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People v. Aquino

California Court of Appeals, Sixth District
Sep 10, 2008
No. H031818 (Cal. Ct. App. Sep. 10, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. CARLOS JAVIER AQUINO, Defendant and Appellant. H031818 California Court of Appeal, Sixth District September 10, 2008

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. CC503766.

Premo, Acting P.J.

A jury convicted defendant Carlos Javier Aquino of premeditated attempted murder, assault with a firearm, and shooting at an occupied motor vehicle. On appeal, defendant contends that (1) no substantial evidence supports his identification as the perpetrator, (2) the trial court abused its discretion by denying his motion for a mistrial grounded upon his inability to cross-examine a witness whose testimony was stricken after the witness invoked his Fifth Amendment privilege against self-incrimination, (3) the trial court erred by admitting over objection evidence that had been untimely disclosed by the prosecution, and (4) the trial court erred by refusing his request to give the jury a contemporaneous no-sympathy-for-the-victim instruction during the victim’s testimony. We affirm the judgment.

BACKGROUND

Anthony Felardo and Armando Chapa were heroin addicts who stole to support their habits. They used runners to purchase heroin from their source. At some point, Felardo asked a runner to introduce him to the source so he could deal with the source directly. Defendant was the source. After making arrangements by telephone, defendant drove a blue Chevy pickup truck to a rendezvous and met Felardo. Felardo and defendant discussed heroin prices. When Felardo mentioned that he would consistently buy a lot of heroin, defendant lowered his price. When Felardo asked whether he could obtain heroin on credit, defendant answered negatively and added that he would shoot Felardo if Felardo ever took heroin without paying for it. Thereafter, Chapa called defendant or defendant’s brother, Omar, at a cell phone number when the addicts needed heroin. Defendant, in turn, would send runners or go himself to meet and transact with the two. Once, Felardo and Chapa were at a place where defendant’s runners were selling heroin to others. They asked the runners for heroin on credit. The runners refused, and an argument ensued. Felardo chased one of the runners to the runner’s car, drew a knife, and demanded heroin. The runner gave Felardo heroin worth about $300. Two weeks later, Chapa was driving his car with Felardo as his passenger. The two saw defendant drive past them in the blue truck. When Chapa later stopped at a traffic light, defendant pulled up from behind and stopped to the right about an arm’s length from Felardo. Defendant had his left hand outside the window. He then brought his right hand over, pointed a black 12-inch gun at Felardo, closed one eye, and shot Felardo in the neck. The bullet exited and lodged in Chapa’s arm. The bullet paralyzed Felardo from the shoulder down. Felardo has no hope to recover his neurologic function.

Defendant presented an alibi defense via his father, Javier. Javier testified that, in the month of and months before the shooting, (1) defendant had worked for him 30-40 hours per week doing apartment maintenance, (2) he paid defendant in cash or personal check, (3) he had lunch with defendant every day, (4) he could not recall any day during the month of the shooting or prior month that defendant did not work for him, and (5) he recalled that defendant worked on the day of the shooting and two prior days because his receipt book showed such. He later produced a receipt book and testified that a specified invoice to University Group, LLC, documented work done to apartment 10 by defendant on the day of the shooting. But neither apartment 10, the work done to apartment 10, nor defendant’s name appears on the invoice.

SUBSTANTIAL EVIDENCE

Defendant argues that the evidence identifying him as the shooter was no more than suspicion or speculation because no physical evidence tied him to the crime. He points out that neither the gun, bullet, nor blue truck was found. He adds that Chapa and a jailhouse informant who provided key information leading to his identification had disappeared. He claims that Felardo’s identification was inherently conducive to misidentification because of the high stress situation and not reliable because Felardo had (1) misdescribed the blue truck, (2) initially identified someone else’s photograph, (3) identified his photograph while on pain medication, and (4) been subjected to police officers’ suggestive questioning. According to defendant, everything about Felardo’s testimony “rings false.”

Defendant’s challenge is without merit.

In reviewing a challenge to the sufficiency of the evidence, we “consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime present beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331.) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the jury’s finding].’ ” (Ibid., quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)

“Substantial evidence” in this context means “evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Hill (1998) 17 Cal.4th 800, 848-849 [“ ‘ “When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence--i.e., evidence that is credible and of solid value--from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” ’ ”].) “Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.” (Evid. Code, § 411.)

“‘Although the appellate court must ensure the evidence is reasonable in nature, credible, and of solid value [citation], it must be ever cognizant that “ ‘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 upon which a determination depends . . . .’ ” [Citations.] Thus, if the verdict is supported by substantial evidence, this court must accord due deference to the trier of fact and not substitute its evaluation of a witness’s credibility for that of the fact-finder.’ ” (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1339.)

Viewing the record as a whole and presuming the existence of every fact the trier of fact could reasonably deduce from the evidence, we conclude that evidence that is reasonable, credible, and of solid value supports the jury’s finding that defendant shot Felardo.

Felardo knew defendant as his drug dealer. He had seen him in person several times. He testified that he saw defendant shoot him from an arm’s length away. Felardo’s purported unreliability and the other supposed inconsistencies, inaccuracies, or weaknesses that defendant mentions go to Felardo’s credibility. “[W]hen the circumstances surrounding the identification and its weight are explored at length at trial, [and] where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court.” (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) “Apropos the question of identity, to entitle a reviewing court to set aside a jury’s finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all. [Citations.] The strength or weakness of the identification, the incompatibility of and discrepancies in the testimony, if there were any, the uncertainty of recollection, and the qualification of identity and lack of positiveness in testimony are matters which go to the weight of the evidence and the credibility of the witnesses, and are for the observation and consideration, and directed solely to the attention of the jury . . . .” (People v. Lindsay (1964) 227 Cal.App.2d 482, 493-494.)

Moreover, additional substantial evidence (besides Felardo’s eyewitness identification) supported defendant’s conviction: defendant’s motive. “The identity of the defendant as the person who committed the crime may be proved by circumstantial evidence tending to connect [him or] her with the crime. [Citation.] Such circumstantial evidence may consist of proof of motive and conduct of the defendant [e.g., inconsistent statements showing consciousness of guilt] which tends to connect [him or] her with the crime.” (People v. Hays (1950) 101 Cal.App.2d 305, 311; see also, People v. Blankenship (1970) 7 Cal.App.3d 305, 313 [motive and conduct are ample circumstantial evidence to connect defendant with the commission of the crimes]; People v. Mullen (1953) 115 Cal.App.2d 340, 343 [antagonism or enmity between defendant and the victim of the assault is admittedly relevant to the issue of defendant’s identity as the assailant]; People v. Gonzales (1948) 87 Cal.App.2d 867, 877-878 [it is settled that evidence having a direct tendency to prove motive is admissible to solve a doubt as to identity].)

Here, there is no question that one could infer enmity between defendant and Felardo. Felardo stole heroin from defendant. Defendant warned Felardo that he would shoot him if he ever took heroin without paying for it.

In short, Felardo identified defendant as the shooter and defendant had a stated motive to shoot Felardo.

MISTRIAL MOTION

The People called Omar to testify. Omar related background such as defendant’s employment conditions with Javier. When Omar acknowledged having money from doing “bad things,” the trial court interrupted the questioning and asked the prosecutor whether Omar might invoke his right against self-incrimination. The prosecutor replied that he did not know what Omar intended to say because Omar had so far refused to talk to him. The trial court then directed the prosecutor to question Omar about a different subject, and the prosecutor questioned Omar about where he lived, with whom he lived, and what automobiles and combination safes he owned. Outside the jury’s presence, the trial court confirmed from Omar that Omar had sold drugs and kept money and drugs in his safes. It then advised Omar of the right against self-incrimination and appointed the Public Defender to represent him. Later, under advice of counsel, Omar refused to testify further. Defendant then made motions to strike and for mistrial. The trial court granted the motion to strike Omar’s testimony. As to the motion for mistrial, defense counsel argued the following: “I don’t feel that the jurors can effectively reject the testimony or forget the testimony that Omar Aquino provided to them yesterday for over 45 minutes, and I’m concerned that they will take that back with them in their deliberations and will use that in an inappropriate fashion.” When the trial court inquired what counsel meant, defendant offered: “Well, my concern was that [Omar] appeared to be, shall we say, untruthful during the course of his testimony, which looks really bad for my client. And had I had the ability to cross examine him, I was going to attempt to rehabilitate him. He was obviously trying to protect his brother, and I didn’t want to break through that and show the jury where he was coming from. [¶] We are not left with that impression. We are left with that he is basically a liar, he did bad things and he’s--just reflects very badly on my client.” The prosecutor urged that any prejudice was minimal because Omar limited his inculpatory testimony to himself. The trial court denied the motion as follows: “I’ve considered very carefully the content of the testimony that was given and will now be stricken. [¶] Even if I was to assume, which I do not, that this jury will disregard the Court’s instructions and consider that testimony for any purpose, I do not believe that that testimony can in any way prejudice or harm the defendant’s case. And I say this for a number of reasons. [¶] First, the testimony that was given and which will be stricken does not in any way address the date or time of the incident. There was no testimony given by [Omar] with respect to the incident that gave rise to these charges. All of his testimony was on a matter that is somewhat peripheral to that primarily in two regards. [¶] One, the safes and their content in Fremont. And secondly, where and when people were living in various places and working with the dad, [Javier]. [¶] Even if the jury were to disregard the Court’s instructions and were to consider that testimony, it seems to me that is not harmful to the defendant’s case, and in fact, to some extent may actually be helpful to the defendant since [Omar] did clearly indicate and without hesitation that the drugs and money contained in those safes belonged to him.” The trial court offered that defendant could renew the motion after trial “when all of the evidence is in if the Court’s perspective on the weight and significance of this might be affected.” It then recalled the jury and instructed as follows: “Ladies and gentlemen of the jury, yesterday you heard testimony from Omar Aquino, the brother of the defendant in this matter. [¶] On motion of counsel, I have ordered that testimony be stricken. As I previously instructed you, when I order testimony stricken, it means that you must disregard it entirely. You can’t consider it for any purpose. You must treat it as though you had never heard it, and you cannot allow it to enter into your deliberations or affect your verdict in any way.”

“‘A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 565.) The accepted remedy when a witness invokes his Fifth Amendment privilege after testifying to some matters is to strike the testimony in its entirety, as happened here. (See, e.g., People v. Apodaca (1993) 16 Cal.App.4th 1706, 1716; People v. Hathcock (1973) 8 Cal.3d 599, 616.)

We emphasize that a trial court’s ruling denying a motion for mistrial is reviewed under the deferential abuse-of-discretion standard. (People v. McLain (1988) 46 Cal.3d 97, 113.) Indeed, having witnessed the incident, the trial court is in a much better position to assess any prejudicial impact it might have, as well as the ability of curing it by instruction or admonition. (See People v. Hardy (1992) 2 Cal.4th 86, 213.)

“‘A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. [Citations.] It is only in the exceptional case that ‘the improper subject matter is of such a character that its effect . . . cannot be removed by the court’s admonitions.’ ” (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.)

Here the trial court struck Omar’s testimony and instructed the jury to disregard it. There was no further reference to it in testimony or argument to the jury. We presume that this prompt admonition was sufficient to cure any potential prejudice from the testimony.

The exceptional case is where the incompetent evidence goes to the main issue and where the proof of defendant’s guilt is not clear and convincing. (People v. Hardy (1948) 33 Cal.2d 52, 61.) In such an instance the error in admitting the incompetent evidence cannot be cured by striking out and instructing the jury to disregard that evidence. (Ibid.) Otherwise, “the trial court is permitted to correct an error in admitting improper evidence by ordering it stricken from the record and admonishing the jury to disregard it, and the jury is presumed to obey the instruction.” (Ibid.)

Defendant argues that Omar’s testimony impugned his alibi because it “appeared to cast doubt on the strictness of the work schedule.” He also claims that certain testimony “left the jury with the irreversibly misleading impression that Omar and defendant conspired to destroy evidence.”

The prosecutor asked Omar whether defendant ever talked to him about “getting to a house or giving you instructions to go to a particular house and destroy evidence?” To this, Omar replied: “I told him that when we got locked up together, why? Because it was my money and that was my drugs.” The prosecutor then asked Omar whether he ever instructed defendant to destroy vehicles. To this, Omar replied: “Just to get rid of, you know. I told him, you know, just get rid of a couple [of] vehicles.” When asked whether defendant ever told him to find a particular vehicle and throw it away so no one could find it, Omar replied that he did not remember.

We find nothing exceptional in this case. This primarily follows because the import of the cited testimony did not go to the main issue whether defendant shot Felardo. Even characterizing an alibi defense as the main issue, the import went to casting doubt on the strictness of defendant’s work schedule rather than the alibi as a whole. And the conspiracy suggestion is collateral even from defendant’s perspective. That testimony implicates Omar’s mental state rather than defendant’s mental state. (Ante, fn. 1.) Given these factors, the trial court could have rationally concluded that the prejudice from Omar’s testimony could be cured by striking it and admonishing the jury. This case therefore falls within the ordinary where it can be presumed that a cautionary instruction cured the prejudicial impact of stricken evidence. Defendant’s reliance upon factors supporting a different conclusion fails to demonstrate an abuse of discretion. (People v. Williams (1981) 115 Cal.App.3d 446, 453; see People v. Harris (1994) 22 Cal.App.4th 1575, 1581.) We add that defendant failed to argue to the trial court the nuances from Omar’s testimony that he draws here.

DISCLOSURE OF EVIDENCE

From jail, defendant telephoned Omar twice, his sister once, and an unidentified woman once. The conversations were in Spanish and recorded. Approximately three months before trial, the People notified defense counsel that CDs of defendant’s jailhouse conversations were available. Defense counsel did not retrieve the CDs until a week before trial. During in limine proceedings, defendant sought to exclude the CDs from evidence on the ground that they were not provided to him 30 days before trial as required by the discovery statute. The trial court denied the motion but advised that it would grant defendant a continuance any time during trial “to the extent that one is needed to investigate that material to whatever extent is necessary.” It then asked the prosecutor whether the conversations had been translated. The prosecutor replied that he did not know. The trial court then encouraged the prosecutor to consider expediting the proceeding by working with defense counsel on translations of the relevant conversations. Five days later and after the jury was sworn, the parties indicated that they were attempting to produce a joint translation and transcript. On a Thursday, a week later, the prosecutor gave defense counsel an English translation of the conversation excerpts he intended to introduce. The next day, a Friday, and out of the jury’s presence, defense counsel objected to the proffer because she had not known until the prior day what conversations the prosecutor was relying upon and was questioning the accuracy of the translation. The trial court used the services of a court certified Spanish language interpreter who made certain corrections to the translation. Defense counsel nevertheless objected to the prosecutor’s proffer on the ground that she had not been provided with the CDs or translation 30 days before trial. The trial court indicated that defense counsel would have the weekend to work on the translation. On Monday, the trial court placed defense counsel’s objection on the record and overruled it.

Defendant contends that the trial court abused its discretion in overruling his objection because the prosecutor “did not provide defense counsel with the actual English translations of the jail house recordings that were to be introduced as evidence until [Thursday evening] [and] [t]he translations were not certified by the court as accurate until [Friday].” He complains that “defense counsel had a mere weekend to digest the evidence and prepare to meet it--a far cry from the ‘within 30 days of trial’ requirement . . . .”

Penal Code sections 1054.1, subdivision (c), and 1054.7 require that the prosecutor provide the defense with all relevant evidence seized or obtained as part of an investigation at least 30 days before trial.

In this case, we fail to see how the prosecutor violated discovery statutes. The prosecutor made the CD evidence available to defendant three months before trial. The translation that he turned over during trial on Thursday, which became certified on Friday, was his own work product. But that work product did not constitute new evidence. By definition, a translation merely clarifies or interprets existing evidence. As the proceedings below illustrate, the prosecutor’s translation was itself subject to clarification by the trial court’s translator. Defendant cites no authority for the proposition that the prosecutor is required to provide the defense with translations of evidence 30 days before trial. We observe that the trial court was amenable to granting defendant a continuance to investigate issues about the CDs and defendant made no complaint on the Monday following the Friday translation certification that he was unprepared.

SYMPATHY INSTRUCTION

The trial court began the trial by instructing the jury in the language of CALCRIM No. 200, which included the following: “Do not let bias, sympathy, prejudice or public opinion influence your decision.” Felardo was the fourth witness of the day. He testified from a reclining position accompanied by a nurse because he had surgery two weeks previously. During a sidebar conference, defendant asked the trial court the following: “I was hoping perhaps you could admonish the jury once Mr. Felardo is excused regarding sympathy for the victim.” The trial court replied: “I’ve already instructed them on that, counsel, and I don’t want to unduly focus on that. It will come up again in the closing instructions. They just heard it this morning which was part of the reason I gave that instruction this morning.” At the trial’s conclusion, the trial court gave closing instructions, which included an instruction in the language of CALCRIM No. 200.

Defendant frames his contention as trial court error as a matter of law: He “submits that the terse, generic sympathy instruction, even if given twice, was insufficient to overcome the jury’s natural and visceral sympathy for Felardo and repugnance at the crime. The jury had to be reminded of its duty contemporaneously with Felardo’s testimony to immediately counter the shock of his appearance and condition.” Defendant cites no authority for this proposition.

In general, the trial court does not have a duty to specifically instruct the jury not to be persuaded by feelings of passion or prejudice since it is presumed that jurors are fair and intelligent persons, and need no special instruction on obvious basic principles of just conduct. (People v. Jacobs (1989) 210 Cal.App.3d 1135, 1141.) Here, the trial court instructed on the principle nevertheless. Moreover, it so instructed twice--the first time being shortly before defendant’s target of the instruction testified. We presume that the jury understood and followed the instruction. (People v. Morales (2001) 25 Cal.4th 34, 47.)

To the extent that defendant means to attack the trial court’s discretionary decision to give the sympathy instruction twice rather than three times, we pass the matter without consideration given that defendant fails to develop an abuse-of-discretion argument explaining why the trial court’s decision was irrational. (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1388 [“[a]rguments should be tailored according to the applicable standard of appellate review”].)

DISPOSITION

The judgment is affirmed.

WE CONCUR, Elia, J., Bamattre-Manoukian, J.


Summaries of

People v. Aquino

California Court of Appeals, Sixth District
Sep 10, 2008
No. H031818 (Cal. Ct. App. Sep. 10, 2008)
Case details for

People v. Aquino

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CARLOS JAVIER AQUINO, Defendant…

Court:California Court of Appeals, Sixth District

Date published: Sep 10, 2008

Citations

No. H031818 (Cal. Ct. App. Sep. 10, 2008)