Opinion
D056971 Super. Ct. No. FVI701073
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALVARADO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Bernardino County, Margaret A. Powers, Judge. Affirmed.
A jury convicted Jose Alvarado of murdering Rogelio Cesena and Juan Sotelo during two separate incidents. This appeal relates only to the Cesena murder. Alvarado contends that the trial court erred by: (1) allowing a detective to give his opinion regarding the truth of a witness; (2) overruling his objection regarding a portion of a witness's testimony; and (3) refusing to instruct the jury on the lesser included offense of voluntary manslaughter and imperfect self-defense. He asserts that the cumulative effect of these errors requires reversal.
We conclude that the trial court erred in allowing the opinion testimony, but find the error to be harmless. We are satisfied that the harmless error and any assumed error, either individually or taken together, did not affect the fairness of the trial. (People v. Cain (1995) 10 Cal.4th 1, 82.) Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2007, Alvarado shot Sotelo in the head, chest and shoulder during an argument, killing him.
In May 2007, Cesena went to an apartment complex in Victorville, California with Clarissa Contreras, and minors Miguel H. and Francisco B. to pick up Contreras's baby from Alvarado's nephew and the baby's father, Rene Garcia. Cesena had been drinking alcohol and appeared intoxicated. Cesena and Miguel stood next to Cesena's truck while Contreras went into the apartment. Francisco stayed in the truck.
Miguel testified that Garcia and Alvarado approached. Cesena called Garcia a dog in Spanish and Garcia responded, "You're calling me a dog?" Cesena opened his arms, held them about shoulder height with his elbows slightly bent, and stated "However you want to take it." Alvarado then pulled out a gun and shot Cesena three times. The men were facing each other and about three to four feet apart when Alvarado fired his weapon. Miguel claimed that Cesena's hands were empty, and that Cesena had made no movements, threats or challenges toward Alvarado.
Francisco watched Alvarado approach and heard the shots. As he saw Cesena fall, he noticed that Cesena's hands were up at about shoulder level, with his elbows bent and both palms facing forward. Francisco did not see anything in Cesena's hands. Contreras also watched Alvarado approach the truck. She heard Cesena say, "What's up?" or "What's up, fool?" She then observed Alvarado pull out a gun from under his shirt and shoot Cesena three times. Contreras saw that Cesena's hands were empty and down by his sides.
Yolanda Perez was inside Garcia's apartment when Contreras came to get the baby. Perez had an intimate relationship with Alvarado, but was not his girlfriend. Detective Greg Myler interviewed Perez the day after the shooting and six days after the shooting. The jury listened to the interviews and received copies of the transcripts. Perez told Detective Myler during the interviews that she saw Alvarado pull out a gun from his waist, that Cesena stepped back a little, and that Alvarado shot Cesena three times. At trial, however, Perez testified that she did not see the shooting. She claimed that she "made up" her entire statement to Detective Myler.
During a police interview about two months after the shooting, Alvarado stated that he had never seen Cesena before and did not know whether he was armed. Alvarado denied arguing with Cesena or shooting him.
A jury found Alvarado guilty of the first degree murders of Sotelo and Cesena, being a felon in possession of a firearm, and personally using a firearm during the murders. The trial court sentenced Alvarado to a total indeterminate term of 102 years to life in prison, consisting of two years for possessing a firearm and four consecutive indeterminate terms of 25 years to life for the two murder convictions and two gun use enhancements. Alvarado timely appealed.
DISCUSSION
I. Evidentiary Issues
A. Opinion Evidence 1. Background
The People called Detective Myler as a witness and asked him about Perez's claim that she made up everything she said during her interviews. Detective Myler testified that he had investigated over 90 homicides and conducted over 400 homicide interviews. Over defense objections that the testimony was speculative, irrelevant and lacked foundation, Detective Myler testified that based on his experience, he believed that Perez told the truth during her interviews. Before Detective Myler expressed his opinion, the trial court stated: "It's up to the jury to decide whether [Perez] is telling the truth or not, but [Detective Myler] can give his opinion during the interview based on his experience." 2. Analysis
Alvarado asserts the trial court abused its discretion in allowing Detective Myler to opine that Perez told the truth during her police interviews. We conclude the detective's opinion should not have been admitted, but that the error was harmless.
The record does not establish that Detective Myler is an expert on judging credibility, or on the truthfulness of persons who provide him with information during the course of investigations. Additionally, "[l]ay opinion about the veracity of particular statements by another is inadmissible on that issue." (People v. Melton (1988) 44 Cal.3d 713, 744 (Melton); see also People v. Smith (1989) 214 Cal.App.3d 904, 915; People v. Sergill (1982) 138 Cal.App.3d 34, 39-40.) Our high court concluded that "such an opinion has no 'tendency in reason' to disprove the veracity of the statements" because such lay opinion testimony invades the province of the jury as the ultimate fact finder, is generally not helpful to a clear understanding of the lay witness's testimony, is not "properly founded character or reputation evidence," and does not bear on "any of the other matters listed by statute as most commonly affecting credibility" in Evidence Code section 780, subdivisions (a) through (k). (Melton, supra, at p. 744.) Nonetheless, the error of admitting such evidence is harmless unless it is reasonably probable that it affected the verdict. (Id. at p. 745.)
Even though the trial court erroneously admitted Detective Myler's opinion regarding Perez's veracity, it is not reasonably probable that the error affected the verdict. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson))What Perez claimed to have seen during her police interviews was consistent with the other eyewitnesses to the shooting. Thus, it is not reasonably probable that Detective Myler's opinion regarding Perez's veracity during the interviews bolstered her testimony. Moreover, all of the statements made by Perez were before the jury, and the trial court stated when it overruled defense counsel's objection that the jurors would be the judges of Perez's credibility. The court later fully instructed the jury on evaluating witness credibility. Accordingly, the admission of Detective Myler's statements could not have affected the verdict. B. Overruled Objection 1. Background
Contreras testified that a couple of months before trial "some guys" told her that Monica, Alvarado's wife, did not want her to testify. Before she testified at trial, someone vandalized her truck during the night, making her fearful. She told the jury about the vandalism and her fear. The trial court instructed the jury that the testimony was only offered for its effect on the witness, not its truth, and the jury was not to speculate as to who vandalized the truck.
Contreras then testified that she knew Garcia, that he was her child's father and Alvarado's nephew. The prosecutor asked her whether she knew where Garcia was, with Contreras responding that she did not know and could not remember the last time she had seen him. After defense counsel objected to the relevancy of the questions, the trial court held a sidebar conference outside the hearing of the jury. The prosecutor explained that he wanted to establish that Garcia was gone, the trial court responded "[a]ll right," and defense counsel did not further object or seek to strike the testimony. 2. Analysis
Alvarado contends the trial court erred when it overruled his relevancy objection because Garcia's current whereabouts was irrelevant to any disputed issue in the case. He asserts the error prejudiced him because it allowed the jury to speculate that he was somehow responsible for Garcia's lack of contact with his child. He claims that absent the error, it was reasonably probable the jury would have given more credit to his theory that he did not commit premeditated murder and that he was only guilty of a lesser included offense. The Attorney General responds that any ongoing contact Contreras had with Garcia was relevant to Contreras's credibility and potential bias, and any error was harmless.
Only relevant evidence is admissible. (Evid. Code, § 350.) "Relevant evidence" is defined as "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) We review the trial court's rulings concerning the admissibility of evidence for abuse of discretion. (People v. Riggs (2008) 44 Cal.4th 248, 290.) A judgment may not be reversed by the erroneous admission of evidence unless the admission of the evidence resulted in a miscarriage of justice (Evid. Code, § 353), such that the reviewing court is convinced that "it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded." (People v. Avitia (2005) 127 Cal.App.4th 185, 194.)
We agree with the Attorney General that Garcia's lack of contact with Contreras was remotely relevant to Contreras's credibility and possible bias because Garcia was the father of her child and Alvarado's nephew. Even if we were to conclude the evidence was erroneously admitted, Alvarado would not have obtained a more favorable result had it been excluded. The testimony was extremely brief and nothing about it suggested that Alvarado was responsible for Garcia's unexplained absence. Moreover, the evidence of Alvarado's guilt was overwhelming with three witnesses testifying that Cesena was unarmed when Alvarado suddenly shot him. Thus, it is not reasonably probable that the jury would have rendered a different result had the evidence not been admitted.
II. Alleged Instructional Error
The information charged Alvarado with premeditated murder. (Pen. Code, § 187, subd. (a).) The trial court instructed the jury on the general principles of homicide (CALCRIM No. 500), the elements of murder with malice aforethought (CALCRIM No. 520), and the degrees of murder (CALCRIM No. 521). Although the trial court instructed the jury on justifiable homicide based on self-defense (CALCRIM No. 505), it refused to instruct the jury on voluntary or involuntary manslaughter.
Alvarado contends that the trial court erred in refusing to instruct the jury on the lesser included offense of voluntary manslaughter based on imperfect self-defense. Relying on a concurring opinion in People v. Ceja (1994) 26 Cal.App.4th 78 (Ceja), Alvarado asserts that the trial court's finding of sufficient evidence to support an instruction on self-defense means there was necessarily enough evidence to instruct on imperfect self-defense. (Id. at pp. 89-90, (conc. opn. of Johnson, J.), Ceja disapproved on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 91 (Blakeley).)
"Self-defense is perfect or imperfect. For perfect self-defense, one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. [Citation.] A killing committed in perfect self-defense is neither murder nor manslaughter; it is justifiable homicide. [Citation.] [¶] 'One acting in imperfect self-defense also actually believes he must defend himself from imminent danger of death or great bodily injury; however, his belief is unreasonable. [Citations.] Imperfect self-defense mitigates, rather than justifies, homicide; it does so by negating the element of malice. [Citations.]'" (People v. Randle (2005) 35 Cal.4th 987, 994, italics omitted (Randle), overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201.)
Imperfect self-defense applies "only when the defendant has an actual belief in the need for self-defense and only when the defendant fears immediate harm that '" 'must be instantly dealt with.'"' [Citation.]" (People v. Rogers (2006) 39 Cal.4th 826, 883.) The trial court must instruct on that theory " 'whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense.' [Citation.]" (Ibid.)
Although facts giving rise to the claim of perfect self-defense may often support imperfect self-defense, we need not decide whether an instruction on imperfect self-defense is automatic when a jury is instructed on perfect self-defense without regard to the specific evidence in the case. (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1275-1276 [rejecting automatic instruction rule and finding no substantial evidence "warranting an instruction that defendant could in good faith actually believe in the need to defend, but be mistaken"].) In this case, even if the trial court should have instructed on imperfect self-defense, the error was harmless.
Any error in failing to instruct on imperfect self-defense is subject to the harmless error test articulated in People v. Watson, supra, 46 Cal.2d at p. 836. (Blakeley, supra, 23 Cal.4th at p. 93; Randle, supra, 35 Cal.4th at p. 998.) Under this test, a conviction may be reversed for a failure to instruct "only if, 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred." (People v. Breverman (1998) 19 Cal.4th 142, 178.) We independently reviewed the trial court's failure to instruct on imperfect self-defense (People v. Waidla (2000) 22 Cal.4th 690, 733) and conclude it is not reasonably probable that Alvarado would have obtained a more favorable outcome had the jury been so instructed.
Although Alvarado and Cesena may have exchanged words, the evidence was undisputed that Cesena was unarmed, his hands were empty, and either in the air or by his sides when Alvarado pulled out his gun and shot Cesena in the chest severing Cesena's aorta and spinal cord. Cesena made no movements, threats or challenges toward Alvarado. This evidence does not show that Alvarado believed he was in imminent danger of being killed or suffering great bodily injury and that the immediate use of deadly force was necessary to defend against the danger. Under these facts, Alvarado could simply have walked away.
Alvarado did not testify at trial, nor did he make any out-of-court statements indicating he was in actual fear of imminent death or great bodily injury. Rather, Alvarado denied being the shooter. On this record, it is not reasonably probable that Alvarado would have obtained a more favorable outcome had the jury been instructed regarding imperfect self-defense and we are convinced the failure to give an imperfect self-defense instruction was harmless.
DISPOSITION
The judgment is affirmed.
MCINTYRE, J.
WE CONCUR:
NARES, Acting P. J.
AARON, J.