Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. SF096125A, SF09899A
We concur: SCOTLAND, P. J., MORRISON, J.
Retired justices of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution
In case No. SF096125A, defendant Carlos Franco was jointly charged with codefendants Eduardo Liborio and Jose Diaz Paz for the murder of Pedro Ruiz, with a special circumstance allegation that the killing was for financial gain. In case No. SF098899A, only defendant was charged with attempted robbery and several counts of felony assault. The cases were consolidated for trial, but the murder charges involving the codefendants were severed. A jury then convicted defendant of second degree murder, found the special allegation not true, and convicted him of five counts of felony assault.
Sentenced to state prison for 19 years to life, defendant appeals. He contends the trial court committed prejudicial error by (1) refusing to honor the jury’s request for additional instructions on aiding and abetting, and (2) permitting evidence of witness intimidation. We shall affirm the judgment.
Because the issues raised by defendant relate only to the murder conviction, we need only point out that the five felony assault convictions were based on defendant’s having repeatedly rammed a van he was driving into a car containing five persons, some of whom were potential witnesses in the homicide prosecution.
On May 10, 2005, Jorge Jimenez reported that his brother Pedro Ruiz (Ruiz) had been missing since early May. On May 12, Ruiz’s body was found in an orchard. The body was badly burned, partially decomposed, it had missing body parts due to animal deprivation, and there was a large hole on the right side of the head. Because of the state of the body, the pathologist who performed the autopsy could not determine the precise cause of death.
On May 15, 2005, based upon information that Ruiz had been killed in a garage at the residence of Rosa Toscano, law enforcement officers executed a search warrant for Toscano’s home. Blood matching that of prior codefendants Liborio (Willie) and Paz (Eddie), as well as the victim, was found in several areas of the garage.
Patricia Munguia testified that she had stayed with defendant approximately 10 days in May 2005. During that time, defendant admitted to her that he had killed Ruiz and told her that Eddie and Willie had tied Ruiz up and tortured him by cutting “[e]very main artery of his body.” Defendant said that Ruiz was screaming and “to shut him up” defendant had “shoved a pipe down his mouth.” Munguia later testified that defendant did not make these statements to her, but that she overheard him make them to someone else.
Munguia testified that she was afraid of defendant because on one occasion he tried to choke her when she attempted to leave him. He also told her that he had been sent to kill her, but could not do so.
Another time, while Munguia was driving to her father’s ranch in Tracy with defendant and Ricardo Lepez, defendant took a photo out of his pocket and showed it to Lepez. Although Munguia could not see the photo, she believed that it was the same photo defendant had previously shown her, which depicted Ruiz lying on his back on a sofa with “a pile of intestines on top of his stomach.” Munguia remembered that words were exchanged between Lepez and defendant regarding the photo but she could not recall what they were. However, Detective Lawrence Gardiman testified that when he interviewed Munguia, she told him that when defendant showed Lepez the photo, the latter replied, “‘I don’t know how you have the stomach to take pictures like that,’” and defendant told him to “shut up.” On another occasion, Munguia was present when defendant gave a photo, similar in size to the one he had previously shown her depicting Ruiz’s intestines atop his stomach, to “Indio,” telling him, “‘Don’t fuck’” with me because “‘you can see what happens.’”
Veronica Valdez testified that she knew defendant and had spoken with him on two occasions following Ruiz’s death, once when he she observed him washing out a van and again when he tapped on the window of her pickup while she was waiting for someone. During these conversations defendant told Valdez that Ruiz was dead. Defendant showed her photographs he claimed to have taken that showed a body wrapped in a sheet and lying on a sofa, which defendant said was Ruiz. Defendant told her that Willie and Eddie had killed Ruiz in a garage. Defendant said that when he went to the garage he heard someone “complaining.” As defendant entered he heard Eddie tell Willie, “‘The chicken has stopped cackling.’” Defendant saw that Ruiz was tied up and had been cut open with “a blade.” Eddie had been bitten on his middle finger when he tried to cover Ruiz’s mouth to silence the latter’s screaming.
Defendant told Valdez that Willie and Eddie were to be paid $8,000 to kill Ruiz; that the $8,000 had been given to “Indio” to be given to Willie and Eddie; that Abraham Lopez was paid $1,000 for use of his van; that defendant was paid $20 or $40 to use Lopez’s van to dump Ruiz’s body and to wash the van out; and that defendant was looking for “Indio” to give him the photos of Ruiz’s body and to collect the $8,000. Defendant’s latent prints were found on metal tire rims in the van.
Valdez testified she was afraid of defendant for several reasons. While she, her husband, defendant and Munguia were present in a motel room, Munguia told her that defendant had been “ordered to do something to [Munguia],” but did not say what it was. However, Valdez admitted telling the police that Munguia believed it was because defendant thought Munguia was a snitch. Defendant told Valdez that he could not kill Munguia because she had been crying and just kept looking at him. Valdez also overheard defendant say that he was looking for other people “to make them disappear.” Although Valdez had testified at the preliminary hearing that she was “‘never [] afraid’” of defendant, at trial she testified that she “was always afraid” of him.
Discussion
I
Defendant contends the trial court committed reversible error when it failed to honor the jury’s request for additional instructions on aiding and abetting and simply referred the jury to the aiding and abetting instructions it had previously given. The People counter that the claim is forfeited for review because defendant failed to object to the procedure followed by the court, and even if not forfeited the contention lacks merit. Defendant responds that no forfeiture occurred because the court failed to notify counsel of the jury’s request for additional instruction. We agree with the People’s positions.
The jury commenced deliberations on February 7, 2007. That same day, the jury sent the court two notes, the first requesting a copy of the transcript of portions of the testimony of several witnesses and the second requesting reading of other witnesses’ testimony. According to the clerk’s minutes, counsel was present on both occasions.
Apparently the conversation regarding the first note was not reported by the court reporter.
On February 8, 2007, at 3:00 p.m., the jury sent the court a third note, this one requesting “further instruction on aiding and abetting as it pertains to the charge of murder.” The matter was not reported by the court reporter, and the clerk’s minutes for February 8 do not reflect either the court’s receipt of the note or the court’s response thereto. However, the clerk’s transcript does contain a document entitled “Court’s Response to Jury Communication,” dated February 8, 2007, at 3:10 p.m., and it directs the jury to the aiding and abetting instruction previously given.
The court reporter’s transcript shows that on February 9, 2007, the court convened at 11:51 a.m. and received the jury’s verdicts finding defendant guilty of the murder and the felony assaults. However, neither the reporter’s transcript nor the clerk’s minutes for February 9 mention the third note or any action taken thereon.
Defendant claims that the record shows that the trial court did not consult with counsel concerning the third note and that the trial court refused to give additional instruction on aiding and abetting. These failures, he concludes, constituted violations of section 1138; were prejudicial to his defense; and preclude a finding that he forfeited the issue for appeal. Not so.
Penal Code section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”
While it is well established that the trial court has a statutory and constitutional duty to notify counsel before answering a jury’s notes, thereby affording counsel the opportunity to take some action on the defendant’s behalf, such as to amplify, clarify, or modify supplemental instructions (People v. Hawthorne (1992) 4 Cal.4th 43, 68-69), a defendant’s silence to the court’s response or procedure forfeits the issue for appeal (People v. Roldan (2005) 35 Cal.4th 646, 729).
Defendant bears the burden of developing a record showing the existence of the error upon which he bases his argument. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549 (Sullivan).) Thus to avoid forfeiture of his claim that the court erred in not giving additional instructions, defendant must affirmatively establish that the court failed to notify or consult with counsel regarding the third note.
Defendant attempts to meet this burden by reasoning that because the record shows that the court consulted with counsel as to the first and second notes, had the court consulted with counsel as to the third note the record would similarly so reflect. Since the record is silent on the issue, it cannot be inferred that notification occurred, but only “as proof that it did not.”
We are not persuaded by the argument. “The general rule is ‘“that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]” [Citations.] This rule derives in part from the presumption of Evidence Code section 664 “that official duty has been regularly performed.”’ [Citation.] The effect of the rebuttable presumption created by section 664 is ‘“to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact.” [Citation.]’ [Citations.]” (Sullivan, supra, 151 Cal.App.4th at pp. 549-550.)
A few cases are illustrative of the application of Evidence Code section 664 to silent records. In People v. Carter (2003) 30 Cal.4th 1166 (Carter), the facts, as set forth by the court, were as follows: “The jury retired to begin its penalty deliberations around 3:16 p.m. on November 20, 1989. Counsel asked to be advised of any request for a readback of testimony, and the court agreed. At some point that afternoon, the jury handed two notes to the bailiff. The jury was then excused at 4:10 p.m. The clerk’s transcript for the following day (November 21) records that ‘[a]t 3:45 p.m. the court receives question from the jury. The court responds via the bailiff to question submitted.’ The reporter’s transcript, however, contains no record of any proceedings related to the jury’s ‘question’ on November 21.” (Id. at p. 1214, fn. omitted.)
In Carter, the defendant argued that the court’s failure to notify him of the notes, which requested material alluded to during cross-examination but not in evidence, “constituted a prejudicial irregularity that prevented the defense from asking the court to redirect the jury’s focus back to admissible evidence.” (Carter, supra, 30 Cal.4th at p. 1215.) Citing Evidence Code section 664, the court agreed with the Attorney General’s position that in the absence of a record indicating to the contrary, the court “should assume the [trial] court followed established law by contacting trial counsel and affording them an opportunity to respond before communicating with the jury.” (Id. at p. 1215.)
In People v. Hudson (1953) 120 Cal.App.2d 870, the defendant, relying on the clerk’s transcript that reflected that the “‘information is read and plea is stated’” to the jury, argued that the clerk had read to the jury the allegations contained in the information of his prior convictions in violation of Penal Code section 1093, although the record did not so expressly state. Applying the predecessor statute of Evidence Code section 664--that official duty has been regularly performed--and the rule that “error will not be presumed but must be shown affirmatively,” the court rejected the defendant’s argument, concluding, “[i]t must be presumed that the clerk performed his duty and read the information in the manner required by law.” (Id. at pp. 871-872.)
Here, defendant has not met his burden of providing a record showing affirmatively the error he asserts, namely, that the court failed to consult with counsel prior to responding to the jury’s request for additional instruction. While he is correct that the record is silent in this regard, his conclusion--that we must presume from a silent record that the court failed to consult with counsel--is contrary to Evidence Code section 664 and cases interpreting that section. Consequently, the issue is forfeited for appellate review.
Even if not forfeited, defendant’s claim is meritless. He argues that the aiding and abetting instruction (CALCRIM No. 401), as given in this case, was subject to “confusion.” We disagree.
The court instructed the jury as follows:
“To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that:
“1. The perpetrator committed the crime;
“2. The defendant knew that the perpetrator intended to commit the crime;
“3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime;
“AND
“4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime.
“Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.
“If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.
“If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.”
Defendant contends the jury could have been confused by the phrases, “Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime” and “Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.” The confusion, in defendant’s view, could arise from the jury’s belief that defendant’s acts of disposing of the body and cleaning out the van “showed his knowledge of the unlawful purpose of the activity and his intent to facilitate the commission of the murder by destroying the evidence.”
We examine a defendant’s claim of instructional ambiguity by the standard of “‘whether there is a reasonable likelihood that the jury misconstrued or misapplied the words’ of the instruction. [Citations.] Moreover, ‘[i]t is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction . . . .” (People v. Wade (1995) 39 Cal.App.4th 1487, 1491.)
The crime addressed by the instruction was the murder of Ruiz. The instruction expressly requires that the acts be committed, or the knowledge acquired occur, prior to or during the commission of the murder. Since nothing in the instruction suggests that any act committed or knowledge gained after the murder would support proof of aiding and abetting, there is no reasonable likelihood the jury would be confused in the manner claimed by defendant. Consequently, defendant’s attempt to establish prejudice would fail even if not forfeited.
II
Defendant contends the trial court prejudicially erred when it permitted evidence of witness intimidation to be introduced to explain inconsistencies in the witnesses’ statements and to show consciousness of guilt. Specifically, defendant challenges the following: (A) Munguia’s and Valdez’s statements that defendant had choked Munguia; (B) Valdez’s statement that defendant said that he was looking for more people “to make them disappear”; and (C) testimony by Detective Gardiman regarding what was said by Ricardo Lepez and defendant after defendant had showed a photo to Lepez.
Defendant argues that “None of th[is] evidence was relevant to prove either [his] consciousness of guilt for the murder, or to explain the witnesses’ testimonial inconsistencies and demeanor” or for “any legitimate purpose.” We disagree.
The general rules regarding the relevance of evidence and its admission are well established. “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Relevant evidence, and only relevant evidence, is admissible. (Evid. Code, §§ 350, 351; People v. Heard (2003) 31 Cal.4th 946, 972 [“Only relevant evidence is admissible”].)
“‘Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible.’ [Citations.] An explanation of the basis for the witness’s fear is likewise relevant to the jury’s assessment of his or her credibility and is well within the discretion of the trial court. [Citation.] For such evidence to be admissible, there is no requirement to show threats against the witness were made by the defendant personally or the witness’s fear of retaliation is ‘directly linked’ to the defendant.” (People v. Guerra (2006) 37 Cal.4th 1067, 1141-1142.) “A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369 (Olguin), original italics, cited with approval in People v. Stewart (2004) 33 Cal.4th 425, 492, fn. 28 (Stewart).)
A. Statements Regarding the Choking Incident
1. Valdez’s Statement
When, in front of the jury, Valdez began to testify regarding Munguia being choked, defendant objected on the ground of hearsay. The prosecutor stated that the testimony was being offered as an adoptive admission, “[b]ut primarily for the state of mind of Ms. Munguia and the state of mind of the witness Ms. Valdez.” The court immediately instructed the jury that Valdez’s testimony would be “offered only . . . for you to weigh it and consider it in the effect on this listener, on her state of mind . . . [a]nd for what she did or how she may testify as a result.”
When this line of questioning was initially broached in Valdez’s testimony, defendant objected on grounds of hearsay and “on relevance grounds and [Evidence Code section] 352 grounds.”
Valdez then testified that Munguia told her that defendant had tried to kill her because he thought she was a “snitch.” Munguia later testified that defendant had choked her to keep her from leaving him and that he told her that he had been sent to kill her, but that he could not do it.
Munguia’s statement to Valdez that defendant had choked her and had been sent to kill her because she was a snitch was relevant to show one of the reasons Valdez feared defendant, but despite that fear she was still willing to testify. Thus, defendant’s argument fails.
Defendant also contends that the court erred in admitting Valdez’s testimony regarding the choking incident on the ground it showed that she may have altered or tailored her testimony out of fear of defendant when, in fact, the record shows that Valdez had neither altered nor tailored her testimony. Even if defendant is correct, he could have suffered no harm, primarily because the jury would have heard of the choking incident since it was properly admitted to show that Valdez was testifying even though she feared defendant. And secondarily, if the evidence was factually insufficient to show alteration of Valdez’s testimony, the jury would not have found the evidence applicable to such use. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129 [jury fully equipped to detect factual inadequacy and if so found would not apply it to instruction].)
2. Munguia’s Statement
The trial court found that Munguia’s proposed testimony regarding the choking incident was “highly probative of her changing, tailoring, amending her statements” and “highly probative of her bias, motivations, as she testifies here as well.” Defendant argues this “evidence was not relevant to explain any aspect of Munguia’s testimony . . . [because if] Munguia was fearful of [defendant], it certainly did not show in her testimony, because that fear did not stop her from offering the most incriminating evidence in the trial.” The argument is not persuasive.
As pointed out previously, evidence that a witness is testifying despite fear of the defendant is relevant and makes the witness more credible. (Stewart, supra, 33 Cal.4th at p. 492, fn. 28; Olguin, supra, 31 Cal.App.4th at p. 1368.) The choking incident fits neatly into this category and, therefore, was admissible for this purpose. And, as was the case with Valdez, even if Munguia’s testimony was not shown to have caused her to alter or withhold any testimony against defendant, defendant could not have been harmed because the jury would have heard of the incident in any event.
B. Valdez’s Statement Regarding Defendant’s
Making People Disappear
Valdez testified that one of the reasons she feared defendant was because when he came to the motel room he said that he was looking for other people to “make them disappear.” The court limited this testimony to “explain[ing] [Valdez’s] state of mind as it is relevant to her testimony here in [] court.”
Defendant contends the evidence was “irrelevant” first because there was no indication that Valdez had “minimized” her testimony out of fear of defendant, and second, because “the intent to intimidate could well have been motivated by [defendant’s] fear of apprehension for having been an accessory after the fact, rather than for murder.”
First, defendant’s argument fails for the same reasons his arguments regarding the choking incident failed--the evidence was properly admitted because it was highly probative of Valdez’s and Munguia’s credibility since each was testifying in spite of her fear of defendant, and for that reason alone the jury would have been aware of the incident. And second, it is irrelevant whether defendant sought to intimidate because of any involvement in the crime. The critical point is that the witnesses were testifying even though they were frightened of defendant.
C. Photographic Evidence
Munguia testified that during a ride to Tracy with defendant and Ricardo Lepez, defendant showed Lepez a photograph. Although Munguia could not see it, she believed that, based upon its size, it was the same photo previously shown to her by defendant, which depicted Ruiz lying on a sofa with his intestines piled on top of his stomach. Lepez and defendant exchanged words about the photo, but Munguia claimed that she did not remember what was said.
Detective Gardiman testified that Munguia had told him that when Lepez was shown the photo he responded, “‘I don’t know how you have the stomach to take pictures like that.’” Defendant told Lepez to “shut up.” The court instructed the jury that Lepez’s statement was admitted for the limited purpose “to give context and explain [defendant’s] statement.”
When the admissibility of statements was previously discussed, defendant objected on the grounds of hearsay and lack of relevance.
Defendant argues that his telling Lepez to shut up “neither appears on its face to be an intimidation technique, nor does it appear to have had such an impact on the witness.” The People urge that this was simply another act whereby defendant showed his “intent to intimidate [] potential witnesses” to keep them from reporting him to the authorities.
We agree with the People that when considered in combination with defendant’s other acts of intimidation, defendant’s telling Lepez to “shut up” could in these circumstances be interpreted as a threatening remark. However, given that Lepez’s remark could have been one of surprise or disgust and defendant’s reply one of anger for being criticized, we find the reply was, at best, of marginal relevance. Defendant’s reply simply bordered on insignificance when compared to his other acts of intimidation--ramming with a van a vehicle containing potential witnesses against him, choking Munguia, showing Indio a photograph of Ruiz’s body and telling him a similar thing could happen to him, and letting Valdez overhear him state he was looking for other people to make disappear, i.e., to kill. Consequently, even if it was error to admit the challenged remarks the error was harmless. (People v. Watson (1956)46 Cal.2d 818, 836-837.)
Disposition
The judgment is affirmed.