Opinion
F061462
10-03-2012
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY AGUILAR, JR., Defendant and Appellant.
Stephen Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Fresno Super. Ct. No. F09903920)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Edward O. Sarkisian, Jr., Judge.
Stephen Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Johnny Aguilar, Jr., appeals from a judgment of conviction of second degree murder (Pen. Code, § 187, subd. (a)) and arson (§ 451, subd. (b)) with a prior serious felony conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
All further statutory references are to the Penal Code unless otherwise stated.
STATEMENT OF THE CASE
On November 3, 2010, a Fresno County jury returned verdicts finding appellant guilty of second degree murder (§ 187, subd. (a)) and arson of an inhabited structure (§ 451, subd. (b)). That same day, appellant admitted a prior serious felony conviction (§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On December 6, 2010, the court denied appellant probation and sentenced him to a term of 30 years to life (the doubled term of 15 years to life) in state prison on the murder count and a consecutive term of 16 years (the doubled term of eight years) on the arson count. On the same date, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
Fresno Firefighter Gabriel R. Lopez testified that he responded to a fire at the Sahara Lodge, a motel at Belmont and Weber Avenues, during the 5:00 a.m. hour on July 2, 2009. Lopez said he and fellow firefighters responded the scene in Engine No. 9, and he saw smoke coming from a room on the second floor. Lopez entered the burning room through an open door and saw flames crawling up the wall above the bed area. Lopez also saw fire under the bed area, between 10 and 15 feet away from the doorway. Although there was virtually no visibility in the room, Lopez and another firefighter flipped the mattress over because there was fire in between the mattress and box spring. The fire was extinguished in several minutes and, at some point, the smoke cleared out of the room. Sometime after the smoke cleared, Lopez saw a body on the floor facing the left side of the bed. He had not seen the body earlier.
Deborah Gail Johnson testified she was the manager of the Sahara Lodge. She said the motel had two stories and 46 rooms. On the day of the fire, Johnson was living and working at the Sahara Lodge with her husband, Bobby Garcia. She awakened when someone knocked on her door and said a room was on fire. Johnson and Garcia ran outside and saw smoke coming from room 41. Night manager Rick Patterson called the fire department. Johnson said Mary Jane Bustamonte resided in Room 41 on the second floor near the elevator. Johnson said Bustamonte had lived there since April 2009.
Johnson testified that Bustamonte had initially lived by herself. After a time, she advised Johnson that her nephew, Johnny Aguilar, would be staying with her as a visitor. Aguilar resided in Room 41for two or three weeks prior to the fire. According to Johnson, only Bustamonte had a key to Room 41. Johnson said each room had a smoke detector mounted above the bathroom door. Johnson said fire department personnel arrived at the Sahara Lodge minutes after the fire call. People went around knocking on doors and, as far as Johnson knew at the time, all of the tenants came out of their rooms. Johnson was standing outside her office among a number of people when appellant arrived a few minutes after the firefighters. Johnson asked whether Bustamonte was in Room 41. Appellant said in a normal tone of voice, "[S]he was a few minutes ago, and that's what karma gets you." Johnson said appellant did not seem concerned at all and he left the motel property. Johnson said she was "shocked" and frightened by the fire. Johnson told police officers at the scene about appellant's "karma" comment. Johnson said she learned about a body in Room 41 about 90 minutes after the fire was extinguished.
Johnson testified that she and her husband did not clean out Room 41 until several months after the fire. Chad Brisendine, a fire department reserve investigator, testified he responded to the Sahara Lodge and saw that fire was coming from underneath the bed once the smoke dissipated. Brisendine said he pulled the mattress during the fire and noted the bed was covered with numerous blankets and clothes. Brisendine testified that Fire Captain Christian Palmer advised him that a body was in Room 41. Brisendine attended the autopsy of the victim's body.
Andrew Brand testified he lived in Room 31 of the Sahara Lodge on July 2, 2009. At about 5:46 a.m., Brand went outside to smoke a cigarette. He detected smoke and wondered whether a fellow tenant was burning something. Brand leaned over a rail and saw smoke coming from underneath an eave. He ran downstairs and awakened Deborah Johnson. Brand then ran upstairs and saw the appellant moving in a hurry. Appellant asked whether Brand had a cell phone and could call 911 to report a fire. Brand did not have a cell phone but told appellant there was a pay phone by the pool in the Sahara Lodge complex. Brand said appellant was dressed in street clothes and a dark-colored jacket. Appellant went downstairs and Brand went to Room 40, his nephew's residence. He pounded on the doors of Rooms 40 and 41. Brand saw smoke coming from Room 41 and screamed, " 'Is there anyone in there?' " but there was no reply. However, he did awaken his nephew in Room 40. Brand saw appellant downstairs on the phone by the old swimming pool but did not see appellant again that day.
Brand testified that he and Robert Garcia kicked in the door to Room 41 after determining the door was locked. They tried to put out the flames with extinguishers. Brand said all of the other tenants were coming out of their units, and some of them were going downstairs. Brand said there were flames against the wall of the room and it "looked like somebody was laying on the bed." Brand said he and Garcia actually entered the room and wiggled the foot of the body. However, there was no response and the two men backed away. Brand heard sirens, and firefighters who arrived at the scene a few minutes later asked that Brand and Garcia step away from Room 41. Police officers at the scene asked motel residents to congregate downstairs. Brand said he told the firefighters there was someone on the bed in Room 41. A month or so after the fire, Brand assisted the Sahara Lodge staff in cleaning the debris from Room 41 after police detectives granted permission to re-enter the premises. Brand said, "[T]he smoke detector was there, there was no battery. It was melted. It looked like it had been thrown into the fire. Because it sits above the bathroom, you could see where there's two molly screws, and the whole thing had been - the molly screws and all had been yanked out of the wall."
Tai Scott-Welch testified that she worked as a crime scene investigator for the Fresno Police Department in July 2009. On July 6, 2009, she went to a residence on Fresno Street and collected a pair of size eight and one-half tennis shoes, multiple pairs of jeans, a wet T-shirt, a pair of socks, and a white tank top, plaid shorts, and a gray sweatshirt that had been stored in a garbage can. On July 8, 2009, Scott-Welch went to the Sahara Lodge, met Detective Gray, and photographed the exterior and interior of Room 41. She collected a shower curtain from the room along with the rings holding the shower curtain.
Justin Simmons testified he was an engineer with the Fresno Fire Department as well as an active reserve member of the Arson Investigation Unit. Investigator Simmons testified he was assigned to investigate the fire at the Sahara Lodge on the morning of July 2, 2009. Simmons said the incident commander, Captain Joella Garcia, advised him there was a deceased person in room 41. Simmons said he went to the room to secure the scene. Simmons said the bed was located in the southeast corner of the room, in front of closet. He noted a mini-refrigerator on the right of the bed and television set on the left of the bed. A trash can was located at the base of the television stand. Simmons found two shelving units with a microwave on top. The bathroom was located in the northeast corner of the room.
Simmons said the bathroom had light smoke damage but no significant fire damage. The bedroom side of the door frame was burnt more than the inside of the door frame, suggesting the fire started outside of the bathroom and the door to the bathroom was "slightly shut" during the course of the fire. Simmons said there was light smoke damage but no fire damage inside the bathroom. Simmons said the electrical outlets were "clean" and there was no evidence of "shorting" or fire patterns coming from the outlets. Simmons ruled out the electrical outlets as an ignition source.
Simmons said the closet behind the headboard of the bed showed significant charring and burn patterns and significant smoke damage inside the closet. However, when fire investigators peeled back the layers of burned clothes, they found no ignition source or area of origin in the closet. Smoke damage in the main living area indicated "the fire smoldered for a significant period of time before it actually made it to its free-burning stage
Simmons said the fire damage was in the southeast corner of the room, particularly on the bed and headboard of the bed. The bed consisted of two mattresses and a box spring resting on two hollow core doors, which served as a bed frame. The mattresses and box spring had significant fire damage in the head area. Simmons opined, "[T]he fire started near the head of the bed and smoldered for a significant ... amount of time searching out oxygen .... And it burned down through the mattresses to work out to the box spring, and started to get more oxygen, and then it progressed to the headboard and the wall behind the headboard, and then also out towards the foot of the bed."
Simmons said investigators found discarded cigarettes and matches on the floor of the room but none on the bed. He acknowledged the fire could have consumed such evidence had it been located on the bed. In Simmons's opinion, the cause of the fire was "a willful and malicious act with an open flame device . which would be a lighter or matches, in lighting common combustible materials, which could be anything from paper to wood." Simmons said his opinion was consistent with someone placing a flammable item on or in the mattress and lighting it on fire. On cross-examination, Simmons said he did not detect any gasoline or other flammable liquids in the room. Charring of the doors that served as the bed frame suggested that the fire started above the bed frame.
Assistant Fire Investigator Floyd Wilding testified the bed was located on the right-hand side of the room and the body of Mary Bustamonte was "directly to the north of the bed laying on the floor." Wilding said he examined the mattresses and box springs and noted, "This fire appeared to be a smoldering type fire that wormed its way through the mattresses and then ... it managed to burn all the way through the underneath side of the mattress before it burned the actual top of the mattress." He added that the fire damage was most severe at the head of the bed. A hydrocarbon detector did not reveal the presence of fire accelerants in the room.
Venu Gopal, M.D. testified that he was the chief forensic pathologist in the Fresno County Coroner's Office. Dr. Gopal said he performed an autopsy on the body of Mary Bustamonte. He found a subgaleal hemorrhage on the left side the head caused by trauma; subconjunctival hemorrhage inside the eyes, especially the left eye; a hemorrhage around the hyoid bone or "wishbone," located in the upper trachea above the Adam's Apple; and hemorrhaging on the epiglottis inside the larynx. These hemorrhages occurred before the victim's death. In Dr. Gopal's opinion the cause of Mary Bustamonte's death was "the combined effects of acute cocaine intoxication and strangulation." Dr. Gopal said that strangulation was a significant factor in causing the victim's death and "maybe an element of thermal burns could have contributed to the death."
Corey Schroeder testified that he was a latent print analyst with the California Department of Justice Regional Crime Laboratory in Fresno. On July 29, 2009, Schroeder attempted to recover fingerprints from a plastic/vinyl shower curtain that Fresno Police had seized in the instant case. Schroder testified that he was unable to recover any prints from the shower curtain. Kiffin Nelson, a criminalist at the same crime laboratory, testified that she examined the same shower curtain and found blood stains. She swabbed those stains, prepared an DNA profile, and compared that profile with a DNA profile from a blood sample taken from Mary Bustamonte. Kiffin said the sample from the shower curtain and the sample from Bustamonte were consistent.
Testimony of Rebekah Palacios
Rebekah "Sweetie" Palacios testified that appellant was one of her five brothers. Palacios said she had a conversation with appellant about the fire in July 2009. Appellant told Palacios there had been a fire at the Sahara Lodge the night before their conversation. Appellant told Palacios he was outside the room at the time of the fire. He also said he had been in the room with a woman named Mary and another man before the fire. Appellant told Palacios that he, Mary, and the other man got high. Palacios said she had met Mary in appellant's truck on a previous occasion.
Although Palacios did not give "Mary's" surname, she did testify she had met "Mary" one time before in appellant's truck "outside our house." Rebecca Duarte, the mother of appellant and Palacios, testified that she had met Mary Bustamonte on one occasion. She explained, "Johnny brought her over one time to our house on C Street. She did his laundry."
Appellant told Palacios he lit the bed on fire while Mary was reclining on it. According to Palacios, appellant said that Mary was unconscious "[b]ecause he had choked her and put her to sleep." Appellant also told Palacios that he had wrapped Mary in a shower curtain in the bathroom. Appellant also told Palacios that Mary "had snitched on somebody, some drug dealers or something." Appellant told Palacios that after he choked Mary and wrapped her in the shower curtain, he placed her in the bathtub, kicked her in the head, and put her on the bed. Appellant told Palacios a man entered the apartment while Mary was in the bathtub, but appellant told the man to leave.
Appellant told Palacios that after he placed Mary's body on the bed, he made a hole in the bed, stuck toilet paper in the hole, and lit the paper on fire. He said he left the room after starting the fire. Appellant also told Palacios he placed a cigarette in Mary's hand "[s]o that it would look like the cigarette caught the bed on fire." Appellant told Palacios that starting the fire did not mean anything to him.
On cross-examination, Palacios said she used marijuana, and appellant used crystal methamphetamine just before they had their July 2009 conversation about the fire at the Sahara Lodge. She claimed she was "high" during their conversation. Palacios said her brother, Robert, had told her about the Sahara Lodge fire before she spoke with appellant. Palacios said she believed a fire occurred but did not believe that appellant killed Mary. She testified, "[W]hen my brother, Johnny, gets high he always tells like weird stories; that he hears things; and like about aliens and stuff; so I don't really believe most of the things that he talks about when he's high." Palacios said appellant claimed he had been using drugs the day of the fire. She said she did not believe everything that appellant told her about the fire and she believed appellant was under the influence when they spoke about the fire.
Palacios said that Detective Gray interviewed her in July 2009 and she listened to the prosecutor read some of her transcribed statements in open court. Appellant told Palacios that someone had identified Mary Bustamonte as a snitch and told him to "take her out." Appellant said he went into the room while Bustamonte was with another male. Appellant ordered the other male out, took a shower curtain, and started suffocating Bustamonte while she was asleep. He then put Bustamonte's body in the bathtub. Appellant told Palacios he eventually "finished her [Bustamonte] off" and put her back on the bed. Appellant said he tried to catch the bed on fire so that nobody would know what had happened. Appellant said the fire went "really fast" after he put toilet paper on the bed. According to Palacios, appellant said Bustamonte had questioned him about why he was trying to kill her and appellant said, "Because you deserve it, bitch."
On cross-examination, Palacios said she told Detective Gray the story she remembered but added that the story came from both appellant and their brother Robert. She also testified that she did not believe appellant's account of the motel fire and the death of a resident.
Testimony of Rebecca Duarte
Appellant's mother, Rebecca Duarte, said she spoke with Detective Marcus Gray about the fire at the Sahara Lodge. Duarte also testified that she had a conversation with appellant one morning in July 2009. She said appellant came to her home "all sweaty and tears in his eyes" and she believed "he was all cracked out." At some point, appellant embraced her and said, "I killed somebody." According to Duarte, appellant told her he killed the person "because she was a rat or something." On cross-examination, Duarte said she did not believe appellant's statement about killing someone because "he's always talking stuff when he's on that stuff. So I never believe anything he says that comes out of his mouth." She later explained, "I wasn't sure of anything because of the situation with Johnny on drugs."
Testimony of Lilliana Alvarez
Lilliana Alvarez testified she had known Rebecca Duarte and her family for nine years. Alvarez admitting talking to Mike Garcia, an investigator with the District Attorney's office, but denied telling Garcia that she heard appellant make inculpatory statements about the Sahara Lodge fire and homicide. At trial, Alvarez said Duarte and Palacios told her that appellant came home and said he enjoyed killing the victim. Alvarez said she spoke with Palacios in person and on the phone about 10 days before Alvarez testified at trial. Alvarez said Palacios told her that she needed to shut her mouth.
Other Prosecution Witnesses
District Attorney Investigator Michael Garcia testified he interviewed Alvarez on the afternoon of August 11, 2010. Alvarez told Garcia that she heard appellant speak to Palacios and their brother, Robert, at the residence of Palacios. Alvarez told Garcia that she heard appellant say "he enjoyed killing the lady and he was going to kill the bitch."
Fresno Police Officer James Barnum testified he was a member of the Central District Crime Suppression Team in 2008 and came into contact with Mary Bustamonte. Barnum said Bustamonte was a prostitute who became a paid confidential informant for the Fresno Police Department regarding area drug transactions. According to Barnum, Bustamonte helped on 30 to 40 cases and "[w]e were successful with our investigations on almost every case."
Enrique Joshua Mendizabal testified he was an officer with the Fresno Police Department and worked on the Parole Apprehension Team in July 2009. On July 6, 2009, Officer Mendizabal worked with Detective Marcus Gray on a homicide investigation. Gray directed Mendizabal to go to an address on Fresno Street and question appellant and his brother, Robert. Mendizabal and two other officers went to the premises. Appellant identified himself as "Jay." When Mendizabal confronted appellant with his real given name, appellant said he had some misdemeanor warrants and was scared he was going to be arrested. Appellant eventually admitted that his first name was "Johnny."
Detective Marcus Gray testified he worked for the Fresno Police Department Homicide Unit. Detective Gray conducted a follow-up investigation on the Sahara Lodge fire of July 2, 2009. Gray went to Room 41 and saw the victim's body on the floor next to the bed. He entered the bathroom and saw some smoke damage. Gray said the bathroom had a shower with a curtain hanging from a rod, with several rings pulled away from the curtain.
Gray said he interviewed appellant's sister, Rebekah Palacios and appellant's mother, Rebecca Duarte, at the home of their friend, Lilliana. The interview took place on the morning of July 6 or 7, 2009. Gray said Palacios did not appear to be under the influence of marijuana, although she was extremely upset and did not want to talk with police. Nevertheless, she was able to track and appropriately answer Gray's questions. Palacios and Duarte answered Gray's questions and at one point said they did not believe appellant's statements about the Sahara Lodge fire. Gray said he learned of appellant's July 6, 2009, arrest from Officer Mendizabal.
Defense Evidence
Fresno County Public Defender's Office Investigator Darren Hise testified he went to the Sahara Lodge to conduct an investigation on July 13, 2009. Hise took numerous photographs of the premises and said there were rodents in the complex and within the stud walls of Room 41. Hise found cigarette lighters in the living area and a burned cigarette in the area of the overturned bed. His recovered a pair of dirty, wet pants that were covered with soot.
Appellant's Testimony
Appellant testified on his own behalf. In July 2009, appellant traveled back and forth between his mobile home on Rice Road, his mother's home on C Street, and the Sahara Lodge. Appellant said he met Mary Bustamonte and her then-boyfriend in 2005. He considered Bustamonte, a Native American, an "aunt," likening her to a spiritual leader or elder. Appellant said he was handling commercial loan originations and conducting real estate short sales in July 2009. At that same time, he got into the habit of smoking rock cocaine with Bustamonte. Appellant said he stayed with Bustamonte in Room 41 at the Sahara Lodge.
Appellant said that on the day of the fire, he was "hanging out" with two people on the first floor of the Sahara Lodge: Kenneth "Casper" Mulponce and a woman named Marilyn, whom he described as "a known alcoholic." He would give some of his real estate earnings to Bustamonte, and she would buy drugs for them to use. Appellant also said that Bustamonte was a prostitute, and that he would excuse himself from Room 41 when Bustamonte had male visitors. Appellant said he had been downstairs at the Sahara Lodge because Bustamonte had an early-morning male visitor. After appellant stayed downstairs for several hours, he walked upstairs and noticed smoke coming from the bottom of the door to Room 41. Appellant said he ran into Andrew Brand and asked whether Brand had a cell phone. Brand said he did not have phone but pointed out a phone booth on the first floor of the Sahara Lodge, near the old pool. Appellant said he went downstairs and called 911. According to appellant, the 911 operator told him to advise residents to get away from the burning room because the fire department was en route.
When fire and police personnel arrived, appellant told the 911 dispatcher he was going to get off of the phone in order to help people evacuate their rooms. After appellant completed the 911 call, he ran upstairs and saw a number of people coughing from the smoke. Andrew Brand was using a garden hose on the fire, and appellant started to relieve him. The fire personnel hooked up a line and told everyone to back away. Appellant went to a distant stairwell on the second floor and waited. He then went downstairs in front of the Sahara Lodge office and saw manager Deborah Johnson. She asked appellant if Mary was in the room, and appellant said Mary had been there the last time he had seen her. Appellant denied making any remarks about "karma."
Appellant said he left the Sahara Lodge and went to his mother's home. He cried and hugged her, explaining that his friend's room had caught fire. Appellant said he did not know for certain that Bustamonte was in the room, but he was nevertheless emotional. Appellant said he did not tell his mother he had killed someone at the fire. Appellant said he had last seen his mother four or five days earlier and had been using drugs prior to visiting her. Appellant denied telling his sister, Palacios, that he had killed Mary and set the fire. Appellant said he learned about Bustamonte's passing from Kenneth Mulponce and became numb when he heard the news. Appellant said he did not know Bustamonte was a confidential police informant and had no reason to want her dead. However, he was aware that Bustamonte had dealings with the police department. Appellant said he and Bustamonte cared for each other.
Appellant said he was cooperative with Officer Mendizabal when the latter came to his mother's home. Appellant acknowledged that he gave his name as "Jay Aguilar" but said he was cooperative as he was being handcuffed.
Rebuttal Evidence
Detective Gray testified he interviewed appellant on the afternoon of July 6, 2009, and appellant appeared to be coherent and gave appropriate answers to questions. Gray said appellant changed his story about seeing signs of the fire at the Sahara Lodge. At one point, he told Gray he saw smoke coming from the roof. At another point, he said he did not know where the smoke was coming from. He also told Gray he never saw smoke. During the interview, Gray suggested that appellant killed Bustamonte because she was a "snitch," but appellant did not respond to the detective's accusation.
DISCUSSION
I. DEFENSE COUNSEL DID NOT RENDER INEFFECTIVE ASSISTANCE BY DECLINING TO OBJECT TO ADMISSION OF APPELLANT'S INCRIMINATING STATEMENTS TO THIRD PARTIES.
Appellant contends his trial counsel was ineffective by failing to challenge the hearsay-source basis of the confession evidence introduced by the prosecution.
A. Appellant's Specific Contention
Appellant acknowledges that under the hearsay rule, a witness could properly testify about statements they heard directly from defendant. Appellant concedes that Rebecca Duarte Aguilar testified that he said, " 'I killed somebody.' " However, he goes on to parse the police interview and preliminary hearing testimony of his sister, Rebekah Palacios and the police interview and preliminary hearing testimony of Duarte. He sums up: "[O]f all the specific confession details reported by [Palacios] and Duarte, only the 'I killed somebody' statement, as recalled by Duarte, was attributed directly to defendant. The rest of what she heard came from [Palacios] - who in turn couldn't pin anything down as directly from defendant." (Original italics.) Appellant contends his trial counsel should have interposed an Evidence Code section 402 exclusion motion because "the prosecutor was ready to present testimony that was arguably inadmissible - because it was hearsay - and prejudicial, because it was impossible to ignore." Appellant further contends his counsel was ineffective in failing to address the hearsay-source issue during closing argument, and that counsel could have had no reasonable strategy in failing to challenge the confession testimony and ensure the jury was properly instructed on how to analyze such testimony.
B. Law of Ineffective Assistance
To establish ineffective assistance of counsel, the defendant has the burden of showing that the attorney's performance not only "fell below an objective standard of reasonableness" but also prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 684-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) The defendant also has the burden of showing that the attorney's act or omission was not attributable to a tactical decision that a reasonably competent and experienced criminal defense attorney would make. (People v. Gurule (2002) 28 Cal.4th 557, 610-611.) If the defendant makes an insufficient showing that the attorney's performance fell below the requisite standard or prejudiced the defense, the ineffective assistance of counsel claim fails. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) If the record fails to show the reason for the acts or omissions challenged on appeal, our duty is to affirm unless there could be no satisfactory explanation. (People v. Anderson (2001) 25 Cal.4th 543, 569.)
" 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel (see People v. Wright (1990) 52 Cal.3d 367, 412 ...), and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' (People v. Lucas (1995) 12 Cal.4th 415, 436-437..., quoting Strickland v. Washington, supra, 466 U.S. at p. 689....) '[W]e accord great deference to counsel's tactical decisions' (People v. Frye (1998) 18 Cal.4th 894, 979 ...), and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' (People v. Scott (1997) 15 Cal.4th 1188, 1212 ...). 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' (People v. Bolin (1998) 18 Cal.4th 297, 333....) [¶] In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions. (People v. Earp (1999) 20 Cal.4th 826, 896 ...; see also People v. Fosselman (1983) 33 Cal.3d 572, 581 ... [on appeal, a conviction will be reversed on the ground of ineffective assistance of counsel 'only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission'].)" (People v. Weaver (2001) 26 Cal.4th 876, 925-926.) Such matters as whether objections should be made and the manner of cross-examination are within counsel's discretion and rarely implicate ineffective assistance of counsel. (People v. McDermott (2002) 28 Cal.4th 946, 993.)
C. Analysis
The purpose of an Evidence Code section 402 hearing is to decide preliminary questions of fact upon which the admissibility of evidence depends. (People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 204, 211.) Here, appellant's sister, Rebekah Palacios, testified about a July 2009 conversation she had with appellant. Appellant told Palacios he lit the bed on fire while Mary Bustamonte was reclining on it. Appellant told Palacios that Mary was unconscious because he had choked her and put her to sleep. Appellant also told Palacios that he had wrapped Mary in a shower curtain in the bathroom and that Mary "had snitched on somebody, some drug dealers or something." Appellant's mother, Rebecca Duarte, testified that appellant arrived at her home sometime after the Sahara Lodge fire. Although Duarte described appellant as "cracked out," she said appellant embraced her and told her, " 'I killed somebody.' " Given the testimony of appellant's sister and mother, trial counsel did not render ineffective assistance by declining to request an Evidence Code section 402 hearing. Attorneys are not expected to engage in tactics or to file motions which are futile. (People v. Maury (2003) 30 Cal.4th 342, 389-390; People v. Anderson, supra, 25 Cal.4th at p. 587; People v. Mendoza (2000) 24 Cal.4th 130, 166.)
Appellant attempts to show that some of Palacios's information about the crime came from their brother, Robert, rather than from appellant himself. Nevertheless, the information clearly attributable to appellant was sufficient to support the judgment of conviction of second degree murder, and it is not reasonably probable a result more favorable to appellant would have occurred had trial counsel moved for a hearing of preliminary facts under Evidence Code section 402.
II. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BY GIVING CALCRIM NO. 358 [EVIDENCE OF DEFENDANT'S STATEMENTS].
Appellant contends the trial court committed reversible error by giving an unmodified version of CALCRIM No. 358, and that appellant's trial counsel was ineffective by failing to modify the instruction.
CALCRIM No. 358, as requested by appellant and the prosecution and given by the trial court, stated:
"You have heard evidence that the Defendant made oral statements before trial. You must decide whether the Defendant made any such statements in whole or in part. If you decide that the Defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It's up to you to decide how much importance to give to the statements. [¶] Consider with caution any statement made by the Defendant tending to show his guilt, unless the statement was written or otherwise recorded."
The doctrine of invited error bars a defendant from challenging an instruction given by the trial court when the defendant has made a conscious and deliberate choice to request the instruction. (People v. Harris (2008) 43 Cal.4th 1269, 1293.) Appellant has not cited to, and we have been unable to find, any portion of the record suggesting that defense counsel made other than a conscious and deliberate choice to request CALCRIM No. 358. Moreover, although the caption to appellant's issue II suggests that "counsel was ineffective in failing to modify the instruction [CALCRIM No. 358]," appellant does not offer any argument or authority to this effect. When a point is asserted without argument and authority for the proposition, " 'it is deemed to be without foundation and requires no discussion by the reviewing court.' " (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
III. THE TRIAL COURT DID NOT ERR BY ALLOWING EVIDENCE OF IMPLIED HEARSAY AS THE SOLE IMPEACHMENT OF DEFENDANT'S ALIBI TESTIMONY.
Appellant contends the trial court violated his right of confrontation by admitting Detective Marcus Gray's rebuttal testimony about appellant's alleged contacts with a fellow Sahara Lodge resident at the time of the fire.
A. Relevant Testimony
Appellant testified on his own behalf during the defense case. Appellant said that on the morning before the fire, he went downstairs while it was dark and spent time by the radio in the lower level of the complex. Appellant explained that Bustamonte was expecting a male acquaintance and that appellant needed to excuse himself from the apartment. Appellant said he went downstairs, drank soda, listened to the radio in an empty room on the ground floor of the complex, and spoke with someone named Kenneth and a female who were fellow residents. Appellant said he went upstairs after several hours and saw smoke coming from the bottom of Bustamonte's door.
During the prosecution's rebuttal case, Detective Gray testified that he interviewed appellant for about three hours on July 6. Appellant told Detective Gray that on the morning of the fire, appellant spent time downstairs with people named "Casper" and "Marilyn." Detective Gray noted that there were two Caspers who resided in the complex. On redirect examination, Detective Gray said he was able to located one of the Caspers, whose full name was Kenneth Mulponce, and talked to him. The prosecutor then asked Gray, "Any of that information pan out from Mr. Mulponce?" Gray responded, "No, sir, it did not." Defense counsel unsuccessfully objected on the grounds of vagueness and hearsay. The prosecutor then asked, "What did Mr. Mulponce tell you?" The court sustained defense counsel's objection on the ground of hearsay.
B. Appellant's Specific Contention
Appellant concedes "the fact - vs. the substance - of the conversation [Detective Gray had with Kenneth "Casper" Mulponce] was proper evidence." However, appellant contends that the evidence was inadmissible as implied hearsay because it was offered for its truth, "as a direct, if implied, contradiction to defendant's alibi testimony." Appellant further contends Casper's implied hearsay was "the only evidence directly undermining defendant's otherwise credible alibi testimony" and its admission denied appellant the constitutional right of confrontation. (Original italics.)
C. Applicable Law
" 'Hearsay evidence' is evidence of a statement made by a declarant on an occasion other than as a witness while testifying at a current hearing or trial, that is offered at the current hearing or trial to prove the truth of the matter stated, either expressly or implied, in the statement." (Evid. Code, § 1200, subd. (a).) Hearsay evidence is not admissible unless it falls within one of the exceptions provided by law. (Evid. Code, § 1200, subd. (b).) "Statement" means "(a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression." (Evid. Code, § 225.)
Implied assertions can be deemed hearsay. (People v. Morgan (2005) 125 Cal.App.4th 935, 937.) " '[E]vidence of an express statement of a declarant is ... hearsay evidence if such evidence is offered to prove - not the truth of the matter that is stated in such statement expressly - but the truth of a matter that is stated in such statement by implication.' [Citations.] 'While the ultimate fact the statement is offered to prove is not the matter stated, the truth of the implied statement is a necessary part of the inferential reasoning process.' [Citation.] 'An implied statement may be inferred from an express statement whenever it is reasonable to conclude: (1) that declarant in fact intended to make such implied statement, or (2) that a recipient of declarant's express statement would reasonably believe that declarant intended by his express statement to make the implied statement.' [Citation.]" (People v. Garcia (2008) 168 Cal.App.4th 261, 289, original italics.)
D. Analysis
In this case, appellant unsuccessfully interposed a hearsay objection when the prosecutor asked Detective Gary about whether any information from Mulponce panned out. When the prosecutor went further and asked Gray to relate what Mulponce had said, the trial court sustained a second hearsay objection.
Evidence Code section 353 states:
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
"(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and
"(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice."
As a general rule, a party objecting to evidence must make a timely and specific objection in the trial court. This gives both parties the opportunity to address the admissibility of the evidence so the trial court can make an informed ruling and creates a record for appellate review. (People v. Davis (2008) 168 Cal.App.4th 617, 627.) Evidence Code section 353 does not require any particular form of objection. Rather, the objection must alert the trial court to the nature of the anticipated evidence, the basis on which exclusion is sought, and afford the party offering the evidence the opportunity to explain its admissibility. The objection must fairly inform the trial court and the party offering the evidence of the specific reason or reasons the objecting party believes the evidence should be excluded. When the objecting party does so, the party offering the evidence can respond in an appropriate way and the trial court can make an informed ruling. If the trial court overrules the objection, the objecting party may argue the point on appeal. (People v. Partida (2005) 37 Cal.4th 428, 435.)
Even if a party interposes an appropriate evidentiary objection in the trial court, prejudice is never presumed. Rather, it must be affirmatively demonstrated. In other words, even if evidence should have been excluded, an appellant must show the failure to exclude it resulted in a miscarriage of justice. (People v. Zunis (2005) 134 Cal.App.4th Supp. 1, 4.) "[A] miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. [Citation.]" (People v. Rains (1999) 75 Cal.App.4th 1165, 1170.)
Here, it seems doubtful that a miscarriage of justice arose from Detective Gray's brief remark about Mulponce's information panning out. Gray did not disclose the nature, extent, or level of detail of the information supplied by Mulponce. Moreover, Gray's acknowledgment that Mulponce's information did not "pan out" was not the equivalent of a refutation of appellant's alibi. In any event, the court instructed the jury that the attorneys' questions were not evidence. He instructed: "Only the witnesses' answers are evidence. The attorneys' questions are significant only if they help you to understand the witnesses' answers."
The trial court did not commit reversible evidentiary error by allowing Detective Gray to testify that information from Kenneth Mulponce did not pan out.
IV. REVERSAL OF THE JUDGMENT OF CONVICTION FOR ALLEGED CUMULATIVE ERROR IS NOT REQUIRED.
Appellant contends the cumulative impact of the errors raised issues I through III require reversal of the judgment of conviction.
We have either rejected appellant's claims of error and/or found that any errors, assumed or not, were not prejudicial. Viewed cumulatively, we find that any errors do not warrant reversal of the judgment of conviction. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
V. THE TRIAL COURT PROPERLY IMPOSED CONSECUTIVE TERMS OF IMPRISONMENT FOR SECOND DEGREE MURDER AND ARSON.
Appellant contends resentencing is necessary because the trial court was unaware of its discretion to impose appellant's determinate and indeterminate terms concurrently. Appellant summarily contends in the alternative that his counsel was ineffective by not arguing for concurrent terms.
A. Sentencing
The report of the probation officer filed December 6, 2010, set forth criteria affecting concurrent or consecutive sentences (Cal. Rules of Court, rule 4.425). The report stated in relevant part:
"Criteria relating to the crime: Criteria affecting the decision to impose consecutive rather than concurrent sentence[s] include:
"(b) Other criteria and limitations: Pursuant to PC 667(c)(7), consecutive sentencing will be imposed."
On that same date, the court indicated that it had read and considered the probation report, the arguments of counsel, and the statements of individuals who spoke at the sentencing proceedings. The court denied appellant probation and imposed terms of imprisonment, stating:
"With respect to Count One; namely, Penal Code Section 187, murder, as fixed by a jury, and murder of the second degree, defendant will be ordered to [serve] the statutory term of 15 years to life, which will be doubled by virtue of the strike and pursuant to Penal Code Section 667(e)(1). And, therefore, will serve a term of 30 years to life with respect to Count One.
"With respect to Count Two; namely, Penal Code Section 451, subdivision (b), arson of an inhabited structure, that calls for determinate
sentencing. And in this case the factors in aggravation outweigh those in mitigation. In fact, the Court doesn't include any mitigating factors in this case. There is a total lack of remorse. The facts of the case demonstrate great violence. And as noted, the prior convictions are of increasing seriousness and numerous, just to mention a few factors in aggravation. Accordingly, for Count Two, the Court will fix the upper term of eight years, which will be doubled by virtue of the strike and, again, pursuant to Penal Code Section 667(e)(1), which will therefore be a determinate term of 16 years with respect to Count Two. [¶] And the total term for both counts equates to 16 years determinate, followed by a term of 30 years to life."
B. Appellant's Specific Contention
Section 667, subdivision (c)(6) and section 1170.12, subdivision (a)(6) provide: "If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count ...." (Italics added.) Section 667, subdivision (c)(7) and section 1170.12, subdivision (a)(7) provide: "If there is a current conviction for more than one serious or violent felony as described in paragraph (6) ... the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law." Appellant points out the murder and arson charged in the instant case were committed on the same occasion and contends the trial court was seemingly unaware of its discretion to impose concurrent terms of imprisonment rather than consecutive terms of imprisonment.
In People v. Deloza (1998) 18 Cal.4th 585 (Deloza), the California Supreme Court held that the "same occasion" and "same set of operative facts" analysis under the "Three Strikes" law is not the same as the indivisible transaction analysis under section 654. (Deloza, at pp. 594-595.) Consequently, even if section 654 does not preclude imposition of multiple sentences, the "Three Strikes" law does not necessarily mandate imposition of consecutive sentences. In construing section 667, subdivision (c)(6) and section 1170.12, subdivision (a)(6), courts give the terms "same occasion" and "same set of operative facts" their ordinary English meanings. (People v. Lawrence (2000) 24 Cal.4th 219, 226, 230-234 (Lawrence).) "Same occasion" refers "at least to a close temporal and spatial proximity between the acts underlying the current convictions." (Deloza, supra, at p. 595.) "Operative facts" refers "to the facts of a case which prove the underlying act upon which a defendant had been found guilty." (Lawrence, supra, at p. 231.)
C. Governing Law
Section 669 grants the trial court broad discretion to impose consecutive sentences when a person is convicted of two or more crimes. (People v. Shaw (2004) 122 Cal.App.4th 453, 458.) California Rules of Court, rule 4.425 sets forth criteria affecting concurrent or consecutive sentences. Those criteria are guidelines, not rigid rules that trial courts are bound to apply in every case. (People v. Calderon (1993) 20 Cal.App.4th 82, 86-87.) The enumeration in the rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made. (Cal. Rules of Court, rule 4.408(a).) Any circumstances in aggravation or mitigation may be considered in determining whether to impose consecutive rather than concurrent sentences, except a fact used to impose the upper term; a fact used to otherwise enhance the defendant's prison sentence; and a fact that is an element of the crime. (Cal. Rules of Court, rule 4.425.)
California Rules of Court, rule 4.425 provides: "Criteria affecting the decision to impose consecutive rather than concurrent sentences include: [¶] (a) Criteria relating to crimes Facts relating to the crimes, including whether or not: [¶] (1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. [¶] (b) Other criteria and limitations Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant's prison sentence; and [¶] (3) A fact that is an element of the crime may not be used to impose consecutive sentences." (Emphasis in original.)
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D. Analysis
Here, the two offenses were committed simultaneously, and therefore on a single occasion, and arose out of the same set of operative facts. Appellant contends the trial court believed it was required to impose consecutive sentences. However, relevant sentencing criteria enumerated in the rules of court will be deemed to have been considered unless the record affirmatively reflects otherwise. (Cal. Rules of Court, rule 4.409.) The trial court never expressed or implied that it somehow lacked the discretion to impose concurrent terms of imprisonment. Moreover, the court expressly noted: "[T]he factors in aggravation outweigh those in mitigation." Among the aggravating factors, the court cited "a total lack of remorse," a factual setting that "demonstrate[d] great violence," and the fact "the prior convictions are of increasing seriousness and numerous."
A trial court has discretion to determine whether several sentences are to run concurrently or consecutively. Absent a clear showing of abuse, the trial court's discretion in this respect is not to be disturbed on appeal. Discretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered. (People v. Caesar (2008) 167 Cal.App.4th 1050, 1059.) Only a single aggravating circumstance is required to impose consecutive sentences. (People v. Leon (2010) 181 Cal.App.4th 452, 469.) Here, the trial court cited multiple aggravating factors, including appellant's total lack of remorse, his demonstration of great violence, and the increasing seriousness and numbers of his prior convictions. Any one of these factors would have been sufficient for the imposition of consecutive terms and a remand for resentencing is not required.
VI. THE TRIAL COURT PROPERLY USED APPELLANT'S PRIOR SERIOUS JUVENILE ADJUDICATION FOR ASSAULT WITH A DEADLY WEAPON AS A STRIKE.
Appellant initially contends the trial court's use of a prior juvenile adjudication as a "strike" violated his rights to due process, notice, and jury trial under the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution.
Appellant goes on to acknowledge: "[T]he California Supreme Court rejected this contention in People v. Nguyen (2009) 46 Cal.4th 1007 (cert. den., Apr. 19, 2010) [(Nguyen)] and that it binds this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)"
Appellant nevertheless asserts that Nguyen was incorrectly decided and "anticipates the issue to be addressed by the United States Supreme Court. He therefore makes this argument to preserve the issue for federal review."
As respondent observes, this court is bound by Nguyen under the doctrine of stare decisis and no further discussion is required. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
DISPOSITION
The judgment is affirmed.
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Poochigian, J.
WE CONCUR: ______________
Cornell, Acting P.J.
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Franson, J.