Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. F06907175. James Oppliger, Judge.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Raymond L. Brosterhous, II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
INTRODUCTION
Jose Oliver Chavez, III, appeals from a judgment of 32 years to life for attempted murder. For the following reasons, we affirm.
STATEMENT OF THE CASE
On January 3, 2007, an information was filed in Fresno County Superior Court charging Chavez with the following felony offenses: count one, attempted murder of Nicholas Ray Padilla (Pen. Code, §§ 664/187, subd. (a)); and count two, assault with a firearm on Padilla (§ 245, subd. (a)(2)). It was further alleged that: (1) as to counts one and two, Chavez had personally inflicted great bodily injury upon the victim within the meaning of section 12022.7, subd. (a); and (2) as to count one only, that Chavez personally and intentionally discharged a firearm causing great bodily injury or death within the meaning of section 12022.53, subdivision (d).
All further section citations are to the Penal Code unless otherwise indicated.
On January 4, 2007, Chavez appeared with appointed counsel, and entered not guilty pleas and denials of all priors and enhancements.
Trial by jury commenced on May 15, 2007, but the jury declared that they were unable to reach a verdict, and on May 22, 2007, a mistrial was declared.
On November 14, 2007, trial by jury again commenced. On November 21, 2007, the jury returned verdicts finding Chavez guilty as charged.
On January 9, 2008, having read and considered a probation report filed in the matter, the trial court denied probation and sentenced appellant to state prison for an indeterminate term of 32 years to life, calculated as follows: a sentence of seven years as the middle term of the offense of attempted murder, aggravated by a 25 year to life term for the use of a firearm causing great bodily injury enhancement. A three year enhancement was imposed but stayed for the great bodily injury special allegation, and the sentence imposed for count two along with its enhancements were also stayed, in this instance pursuant to the provisions of section 654.
On January 9, 2008, Chavez filed a notice of appeal.
FACTS
On September 18, 2006, Catarina Rodriguez was living in Fresno with her children and a friend, Nicholas Ray Padilla, whom she considered her “nephew.” That evening at about 8:00 p.m., she heard a car in front of the house honking its horn, assumed it was one of her friends, and asked Padilla to go outside and instruct the friend to come inside the house. Rodriguez, who was busy braiding a daughter’s hair, saw Padilla go outside, and then, without having heard any loud arguments, heard multiple gunshots. Rodriguez threw her daughter on the floor and covered the child with her body, and then heard Padilla say “I’m hurt” and “I’m hit.” Rodriguez ran out, saw Padilla had been shot and then ran across the street to a pay phone to call 911.
However, before Rodriguez could even call for help, she saw a police officer arrive around the corner. Rodriguez testified that the police, within the hour, searched her house for firearms and weapons but found none. She further testified that she had never had a gun in her house and that she did not see Padilla with a gun that evening.
Fresno Police Officer Juan Gurrola was on patrol with his partner, Officer Monty Lewis, that night in the area when he heard multiple gunshots at approximately 8:00 p.m. He arrived at the Rodriguez house within two minutes of hearing the shots and was met by Rodriguez, who told him that her nephew had been shot. Gurrola found Padilla near the front porch, shot in several different parts of his body and bleeding profusely; the officer applied pressure to Padilla’s shoulder wound to stop the bleeding until medical help could arrive. After helping Padilla, Gurrola obtained a preliminary statement from Padilla, which he relayed to his sergeant and to Fresno Police Detective Art Rodriguez. Gurrola also accompanied Padilla to the hospital. Later that night, Gurrola proceeded with several officers to Chavez’s residence where he took Chavez into custody. The crime scene was searched and no weapons were found; however, the police did find an empty ammunition casing, a bullet fragment, and a bullet hole in the side of the residence.
Padilla testified that on the evening of September 18, 2006, he was preparing to eat dinner when he heard honking in front of the house, went outside, and approached the car making the noises. Padilla had recently made the acquaintance of a female named Angelica who was the mother of Chavez’s baby. Chavez had then spoken to Padilla on the telephone a few days earlier and had threatened him because of his contact with Angelica and the pair had agreed to what Padilla believed would be a fistfight at some later date. When Padilla went outside, he saw Chavez was the driver of the car; Chavez then asked him if he “was ready.” Padilla, who interpreted the comment as wanting to initiate a fistfight, indicated he needed to go into the house to put on his shoes and then went inside the residence.
When Padilla emerged from the house, he was wearing shoes and carrying a pair of gloves. As he was walking towards the car, he saw Chavez’s arm emerge outside the window, saw some flashes, and then heard gunshots.
Padilla, shot multiple times, then managed to stumble back to the house in extreme pain while yelling for help. As a result of his injuries, Padilla has a steel rod in his leg and can no longer run, crawl, climb or do anything athletic.
Fresno Police Detective Art Rodriguez interviewed Padilla that night at the hospital; Padilla readily identified Chavez as his assailant. Rodriguez later interviewed Chavez at the Fresno Police Department headquarters. Chavez was informed of and then waived his constitutional rights. Initially, Chavez denied being armed and denied being involved in the shooting. As the interview progressed, however, Chavez then recanted his earlier denial and admitted shooting Padilla. However, in this version of his statement, Chavez claimed that after Padilla had approached him, because he feared for his own safety, he had fired his gun several times. During this conversation, Chavez may have told Rodriguez that, in a telephone conversation prior to the incident, Padilla had threatened to shoot him. Detective Rodriguez told Chavez that he felt that Chavez was being dishonest. He lied to Chavez and told Chavez that Padilla had submitted to a gun residue test which came back negative, indicating that Padilla was not armed with a gun. After Detective Rodriguez expressed his doubts about the story, Chavez then indicated that maybe Padilla was unarmed and was possibly holding a pair of gloves in his hands. Chavez then admitted he had shot Padilla because Padilla was talking to or dating his baby’s mother, which “made him angry.”
Defense
Chavez did not testify and no defense witnesses were called.
DISCUSSION
1.
CALCRIM No. 358
On appeal, Chavez contends that the jury was improperly instructed on CALCRIM No. 358 because the jury instruction was applied to his exculpatory oral statements.
Chavez had been interviewed by Fresno Police Detective Art Rodriguez after Padilla had identified Chavez as the shooter. During this interview, Chavez told the officer that he had shot Padilla because he was afraid that Padilla was armed and would shoot him. As the interview progressed, however, Chavez indicated that Padilla was not armed and admitted shooting Padilla. At trial, these extrajudicial statements were admitted into evidence by the prosecution. As a result, the jury was instructed on CALCRIM No. 358.
CALCRIM No. 358 was given to the jury as follows:
“You have heard evidence the defendant made oral statements before the trial. You must decide whether or not the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements consider those statements along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give such statements. You must consider with caution evidence of a defendant’s oral statements unless it was written or otherwise recorded.”
CALCRIM No. 358, as well as its predecessor instruction, CALJIC No. 2.71, is required to be given sua sponte in every case wherein an admission is used to prove the prosecution’s case. (People v. Carpenter (1997) 15 Cal.4th 312, 392-393, superseded on other grounds by statute as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) “The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.” (People v. Beagle (1972) 6 Cal.3d 441, 456) According to Chavez, CALCRIM No. 358 is erroneous because, unlike CALJIC No. 2.71, the cautionary language is not limited to statements which tend to prove guilt. (People v. Vega (1990) 220 Cal.App.3d 310, 317.) Here, Chavez contends that the jury viewed his exculpatory statements – that he believed that Padilla was armed – with caution, and thus violated his constitutional rights. We disagree.
The use notes for CALCRIM No. 358 provides that: “If the jury heard both inculpatory and exculpatory, or only inculpatory, statements attributed to the defendant, give the [cautionary] paragraph. If the jury heard only exculpatory statements by the defendant, do not give the [cautionary] paragraph.” Here, the oral statements by Chavez as conveyed by Detective Rodriguez included both inculpatory and arguably exculpatory statements. In such cases, defendants would be more helped than harmed if the entire testimony was viewed with caution. Furthermore, testimony that is exculpatory in one context may be inculpatory in another context. (People v. Vega, supra, 220 Cal.App.3d at pp. 317-318.) Thus, the trial court properly gave the instruction that Detective Rodriguez’s testimony about Chavez’s oral statements should be viewed with caution. Chavez could have requested a modification to CALCRIM No. 358 that the cautionary language should apply only to specific statements, but did not do so. Instead, Chavez did not object to CALCRIM No. 358 as given, and also relied on it in his final argument. !(RT 191-192.)! As such, it is forfeited on appeal unless the error affected Chavez’s substantial rights. (§ 1259.) Moreover, because CALCRIM No. 358 is a cautionary instruction that benefits the defendant, any error in giving the instruction is harmless. (People v. Frye (1998) 18 Cal.4th 894, 959.)
In any event, any error was harmless because it is not reasonably probable that appellant would have achieved a more favorable result if CALCRIM No. 358 had not been given. (People v. Dickey (2005) 35 Cal.4th 884, 905-906.) Here, appellant relied upon the affirmative defense of self-defense, and the jury was properly instructed on self-defense. However, there was no evidence to support a case of self-defense such as evidence that Padilla made threatening gestures or verbal threats during the incident, or that Padilla was armed with a gun at the time of the incident. Thus, any error was harmless.
2.
Police Testimony and Ineffective Assistance of Counsel
Appellant next claims that he was prejudiced by the admission of the testimony of Detective Rodriguez. Appellant claims that this evidence was completely inadmissible and prejudicial. In anticipation of the argument that there was no objection to the admissibility of the evidence, appellant contends that the requirement to object was waived here because making the objection would have been futile or, alternatively, the lack of an objection was the product of ineffective assistance of counsel.
Detective Rodriguez was allowed to testify about his interview with Chavez, and the means by which he got Chavez to change his story (e.g., by expressing doubt about the credibility of Chavez’s prior testimony and by lying that Padilla had been subject to a gunshot residue test that was negative which indicated that Padilla was unarmed). Chavez contends that the testimony was erroneous because it was lay testimony on the credibility of Chavez’s testimony or on Chavez’s affirmative defense of self-defense. We disagree because the officer was merely testifying about his own state of mind — that he had doubts about Chavez’s story. (See Cope v. Davidson (1947) 30 Cal.2d 193, 200 [“The state of mind of a person, like the state or condition of the body, is a fact to be proved like any other fact when it is relevant to an issue in the case, and the person himself may testify directly thereto.”]) Here, Detective Rodriguez testified that he doubted Chavez because of inconsistencies in Chavez’s testimony with the facts that were known to him and that he continued the questioning of Chavez because of his doubts. Thus, the testimony on Detective Rodriguez’s state of mind was admissible as lay testimony because it was rationally based upon his perception of his own state of mind and was helpful to a clear understanding of the rest of his testimony. (Evid. Code, § 800.)
We note that Chavez did not object to the testimony, and actually invited some of the testimony in his cross-examination of Detective Rodriguez. As such, the claim is forfeited. Nevertheless, we address the claim in light of Chavez’s alternative arguments.
Chavez also contends that he was provided ineffective assistance of counsel. In order to prevail on a claim for ineffective assistance of counsel, Chavez must make two showings. First, he must show that counsel’s representation fell below an objective standard for reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-88; People v. Gray (2006) 37 Cal.4th 168, 206-207.) Second, Chavez must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been more favorable to the defendant. (Strickland v. Washington, supra, 466 U.S. at p. 687; People v. Kelly (1992) 1 Cal.4th 495, 519-520.) Given that we have concluded that Detective Rodriguez’s testimony on his doubts about Chavez’s story was admissible, there was no ineffective assistance of counsel for failing to object to the admission of that testimony.
3.
CALCRIM No. 220 and CALCRIM No. 222
Finally, defendant contends that the instructions used in this case on reasonable doubt, CALCRIM No. 220 and CALCRIM No. 222, violated his constitutional rights because these instructions shifted the burden of proof and further precluded any reasonable doubts based upon a “lack of evidence.” This issue has been raised and rejected numerous times, including by this Court in two separate published opinions. (See, e.g., People v. Rios (2007) 151 Cal.App.4th 1154, 1156-1157; People v. Flores (2007) 153 Cal.App.4th 1088, 1092.) We are not persuaded that we need to revisit the holdings in those cases here.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, J., Cornell, J.