Opinion
B161144.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. JUAN JOSE VALENCIA and RAFAEL LOERA, Defendants and Appellants.
Donald R. Tickle, under appointment by the Court of Appeal, for Defendant and Appellant Juan Jose Valencia. Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant Rafael Loera. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee and Michael W. Whitaker, Deputy Attorneys General, for Plaintiff and Respondent.
Juan Jose Valencia (Valencia) and Rafael Loera (Loera) were tried at the same time before separate juries for the murder of Sandro Vargas. They were each convicted of first degree murder (Pen. Code, § 187, subd. (a)) and conspiracy to commit murder (Pen. Code, §§ 182, subd. (a)(1)/187, subd. (a)) and it was found that in the commission of each of those crimes that a principal used a firearm (Pen. Code, § 12022, subd. (a)(1)). They were each sentenced to 26 years to life.
FACTUAL AND PROCEDURAL BACKGROUND
Sandro Vargas was shot in front of his house in the early morning hours of May 26, 2001. Cesar Munoz had driven Vargas home from work and was still sitting in the car when Vargas was shot. Munoz could only give a general description to the police because it was dark. He said the shooter was wearing dark pants and a dark hooded sweatshirt. No money or property was taken from Vargas. The police interviewed Vargas girlfriend, Rocelia Diaz (Diaz), who was inside the house at the time of the shooting, and determined that her former boyfriend, appellant Valencia, was involved with the shooting. After police questioned Valencias sons, Valencia, Loera, Eustorgio Rodrigues, and Fabian Silva were all charged with Vargas murder in the same information. The court granted a motion to sever and Valencia and Loera were tried together first, before two separate juries, then Rodrigues and Silva were tried, again with two separate juries. All defendants appealed. The appeal of Rodrigues and Silva is treated separately in case No. B161796.
At the trial of Valencia and Loera, Diaz testified that she had been romantically involved with Valencia, had two of his children and was pregnant with a third. Valencia, however, was married to someone else and had seven children. Diaz had recently met the victim, Vargas, became romantically involved with him, and told Valencia that she was breaking off the relationship and would seek support payments for their two children. Diaz then moved in with Vargas. Two days before the shooting, Valencia saw Diaz holding hands with Vargas and Valencia took their daughters with him. Later that evening, Diaz went to the police to regain custody of the girls. Valencia told her that if she went out with anybody before her "eight months," she would find out "what he was capable of." The Loera jury was not allowed to consider this statement.
Following the shooting, Los Angeles Police Department detectives went to Valencias residence. The officers transported Valencia, his wife and one of his sons, Victor, to the police station. The police then took Valencias wife home and brought back two of his other sons, Juan Miguel and Hector, to the station and questioned them all and gave them a polygraph test.
At trial, audiotapes of the police interviews with Valencia and his sons were played for the jury. In his interview, Valencia told Detective Rudy Flores that he had asked co-defendant Rodrigues to give Vargas "a little scare" so that he would not "mess" in his relationship with Diaz. Rodrigues agreed because he owed Valencia some money. Loera agreed to give Rodrigues a ride because he had damaged Valencias car. Valencia showed Loera and Rodrigues where Vargas worked and lived, but told them not to kill Vargas. At around 6:00 p.m. on May 25, 2000, Rodrigues and Loera came to Valencias house. Valencia said he told them not to "lay a hand on him—just talk to him."
In his taped interview, Valencias son, Juan Miguel, told detectives that he overheard his father talking with Loera and Rodrigues about Diazs boyfriend while they were in the alley behind their house. They talked about "putting him to sleep," burning down the taco stand where he worked, and making it look "like a robbery." Rodrigues was supposed to supply the gun, Loera was to drive and another person would shoot. Juan Miguel told police that Valencia said that he didnt want to get involved and destroy his life, but Loera and Rodrigues convinced him that he would not be caught.
To avoid confusing this son with appellant Valencia (Juan Jose), we will always refer to him as Juan Miguel.
Valencias son Victor told essentially the same story during his taped interview, that Valencia asked Loera and Rodrigues to help him "get rid of something" and that they agreed to help because they owed Valencia money. Then Valencia tried to back out when they started talking about guns and killing.
In his taped interview, Valencias third son, Hector, told police that Loera had told him that he had driven the person who shot and had loaned the shooter some gloves and a black sweater with a hood. Hectors taped interview was only played in front of the Loera jury.
The day after the interviews, Juan Miguel and Victor returned to the police station. Juan Miguel identified Loera from a six-pack of photographs and wrote a statement reiterating that Loera and Rodrigues had offered to kill Vargas for Valencia. Victor identified both Loera and Rodrigues from a six-pack and wrote statements corroborating what he had said in the interview.
Juan Miguel was called as a witness by the prosecution. He testified that he was 20 years old and lived with his mother and father. He knew about his fathers relationship with Rocelia Diaz and sometimes went to visit her and her two daughters. He was with his father when they saw Diaz holding hands with another man, and said that his father was not upset. Appellants Loera and Rodrigues had been friends of his fathers for a few months. Approximately one week before the shooting, he had heard his father talk to Loera and Rodrigues about Diazs demands that he pay her child support, but never heard him talk about her seeing another man or them spying on that man. He claimed that everything he told the police during the polygraph examination and the taped interview was made up because the police were pressuring him. He denied telling the detectives about any plot to kill. He had waited at the station for two hours before he was taken for a polygraph test. He said the police started accusing him of shooting Vargas so he made up the story about Loera and Rodrigues. He went back to the station the next morning, and trying to help his father, he made up the written statement, that Loera and Rodrigues had killed Vargas. He admitted to identifying pictures of Loera and Rodrigues at the police station.
Victor Valencia testified that he was 18 years old and lived with his father and mother on the date of the shooting. He said his father was sad when he broke up with Diaz and was upset that she had filed child support papers. He was also present when Loera and Rodrigues came to his house to talk about a restraining order but denied that there was a plan to kill anyone. He also claimed he had made up the story about the plot between his father, Loera, and Rodrigues. He admitted that he went home after they were brought in for questioning and returned to the police station on their own the next day. He also said he made up the statement about the killing that he wrote out next to the photographs of Loera and Rodrigues. When they were first picked up and taken to the police station, he and his brother were in the same waiting room, but could not talk to each other. He made up the details about the killing during the taped interview and denied hearing his father talking about a killing. He decided to make up the story after he was taken to the police station. He had been at the police station for about 14 hours when the taped interview had taken place and had not been given anything to eat. During proceedings that were not taped, Detectives Spillane and Flores screamed at him and threatened him to put him in jail for the rest of his life. He was never told that the interview was being tape recorded. The police had given him the idea about the scheme with Loera and Rodrigues. Detective Flores told him in front of Detective Spillane that it would be easier for his father if he put the blame on other people. He began crying, and then made up the story because he was scared about what was going to happen to him and to his father.
Hector Valencia testified in front of the Loera jury only. He was 15 years old and living with his father and mother at the time of the shooting. He went to the police station with his mother the day after his father and brothers were picked up. Loera drove him to the police station and then brought him back home. Loera told him that his father owed him $2000 and said that his friend shot someone two times. Hector then went back to the station the same day and told Detectives Flores and Spillane about the conversation. Hector wrote this out in a statement for the police, but then said he made up the portion where Loera had told him that he had lent the shooter some black gloves and a hooded black sweater. He said he made up that part because he was trying to help his father.
Loeras taped interview was played only before the Loera jury. Loera told police that Valencia asked Rodriguez to shoot Vargas for 4000 pesos because he was angry that Diaz had ended their relationship. Valencia showed Rodriguez and Loera the taco stand where Vargas worked. Valencia promised Loera money for going along with Rodriguez. On the night of the murder, Loera gave his car keys to Rodriguez and Rodriguez drove him and Silva to Vargas home. Silva, who was wearing a black jacket and a blue cap, had Rodriguezs gun. Rodriguez told Silva to get out of the car and "get him." Silva got out, fired two shots and got back in the car. Loera was dropped off at home.
CONTENTIONS ON APPEAL
Loera contends that his constitutional rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 were violated when the police interrogated him and that any statements he made to them should therefore have been excluded.
Valencia contends that the court erred in instructing the jury with modified versions of CALJIC Nos. 6.10 and 8.69, since these instructions did not require the jury to find that he personally intended to enter into an agreement to commit murder with intent to kill. Next, he contends that the court erred in instructing the jury with CALJIC No. 3.03, on aiding and abetting, because it overstates his burden of proof, violating his constitutional rights. He also contends that the court erred in failing to instruct the jury that CALJIC No. 2.20 (factors relevant to witness credibility) also applies to extrajudicial statements, and also failed to instruct the jury sua sponte on the standards for evaluating extrajudicial statements by alleged accomplices, violating his constitutional rights.
DISCUSSION
1. Miranda Violation
During pretrial proceedings, both defense counsel made motions to suppress the statements made by their clients to police, alleging that they were not given adequate Miranda warnings. As a result, the trial court held an evidentiary hearing. Appellant Loera testified, through a Spanish interpreter, that he was at home on May 27, 2001, when the police arrived at his house. His brother-in-law opened the door and the police ordered them at gunpoint to come out with their hands behind their necks and they were handcuffed. He testified that he was told in Spanish by Detective Flores that he was under arrest and that they would speak to him at the police station. They did not tell him why they were there. First, Loera testified that while at his home, he was not told that he had the right to speak to a lawyer, but subsequently said he was told of that right. At the police station, he was put in a room for about 15 minutes. He was put in another room for one hour, then both Detectives Flores and Spillane came in to talk to him. They gave him a piece of paper which said in Spanish that he had the right to remain silent and that he had the right to have an attorney present. Loera said he asked for an attorney and asked why they had gone into his house without a search warrant and Flores told him that he did not have time to get him an attorney, nor did he have time to get a search warrant. Loera said he asked for an attorney about three times and was never given the opportunity to make a phone call or speak to a lawyer. He said he signed the written statement of rights because Detective Flores was pressuring him by saying that if he did not cooperate, his wife would be charged or deported and that his children would be taken away from him. The detectives questioned him but never told him that they were tape recording him. On cross-examination by the deputy district attorney, Loera said he read and understood the paper, but told the detectives that he was not going to sign it until an attorney was present, and then they began threatening his family. Loera said that the detectives told him what to say and he was not giving them any information on his own. He then testified that it was the police officers, not the detectives who told him at his house that he had the right to speak to a lawyer. On re-direct he said the first time he encountered the detectives was at the police station.
Loeras wife, Julieta Munoz Candela, was also called as a witness on this issue, and she testified that police officers found her at the laundromat and brought her to her house, where detectives were waiting. The detectives did not tell her who they were or why they were there but were shouting at her in English. Then she went to the police station to find out what was happening to her husband and was taken into a room with Detectives Flores and Spillane, and they told her that she had to remain there. She was in the room for four hours and not allowed to use the bathroom nor given anything to eat or drink. While they were questioning her they began pounding on the table shouting at her in English, which she did not understand. Then they told her in Spanish that they were going to take her children away from her and that she was going to be deported.
The court ruled that there had been no Miranda violation as to Loera, stating, that "[T]here was no coercion of statements from Mr. Loera or the other individuals who have testified. [¶] As to Mr. Loera, there is in addition there were some inconsistencies in his own testimony which I considered as well. He on direct said that it was Detective Flores who told him not to say anything when he was cuffed and taken away from the house. [¶] On direct — on cross-examination he said just the opposite, it was not Detective Flores, it was one of the other officers, so the inconsistencies also added up with regard to the — all of the testimony, and listening to the tapes was the key, and so the motion to suppress his statements and those of others is denied."
On appeal, Loera argues that the evidence does not support the trial courts finding that he was not credible. He contends that the length of time between the arrest, the time he was given the waiver of rights form, and the beginning of the tape recording, as well as his testimony and his wifes testimony that the detectives coerced them, supports his story that he was given information by the detectives to say during the interview.
In evaluating a Miranda claim on appeal, we accept the trial courts resolution of disputed facts and evaluation of credibility if supported by substantial evidence, then we independently determine whether the statements given were illegally obtained. (People v. Box (2000) 23 Cal.4th 1153, 1194; People v. Whitson (1998) 17 Cal.4th 229, 248.)
We find Loeras contention to be without merit. We have reviewed the testimony given at the hearing on the motion to suppress and find that there was substantial evidence from which the trial court could conclude that Loera was not credible when he claimed he was forced to say what he did on the audiotape. Loeras testimony was internally inconsistent about when the detectives came to his house and when he was told he had the right to speak to an attorney. Additionally, Loeras testimony was not credible because he stated that Detective Flores told him he did not have time to obtain a search warrant, when the detectives did in fact possess a search warrant. (People v. Waidla (2000) 22 Cal.4th 690, 730.)
Loeras arguments also fail in light of the fact that he signed a written waiver of his Miranda rights. Loera admitted that he had read the form and understood it.
Loeras contention that he was coerced during the time that the tape recorder was not turned on was refuted by Detective Flores, who testified that it was not his usual custom and practice to turn the recorder on until the information given by the interviewee was relevant, due to the length of the tapes. In addition, Loera reiterated the story he gave during the interview in a written statement on the day following the taped interview, when he had voluntarily returned to the police station.
Since the trial courts finding that Loera was not credible was supported by substantial evidence, we therefore determine, based upon the detectives testimony, the consistency of the taped interview with the written statement and the signed waiver form, that Loera was aware of his rights and knowingly waived them. (People v. Whitson, supra, 17 Cal.4th at p. 249.)
2. Conspiracy Instructions
The trial court instructed the jury with a modified version of CALJIC No. 6.10. The instruction given was as follows, with the only change from the official version in italics and the deleted terms in brackets: "A conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit the crime of murder and with the further specific intent to commit that crime, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime. [¶] In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one of the acts alleged in the information to be an overt act and that the act found to have been committed was an overt act. It is not necessary to the guilt of any particular defendant that defendant [he][she] personally committed an overt act, if he was one of the conspirators when the alleged overt act was committed."
Then the trial court instructed the jury with CALJIC No. 8.69, on conspiracy to commit murder, with the only terms omitted from the official version in brackets, as follows: "A conspiracy to commit murder is an agreement entered into between two or more persons with the specific intent to agree to commit the crime of murder and with the further specific intent to commit that murder, followed by an overt act committed in this state by one [or more] of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime. [¶] The crime of conspiracy to commit murder requires proof that the conspirators harbored express malice aforethought, namely, the specific intent to kill unlawfully another human being. [¶] In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one of the acts alleged in the information to be an overt act and that the act found to have been committed was an overt act. It is not necessary to the guilt of any particular defendant that defendant personally committed an overt act, if he was one of the conspirators when the overt act was committed. [¶] . . . [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. Two or more persons entered into an agreement to kill unlawfully another human being; [¶] 2. [Each] At least two of the persons specifically intended to enter into an agreement with one or more other persons for that purpose; [¶] 3. [Each] At least two of the persons to the agreement harbored express malice aforethought, namely a specific intent to kill unlawfully another human being; and [¶] 4. An overt act was committed in this state by one or more of the persons who agreed and intended to commit murder." (Wests California Jury Instructions, Criminal (7th ed. 2003).)
Valencia argues that the instructions were erroneously modified and that the court omitted necessary terms from each of the instructions. This completely misstates what occurred. The court gave the standard CALJIC No. 6.10 but simply substituted the subject "defendant" instead of using the pronoun. In CALJIC No. 8.69, the court made no changes. The term "each" bracketed in elements 2 and 3, which it did not use, is an alternative term, provided by the standard CALJIC instructions.
The official use note to the instruction provides that the term "Two or more" is to be used "to accommodate the situation where there is a feigned accomplice."
Valencia contends these instructions contained erroneous information because they did not include the requirement that a defendant must personally intend to enter into an agreement to commit murder with the specific intent to kill. Valencias trial counsel did not submit any alternative instruction, nor did he object to the trial courts giving of either of the above instructions. Valencia argues that if he is found to have waived his right to object, this court should find that he received ineffective assistance of counsel.
The parties do not dispute that a defendant must have the specific intent to commit the offense which is the object of the conspiracy. (People v. Swain (1996) 12 Cal.4th 593, 600.) Valencia contends that the instructions given did not make it clear to the jury that they had to find that he specifically possessed to requisite intent. He argues that by using the phrase "Two or more persons" in CALJIC No. 8.69, the jurors could have found only that Loera and Rodrigues had the requisite intent, but not necessarily Valencia or Silva.
First of all, we agree that Valencia waived any right to object on appeal because of his failure to request a modification below. (People v. Guiuan (1998) 18 Cal.4th 558, 570.) But having found waiver, we do not find that this constituted ineffective assistance of counsel because it is not likely that the jury was misled, as Valencia claims. If any of the jurors did think that only two of the four persons involved had the specific intent, that mistaken belief would have been corrected by the subsequent instruction that "The adoption by a person of the criminal design and criminal intent entertained in common by others and of its object and purposes is all that is necessary to make that person a co-conspirator when the required elements of a conspiracy are present." (CALJIC No. 6.14.) Thus, considering the instructions, as a whole, the jury was properly instructed. (People v. Frye (1998) 18 Cal.4th 894, 957.) Moreover, there was overwhelming evidence of Valencias intent. Valencia was the one who proposed the idea to the others and Valencia was the only one who had a personal motive to harm Vargas. (People v. Osband (1996) 13 Cal.4th 622, 680-684.) Therefore, we conclude that there was no ineffective assistance of counsel by failure to object to the instructions. (People v. Ochoa (1998) 19 Cal.4th 353, 458.)
3. Aider and Abettor Instructions
The court instructed the jury with CALJIC No. 3.03 on "Termination of Liability of Aider and Abetter," as follows: "Before the commission of the crimes charged in Counts 1 and 2, an aider and abetter may withdraw from participation in those crimes, and thus avoid responsibility for those crimes by doing two things: First, he must notify the other principals known to him of his intention to withdraw from the commission of those crimes; second, he must do everything in his power to prevent its commission."
CALJIC uses this spelling of the word rather than the more widely accepted "abettor" in this particular instruction, but "abettor" appears in its Use Notes.
Valencia contends that this instruction does not accurately state the law, citing People v. Ortiz (1923) 63 Cal.App. 662 and People v. King (1938) 30 Cal.App.2d 185, as well as a prior (pre-1979) version of the instruction.
He argues that all these cases require is that a defendant do "everything practicable" in order to have found to have withdrawn from aiding and abetting, rather than "everything in his power," as required by CALJIC No. 3.03.
Subsequent cases have tacitly approved the language of the current version of CALJIC No. 3.03: People v. Jackson (1996) 13 Cal.4th 1164, 1221; People v. Belmontes (1988) 45 Cal.3d 744, 793; People v. Ross (1979) 92 Cal.App.3d 391, 405. In fact Belmontes pointed out that the standard for withdrawing from a conspiracy is far lower than that needed to withdraw from liability as an aider and abettor. (45 Cal.3d at p. 793.)
In any event, we find any difference in the versions of the instruction to be totally harmless in this case. Despite the fact that Valencia argues that the prosecution did not negate evidence of withdrawal, even if the jury believed Valencias testimony that he changed his mind, there is nothing to show that he acted affirmatively to stop Rodrigues and Loera. The jury obviously did not believe that Valencia attempted to withdraw under the conspiracy standard, that is, that he had made "an affirmative and good faith rejection or repudiation of the conspiracy" so it is highly unlikely that being instructed that he had to do "everything practicable" to withdraw would have changed their conclusion on aider and abettor liability.
4. Instruction on Credibility of Witnesses
The court instructed the jury with CALJIC No. 2.20, as follows: "Every person who testified under oath is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness. [¶] In determining the believability of a witness you may consider anything that has a tendency to prove or disprove the truthfulness of the testimony of the witness, including but not limited to any of the following: [¶] The extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness testified; [¶] The ability of the witness to remember or to communicate any matter about which the witness has testified; [¶] The character and quality of that testimony; [¶] The demeanor and manner of the witness while testifying; [¶] The existence or nonexistence of a bias, interest, or other motive; [¶] The existence or nonexistence of any fact testified to by the witness; [¶] The attitude of the witness toward this action or toward the giving of testimony; [¶] A statement previously made by the witness that is consistent or inconsistent with his or her testimony."
Valencia contends that the court should have modified the instruction to make it applicable to extrajudicial statements in addition to witness testimony. Valencia argues that even though his trial counsel did not object to the giving of CALJIC No. 2.20, the court had a sua sponte duty to instruct the jury about how to evaluate the credibility of Juan Miguel and Victors taped statements.
This instruction is clearly not applicable to extrajudicial statements because it refers to physical characteristics of the witness and factors which a jury cannot evaluate if the witness is not there in court. Moreover, it would not likely have made a difference had the instruction been given. Juan Miguel and Victors statements were credible simply because of the fact that they were Valencias sons, and thus would have had little reason to fabricate the fact that their father had discussed a plot to harm Vargas with his friends. In addition, their statements, given at different times, were totally consistent, and their testimony in court that they had made up the story was inherently unbelievable since it was unlikely that they all could have made up the same story.
5. Accomplice Instructions
Valencia also contends that the trial court should have instructed the jury with CALJIC Nos. 3.11, 3.12, 3.13, 3.14, and 3.18, that accomplice testimony should be viewed with distrust and must be corroborated, because in their taped interviews, Juan Miguel and Victor testified about statements allegedly made by accomplices Loera and Rodrigues. His trial counsel did not request these instructions but the trial court does have a duty to give these instructions when out-of-court statements are admitted at trial. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1132-1133; People v. Andrews (1989) 49 Cal.3d 200, 214.) However, since none of Valencias accomplices testified before his jury, the instructions were not necessary. The rules regarding corroboration of out-of-court statements by accomplices only apply to those statements that are made to law enforcement officials in hope of leniency or immunity or under other suspicious circumstances. (People v. Rodrigues, supra, 8 Cal.4th at p. 1133.) People v. Hill (1993) 12 Cal.App.4th 798, on which Valencia relies, involves the statement of an accomplice to the police, (id. at pp. 807-808) and is not relevant here. The statements allegedly made by Loera and Rodriguez were made in the presence of friends and their family members, and were thus not inherently untrustworthy. (People v. Rodrigues, supra, 8 Cal.4th at p. 1133, People v. Jeffery (1995) 37 Cal.App.4th 209, 218.)
6. Cumulative Error
Finally, Valencia argues that the cumulative effect of the instructional errors deprived him of a fair trial. We have reviewed the record in detail and have concluded that this contention is without merit, and that even the combined effect of any errors was harmless. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
DISPOSITION
The judgments are affirmed.
We concur: VOGEL (C.S.), P.J. and EPSTEIN, J.