Opinion
NOT TO BE PUBLISHED
Superior Court County Super. Ct. No. 2004045000 of Ventura, James P. Cloninger, Judge
Mark D. Lenenberg, under appointment by the Court of Appeal, for Joe Ezequiel Cortez, Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Joe Ezequiel Cortez appeals his conviction, by jury, of the first degree murder of Karl Wenrich, (Pen. Code, §§ 187, subd. (a), 189), first degree burglary (§ 459), attempted first degree robbery (§ 211), possession of a firearm by a felon (§ 12021, subd. (a)), unlawful possession of ammunition (§ 12316, subd. (b)(1)), and possession for sale of a controlled substance. (Health & Saf. Code, § 11351.) The jury found that three special circumstances applied to the murder: it was committed during the commission or attempted commission of a burglary (§ 190.2, subd. (a)(17)(G)), it was committed during the commission or attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)), and it was committed while appellant was an active participant in a gang. (§ 190.2, subd. (a)(22).) It further found that, during each offense, a principal discharged a firearm causing death and that the offenses were committed for the benefit of a criminal street gang. The jury found that appellant was personally armed with a firearm (§ 12022, subd. (c)) and that he possessed 14.25 grams or more of a controlled substance. (Health & Saf. Code, § 11352.5, subd. (1).)
All statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced appellant to a total term in state prison of 33 years plus life without possibility of parole. He was also ordered to pay $11,450 in direct victim restitution, a $10,000 restitution fine, and a $32 crime prevention fine. The trial court imposed and suspended a $10,000 parole revocation fine and awarded appellant 997 total days of custody credit.
Appellant contends the trial court erred when it relied on the doctrine of forfeiture by wrongdoing to admit into evidence a statement made by the victim to police officers long after the shooting. He further contends the trial court's instructions to the jury on the criminal street gang allegations were improper pinpoint instructions, that California's death penalty law violates the Eighth Amendment to the United States Constitution because it contains too many special circumstances and that the parole revocation fine should be stricken because appellant's sentence does not allow for parole. We modify the judgment to strike the parole revocation fine and to impose $120 in court security fees. In all other respects, the judgment is affirmed.
Appellant has also filed a petition for writ of habeas corpus (No. B202521), in which he contends that the declaration of Ernesto Hall, stating that appellant did not participate in the shooting, constitutes newly discovered evidence of appellant's actual innocence. We have considered the petition concurrently with this appeal and, by separate order, dismiss it without prejudice to appellant's right to pursue habeas corpus relief in the Superior Court.
Facts
On the morning of August 5, 2003, appellant went to Karl Wenrich's Oxnard home. Wenrich was a heroin dealer and appellant was one of his frequent customers. Ernesto Madrid and Ernesto Hall arrived within a few minutes. Appellant let them in the house over Wenrich's objections. Madrid held Wenrich at gun point and then bound his legs with duct tape. The three men ransacked the house, looking for drugs and money. When they were finished, they shot Wenrich twice in the head, once in the chest and once in the hip. They left the house by the back door, taking about $10,000 in cash with them.
Wenrich called 911. He told the operator that "three guys robbed me and shot me." One of the men was "Joey Cortez," Wenrich said. He described Cortez as "Mexican," and 37 years old. Oxnard Police Officer Baysinger arrived at Wenrich's house within minutes. He noted that the house appeared to have been ransacked and that there were bloody footprints heading out the back door. Wenrich told Baysinger that "Joey Cortez" shot him. He said that Cortez lived on K Street and was a member of the Colonia Chiques. A man named "Ernie" taped Wenrich's legs together and shot him with a .38-caliber revolver. There was a third man Wenrich could not name. Both Ernie and the third man were tall, thin and "Mexican." At the hospital, Wenrich again identified his three assailants for police as "Joey Cortez," "Ernie Madrid," and a third, unknown man. Wenrich said that Cortez lived on K Street, drove a tan Maxima and was 37 years old. He said that Madrid lived on Juanita near Second Street, was about 5'10" and had brown eyes and black hair. Wenrich did not know the third man's name but thought he lived near Madrid.
Appellant was arrested on the same morning as the shooting. An officer watched appellant walk out the front door of his house on K Street, get into a gold Nissan and drive away. When his car was stopped by police, appellant was wearing sneakers and carrying a cell phone. The tread of the sneakers matched one of the bloody footprints in Wenrich's house. The cell phone had been used to call co-defendant Ernesto Hall's cell phone that morning, before the shooting. It had also received a call from Hall's cell phone.
A search inside appellant's house revealed a bag full of syringes used to inject heroin, a pipe and marijuana, a loaded nine millimeter handgun, an assortment of bullets and $2,231 in cash. Police also found photographs of Colonia Chiques members displaying gang signs and photographs of appellant and co-defendant Ernesto Madrid together at appellant's house. A car parked inside appellant's garage contained a half-used roll of duct tape that was smeared with blood. The frayed edge of the tape found on Wenrich matched the frayed end of the tape on the roll. Officers also found a stash of heroin, packaged for sale, in a box hidden in appellant's back yard.
Appellant's Nissan was searched two days later. Bullets, a holster and two knives were found in the passenger compartment. The trunk contained a garbage bag with two full sets of clothing and two pairs of athletic shoes inside. The clothing was soaking wet and smelled as if it had recently been washed. Many of the samples taken from the clothing did not contain usable DNA, indicating the clothing had been washed in a chemical such as bleach. Wenrich's blood and Madrid's DNA were found on two socks. Wenrich's blood also appeared on one pair of shoes. Hall's DNA was found on a hat. The tread of the shoes matched bloody footprints in Wenrich's house. They were in sizes that matched Madrid and Hall's shoe sizes.
Wenrich survived for 14 months after the shooting. For much of that time, he was hospitalized and heavily medicated. On at least three occasions, Wenrich was unable to respond verbally to questions posed by police officers. His non-verbal responses to photographic line ups of suspects, including appellant, were ambiguous. About six weeks after the shooting, in September 2003, Wenrich testified at a preliminary hearing that "Joey Cortez," "Ernie" and a third person attacked him in his house. He did not identify appellant as "Joey Cortez" and said he could not identify appellant's voice as "Joey's" voice. Wenrich identified Madrid as the "Ernie" who bound and shot him.
Eventually, all three intruders were tried and convicted of Wenrich's murder and related offenses. Appellant was tried together with Madrid. Ernesto Hall, the third intruder, was tried separately. Madrid abandoned his appeal.
Discussion
Admissibility of Victim's Statement to Police
On May 5, 2004, nine months after the shooting, Wenrich met with police officers at his mother's house. He told the officers that he had seen appellant on many occasions before the shooting. He had also seen appellant with co defendant Madrid. Wenrich said he was frightened of appellant. At the preliminary hearing, Wenrich had testified that the vision in his left eye was bad, so he could not identify appellant as the "Joey" who participated in the shooting. On May 5, he told officers that his vision was fine and that he had lied at the preliminary hearing to avoid identifying appellant. He also reiterated that Madrid was the shooter. The May 5 statement was audiotaped and played for the jury at appellant's trial.
At trial, appellant relied on Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177], to argue that the May 5 statement was inadmissible under the confrontation clause of the Sixth Amendment to the United States Constitution because it was testimonial and had not been subjected to cross examination. The trial court rejected this argument, reasoning that the statement was admissible under the doctrine of forfeiture by wrongdoing. As the trial court explained, "The . . . doctrine of forfeiture by wrongdoing applies when there's sufficient proof that a person's confrontation rights are extinguished by having arranged for demise of the declarant. Whether there's proof of that under California law, has not been determined at this point in the trial. That has [to] be by clear and convincing evidence . . . . [¶] But if it does apply, then [appellant's] right to confront Mr. Wenrich will be forfeited . . . ." Near the close of the prosecution's case, the trial court concluded there was clear and convincing evidence that appellant was responsible for Wenrich's death. It therefore admitted the May 5 statement into evidence.
Appellant contends the trial court prejudicially erred. He contends the doctrine of forfeiture by wrongdoing does not apply because he did not act with the intent to prevent Wenrich from appearing as a witness. Our Supreme Court recently rejected this argument in People v. Giles (2007) 40 Cal4th 833. Consistent with Giles, we conclude the trial court did not err.
The tine-honored doctrine of forfeiture by wrongdoing (see, e.g., Reynolds v. United States (1878) 98 U.S. 145, 158-159, 25 L.Ed. 244), has experienced a resurgence in the wake of Crawford v. Washington, supra, 541 U.S. 36. There, the United States Supreme Court held that the confrontation clause bars "admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Crawford v. Washington, supra, 541 U.S. at pp. 53-54.) The Crawford court noted that, "the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds . . . ." However, it left "for another day any effort to spell out a comprehensive definition of 'testimonial.' Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Id. at p. 68 [158 L.Ed.2d at p. 203, fn. omitted].)
Davis v. Washington (2006) ___ U.S. ____ [165 L.Ed.2d 224, 126 S.Ct. 2266], clarified the Court's support for the doctrine of forfeiture by wrongdoing. "[W]hen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. We reiterate what we said in Crawford: that 'the rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds.' [Citation.] That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." (Davis, supra, 126 S.Ct. at p. 2280.)
In People v. Giles (2007) 40 Cal.4th 833, 837, our Supreme Court followed Crawford and Davis, holding that, under the equitable doctrine of forfeiture by wrongdoing "a defendant is deemed to have lost the right to object on confrontation grounds to the admission of out-of-court statements of a witness whose unavailability the defendant caused." (Id.) Thus, the defendant in a murder case "forfeited his right to confront [the murder victim] when he killed her[,]" even though there was no evidence he did so for the purpose of preventing her testimony. (Id.) According to our Supreme Court, forfeiture occurs when the defendant's intentional criminal act renders the witness "genuinely unavailable to testify . . . [,]" (id. at p. 854), without reference to the defendant's underlying motivation in committing the criminal act. There is no requirement that the defendant act with the intent to silence a witness. Rather, "wrongfully causing one's own inability to cross-examine is what lies at the core of the forfeiture rule." (Id. at p. 848.)
Here, the trial court properly applied the doctrine of forfeiture by wrongdoing to admit Wenrich's May 5 statement. It is undisputed that the statement was testimonial in nature. Wenrich made it in response to questions directed toward understanding his testimony at the preliminary hearing, not toward responding to an emergency situation. (Davis v. Washington, supra, 126 S.Ct. at pp. 2273-2274; Crawford v. Washington, supra, 541 U.S. at p. 68.) The trial court also properly found clear and convincing evidence that appellant caused his own inability to cross-examine Wenrich by participating in his murder. Under Giles, supra, there is no requirement that appellant have been motivated by the desire to prevent Wenrich from testifying. It is enough that appellant's intentional criminal acts caused Wenrich's unavailability. (People v. Giles, supra, 40 Cal.4th at 854.) Thus, the doctrine of forfeiture by wrongdoing applies to extinguish appellant's confrontation clause objection. (Id. at pp. 854-855.)
We are further persuaded that any error in admitting the May 5 statement was harmless beyond a reasonable doubt. (People v. Cage (2007) 40 Cal.4th 965, 992-993.) At the time of his arrest, appellant was wearing shoes that matched bloody footprints found inside Wenrich's house. A bag found in the trunk of his car contained shoes and clothing stained with Wenrich's blood. The roll of duct tape used to bind Wenrich's legs was found inside appellant's house. In his 911 call for emergency assistance, Wenrich identified appellant as one of the intruders. He told police where appellant lived and correctly described appellant's car. Although he refused to identify appellant at the preliminary hearing, Wenrich never recanted the statement he made immediately after the shooting and repeated many times before his death, that "Joey Cortez" was one of the men who robbed and shot him. Given this overwhelming evidence of appellant's guilt, any error in admitting the May 5 statement was harmless beyond a reasonable doubt. (People v. Romero (2007) 149 Cal.App.4th 29, 40.)
Instructional Error
Appellant contends the trial court erred in its instructions to the jury concerning the allegations that he committed each charged offense for the benefit of a criminal street gang. The instructions, given without objection, informed the jury that, in determining whether the gang at issue had as one of its "primary activities," the commission of certain felonies, "you should consider any expert opinion evidence offered as well as evidence of past or present conduct by gang members involving the commission of one or more of the identified crimes including the crimes charged in this proceeding." (CALJIC No.s 17.24.2, 8.81.22.) Appellant contends these were improper "pinpoint" instructions that told the jury to focus on specific evidence, to draw a particular inference from that evidence, and thus to find the enhancement allegations true. We are not persuaded.
An instruction is improperly argumentative when it "invite[s] the jury to draw inferences favorable to [a party] from specified items of evidence on a disputed issue of fact." (People v. Johnson (1992) 3 Cal.4th 1183, 1232; see also People v. Carter (2003) 30 Cal.4th 1166, 1225.) The trial court may, however, give an instruction that "pinpoints" a theory of the case and instructs the jury on how to relate evidence of that theory to an applicable legal principle such as "the prosecution's general burden of proving guilt beyond a reasonable doubt." (People v. Wright (1988) 45 Cal.3d 1126, 1138.) Instructing the jury on factors it "should" or "may" consider in that process is appropriate if the instruction does not direct the jury to draw only one inference. (See, e.g., People v. Mendoza (2000) 24 Cal.4th 130, 180-181; People v. Mayfield (1997) 14 Cal.4th 668, 778; People v. Wright, supra, 45 Cal.3d at p. 1143.)
The instruction at issue here is not improperly argumentative. It informed the jury that it should consider expert testimony and evidence of gang member conduct in determining whether Colonia Chiques was a criminal street gang. It did not summarize the expert's opinions or the evidence of gang member conduct, nor did it direct the jury to draw any particular inference from that evidence. There was no error.
Constitutional Challenge to Death Penalty Law
Appellant contends the California death penalty law (§§ 190-190.9.) violates the Eighth Amendment to the United States Constitution because it includes so many special circumstances that it fails sufficiently to narrow the class of death-eligible first degree murderers. Appellant lacks standing to raise this claim because he was not sentenced to death. (Harmelin v. Michigan (1991) 501 U.S. 957, 995-996 [115 L.Ed.2d 836]; Houston v. Roe (9th Cir. 1999) 177 F.3d 901, 906-907.) Moreover, our Supreme Court expressly rejected this contention, even after amendments to the death penalty law were adopted in 2000. (People v. Stevens (2007) 41 Cal.4th 182, 203-204, 211; People v. Cook (2006) 39 Cal.4th 566, 617; People v. Yeoman (2003) 31 Cal.4th 93, 165.)
Parole Revocation Fine
In addition to sentencing appellant to life in prison without possibility of parole, the trial court imposed a restitution fine of $10,000 and a parole revocation fine of $10,000, which it stayed pending successful completion of parole. (§ 1202.45.) Appellant contends the parole revocation fine must be stricken because he will never be paroled. Respondent correctly concedes it was error to impose the fine. Section 1202.45 does not permit the imposition of a parole revocation fine where the sentence is life without possibility of parole. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) "Simply stated, the clear legislative intent which can be derived from the language of the statute is clear; if there is no parole eligibility, no section 1202.45 fine may be imposed." (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) This is true even where, as here, the sentence includes both a term of life without possibility of parole and a term for which parole is theoretically possible. (Id. at pp. 1184-1185.)
Court Security Fees
At sentencing, the trial court failed to impose the court security fees mandated by section 1465.8, subdivision (a)(1). This statute requires the trial court to impose "a fee of twenty dollars ($20) . . . on every conviction for a criminal offense." Appellant was convicted of six criminal offenses. As a result, the trial court should have imposed court security fees totaling $120. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-867.) We will modify the judgment to impose these fees.
Disposition
The judgment is modified to strike the $10,000 parole revocation fine and to impose six court security fees of $20 each, for a total of $120, pursuant to section 1465.8. The clerk of the superior court is directed to prepare and forward to the Department of Corrections an amended abstract of judgment striking the parole revocation fine and imposing the court security fees. In all other respects, the judgment is affirmed.
We concur: COFFEE, J., PERREN, J.