has been committed in giving jury instructions, we consider the instructions as a whole and assume jurors are intelligent persons, capable of understanding and correlating all jury instructions which are given. (Ibid.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (Ibid.)
Here, Urrea claims the court should have instructed the jury consistent with the principals of CALJIC No. 8.71. Put differently, Urrea argues the court should have instructed the jury that it should find Urrea guilty of second degree murder rather than first degree murder if it had a reasonable doubt between the two.
The court instructed the jury under CALCRIM No. 521. CALCRIM No. 521 only applies if the jury believes a defendant has committed murder: "If you decide the defendant has committed murder, you must decide whether it is murder in the first or second degree." (CALCRIM No. 521.) CALCRIM No. 521 defines first and second degree murder. Further, the last sentence of CALCRIM No. 521 addresses Urrea's concern: "The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder." (Ibid.) The instruction therefore tells the jury that it could only convict Urrea of first degree murder if the People proved it beyond a reasonable doubt. In other words, if the jury had reasonable doubt that the People had proved first degree murder, under CALCRIM No. 521, it would have to convict Urrea of second degree murder. (See People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 ["The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions."].)
Although the language differs between CALCRIM No. 521 and CALJIC No. 871, they both ensure the same principle: If the jury finds that a defendant has committed murder, it cannot convict a defendant of first degree murder if it is not convinced beyond a reasonable doubt. While CALJIC No. 8.71 reminds the jury if it has reasonable doubt between first degree and second degree murder, it must choose second degree murder, we are satisfied that CALCRIM No. 521 would lead the jury to the same result. Thus, there was no reason for the court to provide CALJIC No. 8.71 to the jury, which is largely duplicative of CALCRIM No. 521. (See People v. San Nicolas (2004) 34 Cal.4th 614, 675 ["a judge need not include a legally correct jury instruction when it is duplicative of other instructions provided to the jury"].)
Further, the jury's question regarding premeditation does not support Urrea's contention. The jury was seeking further explanation of the definition of premeditation. CALJIC No. 8.71 does not offer any further clarification of premeditation. CALCRIM No. 521, however, does contain a definition of premeditation, and the court correctly told the jury to reread the instruction to answer its question.
We do note Urrea's counsel offered the court a definition of premeditation in response to the jury's question. It is unclear from the record if Urrea's counsel was making a belated request for a pinpoint instruction. Urrea's counsel did not submit a written pinpoint instruction to the court or otherwise make a request that a pinpoint instruction regarding premeditation be given. Instead, Urrea's counsel appeared to offer an impromptu definition of premeditation in response to the jury's question. Moreover, Urrea does not argue on appeal that the court failed to give a requested pinpoint instruction. As such, this issue is not before us. Even if we were to assume Urrea's counsel made a belated request for a pinpoint instruction to define premeditation, the court would have been correct to deny it because it is an incorrect statement of the law. (See People v. Gurule (2002) 28 Cal.4th 557, 659.)
A defendant generally has a right to a pinpoint instruction on a particular defense theory. (People v. Earp (1999) 20 Cal.4th 826, 886.)
The jury was " 'fully and fairly instructed on the applicable law.' " (People v. Ramos, supra, 163 Cal.App.4th at p. 1088.) No additional instructions were necessary.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. McDONALD, J.