Opinion
2d Crim. No. B221500 Super. Ct. No. NA075561
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. SILVIO FABIAN CABRERA, Defendant and Appellant.
Marilyn G. Burkhardt, under appointment by the Court of Appeal for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer, Marc A. Kohm, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 reiving 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County)
Silvio Fabian Cabrera appeals from the judgment following his conviction by jury of second degree murder. (Pen. Code, §187, subd. (a).) The jury also found a personal knife use allegation to be true. (§ 12022, subd. (b)(1).) In a bifurcated proceeding, the trial court found prior serious felony conviction, prior felony strike and prior prison term allegations to be true. (§§ 667, subd. (a), 667, subds. (b)- (i), 1170.12, subds. (a)-(d).) The court sentenced appellant to 35 years to life in prison (15 years to life for murder, doubled to 30 years to life for the strike, plus 5 years pursuant to § 667, subd. (a)). Appellant contends that the court erred by instructing the jury that if it found that he consciously possessed recently stolen property, it could convict him of murder based on slight corroborating evidence, which reduced the burden of proof. He also argues that the court violated his due process right to present a defense by excluding internet chat room evidence. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
Prosecution Evidence
In 2009, Kerry Everett, the 23-year-old victim, lived in unit 313 of a condominium complex, at 550 Orange Avenue in Long Beach. Everett's friend, Tracy Gay, who owned unit 313, allowed him to stay there.
On August 27, 2009, at approximately 3:00 p.m., Everett knocked on his neighbor's door. He was bleeding, and said he had been robbed. The neighbor called 911. Everett died before Long Beach Police Department Homicide Detective Teryl Hubert arrived at the scene. There were some abrasions and one wound on the right side of his chest, and a contusion on his forehead. There was no hair on his wrists. Hubert thought it looked like the hair had been removed with tape.
In searching Everett's residence, police officers found a bloody plastic glove, crumpled pieces of duct tape, a torn gold necklace, and a pipe or glass for smoking methamphetamine. They found no signs of ransacking or a forced entry.
On August 28, 2009, Long Beach Police Officer William Foster arrested appellant for stealing a car, after its owner and her boyfriend detained him. Foster noticed a significant cut on appellant's hand and notified Detective Hubert, who was investigating the Everett stabbing. Detective Hubert interviewed appellant and executed a search warrant at his residence on August 28. His garage contained several of Everett's belongings, including car keys, a gold necklace, and a pair of tennis shoes.
Dr. Jeffrey Gutstadt, a deputy Los Angeles County medical examiner, concluded that Everett died as a result of a single stab wound to the chest. The wound was about four inches deep, five-eighths of an inch long, one-quarter of an inch wide, and was inflicted by a knife that pierced Everett's left chest and the front of his fifth rib before it entered the right ventricle of his heart.
Defense Evidence
Appellant testified that on August 27, 2007, in the morning, he went to Everett's condominium complex looking for a female acquaintance named "Aires," who he thought lived there. While standing outside the locked complex, he saw Everett, who asked him if he could get some methamphetamine. Appellant indicated he could, and followed him to Everett's condominium. They smoked some methamphetamine. Everett gave appellant money for the methamphetamine they had smoked, and to get more methamphetamine. Appellant left and tried, without success, to buy more, returned, and then went out again.
On his second trip, appellant saw Aires. Together, they went to buy methamphetamine, took it to her condominium, and smoked some. Appellant noticed that Aires had several rolls of duct tape, and she allowed him to take one. He returned to Everett's condominium, and found Everett watching male homosexual pornography on a laptop computer.
Appellant and Everett used more methamphetamine. Everett handed appellant a pair of plastic gloves and some cocoa butter and asked him to give him a massage. Appellant agreed to rub his back for $50, and did that for about 20 minutes. Both men were high. Everett then asked appellant to tie him up with tape and spank him. At first, appellant agreed to do that, and he put tape on Everett's wrists. Appellant became uncomfortable and asked Everett for the money he had earned for the back rub. Everett said he had no money at the moment, but that appellant could wait for his boyfriend to return at 6:00 p.m. Appellant said he did not have time to wait, and asked Everett to pay him with the bucket of coins in the bedroom. Everett refused to give him the coins, produced a knife, lunged at appellant and slashed his hand. Appellant "somehow" ended up holding the knife. Everett knocked appellant down, climbed on top of him, and punched him. Appellant did not want to "stick" or stab Everett, and tried to get away. He ended up stabbing Everett to escape. He yanked off Everett's necklace, and took jewelry, a container of coins, and a pair of Everett's shoes, and left the condominium.
On August 28, 2009, when appellant spoke to the police, he described a version of his encounter with Everett that was similar to that which he testified at trial--with some differences. For example, before trial, appellant told the police that he tried to tie Everett with duct tape after he took the knife from Everett, in contrast to his trial testimony that Everett asked him to tie him with tape and spank him. At trial he explained that he had been embarrassed to tell the police why he tied up Everett. Before trial, he told the police that he left the knife in Everett's condominium. At trial, he testified that he took the knife with him and threw it into a bush.
DISCUSSION
Appellant argues that the trial court committed prejudicial error and violated his constitutional rights by instructing the jury, with a modified CALJIC No. 2.15 instruction, that if it found that he consciously possessed recently stolen property, it could convict him of murder based on slight corroborating evidence. He argues further that the court's modification of CALJIC No. 2.15 reduced the burden of proof. We disagree.
CALJIC No. 2.15 only applies to theft crimes. If the defendant is charged with both theft and non-theft offenses, the court must limit the instruction to the theft offenses. (People v. Prieto (2003) 30 Cal.4th 226, 248-249.) The trial court erred when it instructed the jury with the following modified version of CALJIC No. 2.15: "If you find that the defendant in this case was in conscious possession of recently stolen property, the fact of the possession is not by itself sufficient to permit an inference that the defendant is guilty of the crime of murder. Before guilt may be inferred, there must be corroborating evidence tending to prove the defendant's guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt. [¶] As corroboration, you can consider attributes of possession--time, place, manner, that the defendant had an opportunity to commit the crime charged, the defendant's conduct, his[] false or contradictory statements, if any, and or other statements he[] may have made with reference to the property a false account of how he[] acquired possession of the stolen property, [and] any other evidence which tends to connect the defendant with the crime charged." (Italics added.)
Appellant also argues that the court's modification of CALJIC No. 2.15 reduced the burden of proof and violated his constitutional right to a fair trial. While he acknowledges that the California Supreme Court has rejected this argument, appellant contends that Prieto was wrongly decided and should be reconsidered. Principles of stare decisis require us to follow Prieto. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.) We limit our review to the prejudicial impact of this error. In Prieto and subsequent cases, our Supreme Court has ruled that such error is subject to the People v. Watson (1956) 46 Cal.2d 818, 836, harmless error standard of review. (People v. Moore (2011) 51 Cal.4th 1104, 1130-1133; People v. Parson (2008) 44 Cal.4th 332, 356-358.)
Here, the modification and use of CALJIC No. 2.15 was harmless error. Other instructions properly informed the jury of its duty to weigh the evidence, what evidence it could consider, how to weigh that evidence, and the burden of proof. (People v. Moore, supra, 51 Cal.4th at p. 1133.) Further, there was strong evidence of appellant's guilt. He admitted that he was with Everett in the condominium and stabbed him. His inconsistent statements regarding his encounter with Everett enabled the jury to reject his explanation of that encounter. It is not reasonably probable that the jury would have reached a result more favorable to appellant absent the instructional error.
Excluded Internet Evidence
Appellant also contends that the trial court abused its discretion and violated his due process right to present a defense by excluding evidence that Everett sought sex and drugs on the internet shortly before appellant stabbed him. We disagree.
On August 27, 2007, the police recovered a laptop computer from Everett's residence. Eric Robi, a certified computer examiner, retrieved data from the computer's hard drive. Robi prepared a report, consisting of a two-page summary of his findings, with 105 pages of supporting documents from the hard drive (Robi report). Robi concluded that Everett was the primary user of the computer, which contained his W-2 form, and 27 documents that appeared to be his schoolwork. He also concluded that Everett, using "blaq9" as a screen name, chatted with two people ("jerr2" and "mixguy562") on August 27, 2007. The text of the first chat (which occurred between 12:22 and 12:42 p.m.) follows:
+---------------------------------------------------------+ ¦"blaq9:¦u know where do get sum crystal ¦ +-------+-------------------------------------------------¦ ¦"jerr2:¦i not have now ¦ +-------+-------------------------------------------------¦ ¦"blaq9:¦i need sum so I can get down wit u ¦ +-------+-------------------------------------------------¦ ¦"jerr2:¦lo[o]king 4 sex o crystal? ¦ +-------+-------------------------------------------------¦ ¦"blaq9:¦both ¦ +-------+-------------------------------------------------¦ ¦"jerr2:¦where at u? notpic? ¦ +-------+-------------------------------------------------¦ ¦ ¦i still have to upload them. if u got sum crystal¦ ¦"blaq9:¦ ¦ ¦ ¦then cum over. im in lb home alone ¦ +-------+-------------------------------------------------¦ ¦"jerr2:¦im pch magnolia u? fuck? ¦ +-------+-------------------------------------------------¦ ¦"blaq9:¦yeah ¦ +-------+-------------------------------------------------¦ ¦"jerr2:¦where you live? ¦ +-------+-------------------------------------------------¦ ¦"blaq9:¦6th and orange ¦ +-------+-------------------------------------------------¦ ¦ ¦ok so we can meet bud u not pic ¦ ¦"jerr2:¦ ¦ ¦ ¦papi im so horny i want a big cock ¦ +-------+-------------------------------------------------¦ ¦"blaq9:¦u got sum crystal then lets do it, whats ur #? ¦ +-------+-------------------------------------------------¦ ¦"jerr2:¦I ned desconeet papi we can founf that bears ¦ +-------+-------------------------------------------------¦ ¦"blaq9:¦huh? what u wanna do ¦ +-------+-------------------------------------------------¦ ¦"jerr2:¦i say if u call I ned desconect ¦ +-------+-------------------------------------------------¦ ¦"blaq9:¦how we gonna do this . . . ." ¦ +---------------------------------------------------------+
In a separate, shorter session that took place between 2:02 and 2:10 p.m., "Blaq9" (Everett, according to Robi) asked "mix guy 562" if he knew where to get some crystal.
The prosecutor advised the trial court that her computer expert, Detective Matt Archer, had reviewed the Robi report, and concluded that the chats were unreliable. At first the court indicated it "very likely" would admit the chat room evidence. It then excluded the evidence pursuant to Evidence Code section 352, because its probative value was substantially outweighed by the probability that its admission would necessitate undue consumption of time and create a substantial danger of undue prejudice, of confusing the issues, and of misleading the jury.
Evidence Code section 352 provides in relevant part that "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The section "'gives the trial court broad discretion when weighing the probative value and prejudicial effect of proffered evidence.' [Citation.]" (People v. Gurule (2002) 28 Cal.4th 557, 654.) "A trial court's exercise of discretion in admitting or excluding evidence . . . will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
The trial court did not abuse its discretion in excluding the chat room evidence. Its ruling reflects its implied finding that determining the admissibility of the evidence would involve a lengthy battle of experts. Robi submitted 105 pages of background material with his 2-page summary.
Further, the relevance of the chat room evidence, if any, is limited. Appellant claims that the evidence indicates that Everett's failures to find a sexual partner online indicate that Everett likely thought appellant was his best chance of satisfying his sexual needs that day, since appellant was already there, had provided drugs and a massage, and had initially agreed to and started to provide further sexual excitement by tying him with duct tape. He claims that the chat room evidence thus corroborated his account of the events preceding the stabbing: Everett pressed him to engage in various sexual acts; he agreed to give Everett a back rub in exchange for $50; Everett then asked appellant to tie him up and spank him. Appellant agreed and tied Everett with duct tape, but later became uncomfortable, did not want to spank him, and just wanted to be paid for the back rub and leave. Everett protested, they argued, and Everett became upset and attacked him with a knife. The other evidence undermines appellant's version of the events, including his statement to the police that he did not tape Everett until after Everett had stabbed him. In addition, the chat room evidence could also support the inference that Everett had other means of finding someone else to satisfy his sexual needs and had already started looking for them.
Because the trial court did not abuse its discretion, its exclusion of the chat room evidence did not violate appellant's due process right to present a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [The application of the ordinary rules of evidence to exclude defense evidence does not infringe on the right to present a defense].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
GILBERT, P.J.
PERREN, J.
Charles D. Sheldon, Judge
Superior Court County of Los Angeles
Marilyn G. Burkhardt, under appointment by the Court of Appeal for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer, Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.