Opinion
A144623
03-10-2017
THE PEOPLE, Plaintiff and Respondent, v. CODY MICHAEL NICOSIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H54947B)
Defendant Cody Michael Nicosia appeals from his jury conviction of one count of first degree murder (Pen. Code, § 187, subd. (a)—count 1) and one count of arson (§ 451, subd. (b)—count 2). The jury also found true that he committed the murder while engaged in a robbery and burglary, and by means of lying-in-wait. (§ 190.2, subd. (a)(15), (17)(A), & (17)(G).) The trial court sentenced defendant to state prison for an indeterminate term of life without possibility of parole for count 1 and a five-year consecutive term for count 2.
All further statutory references are to the Penal Code.
Defendant contends the version of CALCRIM No. 376 given to the jury lightened the state's burden of proof and also impacted his duress defense, violating his due process rights. He additionally asserts the trial court deprived him of counsel (while he was acting as his own attorney) at a critical stage of the proceedings. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Firefighters discovered the body of Barbara Latiolais on October 18, 2012, while responding to a fire at her Castro Valley home. The responders noted burn marks and charring, and that a rope had been tightly wound around her neck several times. A pathologist confirmed the cause of death was asphyxia by strangulation. Latiolais lived with her partner Michael Rice.
At the time, defendant was living with C.B., then a 16-year old juvenile, who had done yard work for Latiolais and Rice. C.B. knew there was a safe in the house and thought Rice would shortly be out of town. Defendant, who was 18 years old at the time, and C.B. planned on waiting until Latiolais left the house to steal items from the safe.
Initially a codefendant, C.B. was tried separately and is not a party to this appeal.
Defendant and C.B. waited in the bushes outside Latiolais's house for over six hours. Latiolais eventually emerged with her dogs. Fearing detection, defendant and C.B. moved to a crawl space underneath the house. Having previously turned off their phones to avoid the "tracking devices in them," the two switched on their phones to communicate by text. When it became clear Latiolais was not leaving, they came up with a plan via text to have C.B. go into the house and distract Latiolais, so defendant could put her in a chokehold.
Thus, C.B., at defendant's instruction, walked Latiolais past defendant, who had let himself into the house and was hiding behind a chair. When Latiolais passed by, defendant grabbed her in a chokehold until she passed out. The two then began to ransack the house. After hearing snoring sounds indicating Latiolais was still alive, defendant got a rope from the garage, which he wrapped around her neck. He and C.B. each took an end of the rope and pulled tightly, "like if you were in a tug of war." They pulled for about four to five minutes, killing Latiolais.
Once Latiolais was dead, the two broke into the safe using an ax, a pick and a hammer. The safe, which was in a locked closet, contained various items including some firearms, marijuana, jewelry, and silver coins. The closet also held other firearms and a large container with coins.
Defendant later led police to a park near his house where he had buried some of the firearms, ammunition, and other items from Latiolais's residence. He had sold some of the guns "on the street." The rest of the items were mainly located in defendant's room.
To avoid suspicion, defendant and C.B., using the victim's car, took the coins to a grocery store some distance away to exchange them for paper currency. The store manager testified the two entered the store some time on the night of October 17 to use the Coinstar machine. The manager described defendant as "excited, happy," "smiling." "They were just—the whole time they were literally excited and just back and forth talking, and they were just laughing and just relaxed." When asked what they would do with all the change, which was estimated to be around $1,000, they stated they were going to buy iPhones.
After exchanging the coins for paper money, defendant and C.B., "weren't feeling right about everything," so they "went back and burned the house." They "figured . . . if we burned down the house, then it might get rid of some of the evidence." They got two gas cans, poured gasoline in different spots all over the house and ignited the fire with matches leaving both Latiolais's body and one of her dogs inside.
After a preliminary hearing, defendant was charged by information with first degree murder (§ 187, subd. (a)), with special circumstances that the murder was committed while he was engaged in a robbery and burglary and by means of lying-in-wait (§ 190.2, subd. (a)(15), (17)(A), & (17)(G)). Defendant was also charged with one count of arson (§ 451, subd. (b)). As to both counts, it was further alleged the offenses were serious and violent felonies. (§§ 667.5, subd. (c), 1170, subd. (h)(3), 1192.7, subd. (c).)
Defendant testified on his own behalf and in large part admitted participating in all of the charged crimes. However, he stated he had only done so at the urging of C.B. and because he believed his life would have been in immediate danger if he refused.
After testimony ended, the trial court gave the jury a series of instructions. The trial court began by stating, "[a] defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt." The court further reiterated "[y]ou may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt. Always something to remember."
Next, the trial court instructed the jury pursuant to CALCRIM No. 376. The court ended this instruction with a reminder to the jury that "as always, you may not convict the defendant of any crime unless you're convinced that each fact essential to that conclusion that he's guilty has been proved beyond a reasonable doubt."
The trial court then went through each element of the charged offenses as well as the allegations defendant faced and what was required for the jury to find him guilty, emphasizing along the way the People's burden.
Finally, the trial court instructed on defendant's duress defense. The court ended by stating, "[t]he People must prove beyond a reasonable doubt that the defendant didn't act under duress. If the People have not met this burden, you must find the defendant not guilty of arson, and that he did not commit burglary or robbery. [¶] . . . [¶] Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict on each one."
The trial court also instructed the jury as to legal necessity. However, defendant does not challenge this instruction on appeal.
The jury found defendant guilty as charged and found true the special allegations. He was sentenced to life without the possibility of parole on the murder count and was given a five-year consecutive term for the arson conviction.
DISCUSSION
CALCRIM NO. 376
The trial court instructed the jury on a modified version of CALCRIM No. 376 as follows: "If you conclude that the defendant knowingly possessed property that had in fact been recently stolen from the victim's home, you may not convict him of the crimes charged based on those facts alone. However, if you also find that there's supporting evidence that tends to prove his guilt, you may conclude that this evidence is sufficient to prove that he committed the crime. [¶] The supporting evidence need only be slight, and it need not be enough by itself to prove guilt. You can consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt. [¶] But remember, as always, you may not convict the defendant of any crime unless you're convinced that each fact essential to that conclusion that he's guilty has been proved beyond a reasonable doubt." (Italics added.)
The Burden of Proof
Defendant contends this version of CALCRIM No. 376 improperly lightened the state's burden of proof by instructing the jury to apply CALCRIM No. 376 to "the crimes charged," including defendant's nontheft offenses for murder and the special lying-in-wait allegation.
"We review a claim of instructional error de novo. ' " '[T]he correctness of jury instructions is to be determined from the entire charge of the [trial] court, not from a consideration of parts of an instruction or from a particular instruction.' " ' " (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378 (Fiore).)
The courts have agreed the version of CALCRIM No. 376 given here is problematic. "Viewed in the abstract, it might be possible, even though unlikely, for a juror to read [CALCRIM No. 376], when given with reference to murder, to permit an inference of guilt of that crime merely from the possession of recently stolen property and 'slight' corroborating evidence." (People v. Barker (2001) 91 Cal.App.4th 1166, 1175.) As the court observed in Barker, such an instruction might interject "confusion into an already complex area of law." (Ibid.) Thus, giving the instruction here without limitation was error—a point the Attorney General does not dispute. (See id. at pp. 1175-1176; People v. Prieto (2003) 30 Cal.4th 226, 248 (Prieto) [concluding trial court erred in failing to limit CALJIC No. 2.15, CALCRIM No. 376's predecessor, to theft-related charges].)
We therefore turn to whether the instructional error was prejudicial in light of all the other instructions and circumstances, and if there is a reasonable likelihood the jury would have reached a different conclusion if the instruction had been limited to theft offenses. (Prieto, supra, 30 Cal.4th at p. 249, citing People v. Watson (1956) 46 Cal.2d 818, 836; People v. Gamache (2010) 48 Cal.4th 347, 375-376 (Gamache) [holding that "instructing that possession of stolen property may create an inference that a defendant is guilty of murder, as was done here, is error," and that the Watson prejudice test applies].)
The People presented overwhelming evidence defendant participated in a robbery and a burglary during which a murder was committed, and later participated in an arson. Indeed, defendant's own testimony established as much—he admitted every crime charged. He testified that he and C.B. planned to go over to Latiolais's house to commit burglary, that during a text conversation with C.B. while they were waiting under the crawl space of the house, they decided he was going to be the one that would put Latiolais in a chokehold, and that when Latiolais appeared to be regaining consciousness, he got and put a rope around her neck and the two then strangled her. He also testified he and C.B. later decided to go back to Latiolais's house and burn it down to "get rid of some of the evidence." Additionally, in statements to police he admitted to all of the charged offenses. And with the exception of the potential for confusion caused by CALCRIM No. 376, the trial court correctly instructed on murder and arson, and in their closing arguments, both the prosecutor and defense counsel did not suggest in any way that defendant could be convicted of these crimes on anything less than a beyond-a-reasonable-doubt standard. We therefore conclude no prejudicial error occurred to the extent there may have been any confusion as to the burden of proof required to convict defendant of either murder or arson. (See Gamache, supra, 48 Cal.4th at p. 376 [concluding error was harmless given "[c]opious" evidence established the defendant had intentionally killed the victim, including a witness testifying he had done so, his codefendant introducing the defendant's admission that he had done so, and his counsel's concession of the defendant's guilt during closing argument]; Prieto, supra, 30 Cal.4th at p. 249 [concluding error was harmless given overwhelming evidence of the defendant's guilt on the nontheft offenses, including surviving victims' identification of the defendant on numerous occasions as the man who sexually assaulted and murdered Woodruff, and the victims' testimony, which was unrebutted, establishing the murder was committed in the course of the other felonies].)
Impact on Duress Defense
Defendant also maintains the version of CALCRIM No. 376 given to the jury "improperly eliminated consideration of duress as a defense and violated due process."
We conclude no reasonable jury would have applied CALCRIM No. 376 to supersede the plethora of instructions mandating that it not find defendant not guilty unless it was "convinced that each fact essential to that conclusion that he's guilty has been proved beyond a reasonable doubt," and specifically instructing it on defendant's defense and setting forth exactly what had to be proved in order for it to find defendant not guilty because he committed certain crimes under duress.
Furthermore, there was abundant evidence supporting the jury's rejection of his defense and finding that he voluntarily committed the charged crimes. Defendant and C.B. waited at Latiolais's house for over six hours—during which time defendant had his cell phone and could have, at any point, texted for help or left the area. Furthermore, texts between defendant and C.B. show it was defendant who instructed C.B. to " '[w]alk her in,' " so defendant could place her in a chokehold. Later that day, defendant was seen at a supermarket and described by an employee as "friendly, laughing, talking." In short, there was scant evidence outside of defendant's own testimony that would support a finding he committed the crimes under duress.
Thus, defendant has failed to show, nor does the record affirmatively demonstrate, that the jury applied CALCRIM No. 376 in a way that overrode his defense, rather than simply not crediting his defense. " 'Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions.' " (Fiore, supra, 227 Cal.App.4th at p. 1378.)
Given our determination that defendant's duress defense was not eliminated by the trial court's instruction, we need not address his contention that the trial court created an ex post facto law.
Right to Counsel
Defendant, initially represented by counsel, asked to proceed in propria persona. The trial court granted his request and ordered his then-attorney to serve as standby counsel and to be present at all court proceedings in the event defendant's propria persona status was revoked. During his opening statement, however, defendant stated "I can't do this" and asked to have his standby counsel reappointed as his attorney and to terminate his propria persona status. The court also granted this request.
Before trial, while defendant was his own attorney, an ex parte exchange occurred between the trial court and the prosecution, while waiting for defendant to be brought down from lockup. This exchange was witnessed by a defense investigator, Judith Coburn, who submitted a declaration recounting what took place when she arrived at the courthouse on the morning of January 15, 2015. This court session was held to determine which parts of a video recording of a conversation between defendant and C.B. while they were having lunch together in police custody would be admitted at trial. Coburn stated when she arrived the courtroom was locked, but she was admitted by the clerk. After taking a seat, she noted defendant was not present, but the district attorney and judge were "going over a transcript of the video and marking sections of the transcript that the judge would permit to be shown to the jury." After a few minutes, Coburn objected to the proceedings occurring without defendant. She declared, "Judge Rolefson became very, very angry, shouting at me that I had no right to object since I was not an attorney." However, "[a]fter a few minutes, Judge Rolefson calmed down and said that my 'objection had merit' and that any further discussion of the video should be suspended until the defendant was present."
The next day, defendant moved for a mistrial "on the basis of [the judge] and the district attorney going over evidence while [he was] not present." The court denied the motion, stating, "[y]ou are correct in that as a general proposition, any type of discussions between either side and me should . . . not be made out of the presence of the other. And in that sense, . . . it's correct that I should not have engaged in that conversation. [W]hat I was doing was telling [the district attorney], here's what I need you to do to present to Mr. Nicosia and me, so that Mr. Nicosia can then determine what additional he's objecting to. It all has to do with the recording of you and [C.B.] [¶] I treated that differently, because we've been over it together. [¶] . . . [¶] It is correct I shouldn't have talked to him out of your presence. I did it because it was a time saver, and I was basically telling him what we were going to have to talk about after he did that. But because of what it was and what its purpose was, it in no way infringes on your right to a fair trial, because it's still unfinished business that we have to talk about, and that's really what we were talking about."
There was then a lengthy discussion between the court and the parties as to which parts of the video would be admitted or redacted. This culminated in a heavily redacted version being admitted at trial.
Defendant, citing United States v. Cronic (1984) 466 U.S. 648, 658-659 (Cronic), contends he was denied the right to counsel at a critical stage of the proceedings when the court conferred with the district attorney outside of his presence, requiring reversal. In Cronic, the court of appeals reversed a conviction for mail fraud, inferring the defendant's right to counsel had been violated and citing to a number of factors, including counsel's inexperience, the length of time counsel was given to prepare for trial, and the complexity of the case. The Supreme Court reversed holding the factors used by the appeals court were not determinative of whether counsel's performance was deficient and had prejudiced the defendant. (Id. at pp. 652-653.) The court nevertheless noted "[a]n accused's right to be represented by counsel is a fundamental component of our criminal justice system," and that the "adversarial process protected by the Sixth Amendment requires . . . hav[ing] 'counsel act[] in the role of an advocate.' " (Id. at pp. 652, 656.) The court further stated that generally the Sixth Amendment is not implicated absent some challenged conduct which affected the reliability of the trial process. However, "[t]here are . . . [some] circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.
Most obvious, of course, is the complete denial of counsel. The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial." (Id. at pp. 658-659 & fn. 25, fn. omitted, italics added.)
In People v. Mil (2012) 53 Cal.4th 400, 410, the California Supreme Court cautioned "[a]n error is '. . . subject to automatic reversal, only in a "very limited class of cases," ' such as the complete denial of counsel, a biased decision maker, racial discrimination in jury selection, denial of self-representation at trial, denial of a public trial, and a defective reasonable-doubt instruction. What unites this class of errors is 'a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." . . . Put another way, these errors deprive defendants of "basic protections" without which "a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair." ' "
Thus, "[i]n limited situations . . . , where the denial of counsel was for a discrete time or hearing only, the high court has recognized that the rule of automatic reversal is inappropriate. In such circumstances, the denial of the right to counsel, even during a critical stage in a capital case, does not require automatic reversal but is instead subject to harmless error review." (People v. Lightsey (2012) 54 Cal.4th 668, 700; Chapman v. State of California (1967) 386 U.S. 18, 20-21 (Chapman).)
Here, the trial court acknowledged that its ex parte communication with the district attorney should not have occurred outside of defendant's presence. However, this improper communication did not amount to a " ' "defect affecting the framework within which the trial proceed[ed]." ' " (People v. Mil, supra, 53 Cal.4th at p. 410.) It was not a "complete denial of counsel," but was rather a denial for a "discrete time." (Cronic, supra, 466 U.S. at p. 659; People v. Lightsey, supra, 54 Cal.4th at p. 700.)
The question then becomes whether this brief denial of representation was harmful under Chapman. Given that the determination of the admissibility of the videotaped conversation remained "unfinished business" and the parties, including defendant and his standby counsel, were present for the balance of the conversation and had a full opportunity to state their respective positions, we conclude the court's brief ex parte communication was harmless error. Indeed, the admissibility of the videotaped conversation was largely circumscribed, and only a substantially redacted version was allowed.
For similar reasons, we also conclude defendant's brief denial of personal presence does not require reversal. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.