Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CF2091 Patrick Donahue, Judge.
Susan S. Baugess, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Luciano Silva Aguilar appeals from a judgment after a jury convicted him of voluntary manslaughter and found true he personally used a deadly weapon. Aguilar argues: (1) the trial court erroneously denied his motion to traverse the search warrant; (2) the court erroneously denied his motion to dismiss; (3) he was denied his Sixth Amendment confrontation rights; (4) there was cumulative error; (5) we must reverse his conviction for voluntary manslaughter because the statute of limitations had run and insufficient evidence supports his conviction; and (6) there were sentencing errors. None of his contentions have merit, and we affirm the judgment.
FACTS
On the morning of January 12, 1992, Officer James Donnelly responded to a park based on a call from the water department. In one trashcan, Donnelly found a grey suede jacket with tears in the armpit area and a large amount of blood on the sleeves. In another trashcan, he found car keys and a large butcher knife with a wood handle but without a hand guard-the knife was bloody.
Several hours later, Donnelly responded to a nearby location where he found a brown Buick Skylark parked in an alley. In the backseat he found a deceased male with his pants around his ankles. The transmission was in drive but there were no keys in the ignition; one of the keys found in the park trashcan opened the car’s trunk. Donnelly requested homicide detectives.
Dr. David Katsuyama performed the autopsy of Rafael Brito. There were over 40 stab wounds to Brito’s head, face, torso, and upper extremities. There were 15 stab wounds to the face, one of which collapsed the right eyeball, and 17 stab wounds to the front torso and upper right extremities. Lacerations on his hands were consistent with defensive wounds. Additionally, there was blunt force trauma, lacerations, and tearing to the back of Brito’s skull. He suffered a depressed right skull fracture, fractures on the bottom of the skull base, and brain bruising. The blow that caused the depressed right skull fracture would have incapacitated Brito, and the cause of death was multiple stab wounds and blunt force head trauma. His blood alcohol level was.19 percent. Kenny Wong, a forensic scientist, collected clothing and blood samples at the autopsy and processed the Buick Skylark.
By the time of trial, Katsuyama had retired and Dr. Anthony Juguilon testified to the findings.
Law enforcement officers interviewed Maria Felix Arias, the mother of Brito’s daughter, and later Aguilar. Four years later, Arias contacted the Santa Ana Police Department. She told officers she had children with both Brito and Aguilar. Arias reported she had an argument with Aguilar and he told her if she did not obey him, she would suffer the same fate as Brito. Arias told officers she believed Aguilar killed Brito. She also said shortly after the murder Aguilar had a cut on his hand and his watch had blood on it, but when she went to retrieve the watch it had disappeared. She claimed Aguilar did not want his fingerprints taken because of “problems.” She explained that one evening in July 1991 Aguilar chased Brito from the house with a knife that looked like the knife found in the trashcan at the park. She also explained Aguilar believed Brito had damaged his car on two occasions. Law enforcement officers again interviewed Aguilar, but he denied any involvement in Brito’s death. His fingerprints did not match those taken from the crime scene.
Ten years later, Detective Louie Martinez III reviewed the case file because DNA was not previously submitted for forensic examination. He requested forensic examination of fingerprints recovered from the crime scene “under modern advanced technology and advanced equipment.” A comparison of a fingerprint taken from a traffic citation record Aguilar received in March 2007 matched a fingerprint taken from the Buick Skylark. Martinez obtained a search warrant for Aguilar’s DNA and fingerprints.
Officer Dean Fulcher collected buccal swabs from Aguilar on June 16, 2007. Richard Gustillo, a forensic scientist, prepared a DNA profile for Aguilar and Brito. Blood stains on the car’s driver’s door and seat, and blood drops leading from the vehicle, were Aguilar’s. The blood on the headlight knob belonged to Aguilar and Brito. The remainder of the blood located inside the vehicle belonged to Brito. The blood on the jacket found in the trashcan at the park belonged to Aguilar and Brito.
Over 16 years after the homicide, an information charged Aguilar with murder (Pen. Code, § 187, subd. (a)) (count 1) and alleged he personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)). Before trial, the trial court denied his motion to traverse the search warrant.
All further statutory references are to the Penal Code, unless otherwise indicated.
Aguilar first offered the testimony of Francisco Gomez, a clinical psychologist. Gomez testified Aguilar’s intelligence quotient was 77, which placed him in the borderline intellectual functioning range and lower than 95 percent of the population. He explained Aguilar had only one year of education and did not learn to read or write until he was older, which indicated a low intellectual functioning. Gomez said Aguilar had a driver’s license and worked at several jobs but stated he was undocumented, unfamiliar with the American legal system, and feared he was already presumed guilty.
Aguilar then testified on his own behalf. Aguilar testified he was born in Mexico City, began working as a child to support his family, married when he was 16 years old, and had three children. He stated he was a comandante, or local police officer, under presidential order. Aguilar moved to the United States in 1984 for a better life, worked, and sent money to his family in Mexico. Aguilar said he became romantically involved with a woman and he lived with her and her children for approximately two years. He met Arias, a mother of two children who was pregnant with Brito’s child at the time, about two months after breaking up with his prior girlfriend. Aguilar stated he moved into Arias’s garage for a brief time and then into a nearby apartment. He stated he helped Arias run errands in his green Ford Torino, he was present for the birth of Selene B., and he babysat her.
Aguilar explained that after Selene was born, Arias told him Brito was following them in a white car whenever they went out. Aguilar said he saw Brito drive by Arias’s house in a white car on two or three occasions. Aguilar explained that on one occasion, he and Arias heard someone outside their home. Aguilar grabbed a knife and he and Arias went outside and saw a man Arias said was Brito run away. Aguilar testified he did not report these incidents because he feared deportation. Aguilar explained that one day after he moved into the apartment, he heard a loud crash and went outside-someone in a white car had crashed into his car. Aguilar believed this was the second time Brito crashed his car into Aguilar’s car.
Aguilar explained that on January 11, 1992, he went to Arias’s house to babysit Selene, and when Arias returned home between 1:00 and 2:00 a.m., he walked home. Aguilar said that as he walked home he heard footsteps approaching him from behind. Aguilar said Brito, who was armed with a knife, ran up behind him and stabbed him. Aguilar stated he turned around and saw the knife in Brito’s hand. Aguilar recalled he stated, “‘What are you going to do, man? What you want to do isn’t right. Remember, you have a little girl to take care of.’” Brito responded, “‘I’m going to finish you off, and I’m going to finish that bitch [Arias] off and also her little girl.’”
Aguilar testified he grabbed the knife from Brito as Brito continued to try to stab him; he did not know how many times Brito stabbed him. Aguilar said he could not remember how he got the knife from Brito but he stabbed Brito with the knife while fighting for his life and the lives of Arias and Selene. Aguilar said Brito fell to the ground and hit his head on the sidewalk and he began stabbing Brito in the chest. Aguilar could not recall how many times he stabbed Brito.
Aguilar explained he dragged Brito to the same car Brito exited from. Aguilar could not recall whether he dragged Brito by the armpits or the feet. Aguilar stated Brito lifted his head, and he hit Brito four or five times in the head with a tire iron. Aguilar claimed Brito was laying face up when he hit him in the head with the tire iron. Aguilar did not remember what he did with the tire iron. Aguilar stated that as he pulled Brito through the open driver’s side door into the backseat, Brito began to struggle, and he again stabbed Brito. Aguilar explained he hid Brito’s body because he was afraid of getting caught. Aguilar said he saw the keys in the ignition and drove away but he did not remember where he parked the car. Aguilar testified that when he got out of the car he “wanted to shout like a crazy person out of desperation.” He stated he walked to his apartment and was crying and desperate as he remembered the events.
Aguilar could not explain how Brito’s pants wound up unbuckled and around his ankles. He could not recall taking the keys or knife from the car. Aguilar never sought medical attention for the injuries he suffered. When Arias asked him about the cut on his hand, Aguilar said he cut his hand at work. Aguilar testified he never told anyone what had happened because he was afraid he would go to jail or be deported.
Aguilar stated that he denied a romantic relationship with Arias during an interview three or four days after the incident. He also admitted that in interviews in 1992, 1996, and 2007, he denied involvement because he did not want to get into trouble and so his family would not know what he did. Aguilar admitted that in an interview with detectives in 2007, he told them that on the night Brito was outside Arias’s house he chased Brito with a knife he got from the garage. He admitted lying in another previous interview when he denied having a knife or chasing Brito. Aguilar testified he grabbed the knife because he did not want Brito around the house, and he was angry at him for damaging his car. Aguilar also admitted that during his 2007 interview with detectives when they told him it was a good time to tell them if Brito attacked him, Aguilar denied Brito attacked him. During that interview, Aguilar denied stabbing Brito and said he had nothing against Brito. He testified he told detectives he cut his hand at work.
Aguilar offered Arias’s testimony. Arias testified she met Brito while cleaning offices and he moved in her with her three or four months later. Arias stated she had four children at the time. She asserted that on one occasion while she was pregnant, Brito attacked her with a knife and she had to hide the children in a closet. She stated Brito left her after he found out she was pregnant and he wanted her to abort the baby. She said Brito abused alcohol and was violent when he drank. Arias testified she was three or four months pregnant when she met Aguilar through a girlfriend. Arias stated Aguilar would help her run errands, and she occasionally saw Brito following them in a white car. She said that Aguilar moved in with her shortly before her child, Selene, was born. Arias stated she rejected Brito’s attempts to speak with her. Arias stated that when Selene was born, Brito came to the hospital but she had him removed because he was not helping her. Arias explained that about one month after Selene was born Brito began stopping by the house to see Selene and talk to Arias, but she did not want to talk to him because he did not want to help. She said that on one occasion she refused to speak with him and he cut her telephone wires so she could not call the police. Arias explained the afternoon before his death Brito stopped at the house to see Selene and he returned late that night wearing the gray jacket found in the trashcan but she did not answer the door. Arias explained she saw Aguilar a few days after finding out Brito had been killed and she saw only a small cut on his hand, which he said he got at work. She stated that they resumed their life together and had two children of their own. She said that during a 1996 police interview, she told police that when she was pregnant with Selene, Brito chased her with a nine-to-10 inch wood handled kitchen knife. When shown a photograph of the knife found in the trashcan, Arias stated it looked similar.
Aguilar also offered the testimony of a psychologist, Kris Mohandie, who specializes in violent behavior. Mohandie testified concerning the concept of “fight or flight, ” or how an average person reacts to a perceived threat, and regarding stalking. He explained the fight or flight response occurs when a person perceives he or she is in danger and adrenalin “dump[s]” from the adrenal glands into the system. He stated the person’s heart rate increases, the body becomes tense, there is a diminished response to pain, strength increases, wounds heal more quickly, and eyes move more rapidly. As a result, he stated the person misses tiny pieces of information. He stated 50 percent of people suffer memory loss and fail to recall things that should have been recalled. Based on a hypothetical question mirroring the facts of this case, Mohandie opined those facts would trigger the fight or flight response. He stated person “A” would have been acting in “an instinctual defensive process, ” and person “B” would have been acting “in more of a predatory form of aggression.” He opined the number of stab wounds could suggest the perpetrator’s fear level. He stated people typically do not want to remember traumatic events and memories fade over time. He admitted though, it is possible a person who claims memory loss after 17 years has passed is misleading the listener.
Aguilar offered the testimony of Brito’s aunt, Maria Castillo, who testified Brito told her that Arias’s boyfriend had threatened to kill him and that if anything happened to him, the boyfriend was responsible. Castillo also stated Brito told her he had followed a man in a green car and damaged the car.
Aguilar offered Officer Michael Alvarado’s testimony. Alvarado testified that in January 1992 he spoke with Arias and she told him that she had not seen Brito since one week prior to his death.
Maricela Santana testified for the defense. She confirmed that when Brito accosted Arias with a knife, Arias hid her in a closet.
Aguilar offered evidence that in 1994, the items found in the park were destroyed. Aguilar also offered character evidence demonstrating he was not a violent person.
In rebuttal, Officer Mark Steen testified he interviewed Arias in 1996.
Arias told him she last saw Brito the night before he died when she refused to speak with
him. When shown a photograph of the knife found in the trashcan, she said the knife looked similar to a knife Aguilar had carried on an earlier occasion. Steen testified Aguilar denied chasing Brito with a knife on an earlier occasion.
The parties stipulated Aguilar’s son told the defense investigator Aguilar carried a rifle when serving as comandante. The parties also stipulated that if called to testify, Jesus Ochoa, would testify that in August 1990, he saw Brito and another man in a vehicle and Brito held a gun out of the window and fired the gun six times. The parties also stipulated Brito pled guilty to carrying a concealed handgun in a car.
The jury convicted Aguilar of the lesser included offense of voluntary manslaughter and found true the enhancement he personally used a deadly weapon, a knife. The trial court denied Aguilar’s motion to dismiss for preaccusation delay concluding Aguilar did not suffer any prejudice from the delay.
Upon defense counsel’s request, the trial court instructed the jury with CALCRIM Nos. 570, “Voluntary Manslaughter: Heat of Passion-Lesser Included Offense, ” and 571, “Voluntary Manslaughter: Imperfect Self-Defense-Lesser Included Offense, ” over the prosecutor’s objection.
The trial court sentenced Aguilar to the upper term of 11 years on count 1 plus one year for the personal use of a deadly weapon enhancement. The court imposed the upper term because “the crime involved great violence, a high degree of cruelty, viciousness or callousness[]” (Cal. Rules of Court, rule 4.421(a)(1); People v. Duran (1982) 130 Cal.App.3d 987). The court imposed a $30 assessment pursuant to Government Code section 70373.
DISCUSSION
I. Motion to Traverse
Aguilar argues the trial court erroneously denied his motion to traverse the search warrant and suppress the evidence pursuant to Franks v. Delaware (1978) 438 U.S. 154 (Franks). We disagree.
“Under Franks v. Delaware, supra, 438 U.S. 154, ..., a defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. When presented with such a challenge, the lower court must conduct an evidentiary hearing if a defendant makes a substantial showing that (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth, and (2) the affidavit’s remaining contents, after the false statements are excised, are insufficient to support a finding of probable cause. The defendant must establish the statements are false or reckless by a preponderance of the evidence. [Citation.] Innocent or negligent misrepresentations will not defeat a warrant. [Citation.] ‘Moreover, “there is a presumption of validity with respect to the affidavit. To merit an evidentiary hearing[, ] the defendant[’s] attack on the affidavit must be more than conclusory and must be supported by more than a mere desire to cross-examine.... The motion for an evidentiary hearing must be ‘accompanied by an offer of proof... [and] should be accompanied by a statement of supporting reasons. Affidavits or otherwise reliable statements of witnesses should be furnished, ’ or an explanation of their absence given.”’ [Citations.] Finally, ‘[a] defendant who challenges a search warrant based upon an affidavit containing omissions bears the burden of showing that the omissions were material to the determination of probable cause.’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 456.) We review the denial of a Franks hearing de novo. (Ibid.)
Aguilar makes much of the fact the search warrant affidavit states the fingerprint match was made using “‘modern advanced technology and advanced equipment’” but the written fingerprint analysis request does not mention the same. He claims some explanation was required as to why the fingerprint match was not made in 1996 and there was a sufficient basis for an evidentiary hearing to solve the discrepancy. Nonsense.
Aguilar’s motion to traverse did not include any of the evidentiary material required of the moving party. He did not provide any evidence the statement was deliberately false or made with reckless disregard for the truth. At most, he provided conclusory statements about the alleged misstatement concerning technological advancements “insufficient for the ‘substantial preliminary showing’” required by Franks. Aguilar also failed to demonstrate that, even if the statement concerning technological advancements leading to the fingerprint match were inaccurate, they were material to the determination of probable cause. How could it be?
The search warrant affidavit established Aguilar believed Brito damaged his car and on one occasion he chased Brito with a knife Arias said looked like the same knife used to stab Brito. The affidavit also demonstrated that immediately after Brito’s death, Aguilar had a cut on his hand, his watch was bloodied, and he did not want his fingerprints taken. Finally, the affidavit established Arias feared for her life as Aguilar threatened to do to her what he did to Brito. This was sufficient probable cause to obtain Aguilar’s DNA, and we note Aguilar does not claim otherwise on appeal. Therefore, Aguilar did not carry his burden of proving with affidavits or other reliable information the alleged inaccurate statement was material to the probable cause determination.
II. Motion to Dismiss
Aguilar contends the trial court erroneously denied his motion to dismiss for preaccusation delay because his federal and state due process rights were violated. Not so.
“Although precharging delay does not implicate speedy trial rights, a defendant is not without recourse if the delay is unjustified and prejudicial. ‘[T]he right of due process protects a criminal defendant’s interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence.’ [Citation.] Accordingly, ‘[d]elay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay.’ [Citation.]” (People v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson).) The trial court may rule on a motion to dismiss for preaccusation delay before, during, or after trial, and we review the court’s decision for an abuse of discretion. (People v. Martinez (2000) 22 Cal.4th 750, 769.)
Here, Aguilar does not dispute the delay was investigative delay and nothing else. In 1996, Aguilar’s fingerprint did not match the fingerprint evidence recovered from the Buick Skylark. It was not until 2007 that additional analysis led to the match. Investigation has been held to be a strong justification for delay (Nelson, supra, 43 Cal.4th at p. 1256), and to overcome this justification a defendant must show he was prejudiced by the delay. Aguilar cannot meet that burden here.
Aguilar relies on the following to demonstrate he was prejudiced by the over 15-year delay: (1) Jesus Ochoa, a key defense witness was unable to testify; (2) the knife, knife sheath, key ring, and grey suede jacket were destroyed in 1994; and (3) the delay led to the fingerprint match in 2007.
With respect to his first claim, the jury did hear evidence Brito had a propensity for violence. The parties stipulated Ochoa would testify Brito fired a weapon six times from a vehicle, and Brito pled guilty to carrying a concealed handgun in a car. Additionally, both Arias and Santana testified Brito attacked Arias with a knife. Thus, it is certainly reasonable to conclude the jury heard evidence of Brito’s violent nature and it considered that evidence in reaching its verdict.
As to his second claim, it is troubling the Santa Ana Police Department destroyed evidence in an unsolved murder case, although it seems to have been an inadvertent mistake because the evidence was not properly labeled. However, the destruction of that property did not prejudice Aguilar. Photographs of the knife, knife sheath, key ring, and jacket were admitted into evidence. And there was no dispute as to the murder weapon or the identity of the killer. The only issue was whether Aguilar acted in self-defense.
Finally, the jury did not learn of the 2007 fingerprint match because it was not admitted into evidence. Additionally, the discovery and admission of relevant evidence linking the defendant to the crime does not constitute prejudice for purposes of due process analysis. (In re Chuong D. (2006) 135 Cal.App.4th 1303, 1311.) Thus, the trial court properly denied Aguilar’s motion to dismiss for preaccusation delay because the delay was for investigatory purposes and he was not prejudiced by the delay.
III. Sixth Amendment Confrontation Rights
Aguilar asserts his Sixth Amendment confrontation rights were violated when Juguilon testified concerning the autopsy report another retired pathologist prepared. The Attorney General argues Aguilar forfeited appellate review of this issue because he did not object to Juguilon’s testimony. Relying on Melendez-Diaz v. Washington (2009) 557 U.S. ____ [129 S.Ct. 2527] (Melendez-Diaz), Aguilar replies he did not forfeit appellate review of this issue because Melendez-Diaz announced a new rule, an objection would have been futile, and a fundamental federal constitutional right cannot be forfeited by a failure to object.
This issue is currently pending before the California Supreme Court. (See, e.g., People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted Dec. 2, 2009, S176213; People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted Dec. 2, 2009, S176620; People v. Dungo (2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009, S176886; People v. Lopez (2009) 177 Cal.App.4th 202, review granted Dec. 2, 2009, S177046.)
For the reasons we will explain, we do not need to determine whether Aguilar forfeited appellate review of this issue or whether the admission of Juguilon’s testimony constituted error under Melendez-Diaz because any such error was harmless beyond a reasonable doubt.
Aguilar argues Juguilon’s testimony as to Katsuyama’s autopsy report was prejudicial because his defense of self-defense hinged on the angles in which the stab wounds were inflicted, and during closing argument the prosecutor relied on Juguilon’s testimony concerning the autopsy report. Neither contention establishes he was prejudiced.
Confrontation clause violations are subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24. (People v. Lewis (2008) 43 Cal.4th 415, 461.) This standard provides “an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt. [Citations.]” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.) “These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. [Citations.]” (Id. at p. 684.)
As we explain below more fully, there was sufficient evidence for the jury to convict Aguilar of voluntary manslaughter. With respect to Aguilar’s assertions of prejudice, his defense was self-defense-he did not dispute he stabbed Brito multiple times and hit him on the head with a tire iron. Aguilar testified Brito attacked him from behind with a knife, he managed to get the knife away from Brito, and he stabbed Brito. Aguilar explained that after he dragged Brito to the car, Brito lifted his head and Aguilar hit him on the head with a tire iron multiple times. The sole issue then was whether the jury believed Aguilar’s version of the events-that he acted in self-defense.
There was evidence the knife Aguilar used to stab Brito was similar to the knife Arias saw Aguilar chase Brito with on an earlier occasion. There were no other weapons found in the car. Juguilon did testify that because the knife did not have a hand guard, a person using the knife could cut his hand while using it. This was not only consistent with the evidence concerning Aguilar’s hand injury immediately after the incident but also with the autopsy photograph illustrating Brito had a cut to his hand. Thus, based on Juguilon’s testimony there was evidence from which the jury could have concluded Aguilar acted in self-defense. The jury’s verdict indicates it heard, considered, and rejected that defense.
Without photographic evidence documenting Aguilar’s injuries, his claim Katsuyama’s testimony was necessary to support his defense of self-defense was far too speculative. Juguilon testified concerning Katsuyama’s findings in the autopsy report, which was not admitted into evidence, and the photographs of Brito’s injuries were admitted into evidence. Aguilar’s defense counsel was free to cross-examine Juguilon concerning the photographs to establish Brito’s wounds indicated Aguilar acted in self-defense just as he could have had Katsuyama testified.
Aguilar makes much of the fact the prosecutor referred to Juguilon’s testimony during closing argument. Based on our review of the prosecutor’s statements, some of the statements referenced the photographs, and those photographs were admitted into evidence for the jury to review. As to Aguilar’s claim he was prejudiced because the prosecutor improperly relied on Juguilon’s interpretation of the autopsy report, we are not persuaded. As we explain, the prosecutor relied very little on any “interpretation” of the autopsy report by Juguilon, and to the extent he did rely on it, Juguilon’s interpretation, supported both versions of the crime-both criminal assault and self defense-so any error was clearly not prejudicial. Therefore, we are confident any error in allowing Juguilon to testify concerning an autopsy report prepared by another forensic doctor was harmless beyond a reasonable doubt.
IV. Cumulative Error
Aguilar claims the cumulative effect of the errors requires reversal. We have concluded there were no errors, and therefore his claim has no merit.
V. Voluntary Manslaughter
Aguilar argues the statute of limitations had run on his voluntary manslaughter conviction and insufficient evidence supports his conviction for voluntary manslaughter. We will address each in turn.
A. Statute of Limitations
Aguilar contends his 2008 voluntary manslaughter conviction for the 1992 slaying of Brito was barred by the applicable six-year statute of limitations. The Attorney General responds Aguilar forfeited appellate review of this issue because he requested the jury instruction on the lesser included offense over the prosecutor’s objection. We agree with the Attorney General.
A prosecution for murder may be commenced at any time, and the statute of limitations for voluntary manslaughter is six years. (§§ 799, 800, 193, subd. (a).) “Because lesser included offenses are not charged in the accusatory pleading, ‘... there is no reason for the prosecution to include discovery or tolling allegations as to those offenses. [Citations.]’ [Citation.]” (People v. Stanfill (1999) 76 Cal.App.4th 1137, 1149 (Stanfill).)
The law in California was formerly that a court lacked fundamental subject matter jurisdiction over a time-barred criminal action, even if defendant waived the time-bar. (People v. McGee (1934) 1 Cal.2d 611, 613-614, overruled by Cowan v. Superior Court (1996) 14 Cal.4th 367, 371 (Cowan).) In Cowan, our Supreme Court held a court does not necessarily lack subject matter jurisdiction over a time-barred offense. (Id. at p. 374.) In addition to the basic rule that defendant may assert the statute of limitations at any time, defendant may expressly waive a time-bar for tactical reasons. For example, defendant in Cowan was charged with murder. He pleaded guilty to the lesser offense of voluntary manslaughter, but the prosecution moved to set aside the plea when it realized that the voluntary manslaughter was time-barred. Cowan held defendant could waive the statute of limitations when the waiver was for his benefit. “In this case, because the court had the power to proceed over the murder charge, it should also have the power to proceed over a lesser included (or even related) offense.” (Id. at p. 373.) In so holding, Cowan was careful to distinguish between waiver (an intentional relinquishment of a known right) and forfeiture (losing a right by failing to timely assert it). (Id. at p. 371.) It declined to decide whether defendant can forfeit the statute of limitations. (Id. at p. 374.)
That issue was addressed in People v. Williams (1999) 21 Cal.4th 335, 338 (Williams), where the court held defendant “may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense.” (Ibid.) In Williams, an information charged defendant with an offense that was time-barred. When defendant raised the time-bar for the first time on appeal, the Attorney General argued defendant had forfeited his right to raise it. Addressing the forfeiture issue, the court reasserted the statute of limitations cannot be forfeited by the mere failure to raise it. (Id. at p. 341.) The court rejected concerns its ruling would allow gamesmanship: “We see no significant potential for gamesmanship or sandbagging when the defendant is convicted of a charged offense that the charging document indicates is untimely.” (Id. at p. 346, fn. omitted.) The court acknowledged the potential for gamesmanship is more likely to occur in the context of convictions of time-barred lesser offenses when the charged crime is timely. (Ibid.) The court concluded “a defendant may not inadvertently forfeit the statue of limitations and be convicted of a time-barred charged offense. We maintain the rule that if the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time. We leave to future appellate courts to decide other questions not involved here, such as the proper rules to apply to convictions of time-barred lesser offenses when the charged offense is not time-barred.” (Id. at p. 338.)
In Stanfill, supra, 76 Cal.App.4th at pages 1139, 1142, footnote 1, after requesting instructions on both a lesser-included offense and the statute of limitations “generally, ” a jury convicted defendant of the lesser-included offense. Defendant argued the trial court misinstructed the jury by addressing the three-year felony limitations period for the charged crime but not informing the jury of the one-year limitations period for the lesser-included misdemeanor. (Id. at pp. 1142, 1144.) The Stanfill court held that “a defendant forfeits the right to complain on appeal of conviction of a time-barred lesser included offense where the charged offense was not time-barred and the defendant either requested or acquiesced in the giving of instructions on the lesser offense.” (Id. at p. 1150.) The Stanfill court indicated it would be unconscionable to allow a defendant to remain quiet about a statute of limitations problem to secure an instruction on a lesser offense in the trial court without expressly waiving the limitations problem, then “as an ace up his sleeve, secure reversal on the theory that he never expressly waived.” (Id. at p. 1148.) The court concluded: “This rule of forfeiture does not detract from the advice of the Supreme Court in Cowan and Williams that trial courts and prosecutors should, whenever instructions on lesser included offenses are considered, determine whether there may be a problem with the statute of limitations and, if so, elicit a waiver of the statute as a condition of giving the instruction. [citations.] That remains the better course, for it removes all ambiguity.” (Id. at p. 1150, italics added.)
After Aguilar waived his right to be present for review of the jury instructions, there was an unreported discussion concerning the jury instructions. When back on the record in court with Aguilar present, the trial court noted defense counsel requested the court instruct the jury on two theories of voluntary manslaughter, heat of passion and imperfect self-defense. The prosecutor objected to the court instructing on those theories but the court reasoned sufficient evidence supported the giving of those instructions.
We find the reasoning of Stanfill persuasive and follow it here. When Aguilar’s defense counsel requested the trial court instruct the jury on the lesser included offense of voluntary manslaughter, Aguilar forfeited his right to raise the statute of limitations on appeal. Allowing Aguilar to secure a reversal on the lesser included offense after allowing him the benefit of receiving instructions on that offense would lead to an unconscionable result.
Aguilar complains he was not present at the unreported discussion concerning jury instructions and therefore, he could not have waived the six-year statute of limitations. He cites to no legal authority and we found none that states a defendant must personally expressly waive the statute of limitations. (See In re Horton (1991) 54 Cal.3d 82, 95 [express waiver of fundamental rights required-whether to plead guilty, whether to waive right to jury trial, whether to waive right to counsel, and whether to waive right to be from self-incrimination].)
He also claims the statute of limitations was never discussed. At the reported discussion on the jury instructions, the statute of limitations was not discussed. It is not clear, however, whether the statute of limitations was discussed during the unreported discussion. And Stanfill, supra, 76 Cal.App.4th at page 1150, stands for the proposition a discussion of the statute of limitations should be addressed, not must be addressed. Thus, the absence of a discussion concerning the statute of limitations does not require reversal where defense counsel requested the time-barred lesser included offense instructions.
Aguilar also argues the facts he is unable to speak English and has a low intellectual functioning militate against forfeiture. But Aguilar had the benefit of a translator and was represented by counsel who made a tactical, and ultimately successful decision to request a lesser included instruction on voluntary manslaughter.
Aguilar’s reliance on People v. Beasley (2003) 105 Cal.App.4th 1078, to support his claim is misplaced. In Beasley, the court reversed defendant’s conviction on the time-barred lesser included offenses. (Id. at p. 1090.) The court found Stanfill inapplicable because “nothing in the record indicates [defendant] requested or acquiesced in the instruction on assault as a lesser included offense of assault with a deadly weapon ....” (Ibid.) But as we explain above, the record indicates Aguilar’s defense counsel requested giving the lesser included offense instructions, and Aguilar has therefore forfeited his right to raise the statute of limitations on the lesser offense on appeal.
B. Sufficiency of the Evidence
Aguilar claims insufficient evidence supports his conviction for voluntary manslaughter because sufficient evidence supports his defenses of self-defense or defense of others. As we explain below, we are not the trier of fact and we cannot substitute our evaluation of the evidence for the jury’s.
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one. ‘“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”’ [Citations.] [¶] “‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” [Citation.]’ [Citation.]” (People v. Smith (2005) 37 Cal.4th 733, 738-739.)
As we explain above, the trial court instructed the jury, upon Aguilar’s request, with voluntary manslaughter-heat of passion, and voluntary manslaughter-imperfect self-defense. We cannot be sure under which theory the jury convicted Aguilar of voluntary manslaughter as the verdict form is silent on that point. Further complicating matters is that during jury deliberations the jury foreperson submitted to the trial court the following question: “To reach a verdict of voluntary manslaughter, do we need a unanimous decision on which type of manslaughter (heat of passion vs. imperfect self-defense)?” The court responded the jury had to all agree on the crime but not on the same theory. Thus, we will discuss both theories.
“‘An intentional, unlawful homicide is “upon a sudden quarrel or heat of passion” [citation], and is thus voluntary manslaughter [citation], if the killer’s reason was actually obscured as the result of a strong passion aroused by a “provocation” sufficient to cause an “‘ordinary [person] of average disposition... to act rashly or without due deliberation and reflection, and from this passion rather than judgment.’”’ [Citation.] No specific type of provocation is required, and ‘the passion aroused need not be anger or rage, but can be any “‘“[v]iolent, intense, high-wrought or enthusiastic emotion”’” [citations] other than revenge [citation].’ [Citation.] Thus, a person who intentionally kills as a result of provocation, that is, ‘upon a sudden quarrel or heat of passion, ’ lacks malice and is guilty not of murder but of the lesser offense of voluntary manslaughter.” (People v. Lasko (2000) 23 Cal.4th 101, 108.)
The elements of voluntary manslaughter based on imperfect self defense of another are: (1) the defendant actually believed he was in imminent danger of being killed or suffering great bodily injury; and (2) the defendant actually believed the immediate use of deadly force was necessary to defend against the danger; but (3) at least one of those beliefs was unreasonable. As the California Supreme Court has explained, “the doctrine of imperfect self-defense [requires] ‘[a]n honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter.’” (People v. Rogers (2006) 39 Cal.4th 826, 883.)
Here, there was sufficient evidence from which the jury could convict Aguilar of voluntary manslaughter under either heat of passion or imperfect self-defense. There is no dispute Aguilar stabbed Brito 40 times in the head, face, torso, and upper extremities, and he hit him in the head with a tire iron four times. The forensic evidence established the cause of death was multiple stab wounds and blunt force trauma. Simply put, Aguilar killed Brito. The only issue was whether the killing was justified. The jury concluded it was not, and its verdict was supported by the evidence.
The evidence established Brito knew Aguilar was Arias’s boyfriend and Brito mused to a family member that if anything happened to him Aguilar was responsible. The evidence also demonstrated Aguilar had a score to settle with Brito. Aguilar knew Brito had been following him and Arias, Aguilar believed Brito had damaged his car on two occasions, and Aguilar knew Brito had come to Arias’s house despite her protestations to stop. Finally, there was evidence that before the incident Aguilar chased Brito from Arias’s home with a knife Arias testified was similar to the bloody knife found in the trashcan. From this evidence the jury could reasonably conclude that as Aguilar walked home from Arias’s house he was armed with a knife and when Brito confronted him, Aguilar’s reason was obscured and he either attacked Brito rashly without due deliberation or reflection, or he unreasonably believed he was in imminent danger and unreasonably used deadly force to defend against Brito.
Aguilar spends all of his time discussing why there was sufficient evidence supporting his defenses based on the physical evidence recovered from the car and the area where the car was parked. On appeal, this is fatal, as it is not our role to reweigh the evidence. Based on the entire record, we conclude there was sufficient evidence to support Aguilar’s conviction for voluntary manslaughter.
VI. Sentencing
A. Upper Term
Aguilarasserts the trial court erroneously sentenced him to the upper term because the jury convicted him of the lesser included offense, voluntary manslaughter, and thus, the homicide did not involve a “high degree of cruelty, viciousness, or callousness.” Not so.
Voluntary manslaughter is punishable by imprisonment for three, six, or 11 years. (§ 193, subd. (a).) California Rules of Court, rule 4.420(a), requires the court to select the upper, middle, or lower term. California Rules of Court, rule 4.420(b), states that in exercising its discretion, the trial court may consider any aggravating or mitigating circumstances. The trial court may consider the record, the probation officer’s report, other specified reports, statements of aggravation and mitigation, and other evidence introduced at the sentencing hearing. (Cal. Rules of Court, rule 4.420(b); § 1170.) One of the aggravating circumstances, and the one the trial court relied on here, is that “[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.” (Cal. Rules of Court, rule 4.421(a)(1).) The trial court is vested with broad discretion in weighing the aggravating and mitigating factors, and a single factor in aggravation will support imposition of the upper term. (People v. Black (2007) 41 Cal.4th 799, 813.)
Aguilar claims that because the jury convicted him of the lesser included offense of voluntary manslaughter, the killing was without malice, anger, rage, and was not committed for revenge or punishment. The autopsy revealed Brito suffered 40 stab wounds to his head, face, torso, and upper extremities. Aguilar stabbed him 15 times on the face, collapsing one of his eyeballs. Aguilar stabbed Brito 17 times in the front torso and upper right extremities. Additionally, Aguilar crushed the back of Brito’s skull with a tire iron. Although the jury concluded Aguilar did not have the requisite mental intent for murder, it was certainly reasonable for the trial court to conclude Aguilar infected great bodily injury and he killed Brito viciously. Thus, the trial court properly imposed the upper term of 11 years for voluntary manslaughter.
B. Government Code section 70373, subdivision (a)(1)
Aguilar claims imposition of the criminal conviction assessment violated the ex post facto clause because Government Code section 70373, subdivision (a)(1), was not effective when he committed the offense in 1992. We disagree.
Government Code section 70373, subdivision (a)(1), states, in relevant part: “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction.”
“[A] prohibited ex post facto law is a retrospective statute that increases a punishment beyond that applicable at the time the crime was committed.” (People v. High (2004) 119 Cal.App.4th 1192, 1195 (High).)In High, the court held a surcharge on fines for theft-related offenses imposed under section 1465.7 and a court facilities construction penalty imposed under Government Code section 70372 were penal in nature because they were calculated on size and severity of the base fine and they were termed a “penalty.” (High, supra, 119 Cal.App.4th at pp. 1197-1198.)
In People v. Alford (2007) 42 Cal.4th 749 (Alford), the California Supreme Court held section 1465.8’s security fee was not an ex post fact law because its purpose was to fund court security, a non-punitive objective, the amount of the fee was not dependent on the seriousness of the offense, and it was labeled a “fee” and not a “fine.” (Alford, supra, 42 Cal.4th 749 at pp. 755-759.)
In People v. Brooks (2009) 175 Cal.App.4th Supp. 1 (Brooks), the court addressed the same issue we have here. The court reasoned the Government Code section 70373, subdivision (a)(1), assessment is more like the fee approved in Alford than the penalty and surcharge invalidated in High, because among other things Government Code section 70373, subdivision (a)(1)’s purpose is to maintain adequate funding for court facilities and not to punish, it is termed an “assessment” and not a fine or a penalty, and the assessment amount is not dependent on the seriousness of the offense. (Brooks, supra, 175 Cal.App.4th Supp. at p. 3.) The court held Government Code section 70373, subdivision (a)(1), is not punitive and was not a prohibited ex post facto law. (Brooks, supra, 175 Cal.App.4th Supp. at p. 5.) The Brooks court’s reasoning is sound, and we conclude Government Code section 70373, subdivision (a)(1), does not violate the ex post facto clause because it is not punitive in nature.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.