Opinion
A148414
08-14-2017
THE PEOPLE, Plaintiff and Respondent, v. NESTOR ALFONSO VERDUZCO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR177607)
Defendant Nestor Alfonso Verduzco repeatedly stabbed his friend Luis Torres during a drunken brawl. Defendant claimed he acted in self-defense. The jury rejected his defense and convicted him of attempted second degree murder with personal use of a deadly weapon and infliction of great bodily harm. (Pen. Code, §§ 187, subd. (a), 664, 12022, subd. (b)(1), 12022.7, subd. (a).) He is serving an 11-year prison sentence. Defendant contends the trial court erred in admitting evidence that defendant once threatened to stab another man. (Evid. Code, § 1101, subd. (b).) He also asserts prosecutorial misconduct for displaying during closing argument a photograph of defendant's bloody handprint. We shall affirm the judgment.
Statement of Facts
In October 2015, defendant and Torres were each 21 years old and had been friends since attending elementary school together. They worked together at a Calistoga restaurant, where Torres helped defendant get a job as a dishwasher. Also working at the restaurant were Cristian Gutierrez and Ana Garcia. Defendant and Gutierrez were roommates and defendant was dating Garcia.
The four friends were together on the evening of October 19, 2015, at the cottage shared by defendant and Gutierrez and often frequented by Garcia. The friends had a barbeque and drank beer. The friends' quarrel began when defendant complained to Torres that Gutierrez owed rent. Torres defended Gutierrez, saying defendant created an "uncomfortable" situation by having Garcia staying overnight in the small cottage. Gutierrez appeared and defendant asked him if it was true that Garcia's overnight stays bothered him. Gutierrez said yes and the conversation grew "heated" between the three men. Defendant told Gutierrez he did him a favor by letting him live at the cottage and if he did not like the living situation he could leave. Garcia joined the argument, saying she was entitled to stay overnight because she helped locate the cottage.
Torres and Gutierrez left the cottage to "cool off." They walked to a friend's house where they smoked marijuana. About an hour later, around 11:30 p.m., Torres and Gutierrez returned to the cottage to pick up Torres's bicycle to ride home. When they reached the cottage, Garcia came outside and rekindled the argument. She said everything had been fine at the cottage until Torres made trouble and defendant agreed with her. Gutierrez defended Torres, saying Torres only brought their roommate problems into the open.
Torres and defendant were intoxicated at this time. Later tests showed each man had a blood alcohol level of about .012 percent. Torres testified that defendant was "more aggressive" than he had been earlier in the evening. Defendant asked Torres, "What are you still doing here?" and Garcia taunted him. She "was in [his] face," "disrespecting" his mother, calling him a "girl," saying he would be afraid to fight her ex-boyfriend, and telling Torres he only talks tough.
Torres was "mad." He directed his anger at defendant rather than Garcia. Torres testified he is not the "type of guy" to slap a girl but he "kind of did" want to fight defendant. Torres told defendant: "I'm leaving, the high school is there on the way to my house; if you want to fight me we can go there." Torres testified he did not want to fight at the cottage because he did not want to "disrespect" defendant's elderly landlady, whom he knew and liked. Gutierrez testified that he expected Torres would win a fistfight with defendant. At the time of the fight, Torres weighed about 230 pounds and defendant weighed about 150 pounds. Torres's nickname is "Grande," Spanish for big.
Torres walked away from the cottage with his bicycle and Gutierrez accompanied him. Torres testified he was "mad" but also "kind of scared" because defendant and Garcia were "acting more aggressive." Garcia followed the men across the street toward the high school "talking trash the whole way." Torres saw defendant step inside the cottage, put on a shirt, then jog after them. Torres did not see what defendant later admitted—that he grabbed a kitchen knife and put it in his pocket. When defendant caught up with Torres, Torres asked "want to fight?" and defendant "raised his hands like right here." Torres testified: "Me, being heated like I was, I dropped my bike, too, and we ran towards each other, collided, like, right here in the street and ran towards each other, we started swinging and were just fighting." Torres could not say who struck first.
Torres swung at defendant's head, trying to hit him in the face. Gutierrez testified that Torres knocked down defendant with a punch to the face and defendant sprang back to his feet. Defendant landed body blows, which Torres thought were punches, but were actually knife thrusts. In the dark, Torres never saw the knife and he did not feel the stabs through the rush of "adrenaline." Torres learned he had been stabbed when he felt his hand go numb and looked down to his side and saw blood "spurting like a fountain." Torres said to defendant "you stabbed me, call 911." Defendant replied "you deserved it" and went back to his cottage.
Gutierrez called 911. An emergency medical technician arrived on the scene to find Torres in shock from the loss of blood and "very close to death." The technician testified that Torres would have died without immediate medical attention. Torres suffered 17 stab wounds to his torso that pierced his liver, kidneys and intestines. The pericardium sac around his heart was nicked. The wound was within millimeters of an "almost always fatal" injury to the heart itself. In addition to torso wounds there were slash and puncture wounds to his arms. His right forearm had been "fileted open." The puncture "went through all layers of the forearm down to the bone."
Torres underwent at least two surgeries on his abdomen and additional surgeries on his arm to repair tendon and nerve damage. He was hospitalized for almost one month. His arm had not fully healed at the time of trial, five months after the stabbing.
Defendant was arrested shortly after the stabbing. Torres told police officers who arrived on the scene that "Nestor" stabbed him and officers searching the area found the cottage with a bloody hand print near the door. The police knocked and, receiving no answer, broke down the door. They roused defendant from bed and took him in for questioning. Police officers testified that defendant had "some minor injuries," including facial abrasions, a "goose egg" on his temple above his left eye, and dried blood under a nostril.
When interviewed by the police, defendant initially said he did not remember anything after having a verbal quarrel with Torres. Defendant remembered drinking beer and arguing with Torres about roommate problems. Torres told defendant "let's take it to" the high school. Defendant said "I blacked out after that" and did not remember anything until the police "kicked the door and woke me up." The interviewing officer said he did not believe defendant and asked if defendant remembered a fist fight with Torres. Defendant continued to insist he had no memory of a physical fight but eventually admitted fighting Torres. Defendant said Torres hit him, he fell to the ground, then stood up and ran home.
The officer pressed defendant for the whole story and defendant said "Okay. I'll tell you the truth right now. I don't know why, but there was a knife in my pocket." Defendant said he "was scared" when Torres knocked him to the ground and he reached in his pocket for the knife. It was a kitchen knife, and defendant said he "probably" put the knife in his pocket when clearing the table and then "forgot" it was in his pocket. Defendant said he "punched" Torres with the knife because he was "losing" the fist fight. Defendant related an earlier experience with Torres when the men were play fighting and Torres, believing defendant was "actually tryin' to hit him," punched defendant so hard defendant "s[aw] stars." Defendant said Torres threw the first punch and he used the knife in "self-defense." When asked how many times he used the knife, defendant replied "I really don't know I - all I can remember is once or twice and I left. . . . It's just all adrenaline. Like, I really don't know." Defendant said when he saw Torres was hurt, he told Torres "I'm sorry dude" or "I'm sorry brother." Defendant then ran home, washed his hands, and went to bed.
At trial, defendant admitted lying "throughout most" of the police interview. Defendant testified that he was "mad" at Torres and went to the school intending to fight Torres because he was "tired of him calling me names and, like, basically disrespect[ing] my house" and my "girl." Defendant also admitted knowingly bringing a knife with him to the fight. Defendant did not contend, as he did in the police interview, that he discovered the misplaced knife in his pocket during the fight. Defendant testified that Torres, Gutierrez and Garcia were walking toward the school and he was alone in the house. Remembering there was a knife on the kitchen table, he walked over to the table, "grabbed the knife," and "put it in [his] pocket" for "protection." He pulled out the knife following an exchange of punches and being knocked to the ground. Defendant testified he was down on one knee being punched in the head when he stabbed Torres to "back him off." Defendant said, "I grabbed the knife and I popped him once." Defendant said Torres continued to punch him in the head and he continued stabbing Torres. After 30 to 40 seconds, Torres stopped hitting him and he ran home where he showered, got into bed, and slept until the police arrived.
On cross-examination, defendant admitted that he "brought a knife to a fistfight" but denied trying to kill Torres. Defendant said " I just defended myself," and stabbed Torres "to back him off of me." Defendant said he believed that once Torres hit him, he was entitled to pull out a knife and stab him multiple times in self-defense.
A police officer testified that, two years before defendant stabbed Torres, defendant had threatened to stab a man for bothering defendant's girlfriend. The officer received a report of slashed tires and, in the course of that investigation, learned that the driver of the vehicle received text messages from defendant. Defendant wrote: "Listen, foo. I'm only gonna tell you this one time. If you don't want problems then stay away from my girl Yesenia. If I hear you kicked it with her . . . again, you better be fucking prepared to pay a huge hospital bill. Last time you got lucky, your friends were there and stopped me from breaking your face. . . . If I hear you talking or texting her again I am gonna stab you and don't test me because I've stabbed two people before and trust me, you don't want to be the third one, so stay . . . away, too, because you're pushing my limit and next time I'll send you on a stretcher to the hospital. I hope you get it this time because no one gonna stop me."
The officer testified that defendant admitted sending the texts but said he had not stabbed anyone and only said so to frighten the text recipient. When testifying at trial, defendant confirmed sending the texts. Defendant testified that he sent the texts to Giovanni Guzman, whom he knew from school and from playing on the same soccer team. Defendant testified that his "girlfriend said this guy was bothering her" so defendant told Guzman he wanted to see him alone to "hear [his] side of the story." Guzman "didn't show up" but later appeared with several friends. Defendant punched Guzman in the mouth and later that day sent the threatening texts. Defendant admitted serving time in custody for the incident.
Discussion
1. The trial court did not abuse its discretion in admitting evidence of defendant's prior stabbing threats.
Defendant contends the trial court prejudicially erred in admitting evidence of defendant's threatening texts.
Evidence of a person's character, including evidence of specific instances of misconduct, is generally "inadmissible when offered to prove his or her conduct on a specific occasion." (Evid. Code, § 1101, subd. (a).) This rule does not bar evidence of prior misconduct "when such evidence is relevant to establish some fact other than the person's character or disposition" (People v. Ewoldt (1994) 7 Cal.4th 380, 393; Evid. Code, § 1101, subd. (b).) " 'Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive, intent, preparation or identity. [Citations.] The trial court judge has the discretion to admit such evidence after weighing the probative value against the prejudicial effect. [Citation.] When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.] Because this type of evidence can be so damaging, "[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded." ' " (People v. Fuiava (2012) 53 Cal.4th 622, 667.) A trial court's rulings on relevance and admission of evidence under Evidence Code sections 352 and 1101 are reviewed for abuse of discretion. (Fuiava, p. 667.)
The trial court was well within its discretion in finding that evidence of defendant's prior stabbing threats was relevant to prove he stabbed Torres with the intent to kill and not in self-defense. The incidents are substantially similar. In the Guzman incident, defendant had a physical confrontation with a former school mate for "bothering" defendant's girlfriend and threatened to stab him. In the current offense, defendant had a physical confrontation with a friend for "disrespecting" defendant's girlfriend and stabbed him. Defendant emphasizes differences between the two incidents, among them the fact that the Guzman incident concerned a threat to stab rather than an actual stabbing. But "[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) "[W]hen the other crime evidence is admitted solely for its relevance to the defendant's intent, a distinctive similarity between the two crimes is often unnecessary for the other crime to be relevant. Rather, if the other crime sheds great light on the defendant's intent at the time he committed that offense it may lead to a logical inference of his intent at the time he committed the charged offense if the circumstances of the two crimes are substantially similar even though not distinctive." (People v. Nible (1988) 200 Cal.App.3d 838, 848-849.) Such is the case here. Defendant's expressed intent to stab Guzman for bothering defendant's girlfriend permits an inference that defendant intended to stab Torres for disrespecting defendant's girlfriend. " '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' " (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
In any event, admission of the prior acts evidence was not prejudicial because there is overwhelming evidence of defendant's intent to kill, or at least to severely injure Torres and not simply to defend himself. Defendant testified that he willingly fought Torres because he was "mad" at him for calling defendant names and disrespecting his home and girlfriend. Defendant purposely brought a knife to the fight and used it to stab an unarmed man 17 times, with many of the thrusts directed to the victim's chest and abdomen. It is not reasonably probable that a result more favorable to defendant would have been reached had the challenged evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)
2. The prosecutor's use of a photograph during closing argument was not misconduct.
Defendant claims the prosecutor committed misconduct when he began his closing argument to the jury by projecting a photograph of defendant's bloody handprint at the cottage on the night of the stabbing and calling it "the sign of a killer or an attempted killer."
The claim is forfeited by the lack of a contemporaneous objection and request for a curative instruction. (People v. Gamache (2010) 48 Cal.4th 347, 371.) The claim also fails on the merits. "Under the federal Constitution, a prosecutor's behavior deprives a defendant of his rights 'when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' [Citations.] Conduct that falls short of that standard 'may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.' " (Id. at pp. 370-371.)
The prosecutor's characterization of the photographed hand print as the sign of an attempted killer—while melodramatic—was not misconduct. Prosecutors are given wide latitude during argument and may use epithets. (People v. Gamache, supra, 48 Cal.4th at p. 371.) The remarks were not inflammatory when viewed in the context of the argument as a whole and not prejudicial given the overwhelming evidence of defendant's guilt. Defendant's claim of prosecutorial misconduct fails, as does his alternative claim that his trial counsel was ineffective in failing to object to the closing remarks.
Disposition
The judgment is affirmed.
Pollak, J. We concur: McGuiness, P.J.
Siggins, J.