Opinion
NOT TO BE PUBLISHED
Kathryne Ann Stoltz, Judge, Superior Court County of Los Angeles, No. LA050081
Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Alejandro Lomeli appeals a judgment following conviction of second degree murder, with a finding that he personally used a deadly and dangerous weapon during commission of the crime. (Pen. Code, §§ 187, subd. (a), 189, 12022, subd. (b)(1).) We affirm.
All further statutory references are to the Penal Code unless stated otherwise.
FACTS AND PROCEDURAL HISTORY
In the early morning of September 5, 2005, Los Angeles firefighters extinguished a vehicle fire near Foothill Boulevard and Osborne Street. Police officers arrived later and found the charred remains of Eduardo Escoto inside the vehicle. A medical examiner performed an autopsy on the severely burned body and concluded that Escoto died from asphyxia due to strangulation. The examiner found ligature wounds and a skull fracture consistent with a moderate-to-severe blow to the head.
In 2005, Maria and Ramon Santacruz and their five children lived in North Hollywood. Escoto, Maria's brother, resided with the family. Maria informed her daughter Adriana that Escoto had been accused of rape and had impregnated several young women when he lived in Mexico.
Adriana began a sexual relationship with Escoto when she was 15 years old. Although he physically and sexually abused her, she considered him a boyfriend and dated him for several years.
In February 2005, Lomeli returned from the Iraq war and began dating Adriana's younger sister, Diana. Lomeli was then 23 years old and Diana was 16 years old. In March 2005, Diana became pregnant.
Adriana confided in Lomeli that Escoto abused her and that he caused her pregnancy miscarriage. Lomeli advised her to end her relationship with Escoto and to inform her parents of the abuse. Adriana continued the relationship, however.
In 2005, Adriana learned that Escoto was dating her friend, Yemi, and that he had raped her. She stopped dating Escoto during this period, and informed Lomeli that Escoto had raped Yemi. In August 2005, Yemi's family formally complained to police officers regarding the rape.
When Diana was five months pregnant, Escoto raped her. Diana informed Lomeli, who became angry and stated that he "was going to do something about it." Lomeli stated that he intended to speak with Escoto and encourage him to leave the Santacruz household and the United States. Diana also informed Lomeli that Escoto had raped her previously when she was 14 years old.
Diana later informed her mother of the rape. Mrs. Santacruz did not ask Escoto to leave the residence, however. Neither Diana nor Mrs. Santacruz complained to police officers.
During Labor Day weekend in 2005, the Santacruz family traveled to Mexico. Escoto remained at the residence. Before the family left, Lomeli requested Diana to open a window because he had a surprise for her.
When the Santacruz family returned home, they found blood splatters throughout the residence. Escoto was not there and his bed linens and a carpet were missing. Diana found gifts from Lomeli, however, in her bedroom.
Several days later, police officers interviewed Jose Valenzuela, Yemi's father, as a suspect in Escoto's homicide. Valenzuela denied involvement and implicated Lomeli. Valenzuela informed the officers that Lomeli stated that "he was going to take care of that piece of shit [Escoto]." Several days prior to Escoto's death, Valenzuela met Lomeli and discussed Escoto's sexual abuse of Yemi, Diana, and Adriana. Valenzuela urged Lomeli to refrain from physical acts against Escoto, and to report the rapes to law enforcement instead. Lomeli stated that he wanted to visit Escoto, "knock on the door and then jump on him and then shoot him, stab him, take him, and burn him." Valenzuela later made a pretext telephone call to Lomeli in which Lomeli stated that he took care of "the job."
Police officers then arrested and interviewed Lomeli, who waived his constitutional rights and confessed to the homicide. Lomeli admitted that, with the assistance of his cousin Edgar Flores, he beat and strangled Escoto, carried his body to his (Escoto's) vehicle, drove to a remote area, and set the vehicle afire. Lomeli explained that he "snapped" when Diana informed him that Escoto raped her. He admitted that he thought about "teaching [Escoto] a lesson," and stopped at his aunt's house to obtain an aluminum baseball bat prior to visiting Escoto. Lomeli and Flores entered the Santacruz residence through the open window in Diana's bedroom, and they confronted Escoto. Lomeli stated that he "blanked out" as he struck Escoto with the bat, and continued "hitting him and hitting him." With Flores's assistance, the two men then strangled Escoto with an electrical cord "[s]o he could just completely die." At trial, the prosecutor played a recording of Lomeli's police interview.
Lomeli testified at trial that he and Flores entered the Santacruz residence by crawling through the bedroom window. He intended to "kick [Escoto's] ass" and force him from the residence. Lomeli stated that he became angry and could not control himself when Escoto smiled and laughed at him. He struck Escoto with his fists and the baseball bat. He and Flores then strangled him with an electrical cord to end his suffering. Lomeli denied stating to Valenzuela that he planned to kill Escoto and burn his body.
The jury convicted Lomeli of murder, but could not agree upon the degree. (§ 187, subd. (a).) It also found that Lomeli personally used a deadly and dangerous weapon during commission of the crime. (§ 12022, subd. (b)(1).) The trial court declared a mistrial regarding the degree of murder, and then entered a verdict of second degree murder pursuant to section 1157. It sentenced Lomeli to 16 years to life imprisonment, imposed a $200 restitution fine and a $200 parole revocation restitution fine, and awarded Lomeli 980 days of presentence custody credit.
Lomeli appeals and contends that the trial court erred by: 1) excluding evidence tending to impeach witness Valenzuela; 2) not instructing with a cautionary instruction regarding oral admissions; 3) not instructing regarding the requisite mental state for voluntary manslaughter; 4) instructing with CALCRIM No. 371, regarding defendant's attempt to conceal evidence; and 5) entering a second degree murder verdict after the jury could not agree upon the degree.
DISCUSSION
I.
Lomeli asserts that the trial court erred by excluding evidence tending to impeach witness Valenzuela. The evidence included Valenzuela's criminal record, ammunition and firearm parts found during a search of his residence, and a letter Yemi wrote stating the rape caused her a pregnancy miscarriage. He claims that the court's relevancy determinations were arbitrary and the error denied him the constitutional rights to a fair trial, to present a defense, to confront witnesses, and to due process of law. Lomeli argues the error is prejudicial under any standard of review.
The trial court permitted Lomeli to impeach Valenzuela with his recent conviction of possession of methamphetamine, but not with 15-year-old felony convictions. The trial court also ruled that Lomeli could not question Valenzuela regarding ammunition and firearm parts found in his home during a police search. The court reasoned that neither Valenzuela nor the interviewing police officers were aware of the contemporaneous search at the time of his police interview. Finally, the court determined that Yemi's letter was inadmissible hearsay evidence.
Thereafter, Lomeli questioned Valenzuela at trial regarding his recent arrest for methamphetamine and whether he received prosecutorial favors for his interview statement or testimony at trial. Valenzuela stated several times that he had a criminal record and acknowledged that he had "a rough past."
Generally, we review a ruling regarding the admissibility of evidence for an abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.) Evidence Code section 352 allows the trial court broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion, of consumption of time. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) "'[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.'" (People v. Ayala (2000) 23 Cal.4th 225, 301.)
Our Supreme Court has held repeatedly that not every restriction upon a defendant's desired method of cross-examination is a constitutional violation. (People v. Ayala, supra, 23 Cal.4th 225, 301.) "'Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.'" (Ibid.)
Lomeli has not established that the trial court abused its discretion or that his constitutional rights were impaired. Valenzuela acknowledged his recent conviction for possession of methamphetamine and his criminal record. The trial court properly acted to limit additional impeachment with unspecified remote felony convictions. Moreover, all parties were unaware of the ammunition discovery until trial proceedings. At the time he was interviewed, Valenzuela and his police interviewers were unaware of the result of the search of his residence. Finally, Yemi's letter was hearsay evidence of little relevance. Valenzuela stated that he was angry that Escoto raped his daughter and had thought of killing Escoto himself. Hearsay evidence of her pregnancy or miscarriage was of minimal relevance given Valenzuela's testimony.
Generally, application of the ordinary rules of evidence does not impermissibly infringe upon the accused's right to present a defense. (People v. Hall (1986) 41 Cal.3d 826, 834.) "Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice." (Ibid.) The trial court acted properly in precluding this impeachment evidence.
II.
Lomeli argues that the trial court erred by not instructing the jury to consider evidence of his unrecorded oral admissions with caution. He points out that the court omitted this sentence from CALCRIM No. 358: "You must consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded." He points out that Valenzuela testified that he (Lomeli) planned to kill and burn the victim. Lomeli asserts the error denied him due process of law and is prejudicial because the admissions were critical evidence of malice and intent to kill. (People v. Ford (1964) 60 Cal.2d 772, 800, overruled on other grounds by People v. Satchell (1971) 6 Cal.3d 28, 36-40 [failure to give cautionary instruction regarding oral admissions is prejudicial].)
Under any standard of review, the error is harmless. In a police interview, Lomeli admitted killing Escoto and burning his body. By then Valenzuela was no longer a suspect in the crime and had no reason to falsely accuse Lomeli at trial. CALCRIM No. 358 as given by the trial court counseled that the jury should decide whether defendant made any admissions and the importance to be given them. The instruction also stated that the jury could not convict Lomeli based upon his out-of-court statements alone. Moreover, at trial Lomeli denied stating to Valenzuela that he intended to kill and burn Escoto. (People v. Wilson (2008) 43 Cal.4th 1, 19 ["A defendant's simple denials about making the statements, along with uncontradicted testimony about his statements, may support the conclusion that the instructional error was harmless"]; People v. Dickey (2005) 35 Cal.4th 884, 905-906.) The court also thoroughly instructed regarding witness credibility and evaluation of conflicting evidence. Lomeli suffered no prejudice from the court's failure to give the complete instruction. (People v. Wilson, supra, 43 Cal.4th 1, 19-20.)
III.
Lomeli challenges CALCRIM No. 570, the standard jury instruction regarding voluntary manslaughter where murder is also charged, because it does not expressly state that the crime requires intent to kill or an act committed with conscious disregard for life. The omission, he asserts, allows a jury to view voluntary manslaughter "as a minor throwaway offense involving some mental state short of intent to kill or conscious disregard of life." Lomeli contends the error denied him due process of law, and the rights to present a defense, to a fair trial, and to a jury trial. He asserts the error is prejudicial and requires reversal.
We reject Lomeli's contentions. The trial court correctly instructed with CALCRIM Nos. 570 and 522, regarding voluntary manslaughter. CALCRIM No. 570 provides in part that "[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." CALCRIM No. 522 instructs the jury in part: "If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter." Lomeli did not object to either instruction, nor did he request modifications thereto. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 122 [a defendant forfeits his appellate challenge to an instruction by failing to request clarification].)
Lomeli supports his argument with speculation regarding jury deliberations and the voluntary manslaughter instruction. We presume that the jury follows the instructions of the court as a whole, however. (People v. Coffman and Marlow, supra, 34 Cal.4th 1, 122.) Here the trial court instructed with CALCRIM No. 251 (Union of Act and Intent - Specific Intent or Mental State); CALCRIM No. 500 (Homicide); CALCRIM No. 520 (Murder with Malice Aforethought); and CALCRIM No. 521 (Murder - Degrees). Lomeli's speculation is not supported by the appellate record. (People v. Hovarter (2008) 44 Cal.4th 983, 1005 [defendant's argument was "rank speculation... belied by the jury instructions"].)
Although CALCRIM No. 570 did not specifically inform the jury of the mental state required for voluntary manslaughter, the instructions as a whole adequately informed them regarding the acts and situations that would reduce the crime from murder to manslaughter. (People v. Genovese (2008) 168 Cal.App.4th 817, 831-832.) Moreover, CALCRIM No. 570 specifically instructed that "[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." (Genovese, at pp. 831-832 [no error in not instructing that intent to kill or acting with conscious disregard for life was essential element of voluntary manslaughter because instruction stated that killing that would otherwise be murder was reduced to voluntary manslaughter in certain circumstances].)
We also reject Lomeli's assertion of ineffective assistance of counsel for counsel's failure to request clarifying instructions regarding the mental state required for voluntary manslaughter. Given the trial court's complete instructions regarding murder and voluntary manslaughter and Lomeli's testimony at trial that he intended to kill Escoto, it is not reasonably probable that he would have obtained a more favorable result with clarifying instructions. (People v. Fairbank (1997) 16 Cal.4th 1223, 1241; People v. Mitchell (2008) 164 Cal.App.4th 442, 466-467.)
IV.
Lomeli contends that the trial court erred by instructing with CALCRIM No. 371, regarding an attempt to conceal evidence. The instruction states: "If the defendant tried to hide evidence, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself." Lomeli asserts that the instruction is not relevant to his state of mind at the time he committed the crime. (People v. Anderson (1968) 70 Cal.2d 15, 32 [evasive conduct establishes fear and is irrelevant to defendant's state of mind immediately prior to or during the killing].) He argues that the instruction denied him due process of law, the right to jury trial, and the right to a fair trial because it permits an irrational inference of guilt and reduces the prosecutor's burden of proof. Lomeli adds that the instruction is prejudicial error because it "elevated cover-up activity... into evidence of 'guilt.'"
The trial court did not err in instructing with CALCRIM No. 371 because Lomeli's conduct in burning Escoto's body and discarding the baseball bat permits a reasonable inference of premeditation - that he carefully planned Escoto's murder by, among other things, bringing along a baseball bat, and that he strangled the victim to ensure his death. Indeed, the medical examiner testified that the charred remains precluded discovery of additional wounds or bruising.
Moreover, the instruction does not direct the jury to infer guilt and does not give rise to an irrational presumption of guilt. "Because [the consciousness of guilt instruction] instructed the jury to infer a consciousness of guilt only if it first found from the evidence that defendant[] had engaged in the described conduct, and further informed the jury such evidence was not, by itself, sufficient to prove guilt, the instructions properly guided the jury's consideration of the evidence and did not lessen the prosecution's burden of proof." (People v. Coffman and Marlow, supra, 34 Cal.4th 1, 102.) CALCRIM No. 371 also instructs that the jury may decide "the meaning and importance" of any attempt to hide evidence.
For argument purposes, assuming that the instruction lacked evidentiary support, it is harmless when measured by any standard. (People v. Jackson (1996) 13 Cal.4th 1164, 1225 [review of CALJIC No. 2.04 regarding defendant's attempt to fabricate evidence].) At worst, it was superfluous. (Ibid.)
V.
Lomeli objects to the form of the jury verdict and the trial court's procedure that permitted the jury to decide his guilt of murder prior to agreeing upon the degree. He asserts that the trial court erred by entering a second degree murder verdict because it "hijacked [his] chance at valuable retrial at the discretion of the prosecution." Lomeli contends the prejudicial error denied him procedural and substantive due process of law and the rights to a fair trial and a jury determination of every issue.
The trial court properly entered a second degree murder verdict under the circumstances.
The trial court instructed with CALCRIM No. 3517, which instructed the jury to decide the order in which it considered each crime and the relevant evidence, but to determine guilt of murder prior to determining guilt of voluntary manslaughter: "If all of you find that the defendant is not guilty of the crime of Murder, as charged, you may find him guilty of the lesser crime of Voluntary Manslaughter, if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime.... [¶] It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of the lesser crime only if you have found the defendant not guilty of the greater crime." The verdict form provided for a separate finding regarding the degree of murder. Neither party objected to the instruction or the form of the verdict. The court also instructed that "assuming [the jury] find[s] murder in the first place... [the jury has] to make a further finding that it's first-degree murder or second-degree murder."
Upon receiving a jury note indicating that the jury was unable to agree, the trial court summoned the jurors into the courtroom. During the colloquy that ensued, the foreperson volunteered that the jurors agreed upon murder, but not the degree. The court then directed the foreperson to complete the verdict form regarding finding murder. Neither the prosecutor nor defense counsel objected to the court's direction.
Thereafter the trial court invited argument and comment from the parties. Lomeli requested a mistrial and referred to CALCRIM No. 640. The court declared a mistrial regarding the degree of murder allegation and then entered a verdict of second degree murder. Lomeli again moved for a mistrial. The prosecution stated that it did not intend to retry the matter as a first degree murder because its offer to Lomeli "has always been to a second-degree murder." Lomeli disagreed that the prosecution had proposed an offer. He later moved for a new trial, asserting that the court erred by not instructing with CALCRIM Nos. 640 or 641, requiring jurors to agree upon a degree of murder prior to returning a verdict. The court denied the motion and commented that it structured the verdict form because the prosecution indicated it was not insisting on an acquittal of first degree murder prior to receiving a finding regarding second degree murder.
The trial court's ruling is consistent with section 1157. That section provides: "Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree." Moreover, Lomeli suffered no prejudice from the court's ruling.
VI.
Lomeli also asserts the trial court's errors cumulatively are prejudicial. We reject this contention; a defendant is entitled to a fair trial, but not a perfect one. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.