Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA284775, Luis A. Lavin, Judge.
Mark D. Lenenberg, 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, Linda C. Johnson and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Crispin Martinez appeals from a judgment of conviction entered after a jury found him guilty of the first degree murder of Rufina Platas (Pen. Code, §§ 187, subd. (a), 189) by means of lying in wait (id., § 190.2, subd. (a)(15)) and found true the allegation defendant personally used a deadly and dangerous weapon, a knife, in the commission of the crime (id., § 12022, subd. (b)(1)). The trial court sentenced defendant to state prison for life without the possibility of parole plus one year for the use of a weapon.
On appeal, defendant claims evidentiary error, prosecutorial misconduct, insufficient evidence to support the lying-in-wait special circumstance, and sentencing error. The People concede sentencing error, and we modify the judgment accordingly. We reject defendant’s other claims of error and affirm the judgment as modified.
FACTS
A. Prosecution
Defendant was married to Rufina Platas (Platas). They lived in an apartment in La Mirada with their four children—H., Y., J. and Jo.—and Platas’ father.
Defendant had a history of domestic violence. Defendant frequently fought with Platas; they yelled at one another, and defendant sometimes hit Platas. In 2001 and 2003 through 2005, defendant hit H. with a belt and electrical cords. Defendant also hit Y. with a belt; when Platas attempted to intervene, defendant attacked her.
Early in 2005, defendant went to Mexico to visit family. While he was gone, a friend, Joanna, stayed in defendant’s and Platas’ apartment. At some point after defendant returned, Joanna left.
On May 25, 2005, defendant and Platas got into an argument because Platas had been sleeping in the living room. Platas got the children and left with them. Defendant tried unsuccessfully to stop them.
Platas and the children stayed with her brother Rolando that night. The following night they stayed with her brother Rigoberto Vasquez (Vasquez). Vasquez observed that Platas had a bruise near her eye and one on her leg. Platas told Vasquez that she was tired of living with defendant because her hit her and treated her badly. She explained that defendant had had an affair with Joanna and became upset when he found Platas sleeping in the living room where Joanna used to sleep.
Defendant went to Vasquez’s home on June 1, 2005 to talk to Platas. He asked for her forgiveness and promised to change. Platas forgave him, and she and the children returned to the apartment.
At about 4:00 a.m. on June 4, 2005, defendant went with Platas to wait for the bus to take her to work. While they waited, Platas made a telephone call at a pay phone. Defendant believed she was calling a man with whom she was having a romantic relationship. After Platas got on the bus, defendant went home. He got a knife from the kitchen. He rode his bicycle to the hair salon where Platas worked, arriving about 5:00 a.m. He waited near a bus stop for Platas to arrive.
Platas did not arrive at the hair salon until 8:00 a.m. Because defendant had waited so long for her to arrive, he imagined that she would arrive with the man she had been seeing, and defendant became angry. Platas did not see defendant when she arrived, defendant did not let her know he was there, and Platas went into the hair salon. Defendant followed Platas inside, surprising her. He asked where she had been and about the man she had been seeing. Platas said it was none of defendant’s business, and she did not care about defendant anymore. Defendant took the knife from his pocket, hit Platas, knocking her to the floor, then stabbed her several times. Defendant left the hair salon and rode his bicycle back home, disposing of the knife on his way home.
The manager of the hair salon arrived at 9:00 a.m. and discovered Platas lying face down in a pool of blood. He called 911 and then performed CPR on Platas. The police and paramedics arrived at the hair salon. The paramedics declared Platas dead. Platas died of stab wounds to her heart and lung and a brain hemorrhage. She also suffered a fractured nose and superficial cuts and bruises on her arms, hands and torso consistent with defensive wounds.
Los Angeles Police Detective Teodoro Urena first interviewed defendant at 1:40 p.m. on June 4, 2005. During that interview, defendant just gave Detective Urena background information.
Detective Urena interviewed defendant a second time at 4:00 p.m. In a videotaped interview, defendant admitted killing Platas.
B. Defense
Luis Hernandez (Hernandez) had a sexual relationship with Platas starting about two months before her death and ending about two weeks before her death. Hernandez, who also was married, and Platas called one another on their cell phones. They sometimes met for coffee and sometimes went to a hotel after Hernandez got off work. Platas told Hernandez that she loved him. Hernandez told Platas that he loved her but was in love with someone else.
DISCUSSION
A. Admission of the Videotaped Police Interrogation
Defendant objected to admission of several portions of his videotaped interrogation.
1. Portion 1:
“[Interviewer 1] So, like I told you, we know a lot of things that you don’t know that we know. Do you understand? And, uh, we need you to tell us the truth. You need to do it for your children. Do you understand?
“[Defendant] Yes.
“[Interviewer 1] Because I just saw them and they were crying and they have the right to know the reason. Do you understand? And if you love them, well
“[Defendant] I do love them.”
2. Portion 2:
“[Interviewer 1] I mean, the way you seem right now is not the same way you seemed at home. Okay? All morning we have been, we got here at nine and ever since we have been talking to a lot of people and watching videos, and looking at finger prints [sic], looking at whether you had gunpowder on your hands and all that. So we have finished this investigation. Okay?
“[Defendant] Okay.”
3. Portion 3:
“[Defendant] Yes.
“[Interviewer 1] [The children] are going to figure out a lot about what happened, but maybe if you tell the truth, you know, you’ll do your time in jail and you’ll get out and start again, you ask them to forgive you and you’ll go on. You know? But the, the worst thing that could happen is for you not to really take responsibility for what happened. Do you understand?
“[Defendant] Yes.
“[Interviewer 1] As I told you, we, what we want is the reason why, and the time it happened, and we want to know where the gun is. I know that
“[Defendant] I don’t carry a gun, sir, I don’t, I don’t have a gun, I don’t even have the money for one, I, I don’t have one.
“[Interviewer 2] Why
“[Defendant] I don’t
“[Interviewer 2] Okay.
“[Defendant] I don’t use guns.
“[Interviewer 2] Why didn’t you tell us, why didn’t you tell us what happened in the
“[Defendant] I don’t have a gun.”
Defense counsel objected to Portion 1 under Evidence Code section 352 as more prejudicial than probative, explaining: “It’s talking about the kids outside crying. This is the one he’s—it’s like a police detective’s interrogation tactic. And it may be true. It may not. But it’s kind of prejudicial talking about his children, that they’re motherless now and they’re crying outside.”
The prosecutor acknowledged that some portions of the videotape included interrogation tactics involving untrue statements. She intended to have the detective testify as a witness and explain the use of such tactics. As to Portion 1, the prosecutor argued that the trial was about defendant killing the children’s mother, so a statement about the children crying was not prejudicial—it was “almost a given.”
As to Portions 2 and 3, the trial court asked whether there was an issue of a gun or gunpowder. The prosecutor explained: “Initially, because of the state of the body, the paramedics that attended to her thought that she had been shot in the face. So that’s why there was initial questioning with regard to him having a gun. But at the time of the autopsy, it became clear that they were not gunshots. They were stab wounds.”
The court wondered how those portions of the videotape could be prejudicial, in that defendant denied having a gun. Defense counsel stated that they were “just another something for the jurors to go back in there and talk about. ‘Well, maybe there was a gun or maybe there wasn’t.’”
The trial court responded that it understood the defense’s position, but it noted that defendant denied that he had a gun, and no gun was involved in the crime. The court added, “. . . I think there are some things in here that actually I don’t think hurt you if they’re put in context and, in fact, show that some of the questions that were asked by the detectives were asked knowing that the information was either false or didn’t pan out. So just looking at these sections, I have to say I’m not inclined to keep it out. I think it’s certainly fertile cross-examination territory for you to ask the officer about these things.” The court did not “see it as being overly prejudicial.”
The trial court has broad discretion under Evidence Code section 352 to exclude evidence if its probative value is outweighed by the probability its admission will result in a substantial danger of undue prejudice. (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) We will not disturb the trial court’s decision except for an abuse of discretion. (People v. Minifie (1996) 13 Cal.4th 1055, 1070.)
In the context of Evidence Code section 352, evidence is prejudicial if it “uniquely tends to evoke an emotional bias against the defendant as an individual [but] has very little effect on the issues.” (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) We agree with the trial court that the challenged portions of the videotape were not unduly prejudicial.
The evidence showed that defendant and Platas had four children, who observed fighting between their parents. Shortly before her death, Platas left defendant and took the children with her. Defendant beat and stabbed Platas to death. That Platas’ death caused the children to cry is not surprising and, in light of the murder itself, not particularly prejudicial.
There also was no evidence that defendant ever used a gun against Platas. Under the circumstances, the questions about a gun and defendant’s denial that he owned one were not prejudicial.
Inasmuch as the evidence was not unduly prejudicial, the trial court did not abuse its discretion in overruling defendant’s Evidence Code section 352 objection. (People v. Minifie, supra, 13 Cal.4th at p. 1070; People v. Gionis, supra, 9 Cal.4th at p. 1214.)
B. Admission of Evidence of Prior Acts of Domestic Violence
Defendant sought to exclude evidence that he physically and sexually abused Y. and physically abused H.. Defendant also objected under Evidence Code section 352 to evidence of prior acts of domestic violence against Platas. The trial court ruled that the incidents of violence were relevant and admissible under Evidence Code section 1109, although any acts of sexual abuse were not admissible. It found the probative value of the evidence outweighed its prejudicial effect.
Evidence Code section 1109 provides that “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” (Subd. (a)(1).) Section 1101 prohibits admission of “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) . . . when offered to prove his or her conduct on a specified occasion” (subd. (a)) unless “relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act” (subd. (b)).
Defendant contends that the admission of such evidence violated his right to due process of law. He acknowledges that the California Supreme Court held to the contrary in People v. Falsetta (1999) 21 Cal.4th 903 but claims Falsetta was wrongly decided. We are bound by the Supreme Court’s decision and therefore reject defendant’s contention. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Falsetta addressed the constitutionality of Evidence Code section 1108, which permits the admission of evidence of prior sex offenses. The rationale of Falsetta applies equally to Evidence Code section 1109. (People v. Brown (2000) 77 Cal.App.4th 1324, 1332; People v. Hoover (2000) 77 Cal.App.4th 1020, 1024, 1026-1027.)
Defendant also argues that the trial court erred in admitting evidence of his prior acts of domestic violence to prove propensity to commit the charged crime. Under Evidence Code section 1109, the evidence was admissible provided it was not inadmissible under Evidence Code section 352. Under this section, evidence is inadmissible “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
In enacting Evidence Code section 1109, the Legislature observed that “‘[t]he propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked. If we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. Since criminal prosecution is one of the few factors which may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all.’ (Assem. Com. on Public Safety, Rep. on Sen. Bill No. 1876 (1995-1996 Reg. Sess.) June 25, 1996, pp. 3-4.) [¶] ‘Based on the foregoing, the California Legislature has determined the policy considerations favoring the exclusion of evidence of uncharged domestic violence offenses are outweighed in criminal domestic violence cases by the policy considerations favoring the admission of such evidence.’ [Citation.]” (People v. Hoover, supra, 77 Cal.App.4th at pp. 1027-1028.)
The evidence of prior acts of domestic violence here was relevant to the question whether defendant attacked Platas in the heat of passion after being provoked by her perceived infidelity, or whether he attacked her deliberately and with premeditation as part of a pattern of escalating domestic violence, which he used to dominate and control his family. The trial court held a lengthy hearing on the question of admission of the evidence; it excluded that evidence it found to be unduly prejudicial and limited the evidence to be admitted to a few relatively recent incidents of domestic violence; and those incidents were less serious and thus less inflammatory than the one with which defendant was charged. Under these circumstances, we find no abuse of discretion under Evidence Code section 352 in admitting it. (People v. Brown, supra, 77 Cal.App.4th at p. 1338.)
C. Prosecutorial Misconduct
In the course of her opening argument, the prosecutor argued that defendant was guilty of murder rather than manslaughter. She added, “Just as this defendant deserves justice in the form of this trial, Rufina Platas deserves justice because she was killed in a cold and calculated manner.” Defendant characterizes this statement as prosecutorial misconduct.
The People argue that defendant’s failure to object to this statement and request an admonition to the jury waives defendant’s claim of prosecutorial misconduct. (People v. Panah (2005) 35 Cal.4th 395, 462.) Defendant counters that if his claim is waived, then he was deprived of the effective assistance of counsel by his counsel’s failure to make the objection. (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1447.)
Prosecutorial misconduct “involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.” (People v. Panah, supra, 35 Cal.4th at p. 462.) It is misconduct to appeal to the passion and prejudice of the jurors. (People v. Mayfield (1997) 14 Cal.4th 668, 803.) “It is ‘settled that . . . an appeal for sympathy for the victim is out of place during an objective determination of guilt. [Citations.]’ [Citation.]” (People v. Arias (1996) 13 Cal.4th 92, 160.)
Assuming arguendo that the prosecutor’s statement constituted misconduct, reversal is not necessary unless defendant was prejudiced thereby—if it is reasonably probable defendant would have obtained a more favorable result absent the misconduct. (People v. Bolton (1979) 23 Cal.3d 208, 214; see also People v. Huggins (2006) 38 Cal.4th 175, 208.) Statements identified as misconduct must be viewed “in the context of the argument as a whole. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 522.) We must “‘examine whether there is a reasonable likelihood that the jury would have understood the remark to cause the mischief’” of which the defendant complains. (People v. Ayala (2000) 24 Cal.4th 243, 288.) In doing so, we do not infer lightly that the jury gave the prosecutor’s remarks the most damaging interpretation possible. (People v. Frye (1998) 18 Cal.4th 894, 970.)
Here, defendant complains of one sentence in the prosecutor’s opening argument. The statement focused on the manner in which Platas was killed, the prosecutor arguing that the jury should convict defendant of murder because Platas was killed “in a cold and calculated manner,” rather than in the heat of passion. In this context, we cannot conclude that the prosecutor’s statement that Platas deserved justice was sufficient to prejudice the jury. It is not reasonably likely defendant would have received a more favorable verdict had the prosecutor not made the statement. (People v. Bolton, supra, 23 Cal.3d at p. 214.)
The lack of prejudice also defeats defendant’s claim of ineffective assistance of counsel. Reversal for ineffective assistance of counsel is not required unless it is reasonably likely defendant would have received a more favorable result absent the ineffective assistance. (People v. Sanchez, supra, 58 Cal.App.4th at pp. 1447, 1450.)
D. Sufficiency of the Evidence to Support the Lying-in-Wait Special Circumstance
In reviewing the sufficiency of the evidence to support a special circumstance finding, we view the evidence in the light most favorable to the finding. (People v. Stevens (2007) 41 Cal.4th 182, 201.) The question is whether there is reasonable and credible evidence, of solid value, from which a reasonable trier of fact could have found the special circumstance true beyond a reasonable doubt. (Ibid.)
Murder perpetrated by lying in wait is that which is “‘committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage . . . .’” (People v. Hardy (1992) 2 Cal.4th 86, 163, quoting from People v. Morales (1989) 48 Cal.3d 527, 557.) Concealment of purpose puts the defendant in a position of advantage, one in which he can take his victim by surprise. (Morales, supra, at p. 555.) When coupled with a period of watchful waiting which immediately precedes a surprise attack, the elements of lying in wait are met. (Id. at pp. 556-557.)
Defendant argues there is no evidence of concealment of purpose or a surprise attack from a position of advantage. We disagree.
The element of concealment of purpose is met by a showing that defendant concealed his true intent and purpose by his actions. He need not be literally concealed from the victim’s view before his attack. (People v. Hillhouse (2002) 27 Cal.4th 469, 500.)
Here, defendant went with Platas to wait for the bus to take her to work. Once she got on the bus, defendant went home, got a knife, which he concealed in his pocket, and went to Platas’ work, where he waited three hours for her to arrive. When Platas arrived and went into the hair salon where she worked, she did not see defendant. He went into the hair salon after her, surprising her. He then began questioning her. When she said she did not care about defendant anymore, he took the knife from his pocket and attacked Platas.
While Platas saw defendant after he entered the hair salon, she did not know he had been waiting for her for three hours or that he had a knife concealed in his pocket. That defendant concealed his purpose from her is reasonably inferable from the fact that she remained alone in the hair salon with defendant, arguing with him, rather than attempting to flee from him. (See, e.g., People v. Stevens, supra, 41 Cal.4th at p. 203.)
Similarly, by cornering Platas alone in the hair salon, concealing the fact that he was armed with a knife, defendant was able to execute a surprise attack from a position of advantage. The attack took Platas by surprise; the defensive wounds on her hands and arms indicated that she was unable to grab a weapon or other object to defend herself. (See People v. Hardy, supra, 2 Cal.4th at p. 164 [nature of victims’ wounds may support a finding of lying in wait].) Moreover, because she was alone in the hair salon, she was unable to summon any assistance. This evidence is sufficient to establish a surprise attack from a position of advantage. (See, e.g., People v. Hillhouse, supra, 27 Cal.4th at p. 501.)
E. Sentencing Errors
Defendant contends, and the People agree, that the $200 parole revocation fine imposed pursuant to Penal Code section 1202.45 must be stricken. Inasmuch as defendant received a sentence of life without the possibility of parole, the fine could not properly be imposed. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819.)
Penal Code section 1202.45 provides for imposition of a parole revocation fine “[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole.”
Defendant also contends, and again the People agree, that the trial court erroneously failed to award him 840 days of actual presentence custody credit. While he was ineligible for presentence conduct credits due to his murder conviction, he remained eligible for presentence credit for actual time in custody. (Pen. Code, § 2900.5; People v. Taylor (2004) 119 Cal.App.4th 628, 645-647.)
DISPOSITION
The judgment is modified to strike the $200 parole revocation fine imposed under Penal Code section 1202.45 and to award defendant 840 days of actual presentence custody credit. As so modified, the judgment is affirmed. The clerk of the court is directed to prepare a corrected abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.
We concur: PERLUSS, P. J., WOODS, J.