Opinion
A145665
02-17-2017
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO CHAPARRO-ESQUIVEL, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. SCN219047)
Defendant and appellant Eduardo Chaparro-Esquivel asserts claims of instructional and other error following his conviction of assault with a deadly weapon (Penal Code, § 245, subd. (a)(1)), mayhem (§ 203), and torture (§ 206). We affirm.
All undesignated statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
In November 2012, appellant was charged by information with attempted murder (§§ 664/187, subd. (a); count one), assault with a deadly weapon (§ 245, subd. (a)(1); count two), aggravated mayhem (§ 205; count three); and torture (§ 206; count four). The information alleged section 12022.7, subdivision (b) great bodily injury enhancements as to all counts.
In April 2015, a jury found appellant guilty of count two, guilty of the lesser included offense of mayhem (§ 203) on count three, and guilty of count four. The jury was unable to reach a verdict on count one and the trial court declared a mistrial as to that count. In June, the court sentenced appellant to life in prison on count four and stayed the remaining terms under section 654. This appeal followed.
FACTUAL BACKGROUND
John Corriea testified that on November 23, 2011, he and the victim, Albert Bartal, had dinner on Clement Street in San Francisco. Later they went to a bar on Geary Street and stayed until it closed. After leaving the bar, the two men went to a Jack in the Box restaurant on Geary Street at 11th Avenue. According to Corriea, an "altercation" occurred at the restaurant after Bartal bumped into a trash can, apparently pushing it towards other patrons. Corriea and Bartal left the restaurant and stopped for cigarettes at a gas station on Geary Street two blocks away. While Corriea was requesting the cigarettes he heard a screech and looked back; he saw Bartal hit the ground and a dark SUV speeding away. After the collision, Bartal was not moving or breathing; Corriea rolled Bartal over to try to get him breathing.
Ronald Carbonell was working in the kitchen of the Jack in the Box in the early morning hours of November 24, 2011. He saw people arguing and a man (apparently Bartal) punch another man (apparently appellant). Carbonell pulled Bartal out of the restaurant, and Bartal and his companion left. Carbonell stopped appellant from leaving because it seemed like he wanted to follow Bartal. Appellant subsequently drove away in a black SUV.
Another customer, Kaipo Kapua, testified he saw the fight at the Jack in the Box and recorded it on his cell phone. The video was played to the jury. Appellant can be heard to say, "Damn Jack in the Box just got serious . . . Let me get my shit to go . . . He fucking hit me in my face . . . What the fuck . . . I didn't touch him; I didn't touch him." Appellant also said, "I am going to fuck him up right now" and "[G]ive me my food; give me my food; I'm going to go run him over." Kapua testified appellant seemed drunk and was slurring his words. Kapua admitted he himself was "pretty drunk."
An eyewitness, Lyubov Muzichenko, testified she was at a pump at the gas station where Bartal was hit at around 2:35 a.m. on November 24, 2011. She saw an SUV quickly veer into the station at about 35 miles per hour. She saw the SUV hit a young man (indisputably Bartal), throwing him into the air. The SUV did not seem to slow down at all before impact, and afterwards the SUV sped off.
San Francisco Police Officer James Johnson testified that at about 2:00 a.m. on November 24, 2011 he saw appellant, with whom he had gone to high school, on the street in North Beach. Appellant said hello and walked towards a black SUV.
San Francisco Police Sergeant Nico Discenza testified he retrieved a set of car keys from the attorney for appellant's girlfriend Alyssa Tejada. He found a black Mazda SUV parked in the Bayview area of San Francisco; the SUV had been rented by Tejada but was never returned. The SUV's bottom front grill was cracked and there was a dent on the hood.
Bartal's physician testified he was in a persistent vegetative state and paralyzed due to traumatic brain injury.
The Defense Case
Appellant testified his girlfriend Tejada picked him up at around 8:00 p.m. on the night before Thanksgiving, 2011. He bought and consumed a pint of liquor and some marijuana. Later he took a Vicodin and bought another half-pint of liquor and an energy/alcohol drink. He recalled seeing Officer Johnson on the street and walking past the officer to his car.
Later in the evening, appellant drove to the Jack in the Box on Geary Street; he did not remember if Tejada was with him. He saw people fighting and got punched when he stepped in to stop the fight. He did not recall his statements in the video recorded by eyewitness Kapua. The next thing he remembered was getting out of the vehicle at his parent's house in South San Francisco.
Appellant testified he had never been arrested before. On cross-examination he said he recalled an incident in April 2010 when he was in a car with Tejada and the police stopped him and claimed to smell marijuana. He did not recall saying to the police officer, "Better not touch my girl, bitch. You can't touch her, nigga."
A forensic psychologist testified regarding his interview of appellant. Appellant described periods during the night of the charged offenses when he could not remember anything or had limited recall. The psychologist did not believe appellant was faking. He opined that appellant was in a state of alcohol-induced confusion when he was at the Jack in the Box. A forensic toxicologist testified appellant's drinking and drug use "would suggest a highly impaired, highly intoxicated individual."
A trauma surgeon testified that, based on his observations of surveillance video at the gas station, he believed that Corriea tilted Bartal's head into a position that made it impossible for Bartal to breathe, resulting in permanent brain damage.
DISCUSSION
I. There Was No Prejudicial Error From Questions About a Prior Traffic Stop
During the cross-examination of appellant, the prosecutor questioned him about a 2010 traffic stop. The prosecutor asked, "Now, we understand you've never been arrested before, okay. But on . . . April 7, 2010, didn't you have an incident when the police stopped you and . . . Alyssa [Tejada], and the police smelled what allegedly was marijuana? Do you remember that incident?" Appellant answered in the affirmative and the prosecutor continued, "And do you remember when the police went to search Alyssa, your words were, 'Better not touch my girl, bitch. You can't touch her, nigga.' Do you remember that?" Appellant responded, "I don't really remember saying that, those exact words, but I do remember that incident." Appellant also did not remember being "agitated and loud and vulgar."
Appellant contends the trial court erred in allowing the questioning over his counsel's objection. He argues the court should not have allowed the prosecutor to ask about appellant's "uncharged misconduct" in the traffic stop because the incident was irrelevant to the offenses on trial. The People do not suggest the incident was directly relevant to determination of what occurred in the early morning hours of November 24, 2011, but they argue the incident was relevant to rebut appellant's testimony he had never been arrested.
We conclude the trial court erred in ruling appellant opened the door to questioning about the 2010 traffic stop by testifying he had never been arrested. People v. Clark (2011) 52 Cal.4th 856, 934-935 is instructive. In Clark, the defendant was charged with the attempted rape and murder of the niece of his girlfriend, Donna Kellogg. After appellant presented evidence he and Kellogg had a good relationship and family life, the prosecution was permitted to question him regarding his promiscuity during their relationship. (Id. at p. 935.) The Supreme Court concluded the cross-examination "had some tendency in reason to undermine those assertions [regarding his relationship with Kellogg] and, more generally, to call his credibility into question," and was not an abuse of discretion. (Ibid.)
The cross-examination challenged by appellant had no tendency to undermine appellant's simple assertion he had never been arrested, and the trial court abused its discretion in ruling to the contrary. However, that error was harmless. First, as the People argue, the exchange between the prosecutor and appellant did not result in the admission of any prejudicial information. Although appellant acknowledged the police officer thought he smelled marijuana during the traffic stop, appellant did not admit to using marijuana on that occasion and, more importantly, he had already testified he drove on November 24 after drinking and using Vicodin and marijuana.
Furthermore, appellant did not admit making the vulgar comments the prosecutor inquired about, and appellant points to no place in the record where the People put on evidence appellant made the comments. The trial court instructed the jury that questions posed by attorneys are not evidence. Specifically, the court told the jury, "Nothing that the attorneys say is evidence. . . . Their questions are not evidence. Only the witnesses' answers are evidence. The attorneys' questions are significant only if they helped you to understand the witnesses' answers. Do not assume that something is true just because one of the attorneys asked a question that suggested it was true." We presume the jury followed the trial court's instructions and disregarded the comments the prosecutor's questions attributed to appellant. (People v. Coffman (2004) 34 Cal.4th 1, 83.)
In any event, even assuming the jury took the prosecutor's questions as evidence appellant made the vulgar remarks, it is not reasonably probable the questioning resulted in prejudice. (People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008 ["Erroneous admission of other crimes evidence is prejudicial if it appears reasonably probable that, absent the error, a result more favorable to the defendant would have been reached."].) Appellant argues the case was "close" because the jury deliberated for nine hours, was unable to reach a verdict on the attempted murder charge, and found appellant guilty of the lesser included mayhem offense after acquitting him of aggravated mayhem. However, appellant does not identify any serious evidentiary dispute regarding any element of any offense of which he was convicted. The evidence was overwhelming that appellant was driving the SUV that hit Bartal and that appellant intentionally struck Bartal with the SUV in retaliation for Bartal's earlier unprovoked punch. There was no prejudicial error. II. The Trial Court Did Not Err in Instructing The Jury With CALCRIM No. 370
The brief cross-examination challenged by appellant did not violate appellant's constitutional due process rights. (People v. Partida (2005) 37 Cal.4th 428, 439 ["[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair."].)
Appellant was convicted in count four of the crime of torture, which section 206 defines as the infliction of great bodily injury "with the intent to cause cruel or extreme pain or suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose . . . ." The parties agree the prosecution's theory was that appellant inflicted great bodily injury on Bartal for the purpose of taking revenge for Bartal's earlier punch. However, appellant contends the trial court erred in instructing the jury pursuant to CALCRIM No. 370 that "The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty." Appellant argues that instruction "effectively lightened the prosecution's burden to prove beyond a reasonable doubt the requisite element of torture comprised in the motive of revenge."
At the outset, we point out appellant's claim is substantially undermined by the California Supreme Court's decision in People v. Whisenhunt (2008) 44 Cal.4th 174. That decision involved an instruction with similar language to the challenged portion of CALCRIM No. 370. In particular, the Court considered language in CALJIC No. 2.51 instructing the jury that "[m]otive is not an element of the crime charged and need not be shown." (Whisenhunt, at p. 218.) The Supreme Court rejected the defendant's contention that the instruction "had the effect of negating the element of 'sadistic purpose' in the first degree murder by torture instruction." (Id., at p. 218.) The Court reasoned, " 'although malice and certain intents and purposes are elements of the crimes, . . . motive is not an element.' [Citation.] 'Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice.' " (Ibid; see also People v. Hamlin (2009) 170 Cal.App.4th 1412, 1452-1454 (Hamlin).)
Appellant effectively argues Whisenhunt is not determinative of his claim because the jury in the present case may have viewed the terms "purpose" and "motive" as interchangeable, despite the technical distinction drawn by the California Supreme Court. However, the record does not demonstrate a reasonable likelihood the jury misunderstood the instructions and convicted appellant of torture without finding a purpose of revenge. (People v. Houston (2012) 54 Cal.4th 1186, 1229.) The trial court repeatedly instructed the jury regarding the purpose element. In the context of listing the showings of intent required for the charged offenses, the court instructed the jury that, "The specific intent and mental state required for the crime of torture is the intent to cause cruel or extreme pain and suffering for the purpose of revenge." The court repeated the point in the context of its instruction on voluntary intoxication, stating "In connection with the charge of torture, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the intent to cause cruel or extreme pain and suffering for the purpose of revenge. If the people have not met this burden, you must find the defendant not guilty of torture." Finally, in the context of the torture instruction itself the court told the jury the People were required to prove appellant inflicted great bodily injury and in doing so appellant "intended to cause cruel or extreme pain and suffering for the purpose of revenge."
The prosecutor's closing argument did not suggest the People were not required to prove appellant acted with the purpose of revenge. In arguing the evidence supported a guilty verdict on the torture charge, the prosecutor acknowledged he was required to show appellant "[i]ntended to cause extreme pain and suffering for purpose of revenge." He continued, "What does it mean to do something for revenge? You do not have to even try to cause pain to the person. But was this a vindictive retaliation against a wrongdoer, yes. Was it infliction of punishment for the purposes of getting even, yes." On the issue addressed by CALCRIM No. 370, the prosecutor argued, "Motive shows his intent. There's a jury instruction. Having a motive may be a factor tending to show the defendant is guilty. Not having a motive may be a factor tending to show defendant's not guilty. Well, we have a motive here." Thus, the prosecutor treated the motive instruction as consistent with the People's burden of proof on the purpose of revenge as described by the court. Appellant points to nothing in the record suggesting the jury misunderstood the instructions. There is no reasonable likelihood it did.
Appellant relies on People v. Maurer (1995) 32 Cal.App.4th 1121, but that case is distinguishable. That case concerned a charge of annoying a child (§ 647.6) and Maurer rested its ruling that the motive instruction could cause confusion on the fact that section 647.6 requires proof that the acts " 'were motivated by an unnatural or abnormal sexual interest.' " (Maurer, at p. 1127; see also id. at p. 1126 ["It is generally true that motive is not an element of a criminal offense. [Citations.] But the offense of section 647.6 is a strange beast."].) Maurer observed, "the question whether 'motive' is somehow different from 'motivation' or 'motivated by' is a question of some academic interest but of little practical significance." (Ibid.) No comparable likelihood of confusion was present in our case. We also reject appellant's attempts to distinguish Whisenhunt. (See Hamlin, supra, 170 Cal.App.4th at pp. 1453-1454.) --------
Finally, even if the jury understood CALCRIM No. 370 in the way appellant suggests, the error in giving the instruction was harmless beyond a reasonable doubt. (People v. Lamas (2007) 42 Cal.4th 516, 526.) In the present case, the evidence appellant drove into Bartal for the purpose of revenge was overwhelming: the jury saw a video in which appellant, having just been punched by Bartal, declared he was going to run Bartal over; an eyewitness described Bartal doing so in a deliberate manner. Appellant points to nothing in the record raising any doubt as to the purpose element.
III. The Trial Court Did Not Err in Declining to Modify Its Instruction on Credibility
CALCRIM No. 226 directs jurors how to judge the "credibility or believability of the witnesses." The instruction states in part, "In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony." The instruction then provides a non-exclusive list of ten "factors" jurors "may consider." The first of the factors is "How well could the witness see, hear, or otherwise perceive the things about which the witness testified?" Appellant requested that "intoxication" be added as a factor the jury could consider in evaluating witness credibility. The trial court rejected the request, stating "none of our witnesses were intoxicated." The court also expressed agreement with the prosecutor's assertion that intoxication is covered by the first listed factor in CALCRIM No. 226.
The trial court did not err in declining to modify the instruction, because the effect of a witness's intoxication is encompassed within the first listed factor—"How well could the witness see, hear, or otherwise perceive the things about which the witness testified?" CALCRIM No. 226 as given by the trial court did not preclude appellant from arguing witness intoxication as a credibility factor; appellant does not argue to the contrary. Instead, appellant effectively argues the trial court abused its discretion in declining to give his requested pinpoint instruction. But the court was not obligated to revise CALCRIM No. 226 to give a pinpoint instruction where the point was covered adequately by one of the factors already listed. (People v. Catlin (2001) 26 Cal.4th 81, 152 (Catlin).) There is no basis to conclude the jurors would have failed to understand intoxication can affect an eyewitnesses' perception. (People v. McKinnon (2011) 52 Cal.4th 610, 670 ["We 'credit jurors with intelligence and common sense' "].) The trial court did not err.
Even if the trial court erred, it is not reasonably likely the result of trial would have been different had intoxication been specifically listed as a factor under CALCRIM No. 226. (Catlin, supra, 26 Cal.4th 81 at p. 152.) Although there was evidence certain witnesses were intoxicated, such as Kapua and Corriea, appellant does not explain how their credibility was important to any of the critical disputed issues at trial. The jury was not required to rely on Kapua's account because it was able to consider the video he recorded during the incident at the Jack in the Box. Corriea's role at trial was to provide general information about Bartal's movements the night in question; his most significant testimony was that he saw a dark SUV speeding away from the gas station, but that was duplicative of Muzichenko's more thorough account. As noted previously, the overall evidence of appellant's guilt was overwhelming. Any error was harmless. IV. No Appellate Issue Arises From an August 2012 Brady Hearing
Appellant requests that this court review the sealed record of an August 9, 2012 in camera hearing that resulted in the disclosure of documents produced by the San Francisco Police Department under Brady v. Maryland (1963) 373 U.S. 83. The materials related to a Sergeant Lyons, who did not testify at trial. This court has reviewed the sealed transcript and documents produced by the police department. Those materials raise no appellate issue.
DISPOSITION
The judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.