Opinion
D056959
12-13-2011
THE PEOPLE, Plaintiff and Respondent, v. JOANNA CHRISTINE GOMEZ et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF128455)
APPEALS from judgments of the Superior Court of Riverside County, Michele D. Levine, Judge. Affirmed with directions.
A jury convicted Joanna Christine Gomez and Ivan Renne Salinas of first degree murder (Pen. Code § 187, subd. (a)). As to both defendants, the jury found as special circumstances that the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17)(A) and a kidnapping (§190.2, subd. (a)(17)(B). As to Salinas, the jury also found true the special circumstance allegation that the murder was committed by means of lying in wait (§ 190.2, subd. (a)(15). Both defendants were sentenced to state prison for life without the possibility of parole.
All statutory references are to the Penal Code unless otherwise noted.
As to Gomez, the jury was unable to reach a verdict in the lying-in-wait special-circumstance allegation. The court declared a mistrial on that issue and dismissed the lying-in-wait allegation as to Gomez at the People's request.
Gomez contends that (1) there was insufficient evidence to support the jury's finding that the murder was committed during the commission of a robbery; (2) there was insufficient evidence to support the jury's finding that the murder was committed during the commission of a kidnapping; (3) the trial court erred by not instructing the jury on false imprisonment as a lesser included offense of kidnapping; (4) the court erred in failing to instruct the jury that she, as a coconspirator, could be convicted of a lesser offense than the perpetrator Salinas; (5) the court erred in denying her motion for a mistrial after evidence of her having taken and failed a polygraph test was inadvertently put before the jury; and (6) the court erred by excluding evidence of her emotional state at the funeral of the victim. Gomez also joins in the issues raised in Salinas's appeal.
Salinas contends that the trial court prejudicially erred in denying his motion to sever his trial from Gomez's trial and that his trial counsel's failure to argue antagonistic defenses as a ground for the motion constituted ineffective assistance of counsel. He also joins in Gomez's arguments and contends that the cumulative effect of the errors requires reversal of his murder conviction. We affirm as to both defendants with directions to correct certain clerical errors in the sentencing minutes and abstracts of judgment.
FACTS
Prosecution Evidence
The homicide
On the night of October 30, 2005, Joseph Ravida was fatally shot in the passenger seat of his van, which his stepdaughter Gomez was driving, and Gomez was shot in the right arm. At around 9:20 p.m. that night, Danny Calderon was driving northbound on Bain Street in Mira Loma with his girlfriend and brother. As he approached 54th Street, he saw Gomez in his lane, waving her arms for him to stop, and Ravida's van parked on the side of the road off the southbound lane. He did not stop but his girlfriend called 911.
Riverside County Deputy Sheriff Russell Williams arrived on the scene and saw Gomez in the roadway by Ravida's van waving her arms. He asked her if she was okay, and she said, "[t]hey shot my father," and "[t]hey shot me in the arm." Williams saw that Ravida was sitting upright in the passenger seat of the van with his seatbelt still strapped on. He appeared lifeless and a paramedic confirmed that he had no pulse. The front passenger door window was shattered but there was no glass on the ground below the door until the door was opened and portions of the shattered window fell out. Williams did not find any bullets or cartridges at the scene. Williams found Ravida's wallet in the intersection of 54th and Bain. The wallet contained a credit card and cash. Gomez told Williams that two men wearing white Halloween masks had gotten into the van and ordered her drive on various streets until she was "basically lost." At some point while she was driving, they shot Ravida and then shot her as she was stopping the van. After talking to Williams, Gomez was taken to a hospital by ambulance.
Detectives who investigated the crime scene found no bullets or bullet casings in the area surrounding the van, and no bullet or bullet strike mark inside the van. A pair of eyeglasses was found on the floorboard of the van. The frame was bent and the right lens was missing. There were containers of Chinese food on the floorboard behind the front passenger seat and bags of dog food and groceries in the rear storage area of the van.
Ravida was shot three times in the head—on the top, back, and left side—and was shot twice in the left side of his back. All of the bullet wounds were fatal, and the head wounds would have caused immediate unconsciousness.
Gomez's relationship with Ravida
Gomez's mother, Christina Gomez (Christina) met Ravida in 1973 and began living with him that year in an intimate relationship that lasted 19 years. Gomez was born in 1984 and although Ravida was not Gomez's biological father, he agreed to raise her as his daughter. He referred to Gomez as his daughter and "baby girl" and treated her as his own child, and Gomez called him "Daddy" or "Dad." When Christina ended her intimate relationship with Ravida in 1992, she and Gomez moved out of his house. However, Ravida continued to provide financial support for Gomez and treat her as his daughter, and she regularly stayed at his house during her childhood. Christina testified that Gomez had considered Ravida her father her entire life. After Gomez got her driver license, she sometimes drove Ravida to appointments and to do errands. Ravida suffered from anxiety attacks and rarely drove himself.
Christina testified that Ravida had been diagnosed as paranoid schizophrenic. Ramona Batista, who had a romantic relationship with Ravida dating back to 1992, testified that he suffered from posttraumatic stress syndrome.
At the time of his death, Ravida had approximately $378,000 in multiple bank accounts and his house was valued at $525,000. He held several of his bank accounts in trust for Gomez, and occasionally mentioned to bank employees in Gomez's presence that he wanted to be sure his accounts were set up to take care of her. After Ravida's murder, Christina and Gomez filed letters of administration seeking authorization to administer his estate and to establish that Gomez was entitled to inherit the entire estate except for a stamp and coin collection.
On Friday evening, October 28, 2005, Christina drove Gomez to Ravida's house because Gomez told her that Ravida wanted to see her (Gomez) and that she was going to visit him and help him with whatever he needed at his house. Christina picked Gomez up at around 9:00 p.m. and Gomez told her that she had to return to Ravida's house on Sunday to take Ravida on errands because he was not feeling well enough to run errands that evening.
Christina drove Gomez back to Ravida's house on Sunday, October 30. Batista was at the house when Gomez arrived. Ravida was on the computer looking at an online dating Web site and told Gomez that if Batista did not marry him, he would find another woman who would and that Gomez and Christina "would be out of the picture." He added, "I won't need you to run me around, and you won't get any of my money."
Gomez's relationship with Salinas
Gomez and Salinas became friends in sixth grade and had an off-and-on friendship through high school. They began a dating relationship in 2003 or 2004 when Gomez was in her second year of college. At that time and until February 2006, Salinas lived in his parent's home with his girlfriend Synath Phang, with whom he had been in a romantic relationship since high school. Phang was unaware of Salinas's relationship with Gomez.
On a Saturday in the first or second weekend in October 2005, Salinas took Gomez and Christina out to dinner. Salinas told Christina that he loved Gomez and wanted to marry her, but would abide by Christina and Ravida's wish that Gomez graduate from college before marrying him. Salinas then asked Christina to loan him $100,000 to invest in some real property in New Mexico. When Christina told Salinas that she did not have $100,000 to lend him, he suggested she take out an equity loan on her home and told her he need the money by November 3rd. Christina said no, but Salinas continued to try to persuade her until she told him he should ask his parents or other relatives for the money.
Police interviews
On the night of Ravida's murder, Gomez was interviewed by Deputy Brian Marker at the hospital where she was being treated for her gunshot wound. Gomez told Marker that she had turned right from Troth Street onto 58th Street and was stopped at the stop sign at the intersection of 58th and Ridgeview Avenue when two males on foot approached from her right side. They were both wearing white Halloween masks and black hooded sweatshirts. After they crossed in front of the van, the men approached Gomez's window, pointed a gun at her, and told her to unlock the doors. The men then entered the van through the sliding door behind Gomez and closed the door.
At their direction, Gomez made a U-turn and drove toward Bain Street. They told Gomez to keep looking straight and not look in the mirror. Ravida panicked and wanted to stop and get out of the van. The men ordered Gomez to turn left on Bain and pull over, and Gomez complied. When Ravida tried to get out of the van he was shot and started making choking noises. The men told Gomez to keep driving and make another U-turn and she complied. She drove and stopped at least two more times at their direction and at some point when she was stopped, they shot Ravida again. The men ordered Gomez to reach into Ravida's pocket to get his wallet and also demanded her wallet and money. Gomez gave them Ravida's wallet and as she reached over to Ravida to see if he was okay, one of the men shot her in the arm. The men then exited the van and fled the scene in a car that had driven up from behind.
Gomez agreed to go to the sheriff's station to be interviewed by homicide detectives after her release from the hospital. Salinas, who had arrived at the emergency room where Gomez was being treated at around 11:00 p.m., drove Gomez to the sheriff's station where she was interviewed by Sergeant Joseph Pemberton and Detective Ronald Waters. Pemberton asked Salinas to stay at the station so he could talk to him after interviewing Gomez, but Salinas left the station before the officers completed Gomez's interview.
Gomez told the detectives that she visited Ravida at least once every weekend to help him with groceries and errands. She had visited him on Friday (October 28) and she accompanied him on several errands. The following Sunday, Christina drove Gomez back to Ravida's house at around 4:40 p.m. Batista was at Ravida's house and Ravida was showing his list from an internet dating Web site. Gomez said he was "trying to find another girlfriend because he couldn't stand [Batista] anymore." After Batista left, Gomez drove Ravida to K-mart and Albertsons, and then to a Chinese restaurant where they had dinner. They were driving back to Ravida's house from the Chinese restaurant, when the events that led to the shootings occurred. Gomez essentially repeated the account of those events that she had related to Deputy Marker in the hospital.
Gomez returned to the sheriff's station with Christina for a third interview on February 7, 2006. Gomez initially repeated the version of the incident she had given in the previous two police interviews. She explained that she drove on the "small streets" on the way back to Ravida's house from the Chinese restaurant instead of taking the usual direct route because Ravida wanted to see her old elementary school.
Investigator Tom Dorsey expressed his disbelief of Gomez's story and told Gomez that he thought "[t]his thing got way over your head. It got way over your head. It was something that wasn't supposed to happen the way it happened." Gomez responded that someone Ravida hired to work on his ranch could have been one of the perpetrators. When asked to divulge any other information she was withholding, Gomez told the officers that Ravida had problems with his next-door neighbors and that the perpetrators could be workers the neighbors hired to work on a wall they were constructing. Gomez said the workers "trashed" Ravida's property. When Waters and Investigator Masson pressed Gomez to reveal the name of the person who shot Ravida, Gomez expressed fear that "they" would come after her and Christina. She then claimed that she heard on the street that the shooter was hired by the uncle of someone named Salvador who was in her high school graduating class and had worked on Ravida's neighbor's wall. Gomez said the uncle had fled to Mexico.
The officers interviewing Gomez made it clear that they did not believe her story and pressed her to tell them who shot Ravida. Gomez eventually told the officers that "it wasn't supposed to be like that[,]" and that "[t]hey were just going to take the van and the money and leave." She said that one of the perpetrators went by the name "Freddy" and she did not know the other's name. After being read her Miranda rights, Gomez told the officers that "they" (the perpetrators) knew Ravida had some money and had recently purchased the van and had insurance, so they planned to sell the van for parts and take Ravida's cash. The plan was supposed to have been carried out on Friday, October 28, but Gomez did not drive to the appointed place that night because she did not want anything to happen to her father. However, she agreed to try again on Sunday the 30th but asked for assurance that nothing would happen to her or Ravida. The plan was for her to drive down 58th Street and meet the perpetrators either at the stop sign at Troth or the stop sign at Ridgeview.
Gomez's description of the events leading to Ravida's death was similar to her previous accounts. She said the perpetrators shot Ravida because they "got scared" when he had an anxiety attack and "flipped out," and then shot her to "cover their tracks." When asked why she participated in the plan, Gomez said she thought it was "just a big hoax" and that she was not thinking clearly and did not know why she did it.
Salinas made several calls from his cell phone to Gomez's cell phone during the February 7, 2006 interview. After his third call, Masson asked Gomez to call him back and put him on speaker phone. Gomez's first call went to Salinas's outgoing voicemail message, which said "Welcome to my nightmare," a line spoken by the horror movie character Freddy Krueger. Following that call, Gomez engaged Salinas in a series of phone conversations that were on speaker phone and recorded by the police.
At trial, the parties and the court referred to this series of taped phone conversations between Gomez and Salinas as "the pretext call."
During one of the taped phone conversations, Gomez told Salinas that she was going to jail and that she had told the police the truth. Salinas asked, "What truth?" Gomez responded she had told the police that Freddy and "another guy was in [on] it, and that we talked about it." Salinas asked, "Did you say I did it, babe?" Gomez said, "Yeah, I said we talked about it, that we had a plan." Salinas then asked if Gomez had told the police that she "did it." Gomez said, "I guess so. I told them that I drove there." She added, "I told them I drove to the spot where we were supposed to meet." Salinas asked, "Who and who?" Gomez replied, "I don't know, whoever was with Freddy. I don't know."
Salinas asked Gomez who was with Freddy and she said she did not know. When Salinas asked if she knew where Freddy was, she said she did not know but she had told the police "that we talked about it." Salinas asked, "Who and who talked about it?" Gomez said, "You and me." Salinas then asked, "And who—who did it though?" Gomez replied, "Freddy and whoever he was with, that the plan was that you guys were just going to take the car and the money, and nothing was supposed to happen to me and my dad."
Gomez told Salinas that she had said Freddy talked to him about "setting it up" and that Salinas had talked to her. Salinas expressed concern that Gomez was involving him in the murder, and Gomez said, "I know, because we talked about it. That's the thing. I'm not saying that you did it. I'm just saying that you know who did it." She explained that she meant Salinas knew about Freddy, who was an acquaintance of Salinas. Salinas complained that Gomez was blaming him for the murder, and Gomez said, "I'm not blaming you, but you need to talk to the cops and tell them that . . . it was Freddy and this other guy." Salinas responded, "What if I can't find Freddy?"
Salinas agreed to tell the police that "Freddy and that other guy did it," and Gomez said, "Yeah, that they told you to set it up—to talk to me about setting it up for me meeting you guys—those guys there." Gomez told Salinas he needed to try to find out the identity of the other guy who was with Freddy. She then essentially coached Salinas on the latest story she had given the police, i.e., that Freddy and the other guy were supposed to just steal the van for the parts, that Salinas "set it up" and told Gomez where to meet them, and that nothing was supposed to happen but Ravida "spooked them, and the outcome of it was awful."
When Salinas again complained that the story Gomez had told the police put the blame on him, Gomez said, "I'm not blaming you—you. I'm just saying that you're the one who told me about the set up." Salinas said, "But that's what I'm saying babe, if I can't find Freddy I don't know what's gonna happen. You know, that's the crazy part." He later said to Gomez, "[I]f you change your story or whatever, they're going to blame it all on you and me or whatever, you know." Salinas repeatedly expressed concern that the police would not be able to find Freddy and that he and Gomez would be blamed for the murder as a result. At one point, Salinas said, "[I]f they can't find this guy, they're going to get mad. You know what I'm saying? They're going to try to turn you against yourself, or against me, or against whoever, you know."
The next day (February 8, 2006) Salinas came to the sheriff's station for a recorded interview. Referring to his recorded phone conversations with Gomez the day before, Salinas told the officers that he told Gomez he would tell the detectives everything he knew about the "dude . . . that I met at the races[.]" He said he told her to make sure to tell the detectives "how you want to clear me up." He told the officers that he did not know what Gomez had said about him and did not want to say something stupid, and that Gomez had said it was her fault. He continued: "I don't want to place the blame . . . on her either, 'cause I'm like, okay, that there is a mistake to be made. Okay—it was made. You know? And I'm like, okay, let's go from here. You know? . . . When I talked to her, she was just like, all telling me this stuff, and I'm like, fine. You know? But make sure you tell them that, that you guys want—You know, you want the truth and everything. I'm like, make sure you tell them. I'm like, don't make it seem, like it was me. You know? Like, don't make it seem that, you know, that I acted alone or whatever."
Other prosecution evidence
Salinas was a fan of horror movies and collected memorabilia from that genre, including masks, costumes, photographs, statues, and figurines. His collection included Freddy Kreuger masks and white hockey masks worn by the horror movie character Jason. Freddy Kreuger was one of his favorite horror characters.
On 7:04 p.m. on Friday, October 28, 2005, Gomez called Salinas's cell phone from her cell phone, and the call became a three-way call when Salinas connected with a third number in the 714 area code. On October 30, 2005, Salinas made a call from his cell phone to Gomez's cell phone at 7:35 a.m. The same day, Gomez made calls from her cell phone to Salinas's cell phone at 10:24 a.m., 10:41 a.m., 1:24 p.m., 2:40 p.m., and 3:05 p.m. The 3:05 p.m. call became a three-way call when Salinas called an area code 714 number. At 3:19 p.m. Salinas called Gomez's cell phone. Gomez arrived at Ravida's house at 3:30 p.m.
Defense Evidence
Gomez did not testify at trial or call any witnesses.
Salinas called five members of Aurora Hernandez's extended family as alibi witnesses. Each of them testified that Salinas was at the Hernandez residence on the night of Ravida's murder. Salinas testified that he did not have anything to do with Ravida's murder. He claimed that the purpose of going to dinner with Gomez and Christina in October 2005 was to tell Christina that Gomez was pregnant with his baby. He testified that Christina became angry and demanded they get married, and that he wanted to keep the baby but Gomez did not. He denied that he asked Christina for $100,000.
Sometime in 2005, Salinas met a person named Freddy at street races he was attending. He saw Freddy again a few weeks later when he was at the races with Gomez. Freddy inquired about Gomez's availability and Salinas indicated she was available if Freddy wanted "to make an advance at her." The three talked for awhile and Gomez and Freddy exchanged phone numbers.
Salinas testified that on October 30, 2005, Phang dropped him off at the Hernandez house at around 7:00 p.m. He played billiards in the "pool house" with friends for over an hour and then went inside the house and watched television. Phang arrived around 9:00 p.m. and drove Salinas and his friends to a Hollywood Video store and a Rite Aid. After buying ice cream cones at Rite Aid, the group returned to the Hernandez house at around 10:00 p.m. About an hour later, Salinas received a call from Christina to go see Gomez at the hospital. He drove back to his house with Phang, dropped her off, and then drove to the hospital. After Gomez was released from the hospital, Salinas drove her to the sheriff's station. He waited in the lobby of the station while Gomez was being interviewed, and left when Christina came out and told him he could leave.
Regarding his phone conversations with Gomez on February 7, 2006 that were recorded by the detectives interviewing Gomez, Salinas testified that he did not know where Gomez was or who was with her. He did not think the police were listening; he thought Gomez might be with Freddy from the street races or someone else and that his life might be in danger if he said something against Freddy.
DISCUSSION
GOMEZ'S APPEAL
I. Sufficiency of the Evidence to Support a Robbery Finding
Gomez contends the evidence was insufficient to support the jury's robbery special circumstance finding and first degree murder verdict against her, to the extent the verdict was based on a robbery-felony murder theory. Gomez asserts that the prosecution's theory of guilt, and the only theory supported by the evidence, was murder for financial gain—i.e., that she and Salinas planned to kill Ravida so that she could inherit the money he held in trust for her. Gomez argues that because there was insufficient evidence to support the theory that the murder was committed during a robbery, the robbery special circumstance must be struck and the first degree murder verdict must be reversed.
"To determine whether there is substantial evidence to support a conviction we must view the record in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of conviction. We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable factfinder could find the defendant to be guilty on the theory presented. [Citation.]" (People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529, citing People v. Johnson (1980) 26 Cal.3d 557, 578.) The same standard of review applies to a determination of the sufficiency of the evidence to support a special circumstance finding. (People v. Valdez (2004) 32 Cal.4th 73, 105.)
We conclude there is sufficient evidence to support the jury's robbery finding. The jury was instructed on the elements of robbery, and that to find true the special circumstance of murder committed in the commission of a robbery, the People had to prove the following: "1. The defendant committed or attempted to commit, or aided and abetted, or was a member of a conspiracy to commit ROBBERY; [¶] 2. The defendant intended to commit, or intended to aid and abet the perpetrator in committing, or intended that one or more of the members of the conspiracy commit ROBBERY; [¶] 3. If the defendant did not personally commit or attempt to commit ROBBERY, then a perpetrator, whom the defendant was aiding and abetting before or during the killing or with whom the defendant conspired, personally committed or attempted to commit ROBBERY; [¶] 4. The defendant or Freddie did an act that caused the death of another person; AND [¶] 5. The act causing the death and the robbery or attempted robbery were part of one continuous transaction." (CALCRIM No. 730.)
In both versions of the events leading to Ravida's murder that Gomez related to the police, two masked and armed men demanded and took Ravida's wallet at gun point. In the second version, Gomez admitted that she participated in a conspiracy to rob Ravida of his van and cash, and aided and abetted the robbery by driving to the agreed location where it was to occur in furtherance of the conspiracy. The jury could reasonably find that the perpetrators' taking of Ravida's wallet satisfied the elements of robbery, that Gomez conspired with the perpetators to commit both the robbery and Ravida's murder, and that she aided and abetted those crimes.
The fact that there was sufficient evidence to support a finding that the murder was committed for financial gain did not preclude the jury from reasonably finding that the murder was committed during the course of a robbery. The jury could reasonably find that Gomez and Salinas planned a murder for financial gain and that their plan included the robbery of Ravida's cash. (See People v. Raley (1992) 2 Cal.4th 870, 903-904 [concurrent intent to kill and to commit an independent felony supports a felony-murder special circumstance].)
Further, the prosecution's argument that Gomez and Salinas murdered Ravida for financial gain did not render the evidence insufficient to support a robbery special circumstance finding or a robbery-felony murder finding, and it did not preclude the jury from considering those theories. "It is elementary . . . that the prosecutor's argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury." (People v. Perez (1992) 2 Cal.4th 1117, 1126.) The jury properly considered any theory presented by the instructions and supported by the evidence, and neither the prosecution's nor the defense's theory of the case governs the trial court in the giving or refusing of jury instructions. (People v. Talbott (1944) 65 Cal.App.2d 654, 662.) "Theories are of moment in a criminal case only as they are supported by substantial evidence." (Ibid.)In any event, the prosecutor here specifically argued that the jury could find a robbery occurred when the armed perpetrators took Ravida's wallet with the use of force or fear. Substantial evidence supports both the jury's robbery special circumstance finding and a finding of first degree murder on a robbery-felony murder theory.
II. Sufficiency of the Evidence to Support the Kidnapping Special Circumstance Finding
Gomez contends there was insufficient evidence to support the jury's finding that Ravida's murder was committed in the commission of a kidnapping with intent to kill. The court instructed the jury with CALCRIM No. 1215 on kidnapping (§ 207, subd. (a)) as follows: "To prove [that the defendant is guilty of] kidnapping, the People must prove that: "1. The defendant took, held, or detained another person by using force or by instilling reasonable fear; [¶] 2. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance; [¶] 3. The other person did not consent to the movement; [¶] AND [¶] 4. The defendant did not actually and reasonably believe that the other person consented to the movement. [¶] In order to consent, a person must act freely and voluntarily and know the nature of the act. [¶] Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection."
Gomez argues the evidence shows that Ravida was asported by fraud because he willingly accompanied Gomez in the van, and asportation by fraud is not kidnapping. (People v. Majors (2004) 33 Cal.4th 321, 327.) However, based on the evidence of the crime scene and Gomez's police interview on February 7, 2005, the jury could reasonably find that after the shooter entered the van (whether the shooter was Salinas or some other person), Ravida was detained in the van by the shooter's use of force and instillation of reasonable fear; that he was moved a substantial distance by use of that force or fear when Gomez, as a coconspirator or aider and abettor, drove the van at the direction of the shooter or other perpetrator; that Ravida did not consent to the movement; and that Gomez and the perpetrators did not believe that Ravida consented to the movement.
Gomez argues there is no evidence that Ravida was ever asported as a result of fear because the prosecution completely discounted her credibility. However, the jury reasonably could have disbelieved her statements to the detectives that she intended to participate in a robbery only and not a murder, but believed her representations about having driven the van some distance after the masked perpetrator or perpetrators entered it. (See CALCRIM No. 226 ["[I]f you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest."].) The evidence sufficiently supports the jury's finding that Gomez and Salinas kidnapped Ravida with the intent to kill him either as direct perpetrators or as coconspirators or aiders and abetters in the kidnapping.
The court instructed the jury with CALCRIM No. 226.
III. Failure to Instruct on False Imprisonment
Gomez contends the trial court erred by not instructing the jury on false imprisonment as a lesser included offense of kidnapping. This contention lacks merit because, as the California Supreme Court has made clear, a trial court does not have a sua sponte duty to instruct the jury on a lesser included offense of a greater offense that forms the basis of a felony-murder charge or special circumstance allegation if the defendant is not separately charged with the greater offense. (People v. Kelly (2007) 42 Cal.4th 763, 792; People v. Combs (2004) 34 Cal.4th 821, 856; People v. Valdez, supra, 32 Cal.4th at pp. 110-111; People v. Cash (2002) 28 Cal.4th 703, 737.)
Gomez argues that in People v. Kelly (1990) 51 Cal.3d 931 (Kelly), the Supreme Court implied that false imprisonment is a lesser included offense of murder by kidnapping. The defendant in Kelly was charged with the special circumstance of murder in the commission or attempted commission of kidnapping but was not separately charged with the offense of kidnapping. The defendant claimed the trial court erred in refusing his requested instruction on felony false imprisonment as a lesser included offense of kidnapping. The Kelly court rejected the defendant's claim because there was no evidence that the special circumstance offense was less than kidnapping—i.e., there was no evidence that the defendant committed a false imprisonment but not a kidnapping. (Id. at pp. 958-959.) Because the Kelly court did not reject the defendant's claim on the ground the defendant was not separately charged with kidnapping, Gomez argues the court apparently accepted the defendant's view that, in Gomez's words, "false imprisonment is a lesser included offense to the special circumstance of murder by kidnapping."
We reject Gomez's suggestion that the Kelly court's silence on the question of whether there is a general duty to instruct on false imprisonment as a lesser included offense of kidnapping, when kidnapping is alleged as a special circumstance but is not separately charged, supports the proposition that such instruction is required unless there is no evidence that the offense was less than kidnapping. "[A] judicial decision is not authority for a point that was not actually raised and resolved." (Fairbanks v. Superior Court (2009) 46 Cal.4th 56, 64; People v. Knoller (2007) 41 Cal.4th 139, 154-155.) The resolution of Gomez's assignment of error is governed by the Supreme Court's clear and repeated holding that a trial court is not required to instruct on a lesser included offense of a greater offense that is not separately charged. The court did not err in failing to instruct on false imprisonment as a lesser included offense of kidnapping.
IV. Failure to Instruct that a Coconspirator Can Be Convicted of a Lesser Offense than
the Perpetrator
Gomez contends the court erred in failing to instruct the jury that as a coconspirator, she could be convicted of a lesser offense than the perpetrator Salinas. She relies on authority that under the natural and probable consequences doctrine, an aider and abettor or a coconspirator can be guilty of a crime less serious than the crime committed by the principal. As noted in People v. Prettyman (1996) 14 Cal.4th 248, "when the prosecution contends that the defendant is guilty as an accomplice under the 'natural and probable consequences' doctrine, the defendant 'does not stand in the same position as the perpetrator'; hence, 'the aider and abettor and the perpetrator may have differing degrees of guilt based on the same conduct depending on which of the perpetrator's criminal acts were reasonably foreseeable under the circumstances and which were not.' " (Id. at pp. 275-276, quoting People v. Woods (1992) 8 Cal.App.4th 1570, 1586-1587.)
In People v. Hart (2009) 176 Cal.App.4th 662 (Hart), one of two defendants convicted of attempted premeditated murder was charged with aider and abettor liability for the attempted murder, which occurred during the commission of an attempted robbery. The trial court instructed the jury to decide whether " 'a reasonable person in the defendant's position would have known that the commission of the attempted murder or assault with a firearm was a natural and probable consequence of the commission of the attempted robbery.' " (Id. at p. 670.) The Court of Appeal decided the trial court erred by not instructing "the jury that, in order to find [the defendant] guilty of attempted premeditated murder as an aider and abettor under the natural and probable consequences doctrine, the jury would have to find that attempted premeditated murder is a natural and probable consequence of the attempted robbery." (Ibid.)The Court of Appeal concluded the instructions the trial court gave were insufficient to inform the jury that it could find "attempted unpremeditated murder was a natural and probable consequence of the attempted robbery and that attempted premeditated murder was not a natural and probable consequence . . . ." (Ibid., italics added.)
Relying on Hart, Gomez argues that the jury here should have been instructed that to find her guilty of first degree premeditated murder, it would have to find that premeditated murder, not simply murder, was a natural and probable consequence of the robbery. She further argues that the jury should have been informed that it could find her guilty of second degree murder even if it found the perpetrator guilty of first degree murder.
We reject this claim of instructional error because under the theories presented by the jury instructions, there was no factual basis for the jury to convict Gomez of a lesser homicide offense than first degree murder. The court instructed the jury that Gomez was being prosecuted for first degree murder under three theories: (1) premeditated murder; (2) murder by lying in wait and (3) the felony-murder rule with robbery or attempted robbery as the target offense. The court instructed on the natural and probable consequences doctrine as part of its instruction on coconspirator liability (CALCRIM No. 417) However, because the only crimes specified as being the subject of a conspiracy were robbery and murder, the court's instruction on the natural and probable consequences doctrine was superfluous.
Lying in wait is " 'the functional equivalent of proof of premeditation, deliberation and intent to kill.' [Citation.] Thus, a showing of lying in wait obviates the necessity of separately proving premeditation and deliberation . . . ." (People v. Hardy (1992) 2 Cal.4th 86, 162.)
The court instructed the jury with CALCRIM No. 417 as follows: "A member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy commits the crime. [¶] A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] A member of a conspiracy is not criminally responsible for the act of another member if that act does not further the common plan or is not a natural and probable consequence of the common plan. [¶] To prove that defendant is guilty of the crime charged in Count 1, based on a theory of conspiracy, the People must prove that: [¶] 1. The defendant conspired to commit one of the following crimes: ROBBERY and/or MURDER; [¶] 2. A member of the conspiracy committed MURDER to further the conspiracy; AND [¶] 3. MURDER was a natural and probable consequence of the common plan or design of the crime that the defendant conspired to commit. [¶] The defendant is not responsible for the acts of another person who was not a member of the conspiracy even if the acts of the other person helped accomplish the goal of the conspiracy. [¶] A conspiracy member is not responsible for the acts of other conspiracy members that are done after the goal of the conspiracy had been accomplished."
With respect to conspiracy to commit robbery, the instruction on the natural and probable consequences doctrine was superfluous because the prosecution pursued a felony-murder theory of first degree murder based on evidence that the murder was committed during the commission of a robbery. "Penal Code section 189 provides that any killing committed in the perpetration of specified felonies, including robbery, is first degree murder. Under long-established rules of criminal complicity, liability for such a murder extends to all persons 'jointly engaged at the time of such killing in the perpetration of or an attempt to perpetrate the crime of robbery' [citation] 'when one of them kills while acting in furtherance of the common design.' " (People v. Pulido (1997) 15 Cal.4th 713, 716, fn. omitted.) Moreover, any killing committed during the commission of a robbery is first degree murder under the felony-murder rule, even if the killing was not a natural and probable consequence and was unforeseeable. (People v. Escobar (1996) 48 Cal.App.4th 999, 1019, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 923-925; People v. Anderson (1991) 233 Cal.App.3d 1646, 1658.)
"For purposes of complicity in a cofelon's homicidal act, '[t]he conspirator and the abettor stand in the same position.' [Citation.] In stating the rule of felony-murder complicity [the California Supreme Court has] not distinguished accomplices whose responsibility for the underlying felony was pursuant to prior agreement (conspirators) from those who intentionally assisted without such agreement (aiders and abettors)." (People v. Pulido, supra, 15 Cal.4th at p. 724.)
With respect to conspiracy to commit murder, the instruction on the natural and probable consequences doctrine was superfluous because murder committed in furtherance of a conspiracy to commit murder is necessarily first degree premeditated murder. (People v. Cortez (1998) 18 Cal.4th 1223, 1231-1232, 1237 [all conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder].) In short, whether Ravida's murder was a natural and probable consequence of the alleged conspiracy to rob or murder him is immaterial because Gomez is guilty of first degree murder in any event either under the felony-murder rule or for having conspired to commit the murder.
Accordingly, we conclude that the court did not err in failing to instruct the jury that Gomez, as a coconspirator, could be convicted of a lesser offense than the perpetrator. To the extent the giving of a superfluous instruction on the natural and probable consequences doctrine was error, it was harmless (i.e., it did not implicate Gomez's rights under the United States Constitution or result in a " 'miscarriage of justice' " within the meaning of the California Constitution). (Cal. Const., art. VI, § 13.) (People v. Prettyman, supra, 14 Cal.4th at pp. 283-284, conc. opn. of Baxter, J.; People v. Crew (2003) 31 Cal.4th 822, 849; People v. Wallace (2008) 44 Cal.4th 1032, 1076 [superfluous instruction was harmless error].)
V. Denial of Mistrial Motion Based on Inadvertent Admission of Polygraph Evidence
Gomez contends the court erred in denying her motion for a mistrial after evidence of her having taken and failed a polygraph test was inadvertently put before the jury. At issue are three polygraph references made during the police interviews of Gomez. The court had ruled pretrial that polygraph references in the interviews would not be admitted.
The video recording of Gomez's interview at the sheriff's station on February 7, 2006 was played for the jury and the jury was given transcripts of the interview. The court adjourned for the day before the entire interview was played and the recording was stopped at page 38 of the transcript. After the jurors left the courtroom, Gomez's counsel pointed out that on page 39 of the transcript, Investigator Dorsey said to Gomez, "If I were to ask you that question on a polygraph . . . ." The court released the videotape and transcripts to the prosecution and directed that the polygraph reference be redacted from them.
The full context of Dorsey's polygraph reference on page 39 of the transcript is as follows: "And you have no idea who these individuals are that shot your dad? If I were to ask you that question on a polygraph, do you know for sure who shot your dad that night, how would you answer that?" Gomez responded, "No."
When the trial resumed, the recording of the police interview continued to be played for the jury from the point where it was stopped. Salinas's counsel interrupted the playback and in a discussion outside the presence of the jury, the court stated: "The DVD was cued up again and played. A portion of the word 'polygraph' was heard by the Court." The court and Gomez's counsel noted that the word "polygraph" did not appear in the transcript of the interview. Salinas's counsel's suggested, and Gomez's counsel agreed, that polygraph references in the video and transcript should be redacted, but the court should not draw further attention to the references "by any instructions or anything of that nature."
The playing of the video recording for the jury continued at page 41 of the interview transcript. The playback was stopped at page 60 of the transcript of Gomez's interview by Masson and Waters, and out of the presence of the jury, the court noted that on the following page, Masson said, "Only because you know these people doesn't make you a bad person." Gomez responded, "I don't know those people." Masson then said, "Well, yeah you do, because the test said." After excusing the jury for lunch, the court again directed that the juror's transcripts be collected and the "test" reference be redacted from the transcripts and the video recording.
When the trial resumed, the jury viewed the video recording of Gomez's police interview to its conclusion. The court then excused the jury for a 15-minute recess and pointed out to counsel that on page 2 of the transcript of Gomez's interview with Masson and Waters, Masson said to Gomez, "I know for a fact you probably knew you were going to fail this." The court noted the reference "could mean many things, but we know what it's referring to." However, the court also noted that the reference was "said in the general context, without saying 'polygraph' or anything about what it was that was going to be failed. It could very well be [that the reference meant Gomez would] fail in continuing to tell something that was untrue."
The court suggested three options regarding the reference: (1) do nothing; (2) instruct the jury presently that the "fail this" reference "should not be considered in any way, shape, or form, and they should disregard that sentence in its entirety"; or (3) instruct the jury "at the end" not to consider in deciding the case whether a polygraph test was or was not taken. Salinas's counsel and Gomez's counsel expressed their preference that the polygraph references not be highlighted at that point. However, noting the possibility that some jurors may have read ahead of the video recording and read the references to a "polygraph" and "test" in the transcript, Gomez's counsel moved for a mistrial and Salinas's counsel joined in the motion. The court denied the motion and stated it would instruct the jury at the conclusion of the case to disregard those references and not speculate as to whether a polygraph test was given.
The court ultimately instructed the jury regarding Masson's "fail this" reference as follows: "During the trial, law enforcement's interviews with Joanna Gomez were presented both audibly and visually . . . . Within the first paragraph on the last numbered page 2, line 9, Detective Masson states[,] 'I know for a fact you probably knew you were going to fail this.' Jurors should not assume and must not speculate that the statement by Detective Masson had any meaning or reference to any kind of test or exam."
Evidence Code section 351.1 prohibits the admission of evidence of the results of a polygraph examination, unless all parties stipulate to the admission of the results. The statute also excludes evidence of any reference to the taking of a polygraph examination. The statute's "firm and broad exclusion is justified by the unreliable nature of polygraph results, by the concern that jurors will attach unjustified significance to the fact of or the outcome of such examination and because the introduction of polygraph evidence can negatively affect the jury's appreciation of its exclusive power to judge credibility." (People v. Basuta (2001) 94 Cal.App.4th 370, 390.)
Evidence Code section 351.1 states: "(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding ... unless all parties stipulate to the admission of such results. [¶] (b) Nothing in this section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible."
We review the denial of a motion for mistrial for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 953 (Cox), disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) " ' "A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." ' " (Cox, at p. 953.)
We conclude the polygraph references that were inadvertently presented to the jury did not incurably prejudice Gomez and, therefore, the trial court did not abuse its discretion in denying the motion for a mistrial. The first reference was Investigator Dorsey's asking Gomez what her answer would be if she were asked in a polygraph examination if she knew who shot her father. Gomez responded that her answer would be "No." Dorsey's question did not communicate that Gomez had actually taken a polygraph test, and Gomez's assertion that a polygraph examination would not cause her to change her story tends to support rather than undermine her credibility at that point in the interview. (See People v. Harris (1979) 93 Cal.App.3d 103, 120 [defendant's testimony that he told police he was willing to take a lie detector test was helpful rather than prejudicial to him because it tended to show he believed he was telling the truth].)
The second reference—Masson's assertion that Gomez knew the perpetrators "because the test said"—was redacted before that portion of the recorded interview was played to the jury. The third reference was Masson's statement that Gomez "probably knew [she was] going to fail this." As the trial court noted, Masson did not specify what Gomez was going to fail, and the jury very well could have thought he was referring to Gomez's failure to convince the police that her initial story was true. Under the circumstances, the court could reasonably conclude the reference was not incurably prejudicial, particularly in light of the court's stated intent to give a curative instruction at the conclusion of the case and the court's ultimate instruction that the jury "should not assume and must not speculate that the ['fail this'] statement by Detective Masson had any meaning or reference to any kind of test or exam." Because none of the polygraph references expressly communicated to the jury that Gomez had taken a polygraph test, much less that she had failed one, the court could reasonably conclude they were not incurably prejudicial.
Even if we were to assume that the jury gleaned from the three polygraph references that Gomez had taken a polygraph test and the test showed she was lying to the police, we would still conclude the references did not prejudice her. All three of the references occurred at points in the police interview before Gomez abandoned her initial story about being an innocent victim of a carjacking. Any perception that Gomez had failed a polygraph examination when she was adhering to her admittedly false story could not have prejudiced the jury's assessment of her credibility any more than her own admission to the police that she had been lying to them. The court did not abuse its discretion in denying the motion for a mistrial.
VI. Exclusion of Evidence of Gomez's Emotional State At Ravida's Funeral
Gomez contends the court prejudicially erred by excluding evidence of her emotional state at Ravida's funeral while allowing the prosecution to elicit evidence that she failed to show emotion over Ravida's death at other times. Gomez argues the error was exacerbated by the prosecutor's emphasizing, in argument to the jury, her failure to show emotion over Ravida's murder, and the fact that the court ruled that evidence of her lack of emotion was relevant but whether she showed emotion at Ravida's funeral was irrelevant. Gomez does not dispute the relevance of the evidence of her lack of emotion, but contends that if her emotional state was relevant to the prosecution's case, fairness dictates it was relevant to her defense as well, and that the court employed a "double standard" by excluding evidence of her emotional state at Ravida's funeral. The evidentiary ruling Gomez specifically challenges occurred during Gomez's counsel's cross-examination of Batista. Counsel asked, "At the funeral, [Gomez] was visibly upset. Correct?" The prosecutor objected on the ground of relevance and the court sustained the objection.
Gomez cites the prosecutor's following argument regarding her emotional state during police interviews: "And as she's telling the story, Joanna Gomez, oftentimes there's no emotion. The crying, the hysterics, did you notice, always occurred when she was being confronted with the nonsense, the BS. That's when she would act all hysterical and start crying. She could describe the murder just fine. She could describe watching her father getting his brain blown out just fine. But once they started to put pressure on her about the things that they knew she knew or the BS that she was feeding them, she got a little bit hysterical, crying. Fake crying. No tears. Because those were all—she was all teared out."
The prosecutor later argued: "Gomez gives her first statement at Riverside Community Hospital. There's no emotional reaction from her. She's not crying."
Finally, Gomez cites the following argument by the prosecutor: "Being the sweet little baby girl daughter of Joseph Ravida, she says I wouldn't do that, and she's crying. She's bawling. But of course, the pressure's being put on. She's not crying for her father. She's crying because she does—she's backed up in a corner and has got to do something. 'I wouldn't do that to my dad. I wouldn't put him through all that. My dad is very fragile."
Gomez's citations to the record do not show an express ruling that evidence of her lack of emotion was relevant. In her opening brief, Gomez cites the portion of the reporter's transcript where the prosecutor asked Christina Gomez if Salinas (not Gomez) appeared surprised about Ravida's murder when he came to the hospital to see Gomez on the night of the incident. Salinas's counsel objected, not on the ground of relevance, but on the ground the question called for speculation. The court overruled the objection, stating, "You can describe the demeanor and behavior that you observed." Christina then testified that Salinas said he was sorry about what happened but did not act startled or shocked. Gomez also cites Christina's testimony that Salinas did not "scream out" or act surprised when she told him over the phone that Gomez was in the hospital. Salinas's counsel also unsuccessfully objected to this testimony on the ground it was speculative. The only evidence Gomez cites indicating her own lack of emotion regarding Ravida's death is the testimony of Deputy Marker that Gomez never asked him about Ravida when he interviewed her at the hospital shortly after the incident. However, there was no objection to this testimony.
Although it does not pertain to Ravida's death or reflect a lack of emotion on her part, Gomez also cites the prosecutor's asking Christina if she (Gomez) appeared to be surprised when Salinas asked Christina to loan him $100,000. Over Salinas's counsel's objection on the ground the question called for speculation, Christina answered: "Yes . . . . I didn't think she knew what he was discussing—going to discuss with me."
We review the trial court's rulings on the admissibility of evidence for abuse of discretion. (People v. Riggs (2008) 44 Cal.4th 248, 290.) "Only relevant evidence is admissible, and the trial court has broad discretion to determine the relevance of evidence."(People v. Cash, supra, 28 Cal.4th at p. 727.) A trial court abuses its discretion when its ruling exceeds the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.) The erroneous admission of evidence warrants reversal of a judgment only if the reviewing court concludes is reasonably probable that a more favorable result would have been reached in the absence of the error. (People v. Mullens (2004) 119 Cal.App.4th 648, 658-659; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
We find no abuse of discretion in the trial court's exclusion of Batista's testimony about Gomez's emotional state at Ravida's funeral on the ground it was irrelevant. The court could reasonably conclude that evidence of Gomez's emotional state at Ravida's funeral, where Gomez was in the company of Ravida's friends and family members, was of such marginal relevance to her guilt or innocence of the charged offenses that it was properly excluded. Moreover, there was no objection to Deputy Marker's testimony about Gomez's lack of emotion shortly after having witnessed her father's murder, and Gomez cites no ruling by the court addressing the admissibility or relevance of any evidence concerning her lack of emotion over Ravida's death. Thus, the record does not support Gomez's suggestion that the court applied a double standard by admitting evidence of her lack of emotion while sustaining the prosecution's objection to Batista's testimony regarding Gomez's emotional state at Ravida's funeral. The fact that the prosecution presented argument regarding Gomez's failure to show sorrow over Ravida's death during police interviews does not transform the court's exclusion of Batista's testimony about Gomez's emotional state at Ravida's funeral into an abuse of discretion.
In any event, as the People point out, the exclusion of Batista's testimony about Gomez's emotional state at Ravida's funeral did not prejudice Gomez because Ravida's brother, Benjamin Ravida, testified, without objection, that Gomez approached him at the funeral, addressed him as "Uncle Ben," hugged him and said she was really sorry, and that they were both crying. Gomez argues that Benjamin Ravida's testimony is a "far cry" from allowing the jury to hear similar testimony from Batista, "the woman whom Ravida had intended to marry and with whom Gomez had spent so much time growing up." We disagree. The issue Gomez raises is whether the jury was improperly precluded from hearing testimony that she expressed grief at Ravida's funeral. We fail to see why eye witness testimony from Benjamin Ravida that Gomez cried at the funeral would carry any less weight than similar testimony from Batista, and we conclude it is not reasonably probable that allowing such testimony by Batista would have resulted in a verdict more favorable to Gomez. The trial court did not abuse its discretion in excluding Batista's testimony about Gomez's emotional state at Ravida's funeral and, in any event, Gomez was not prejudiced by the exclusion of that testimony.
SALINAS'S APPEAL
I. Denial of Motion to Sever Trial
Salinas contends that the trial court prejudicially erred in denying his pretrial motion to sever his trial from Gomez's trial and that his trial counsel's failure to argue antagonistic defenses as a ground for the motion constituted ineffective assistance of counsel. Salinas moved for severance on the ground Gomez's statements to the police implicated him in Ravida's murder and therefore violated his rights under People v. Aranda (1965) 63 Cal.2d 518(Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton). In their opposition to the severance motion, the People argued that Aranda/Bruton did not mandate separate trials. The People argued that any admissible statements by Gomez that incriminated Salinas were not prejudicial in light of Salinas's "implied admissions of his knowledge and involvement in the crime," which he made during his phone conversation with Gomez while she was being interviewed by the police (the "pretext call"), and his own later unsolicited admissions. The People also briefed the law regarding antagonistic defenses as a possible ground for trial severance, but provided no analysis applying that law to the instant case.
Gomez forfeited the right to challenge, through joinder, the denial of Salinas's severance motion because she did not join in the motion in the trial court. (People v. Mitcham (1992) 1 Cal.4th 1027, 1048.)
See ante, fn. 4.
In a separate trial brief regarding coconspirator statements, the People argued that Gomez's statements to Salinas that incriminated him during the pretext call were admissible as adoptive admissions. During the hearing on the severance motion, the court noted that it was admitting the pretext call for reasons other than conspiracy, stating it "has allowed it in because it is, in essence, adoptive admissions, statements that could be [but were not] refuted or otherwise questioned by . . . Salinas." The court denied the severance motion, but ordered that all references to Salinas be redacted from the recording and transcript of Gomez's police interviews on February 7, 2006, to avoid having to use two juries to try the case.
The court later reiterated that the incriminating statements in the pretext call were admissible against Salinas as adoptive admissions, noting they were admissible "not even for the truth of what's being stated by Miss Gomez, but instead, it is the reaction and statements that are made by Mr. Salinas as adoptive admissions, and his tone and his statements—his reaction and actions as a result of hearing those statements."
"Section 1098 expresses a legislative preference for joint trials. The statute provides in pertinent part: 'When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.' [Citations.] Joint trials are favored because they 'promote [economy and] efficiency' and ' "serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." ' [Citation.] When defendants are charged with having committed 'common crimes involving common events and victims,' . . . the court is presented with a ' "classic case" ' for a joint trial." (People v. Coffman (2004) 34 Cal.4th 1, 40 (Coffman).)
Generally, "[w]e review a trial court's denial of a severance motion for abuse of discretion based on the facts as they appeared when the court ruled on the motion. [Citation.] If we conclude the trial court abused its discretion, reversal is required only if it is reasonably probable that the defendant would have obtained a more favorable result at a separate trial. [Citations.] If the court's joinder ruling was proper when it was made, however, we may reverse a judgment only on a showing that joinder ' "resulted in 'gross unfairness' amounting to a denial of due process." ' [Citation.]" (People v. Lewis (2008) 43 Cal.4th 415, 452 (Lewis).)
When a joint trial results in the admission of an out-of-court statement by a codefendant that incriminates the defendant, the determination of whether the defendant was denied due process generally centers on whether the admission violated the defendant's rights under Aranda and Bruton. In Lewis, the California Supreme Court explained that "[i]n Bruton, the United States Supreme Court held that the admission into evidence at a joint trial of a nontestifying codefendant's confession implicating the defendant violates the defendant's right to cross-examination guaranteed by the confrontation clause [of the Sixth Amendment to the United States Constitution], even if the jury is instructed to disregard the confession in determining the guilt or innocence of the defendant. [Citation.] The high court reasoned that although juries ordinarily can and will follow a judge's instructions to disregard inadmissible evidence, 'there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.' [Citation.] Such a context is presented when 'the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.' [Citation.]" (Lewis, supra, 43 Cal.4th at p. 453, citing Bruton, supra, 391 U.S. at pp. 127-128, 135-136.)
Three years before Bruton, the California Supreme Court in Aranda "had come to a similar conclusion on state law grounds, but . . . also concluded that the codefendant's confession may be introduced at the joint trial if it can be edited to eliminate references to the defendant without prejudice to the confessing codefendant. [Citation.] If not, and the prosecution insists on introducing the confession, the trial court must sever the trials. [Citation.]" (Lewis, supra, 43 Cal.4th at p. 454, citing Aranda, supra, 63 Cal.2d at pp. 530-531.) Lewis noted that the United States Supreme Court similarly limited the scope of Bruton in Richardson v. Marsh (1987) 481 U.S. 200 (Richardson), which held that " 'the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.' [Citation.]" (Lewis, at p. 454, quoting Richardson, at p. 211, italics added by Lewis.) Because Aranda/Bruton error implicates a constitutional right, it is generally reviewed under the harmless error beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18. (Brown v. United States (1973) 411 U.S. 223, 231-232; People v. Anderson (1987) 43 Cal.3d 1104, 1128.)
To the extent Aranda requires the exclusion of evidence not required to be excluded under federal Constitution, it was abrogated by Proposition 8 (Cal. Const., art. I, § 28, subd. (d).) (People v. Fletcher (1996) 13 Cal.4th 451, 465.)
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We conclude the court acted within its discretion in denying the severance motion on the condition that all references to Salinas were redacted from Gomez's police interviews. This was a " ' "classic case" ' " for a joint trial, because Gomez and Salinas were mutually charged with the same crimes arising from the same events. (Coffman, supra, 34 Cal.4th at p. 40; People v. Letner (2010) 50 Cal.4th 99, 150.) The redactions from Gomez's interviews removed all of her " 'powerfully incriminating' " (Lewis, supra, 43 Cal.4th at p. 453) references to Salinas, leaving only her statement confirming Investigator Masson's observation that her "boyfriend lived right around the corner" from the crime scene. Thus, before her pretext call conversations with Salinas, her police interview directly implicated only her, "Freddy," and an unidentified accomplice.
The admission of the pretext call did not violate Salinas's Aranda/Bruton rights because Salinas effectively admitted his involvement in the crime during the call through his own statements and adoptive admissions that would have been admissible against him in a separate trial. The adoptive admissions rule is codified in Evidence Code section 1221 as follows: "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth."
Under the adoptive admissions rule, when a third party makes a statement implicating the defendant in a crime under circumstances fairly affording the defendant the opportunity to hear, understand, and reply, the statement may be admissible in evidence as an adoptive admission of guilt when the defendant (1) explicitly agrees with the incriminating statement; or (2) acquiesces to it by remaining silent for reasons other than reliance on the right of silence guaranteed by the Fifth Amendment to the United States Constitution; or (3) makes an evasive or equivocal reply. (People v. Combs, supra, 34 Cal.4th at pp. 842-843; People v. Riel (2000) 22 Cal.4th 1153, 1189 (Riel).) Both the statement coupled with the fact of silence or equivocation may be admitted in evidence as an implied or adoptive admission of guilt. (Riel, at p. 1189.) The theory underlying the adoptive admission rule is that "the natural reaction of an innocent man to an untrue accusation is to enter a prompt denial," and his failure to do so permits an inference of acquiescence in the truth of that accusation. (People v. Simmons (1946) 28 Cal.2d 699, 712.)
As the trial court noted here, Salinas through acquiescence or silence during the pretext call conversations with Gomez made adoptive admissions implicating him in Ravida's murder, including the admissions that she and Salinas had "talked about it, . . . that we had a plan"; that "the plan was that you guys were just going to take the car and the money, and nothing was supposed to happen to me and my dad"; that "Freddy and this other guy" were the perpetrators; and that Salinas had "set it up" and told Gomez where to meet the perpetrators.
Salinas argues the court prejudicially erred in denying his severance motion because his and Gomez's antagonistic defenses necessitated separate trials. The California Supreme Court has "cautioned that a joint trial is not unfair simply because the codefendants 'have antagonistic defenses and one defendant gives testimony that is damaging to the other and thus helpful to the prosecution. [Citations.]' [Citation.] If the likelihood of antagonistic testimony alone required separate trials, they 'would appear to be mandatory in almost every case.' " (People v. Keenan (1988) 46 Cal.3d 478, 500, fn. omitted.)
The Supreme Court has further noted that" ' "[a]lthough several California decisions have stated that the existence of conflicting defenses may compel severance of codefendants' trials, none has found an abuse of discretion or reversed a conviction on this basis." ' " (Coffman, supra, 34 Cal.4th at p. 41.) " ' "[T]o obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.' [Citation.] When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance." (Ibid.)
Salinas's alibi and factual innocence defense did not prejudicially conflict with Gomez's defense that she participated only in a plan to rob, and not a plan to murder, as much as it prejudicially conflicted with his own statements and adoptive admissions during the pretext call that he was a participant in that plan. There was sufficient independent evidence of Salinas's involvement in the charged crimes apart from the story Gomez told the police; it was not the conflict between his and Gomez's defenses alone that demonstrated his guilt. Accordingly, antagonistic defenses did not compel severance. (Coffman, supra, 34 Cal.4th at p. 41.)
Further, the trial was not grossly unfair to Salinas. Salinas was given the opportunity to testify and establish his defense. His testimony explaining his incriminating statements to Gomez during the pretext call—statements that would have been admissible against him in a separate trial—was highly unbelievable and frequently nonsensical. To the extent the court erred in admitting any statements that Gomez made to the police before the pretext call, the error was harmless beyond a reasonable doubt in light of Salinas's own statements and adoptive admissions during the pretext call showing that he participated in the robbery that led to Ravida's murder.
We reject Salinas's contention that his counsel's failure to argue antagonistic defenses constituted prejudicially ineffective assistance of counsel. "To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citations.] 'When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. "If the record sheds no light on why counsel acted or failed to act in the manner challenged, 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' [citation], the contention must be rejected." ' [Citations.]" (People v. Samayoa (1997) 15 Cal.4th 795, 845-846.) Since the failure of either prong of an ineffective assistance of counsel claim (defective representation or prejudice) is fatal to establishing the claim, we need not address both prongs if we conclude appellant cannot prevail on one of them. (People v. Cox (1991) 53 Cal.3d 618, 656, disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22, and superseded by statute on other grounds as stated in Jones v. Superior Court (1994) 26 Cal.App.4th 1202, 1210; Strickland v. Washington (1984) 466 U.S. 668, 697.)
Here, Salinas was not prejudiced by his counsel's failure to argue antagonistic defenses because the People raised the issue in their opposition to the severance motion and the court presumably considered it. In any event, it was not objectively unreasonable under prevailing professional norms for Salinas's counsel to forego an antagonistic defense argument in support of severance because counsel could reasonably conclude that the argument would fail—i.e., that the conflict between Salinas's defense and Gomez's defense was not so prejudicial that the defenses were irreconcilable—and that there was sufficient independent evidence against Salinas apart from the conflict between his and Gomez's defenses. (Coffman, supra, 34 Cal.4th at p. 41.)
The trial court's denial of Salinas's severance motion was not prejudicial error, and Salinas's counsel's failure to argue antagonistic defenses as a ground for the motion did not constitute prejudicially ineffective assistance of counsel.
ERROR IN SENTENCING MINUTES AND ABSTRACT OF JUDGMENT
The People point out that the minutes of the sentencing hearing incorrectly reflect that the trial court struck the special circumstance enhancements as to both Gomez and Salinas, and that the minutes and abstract of judgment as to Salinas incorrectly state that he was sentenced to life with the possibility of parole. Our review of the record reveals that the court sentenced both Salinas and Gomez to life without the possibility of parole based on the jury's verdict on the murder charges and true findings on special circumstance allegations as to both defendants, namely, the true findings on the robbery, kidnapping, and lying in wait allegations as to Salinas and on the robbery and kidnapping allegations as to Gomez. However, the court minutes from the sentencing hearing state that all three special circumstance enhancements are stricken as to both defendants, and the abstracts of judgment accordingly reflect no enhancements. We will direct the trial court to correct the court minutes and abstracts of judgment to reflect (1) the jury's true findings on all three special circumstance allegations and the sentence of life without the possibility of parole as to Salinas, and (2) the true findings on the robbery and kidnapping special circumstance allegations as to Gomez.
DISPOSITION
As to appellant Gomez, the trial court is directed to correct its minutes from the sentencing hearing of October 23, 2009 and the abstract of judgment to reflect the sentencing enhancement based on the true findings that the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17)(A), and a kidnapping (§190.2, subd. (a)(17)(B). As to appellant Salinas, the trial court is directed to correct its minutes from the sentencing hearing of October 23, 2009 and the abstract of judgment to reflect the sentencing enhancement based on the true findings that the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17)(A), and a kidnapping (§190.2, subd. (a)(17)(B), and by means of lying in wait (§ 190.2, subd. (a)(15), and to reflect that Salinas was sentenced to life without the possibility of parole. The trial court is further directed to forward a copy of the corrected abstracts of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
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O'ROURKE, J.
WE CONCUR:
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BENKE, Acting P. J.
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HUFFMAN, J.