Opinion
E071086
11-22-2019
THE PEOPLE, Plaintiff and Respondent, v. MARTIN JASON ESTRADA, Defendant and Appellant.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Arlene A. Sevidal, Randall D. Einhorn, and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1600916) OPINION APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez, Judge. Affirmed in part, reversed in part, and remanded with directions. Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Arlene A. Sevidal, Randall D. Einhorn, and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Martin Jason Estrada was angry with his girlfriend, for reasons that may never be known except to the two of them. Defendant got into the driver's seat of her car; she got into the passenger seat. Seconds later, she was dead — shot through the head from left to right. Defendant abandoned both the car and the body some distance away; at first, he kept the gun, but eventually he sold it to his brother.
As a result, defendant was convicted of second degree murder (Pen. Code, § 187, subd. (a)) and unlawful possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), and he was sentenced to a total of 62 years 8 months to life in prison.
Defendant contends:
1. The trial court erred by denying defendant's request for instruction on "heat of passion" voluntary manslaughter. We will hold that there was insufficient evidence of provocation to require this instruction.
2. The trial court erred by excluding affectionate text messages between defendant and his girlfriend. We will agree, but we will hold that the error was not prejudicial.
3. The matter should be remanded so the trial court can consider whether to exercise its newly enacted discretion to strike the prior serious felony conviction enhancement. The People concede this point, and we agree.
4. The trial court erred by imposing fines and fees without holding a hearing on defendant's ability to pay. We need not decide this issue, because the trial court can hold such a hearing, if necessary, on remand.
Hence, we will affirm the conviction but reverse the sentence and remand for resentencing.
I
FACTUAL BACKGROUND
Defendant was in a romantic relationship with Rachel Davis. They referred to each other as husband and wife. In defendant's cell phone contact list, Rachel's number was labeled, "my love, my life."
For clarity and to be consistent with the reporter's transcript, we refer to Rachel and others by their first names.
On the night of October 27-28, 2015, two and a half couples were hanging out at a trailer home in Perris. Defendant and Rachel were one of the couples. The second couple — Rachel's friend April O'Connor and her boyfriend Michael "Pony" Alba — eventually became the key witnesses for the prosecution. The third couple, Melvin and Chelsea (last names uncertain), lived at the trailer. Only Chelsea was present, however, as Melvin was in jail.
When the police interviewed April, and again at the preliminary hearing, she left out the fact that Michael was present.
At trial, she explained that he told her not to tell anyone he had been there. He frequently beat her, so she assumed he would hurt her if she did not obey. After breaking up with him, she contacted the prosecution and disclosed that he was there.
Michael admitted a prior conviction for domestic violence against April.
A prosecution investigator made exhaustive efforts to locate Chelsea, but without success.
Defendant and Rachel were both under the influence of methamphetamine. Defendant seemed "frustrated", "agitated and uncomfortable." He was wearing gloves.
At one point, defendant went out onto the patio and smoked a cigarette. While he was outside, Rachel's phone rang repeatedly. She answered only one of the calls. April could hear defendant, on the other end, yelling. Michael specifically heard defendant say, "Get the fuck out here, bitch, before I kill you." Rachel responded, "I'm coming." After hanging up, she said, in a joking manner, "I've got to go before he kills me," then left.
Phone records were admitted. They have not been transmitted to us. Apparently, however, they showed that between 12:13 and 12:21 a.m., defendant dialed or texted Rachel's number six times, and she dialed or texted his number twice.
At 12:15 a.m., Rachel texted defendant, "[L]et's go."
At 12:21 a.m., defendant texted Rachel, "I'm done. We are over."
April testified that, when this call occurred, everyone (i.e., other than defendant) was in a bedroom. Michael testified, however, that everyone was in the living room.
Chelsea went outside to smoke a cigarette. Moments later, however, she came back in, "panicked"; she said, "[S]omebody's yelling."
April and Michael ran outside. They saw defendant in the driver's seat of Rachel's car. According to April, he was screaming, "[S]omebody shot my wife."
April told police, however, that she could only make out the words "my wife." At the preliminary hearing, she testified that she heard the words "shot" and "wife."
Michael walked up to the car and opened the driver's side door. He saw Rachel in the passenger seat. She appeared to be dead. She was slumped forward, chest against the dashboard. Michael saw blood and smelled burnt gunpowder. He closed the door.
April told police, however, that both she and Michael never approached the car.
Defendant made a U-turn and drove away. As he was turning, April saw the passenger side door open partway, then saw a gloved hand pull it closed.
On October 29, Rachel's mother filed a missing person's report.
On October 31, Rachel's mother sent April a message via Facebook. April then phoned her. April said that, the last time she saw Rachel, Rachel left with defendant, and he was driving her car.
Thus, also on October 31, Rachel's brother posted on Facebook, asking if anyone had seen defendant. Defendant then phoned Rachel's mother. He was calling from Rachel's cell phone. He sounded "[v]ery nervous and agitated." She asked why he had Rachel's cell phone; he answered, "I just have it." She asked where Rachel was; he answered, "I don't know." She asked where Rachel's car was; he answered, "I don't know." When she said that he had been seen driving Rachel's car, he started "screaming and hollering. And then he just abruptly hung up."
On November 6, 2015, a police officer found Rachel's car, parked on a dirt embankment in Perris. When he looked inside, he saw Rachel's body. It was in the front passenger seat, slumping over into the driver's seat. There was a towel under her head. Inside the towel, the police found defendant's cell phone. Between the driver's seat and the frame, they also found a glove. There were no shell casings in the car.
Rachel had died as a result of a gunshot wound. The bullet entered immediately behind her left ear, went "almost straight across," and lodged in her skull immediately behind her right ear. She had been dead for at least a week (consistent with the nine days elapsed between October 28 and November 6).
Rachel was right-handed. --------
Rachel had ingested a modest amount of alcohol and a large amount of methamphetamine (indeed, a potentially fatal amount for a beginning user). Methamphetamine can cause aggression, irritability, impulsivity, and paranoia.
Around the beginning of November 2015, defendant moved in with his brother, William Dominguez. In February 2016, a search of William's house turned up a semiautomatic .45-caliber pistol, in William's bedroom. William testified that defendant sold him the gun.
According to an expert firearms examiner, the bullet that killed Rachel was "most likely" fired from this gun. The only other possibility was "[v]ery, very unlikely" — i.e., that the bullet was "fired from a gun that was cut with the same cutting tool in the same exact state of wear."
It took four pounds of pressure to pull the trigger. The gun had two safeties — a thumb safety and a grip safety; both had to be turned off for the gun to fire.
It was stipulated that defendant had a prior conviction for assault with a firearm. (Pen. Code, § 245, subd. (a)(2).)
II
PROCEDURAL BACKGROUND
In a jury trial, defendant was found guilty of second degree murder (Pen. Code, § 187, subd. (a)), with an enhancement for personally and intentionally discharging a firearm and causing death (Pen. Code, § 12022.53, subd. (d)), and guilty of unlawful possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)).
Defendant admitted one strike prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), one prior serious felony conviction enhancement (Pen. Code, § 667, subd. (a)), and seven prior prison term enhancements (Pen. Code, § 667.5, subd. (b)).
The trial court struck the prior prison term enhancements and sentenced defendant to 62 years 8 months to life in prison, along with the usual fines and fees.
III
REFUSAL TO INSTRUCT ON
"HEAT OF PASSION" VOLUNTARY MANSLAUGHTER
Defendant contends that the trial court erred by refusing to instruct on the "heat of passion" theory of voluntary manslaughter.
A. Additional Factual and Procedural Background.
Defense counsel requested CALCRIM No. 570, regarding "heat of passion" voluntary manslaughter. The trial court denied the request; it explained that "[t]here is no evidence of provocation." However, it did give CALCRIM No. 522, to the effect that the jury should consider provocation, if any, in deciding whether the crime was first or second degree murder.
B. Discussion.
"'The trial court must instruct on general legal principles closely related to the case. This duty extends to necessarily included offenses when the evidence raises a question as to whether all the elements of the charged offense are present . . . . [¶] Nevertheless, "the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . ." [Citation.] Such instructions are required only where there is "substantial evidence" from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense.' [Citation.] 'Substantial evidence,' in this context, 'is evidence sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.' [Citation.]" (People v. Williams (2015) 61 Cal.4th 1244, 1263.)
"'On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.' [Citation.]" (People v. Nelson (2016) 1 Cal.5th 513, 538.)
"Voluntary manslaughter is a lesser included offense of murder. [Citation.]" (People v. Booker (2011) 51 Cal.4th 141, 181.) "'[T]he factor which distinguishes the "heat of passion" form of voluntary manslaughter from murder is provocation . . . .' [Citation.]" (People v. Moye (2009) 47 Cal.4th 537, 549-550.)
"Voluntary manslaughter is 'the unlawful killing of a human being, without malice' 'upon a sudden quarrel or heat of passion.' [Citation.] An unlawful killing is voluntary manslaughter only 'if the killer's reason was actually obscured as the result of a strong passion aroused by a "provocation" sufficient to cause an "'ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.'" [Citations.]' [Citation.] 'The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment. Adequate provocation . . . must be affirmatively demonstrated.' [Citation.]" (People v. Thomas (2012) 53 Cal.4th 771, 813.)
"'"The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim." [Citation.]' [Citation.]" (People v. Verdugo (2010) 50 Cal.4th 263, 294.)
Here, there was no evidence that Rachel engaged in any provocation sufficient to cause an ordinary person of average disposition to be "so inflamed as to lose reason and judgment." (People v. Thomas, supra, 53 Cal.4th at p. 813.)
Clearly defendant was angry with Rachel just before he shot her. However, there was no evidence as to what, if anything, she did to make him angry. Admittedly, she did not answer all of his phone calls; however, given that he called her six times within eight minutes, given that she did answer one of the calls and did text him, and given that he could have just gone inside the trailer to talk to her, that was not legally adequate provocation. When he told her to come outside, she immediately did so. And it was defendant, not Rachel, who declared, "We are over."
For all we know, defendant could have been angry over some trivial offense (e.g., if Rachel had taken a long time to get dressed before going over to the trailer). He could have been angry due to the conduct of some third person (e.g., if another man had made a pass at her). Or, of course, he could have been angry because Rachel had done something outrageously provocative. All of this is speculation, "'[and] speculation is not evidence, less still substantial evidence.' [Citations.]" (People v. Waidla (2000) 22 Cal.4th 690, 735.) Given this evidentiary void, no reasonable jury could conclude that Rachel did something that would be sufficient to cause an ordinary person to act from passion rather than from judgment.
Arguably, the trial court erred by giving CALCRIM No. 522. However, we need not decide this question. Defendant does not claim this was error. Moreover, even assuming it gave this instruction unnecessarily, we cannot see how defendant was prejudiced, as the jury found him not guilty of first degree murder.
In sum, then, the trial court properly refused to instruct on "heat of passion" voluntary manslaughter.
IV
THE EXCLUSION OF AFFECTIONATE TEXT MESSAGES
BETWEEN DEFENDANT AND RACHEL
Defendant contends that the trial court erred by excluding certain text messages between him and Rachel.
A. Additional Factual and Procedural Background.
Defense counsel filed a motion in limine to admit the following text messages:
1. October 24 from defendant to Rachel: "I am so on love with you."
2. October 25 from defendant to Rachel: "I love u spill my soul.to u and yet you still defend him."
3. October 25 from Rachel to defendant: "I love u."
4. October 25 from defendant to Rachel: "Come on my love."
5. October 25 from defendant to Rachel: "I love you honey."
6. October 26 from Rachel to defendant: "U SOOO take care of me TOTALLY at home, but once we leave I feel like we switch roles n I don't like it . . . sorry."
7. October 26 from Rachel to defendant: "Gotta get to work, have a better day honey, I DO love u sooo much, no one will ever love u as much as I do, that I PROMISE u."
8. October 26 from defendant to Rachel: "I love you Rachel."
Defense counsel argued that the text messages were relevant to disprove premeditation, deliberation, and intent to kill.
The prosecutor objected based on hearsay. Defense counsel responded that the evidence was "nonhearsay" — "circumstantial evidence of the declarant's . . . state of mind . . . ."
After hearing argument, the trial court excluded the evidence as inadmissible hearsay. It reasoned, in part, that because the text messages were sent on October 24 through 26, they were not relevant to prove defendant's state of mind on October 28: "There are no text messages on 10-27. So we don't know in that 24-hour period . . . what happened to his world that may have caused him to change his thoughts and feelings towards her."
B. Discussion.
"We review evidentiary rulings, including ultimate rulings on whether evidence should be excluded as hearsay, for abuse of discretion. [Citation.]" (People v. Caro (2019) 7 Cal.5th 463, 503.)
Under the hearsay rule, an out-of-court statement is inadmissible to prove the truth of the matter asserted (Evid. Code, § 1200), unless the statement is admissible under an exception to the hearsay rule (Evid. Code, §§ 1220-1390).
Despite the hearsay rule, an out-of-court statement can come in to prove "state of mind," under two distinct theories. First, it can come in to prove the state of mind (e.g., knowledge or belief), usually of a person who heard or read the statement. In that event, the statement is not offered for its truth and thus is not hearsay. (People v. Thornton (2007) 41 Cal.4th 391, 447.)
Second, it can come in to prove the state of mind of the person who made the statement. In that event, the statement is offered for its truth, but it may be admissible under the state of mind exception (Evid. Code, § 1250), which provides:
"(a) Subject to Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] . . . [¶]
"(2) The evidence is offered to prove or explain acts or conduct of the declarant."
Evidence Code section 1252 then provides: "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness."
Here, defense counsel conflated the two theories. She argued that the evidence was nonhearsay "circumstantial evidence of the declarant's state of mind." If offered to prove the declarant's state of mind, however, the evidence was hearsay and had to qualify under the state of mind exception.
The texts from defendant to Rachel were indeed offered to show the declarant's state of mind. They were relevant to show that defendant loved Rachel very much, and thus, inferably, that he did not deliberate and premeditate and/or did not intend to kill. Thus, it would seem that they were admissible under the state of mind exception.
The texts from Rachel to defendant, on the other hand, were nonhearsay. They were offered to show that defendant believed that Rachel loved him very much. Once again, however, these statements were relevant to show that defendant did not deliberate, premeditate, or intend to kill. Thus, it would seem that they, too, were admissible.
The trial court reasoned, however, that the text messages were too stale to show defendant's state of mind at the time of the shooting. This ruling may be viewed as based on relevance. It may also be viewed as based on a finding that the text messages were insufficiently trustworthy under Evidence Code section 1252.
Under either view, the trial court erred. Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Here, the text messages showed that, over a period of three days, shortly before the killing, defendant and Rachel addressed each other in a loving manner. Obviously, between October 26 and 28, something happened between them, though we may never know what. Nevertheless, the text messages still had some "tendency in reason" to show that defendant would not have planned in advance to shoot Rachel and/or would not have shot her intentionally. Any conflict between the text messages and defendant's actions and statements on October 28 was up to the jury to evaluate.
People v. Harris (2013) 57 Cal.4th 804 supports our conclusion. There, the defendant was accused of robbing, raping, and murdering Alicia Manning. (Id. at p. 810.) The defense theory was that defendant had consensual sex with Manning, and that her boyfriend, Charles Hill, killed her. (Ibid.; see also id. at pp. 816-819.) The trial court admitted two unmailed letters by Manning: "[O]ne was addressed to 'Charles sweetheart,' and described her love for him; the other was addressed to a friend and discussed her postgraduation plans with Hill." (Id. at p. 811; see also id. at p. 842.)
The Supreme Court held that the letters were admissible evidence of Manning's state of mind, which was relevant to disprove consensual sex. (People v. Harris, supra, 57 Cal.4th at p. 843.) It added: "Defendant nonetheless contends Manning's letters were not a trustworthy representation of her state of mind on the night of her murder. . . . A statement is trustworthy within the meaning of section 1252 of the Evidence Code when it is '"made in a natural manner, and not under circumstances of suspicion . . . ."' [Citation.] Defendant does not contend Manning was coerced into writing the letters or wrote them with an intent to deceive, and he does not dispute the circumstances of their origins. [Citation.] He argues, instead, that the letters fail to demonstrate Manning's state of mind at the time of her murder, which occurred approximately a week after she wrote them. This argument misses the mark, as the letters were relevant because they reflected the status of Manning and Hill's relationship prior to her death. Defendant argues Manning's feelings may have changed during the ensuing week because she never mailed the letters, and she and Hill discussed ending their relationship after she had written them. But whether their relationship changed after she had written the letters went not to their trustworthiness of their origins but rather to the weight, if any, the jury ought to place on the letters when determining her state of mind on the night of her murder." (Id. at pp. 843-844, fn. omitted.)
We recognize that, in Harris, the trial court admitted the challenged letters; thus, the issue for the Supreme Court was whether it was an abuse of discretion to admit them, not whether it would have been an abuse of discretion to exclude them. Nevertheless, Harris undermines the trial court's reasoning in this case. Here, similarly, the text messages were written under trustworthy circumstances; the fact that defendant and Rachel's relationship evidently deteriorated after they were sent went to their weight, not their admissibility.
We turn, then, to whether the exclusion of the text messages was prejudicial. Defendant does not claim that this error violated his federal constitutional rights. It did not. (See People v. Cudjo (1993) 6 Cal.4th 585, 611 ["for the most part, . . . the mere erroneous exercise of discretion under [the] 'normal' rules [of evidence] does not implicate the federal Constitution."].) Accordingly, the applicable test of prejudice is whether "there is [a] reasonable probability defendant would have obtained a more favorable result had [the evidence in question] been admitted. [Citation.]" (People v. Brooks (2017) 3 Cal.5th 1, 47-48.)
Even though the trial court erred legally, it was correct factually. The text messages were not particularly meaningful evidence, because the relationship between defendant and Rachel plainly deteriorated after they were sent. Indeed, two of the text messages showed clouds already on the horizon. The second one, in which defendant said, "I love u spill my soul.to u and yet you still defend him," suggested conflict over another man. And the sixth one, in which Rachel said, "U SOOO take care of me TOTALLY at home, but once we leave I feel like we switch roles n I don't like it . . . sorry," also demonstrated conflict. The fact that the relationship was generally loving was already shown by the fact that defendant listed Rachel as "my love my life" in his contacts.
Defendant's conduct after the shooting was inconsistent with it being a mere accident. And the jury evidently did find that defendant did not premeditate and deliberate. We see no reasonable probability that, if the text messages had been admitted, the jury would have found that defendant lacked intent to kill.
Defendant practically concedes this; he says, "[e]xcluding the texts alone might not have been prejudicial . . . ." He argues, however, that "denying . . . an instruction on the lesser included offense of voluntary manslaughter combined with the exclusion of the text [messages] showing the context of his relationship with Rachel was prejudicial . . . ." (Italics added.) In part III, ante, we held that the trial court properly refused to instruct on voluntary manslaughter. Accordingly, there was no cumulative prejudice.
V
SENATE BILL NO. 1393
Defendant also contends that, in light of the enactment of Senate Bill No. 1393 (2017-2018 Reg. Sess.) (SB 1393), we should remand to allow the trial court to consider striking the prior serious felony conviction enhancement.
As mentioned, defendant admitted one prior serious felony conviction enhancement. (Pen. Code, § 667, subd. (a).) Based on this enhancement, the trial court imposed a consecutive five-year term.
In July 2018, when defendant was sentenced, the trial court had no power to strike a prior serious felony conviction enhancement. (See Pen. Code, former § 1385, subds. (b), (c)(2), Stats. 2014, ch. 137, § 1.) On January 1, 2019, however, while this appeal was pending, SB 1393 went into effect. (Stats. 2018, ch. 1013.) It gives a trial court discretion to strike a prior serious felony conviction enhancement. (Ibid.)
Defendant argues that he is entitled to the benefit of this ameliorative change in the law. The People concede the point, and we agree. Absent some indication of a contrary legislative intent — and we have not found any with respect to SB 1393 — "'[a]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date' [citation] . . . ." (People v. Dehoyos (2018) 4 Cal.5th 594, 600; see also People v. Garcia (2018) 28 Cal.App.5th 961, 971-973.)
Finally, the People do not argue that it would be an abuse of discretion to strike the prior serious felony conviction enhancements. Accordingly, we will remand with directions to consider whether to strike these enhancements. We express no opinion on how the trial court should exercise its discretion.
VI
FAILURE TO HOLD AN ABILITY-TO-PAY HEARING
Defendant contends that the trial court erred by imposing fines and fees without determining whether he had the ability to pay them.
A. Additional Factual and Procedural Background.
At sentencing, the trial court imposed a $300 restitution fine. (Pen. Code, § 1202.4, subd. (b).) Defense counsel did not object to this.
The clerk added a court operations assessment of $80 (Pen. Code, § 1465.8, subd. (a)(1)) and a court facilities assessment of $60 (Gov. Code, § 70373, subd. (a)(1)), even though the trial court had not expressly imposed these — presumably because they were statutorily mandated.
The fines and fees thus imposed totaled $440.
B. Discussion.
Defendant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157, which held that due process prohibits the imposition of a criminal fine or fee in the absence of a hearing on the defendant's ability to pay. (Id. at pp. 1160, 1164-1172.)
The People do not address the substance of this argument. They simply respond that we need not decide this issue, because the matter must be remanded for resentencing in any event (see part V, ante), and defendant will have the opportunity to raise his present argument on remand. Defendant has not filed a reply brief, suggesting that he is content with this approach.
We agree with the People. Arguably, we could reach the issue for the guidance of the trial court on remand. The validity of Dueñas, however, is unsettled; it seems likely that it will be put to rest only by our Supreme Court. (See People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.) Any guidance we might give the trial court would be written in water. If defendant is unhappy with the trial court's resolution of the issue on remand, he will have the option of appealing again.
VII
DISPOSITION
The judgment with respect to the conviction is affirmed. The judgment with respect to the sentence is reversed. On remand, the trial court must exercise its discretion with respect to whether to strike the prior serious felony conviction enhancement. It must also consider defendant's contention that it cannot impose a fine or fee unless it holds an evidentiary hearing and finds that defendant has the ability to pay. It must then resentence defendant in conformity with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. MENETREZ
J.