Opinion
B226725
09-19-2011
THE PEOPLE, Plaintiff and Respondent, v. OSVALDO GARCIA, Defendant and Appellant.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SA071429)
APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dabney, Judge. Affirmed.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
Osvaldo Garcia appeals from the judgment entered following his conviction by a jury of second degree murder (Pen. Code, § 187, subd. (a)), with the true finding he had used a deadly weapon (Pen. Code, § 120222, subd. (b)(1)). Garcia contends his constitutional right to due process was violated because the court permitted the People to seek irrelevant evidence about his sexual orientation and to imply he enjoyed being sexually assaulted by his victim, Jose Becerra. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Trial
a. The People's evidence
i. The killing of Jose
Jose, 53 years old at the time of his death, owned a gardening and landscape business. Jose also owned a residential complex in Santa Monica; he lived in one of the apartments. His extended family, including brothers Enrique and Juan and sister Maria Palacios, lived in several of the other apartments and a duplex on the property.
Because Jose Becerra and several witnesses share the same last name, we refer to them by their first names for convenience and clarity. (See Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 424, fn. 1.)
By spring 2009 Jose, who was diabetic, was suffering from kidney problems and undergoing dialysis three to four times a week, had had a toe amputated and was losing his eyesight. In late 2008, when his health had begun to seriously deteriorate and he could no longer see well enough to drive, Jose hired Garcia to assist with the gardening business. Garcia, who was 29 years old at the time of Jose's death, also moved into Jose's apartment, staying in the living room.
While Jose was hospitalized in February 2009 after a second heart attack, his family hired Salvador Barba, who had previously worked with Jose for many years, to run the business because customers had been complaining about Garcia. The family told Garcia he had to leave Jose's apartment, and Garcia began living in his car in the alley behind the property. Barba, who had been living in Sacramento, moved into Jose's apartment. Garcia assisted Barba with the business for about a month but was then fired.
Because of Jose's health problems, family members living in the complex came by daily to care for him, including giving him insulin injections. On June 10, 2009 Juan finished bathing Jose and changing a bandage on his foot just before 8:00 p.m. Soon thereafter the tenant in the apartment adjacent to Jose's heard a loud noise from his apartment. Believing Jose may have fallen, she summoned help. Several family members rushed to Jose's apartment, but could not get in because the doors were locked. They heard Garcia's voice inside and asked him to unlock the door. Garcia responded he could not find the key for the deadbolt.
Family members were able to forcibly gain entry into the apartment. They found Jose lying in a pool of blood; blood and brain matter were splattered on the walls. Enrique testified he saw Garcia in the bedroom kneeling and repeating, "What have I done? Oh my God." Subsequently, Garcia left the bedroom and approached Maria Palacios's husband, Danny Palacios. Danny Palacios punched Garcia in the face and kicked him several times after he had fallen to the floor.
Paramedics and police officers arrived. Jose was taken to the hospital and underwent surgery. He died three days later from multiple blunt force trauma. According to Los Angeles County Deputy Medical Examiner Ogbonna Chinwah, who performed Jose's autopsy, Jose suffered a crushed left orbital bone and multiple fractures to the skull resulting from at least three hammer blows.
Garcia was also taken to the hospital and treated before being driven to the Santa Monica Police Station. A sheet metal hammer with bloodstains and Garcia's nickname, Ozzi, engraved on it was found outside Jose's apartment.
ii. Garcia's interview the day after Jose was killed
On June 11, 2009 Garcia was interviewed by Los Angeles Police Detectives Maury Sumlin and John Henry, and the recorded interview was played for the jury. During the interview Garcia claimed he had gone to Jose's on the evening of June 10, 2009 to talk and to retrieve some possessions he had left in the apartment when two men dressed in black walked in and attacked them.
Employing an investigative ruse, Detective Sumlin falsely told Garcia that Jose had said he and Garcia had been fighting. Garcia denied it. Detective Sumlin then asked Garcia whether he was gay, whether Jose was gay and whether they had had a sexual relationship. Garcia, denying he was gay, claimed Jose was gay and admitted they had had sexual relations, but not "penetrable," a few times in the prior three or four months. In response to Detective Sumlin's question whether Garcia was "experimenting," Garcia replied, "Maybe." Detective Sumlin testified the questions about whether Garcia and Jose had been in an intimate relationship were based on information he had developed during the course of the investigation.
b. The defense's evidence
Testifying on his own behalf, Garcia abandoned the story he and Jose had been attacked by strangers and admitted he hit Jose in the head with a hammer three times. Garcia claimed, however, he did it to ward off an unwanted sexual advance after having been sexually assaulted by Jose several times during the previous four months. Garcia explained he first met Jose about 15 years earlier, but had lost contact with him until Garcia began working at a retail store in 2007 where Jose was a regular customer. After Jose witnessed a confrontation between Garcia and the store manager, he offered Garcia a job. Garcia began to work for Jose part time while still working at the store. During this time Garcia had to move out of his uncle's house and moved into Jose's apartment. Garcia slept in the living room and paid rent.
The jury was instructed on voluntary manslaughter pursuant to CALCRIM No. 570 in part: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed someone because of sudden quarrel or heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment."
In February 2008 Garcia quit his job at the retail store, began working full time for Jose and enrolled in college. In April or May 2008 Jose began exhibiting some "weird habits," like walking naked around the apartment, which made Garcia uncomfortable. Soon thereafter Jose began touching Garcia. Then, after Jose loaned Garcia money to get his car out of impound, Jose asked Garcia to engage in sexual conduct. Jose made the same request after he helped Garcia retrieve his car from a second impound about a month later, and Garcia complied. On a separate occasion, Jose told Garcia they would not go to work unless Garcia agreed to allow Jose to orally copulate him; Garcia agreed because he was concerned he would lose his job and lodging. Because he was "semi-uncomfortable" with Jose, however, Garcia began sleeping in his car half of the week. In total, Garcia testified, he and Jose had sexual contact about four times.
In February 2009, after Garcia was fired and asked to move out of the apartment, he began living full time in his car, which had been towed after an accident to the alley behind Jose's property. In April 2009 Garcia got a new job, but remained living in his inoperable car.
On June 10, 2009 Garcia received an insurance check to repair his car and made arrangements to live with his brother while the car was being repaired. Early that evening Garcia went to Jose's apartment to retrieve some belongings and to tell Jose he would be moving, as well as to share with Jose that he had just completed a college class and had developed an interest in photography. The two talked in the kitchen. After Garcia, who was "really appreciative of" Jose, thanked him for their working relationship, Jose began making sexual overtures. Garcia testified he refused; but Jose told him, "You're my bitch," as he tried to kiss Garcia and tightly grabbed him around his arms and buttocks. Garcia struggled, but Jose grabbed him around the neck. After Garcia was able to get one of his hands free, Jose slapped him and pulled Garcia toward him. Garcia grabbed a hammer, which he had earlier retrieved from his belongings and placed on the kitchen counter, and struck Jose with it, not because he was in fear or angry, but because he was in pain from Jose's assault. Jose, however, became angrier and more aggressive. Garcia struck him two more times with the hammer and pushed him to the floor.
c. Garcia's cross-examination
Challenging Garcia's testimony of prior unwanted sexual advances and his claim to have struck Jose in response to another sexual attack, during cross-examination the prosecutor asked Garcia to describe the sexual overtures Jose made just before Garcia struck him with the hammer. After Garcia described how Jose had used his finger to stroke Garcia's upper body, the following exchange occurred without objection:
"[Prosecutor:] So when he did that, what did you do?
"[Garcia:] I didn't do anything.
"[Prosecutor:] You didn't do anything because you liked it, didn't you? "[Garcia:] No, not necessarily. But I just—I knew usually—he did that very, very often, so it didn't bother me.
"[Prosecutor:] Tell me, have you ever had a girlfriend?
"[Garcia:] Yes.
"[Prosecutor:] Yes? Have you ever had any other boyfriends?
"[Garcia:] No.
"[Prosecutor:] No? But it is in fact true that you are gay?
"[Garcia:] Um, no.
"[Prosecutor:] Are you uncomfortable talking about it?
"[Garcia:] Yes.
"[Prosecutor:] That's because your family just found out, right?
"[Garcia:] Right.
"[Prosecutor:] So when Jose actually touched you, it really didn't bother you, did it?
"[Garcia:] It didn't bother me, no."
In response to the prosecutor's subsequent questions whether Garcia "didn't really mind [Jose] grabbing your butt, did you" or liked it when Jose tried to fondle him and kiss his neck, Garcia responded that he did not like the conduct.
During continued cross-examination the following day, the prosecutor returned to the topic:
"[Prosecutor:] Now, let's go back to the sexual encounters you had with Jose. Isn't it true the first time you never reported it because you benefitted from it?"
"[Garcia:] I don't—I didn't know the right word to use, but I guess it was—I just wanted to keep working, because it was part of my studies, to learn more from the work.
"[Prosecutor:] And isn't it true it's because you liked it?"
Garcia's counsel objected on the ground of relevance. The court overruled the objection. Garcia responded, "Not necessarily." Garcia's counsel then asked to approach the bench, and at side bar contended it was the second time the prosecutor had "implied that because my client might be gay, he liked it." Garcia's counsel argued, "[I]t doesn't matter whether he liked it or didn't like it. It matters whether or not he was a victim of what would be described as predator behavior." The court agreed a question implying Garcia liked the advances because he was gay would be improper, but found the question as posed—simply whether he did not report the first sexual encounter because he liked it—did not have such an implication and was relevant because "it would seem to belie [Garcia's] claim that he did this as a result of the assault, the unwanted assault."
2. The Verdict and Sentence
The jury found Garcia guilty of second degree murder, a lesser included offense of the charged crime of first degree murder, and found true the special allegation he had used a deadly weapon. The trial court sentenced Garcia to an indeterminate term of 15 years to life, plus one year for the weapon enhancement.
DISCUSSION
1. Governing Law
Evidence is admissible only if it is relevant. (Evid. Code, § 350.) All relevant evidence is admissible, except as otherwise provided by a statutory or constitutional exclusionary rule. (See Cal. Const., art. I, § 28, subd. (f)(2); Evid. Code, § 351.) Relevant evidence is defined as evidence "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.) The general test of relevance "„is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent or motive.'" (People v. Bivert (2011) 52 Cal.4th 96, 116.) However, if evidence leads only to speculative inferences, it is irrelevant. (People v. Morrison (2004) 34 Cal.4th 698, 711.)
"The trial court has broad discretion in determining the relevance of evidence, but lacks discretion to admit irrelevant evidence. [Citation.] We review for abuse of discretion a trial court's rulings on the admissibility of evidence." (People v. Cowan (2010) 50 Cal.4th 401, 482.) Nevertheless, even if the trial court abused its discretion in admitting irrelevant evidence, reversal is not warranted unless the evidence was prejudicial. "[S]tate law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (People v. Partida (2005) 37 Cal.4th 428, 439.) Federal due process is offended only if admission of the irrelevant evidence renders the trial fundamentally unfair. (Ibid.)
2. The Prosecutor Did Not Seek Irrelevant Evidence Leading to Only Speculative and Prejudicial Inferences
Garcia's sole contention on appeal is the court committed prejudicial error in allowing the prosecutor to suggest through cross-examination that, because Garcia was gay, he enjoyed Jose's sexual advances. He argues his "sexual orientation had absolutely no relevance to the factual questions whether the provocation [of Jose's unwanted sexual advance] was sufficient to arouse the passion necessary to make this homicide voluntary manslaughter." Read in context, however, the prosecutor's questions were not as Garcia characterizes them; nor did they seek to elicit irrelevant testimony.
To the contrary, asking Garcia whether he may have in fact liked sexual contact with Jose was directly relevant to Garcia's defense Jose's conduct was so unwelcome it provoked him to kill Jose in the heat of the moment. Indeed, pushing Garcia on this point was warranted in light of his equivocal testimony and other evidence bearing on the nature of the men's relationship. For example, Detective Sumlin testified Garcia had admitted during his interview to having sexual relations with Jose and said he may have been "experimenting." Garcia also testified that at some time during the alleged sexual assaults by Jose he became "semi-uncomfortable" with Jose and began sleeping in his car half of the week; he did not assert he was outraged or very uncomfortable or even just merely uncomfortable. Additionally, on June 10, 2009, after Garcia had extricated himself from any alleged indebtedness to Jose and his financial dependence on him, Garcia nevertheless, after retrieving his belongings, asked Jose if he would mind if Garcia had a beer while they talked. He then shared with Jose how his life was changing and thanked Jose, who he "was really appreciative of," for their working relationship.
We need not decide whether evidence about Garcia's sexual orientation also tended to directly or by reasonable inference undermine the plausibility of his defense. Garcia himself testified on direct examination that he was heterosexual in response to his counsel's questions, "What is your sexual preference? Do you consider yourself homosexual or heterosexual?" Thus, any questions by the prosecutor testing Garcia's answer were invited by his counsel.
Indeed, the prosecutor had moved in limine to exclude any reference to sexual orientation on relevance grounds, but Garcia's counsel objected and requested the court ask if potential jurors "have opinions that people they know or may suspect to be homosexual may have a greater tendency towards violence." Counsel argued, "That, I think, is a legitimate area of inquiry for the jury, given there are two gay men involved in this case who both worked, lived together, and had a physical relationship."
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While we agree it would be improper for the prosecutor to have implied Jose could not have sexually assaulted Garcia on June 10, 2010 simply because both men were gay or because they may have previously engaged in consensual activity, it is not reasonable to interpret the challenged questions as making that suggestion. In any event, even if such an attenuated implication could be derived from the People's cross-examination of Garcia, he cannot demonstrate it is reasonably probable the verdict would have been more favorable to him in absence of those few arguably improper questions or that they rendered his trial fundamentally unfair. The evidence overwhelmingly undermined Garcia's credibility and description of the sexual overture purportedly leading to Jose's murder. It is simply inconceivable that a 53 year-old diabetic on dialysis with an amputated toe, ulcerated foot and failing eyesight, who had suffered two heart attacks and needed help bathing, could overpower a man 23 years younger who was capable of lifting a lawn mower in and out of a truck and carrying trees. Indeed, Garcia's own testimony undermined his defense he was so provoked by the sexual advance he acted rashly and under the influence of intense emotion that obscured his reasoning and judgment. Garcia testified he first struck Jose with the hammer because he was in pain, not out fear or anger. Finally, even if Garcia's version of events were even remotely plausible, it was not reasonably probable the jury would have found a person of average disposition would have acted as Garcia did. (Cf. People v. Dixon (1995) 32 Cal.App.4th 1547, 1555-1556 [trial court did not have sua sponte duty to instruct on voluntary manslaughter; "separate and apart from the absence of substantial evidence of a temporal proximity between the homicide and the alleged failure to engage in sexual conduct, there was no testimony to support the conclusion there was sufficient provocation to 'arouse feelings of homicidal rage or passion in an ordinarily reasonable person'"].)
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J. We concur:
WOODS, J.
JACKSON, J.