Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge., Super. Ct. No. 30156
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Christina Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Defendant and appellant Julio Cesar Olivares was convicted of first degree murder (Pen. Code, § 187, subd. (a)) and sentenced to 25 years to life for strangling his girlfriend, Crystal Gallardo (Crystal), in his apartment on Sunday, May 21, 2006. Defendant later told the police that he strangled Crystal because she threatened to turn him in to authorities for working under his brother’s name and she lied to him about being pregnant.
All further statutory citations are to the Penal Code unless otherwise indicated.
We will refer to some of the parties by their first names for clarity and ease of reference, and not out of disrespect.
On appeal, defendant contends a police officer illegally entered his apartment without a warrant and found Crystal’s body in the absence of exigent circumstances or any other exception to the warrant requirement. Defendant also raises several claims of ineffective assistance based on defense counsel’s failure to seek the exclusion of evidence that defendant had a prior misdemeanor conviction for using a false identity, request pinpoint instructions on provocation, and object to portions of the prosecutor’s closing argument. Defendant further asserts the court improperly responded to the jury’s question during deliberations as to what would have happened if Crystal had reported defendant to the authorities, and defense counsel was ineffective for failing to move to reopen the defense case in response to that question. Finally, defendant contends the court should have treated his motion for new trial as a request for a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We will affirm.
FACTS
Crystal lived with her parents in Atwater, worked at a nursing home, and took classes to enter a nursing program. Her mother, Elizabeth Mancebo, testified Crystal constantly remained in contact with her during the day by cell phone, and always told her mother where she was going or if she was running late on her way home.
In September 2003, 18-year-old Crystal introduced her mother to defendant, who was her first boyfriend. Mancebo liked defendant and considered him a member of the family, and he celebrated Christmas with them in 2003 and 2004. As the relationship continued, however, Mancebo noticed that defendant became more controlling and aggressive toward Crystal and frequently called and wanted to know Crystal’s exact whereabouts. On one occasion in 2005, defendant arrived at their house late at night and accused Crystal of not caring about him. Defendant acted violent and aggressive, placed his hands on Crystal, and tried to force her to talk to him. During another incident, Mancebo heard defendant make negative comments about his mother and family.
After these incidents, Mancebo no longer welcomed defendant to her house and he was not invited to spend Christmas with them in 2005. Mancebo told Crystal she did not want her to see defendant because he was not good for her, but defendant and Crystal continued to have a relationship. Crystal begged Mancebo to accept defendant and promised he would change. Around February 2006, Mancebo noticed that Crystal started to act very nervous. In April 2006, Crystal regularly checked the locks on the doors and windows at her house and locked herself in her own bedroom. Crystal looked very worried, but Mancebo thought she was concerned about school.
Defendant worked at Malibu Boats in Merced under the name of his brother, Marco Olivares. Defendant used his brother’s name so he could get a job, a medical card, and Social Security and insurance benefits, and all his coworkers knew him as “Marco.” Sergio Soria, a coworker, testified defendant always talked about Crystal. About a month prior to the homicide, defendant was at work with Soria and six or seven male coworkers, and defendant showed them cell phone photographs of Crystal unclothed above the waist.
Soria testified that on the day before Crystal’s body was found defendant called Soria several times and said that Crystal broke up with him. Defendant sounded distraught and did not know what to do. Defendant told Soria that he planned to go to Crystal’s workplace, wait until she got off work, and talk to her, since she would not accept his telephone calls. Soria advised defendant to back off and Crystal would come back if she really cared about him. Defendant replied: “[Yeah], but I don’t know. I’ve got to talk to her. I’ve got to make sure that she’s—she’s going to be my girlfriend.” Soria again told defendant to back off because it could be considered stalking. Defendant did not reply. Soria testified that defendant did not appear at work the day after this conversation.
Defendant lived in a second-floor studio apartment at the Evergreen Park apartment complex in Merced. Veta Lane lived in the same apartment complex, knew defendant as “Marco,” and thought he was a very nice young man. Lane never saw defendant argue with Crystal. Defendant visited Lane’s apartment six or seven times a month and talked about his relationship with Crystal. Defendant was always crying and in turmoil about their relationship, because they were breaking up and reconciling on a regular basis.
Lane testified that defendant suspected Crystal was seeing someone in Fresno. Defendant told Lane that on two occasions he waited outside the hospital where Crystal worked and followed her as she left the hospital and joined a girlfriend at a bar. Defendant said he sneaked into the bar and sat in a dark corner to make sure no one approached Crystal. Lane, who had worked for the sheriff’s department for many years, warned defendant that his relationship with Crystal was volatile and “one of you are going to die. I said, I’ve typed many reports on this. And he said, well, I will have—she’ll have to kill me because I love her too much. I could never hurt her.” Lane told defendant that he was stalking Crystal and committing a felony and he would go to jail if the police caught him. Defendant cried in response. Lane told defendant there were many other girls who would like to be with him, and offered to introduce defendant to her own daughter. Defendant was afraid that if he went out with Lane’s daughter, Crystal would find out and “never take me back.”
Darlene O’Neil, the manager of the apartment complex, lived immediately below defendant and also knew him as “Marco.” Both defendant and Crystal were on the lease for his apartment. O’Neil never saw defendant and Crystal arguing. On one occasion, Crystal lost her key to the apartment and O’Neil gave her the spare key, but Crystal never returned it. O’Neil knew that defendant and Crystal frequently broke up and reconciled.
O’Neil testified that in either March or April 2006 she was at Lane’s apartment on two occasions when defendant visited Lane and said he was upset about breaking up with Crystal. Defendant said he waited for Crystal outside her workplace so he could watch her and see what she was doing, and they texted back and forth. Both O’Neil and Lane told defendant that it was unhealthy to stalk Crystal, and he needed to stop so he could heal. Defendant said he knew it was unhealthy.
O’Neil testified that in the month prior to the homicide defendant was drinking a little more than usual. On the day before Crystal’s body was found, O’Neil saw defendant walking in the rain and looking down at the pavement, which she thought was unusual.
Dayrel Azevedo also knew defendant from the apartment complex. Defendant told Azevedo that on numerous occasions he went to the retirement home where Crystal worked, waited by her car, and spied on her. On a few occasions, Azevedo saw defendant and Crystal arguing outside the apartment, and their voices were a little loud.
Azevedo and defendant spent some time together in the days before Crystal’s body was found. Defendant was crying and depressed because Crystal sent him text messages about breaking up, and the messages said “‘F’ this, ‘F’ that.’” Defendant told Azevedo that shortly after he received these messages, Crystal texted him again and asked why defendant did not call her.
Sandra Munoz (Sandra) and Crystal were long-time friends and they frequently went out at night. Crystal occasionally went out with Sandra after she started dating defendant, but defendant always called her and Crystal did not have any fun. On one occasion, defendant called Crystal when she was at a club with Sandra; Crystal left the room for a long time, and she was “kind of upset” when she returned.
Sandra testified that at some point in 2004, defendant asked her to call Crystal on his behalf because they had a fight and Crystal would not accept his telephone calls. Sandra replied that maybe Crystal had a reason not to answer his calls. Defendant said he could not live without Crystal. Sandra explained it was Crystal’s decision to end the relationship and Sandra could not do anything about it. Defendant told Sandra that she did not know “how it was that he just couldn’t be without her.” Sandra called Crystal and told her about defendant’s statements. Sandra knew that defendant and Crystal reconciled after this incident.
Sandra testified that on Friday, May 19, 2006, Crystal arrived at Sandra’s house for a visit. Crystal seemed happy and upset at the same time. Crystal was happy because she had received a loan to enter nursing school, she knew she could take care of herself, and she wanted to forget about her relationship with defendant. She was also upset because she had just broken up with defendant. Sandra did not see or hear from Crystal again.
The trip to San Jose
On the morning of Sunday, May 21, 2006, Rebecca Munoz (Rebecca) called Crystal and asked if she wanted to drive to San Jose for a car show. Rebecca and Crystal worked together and attended classes at Merced College, and they did not have to work that weekend. Crystal agreed to join Rebecca. Crystal’s mother had left the house to run errands, so Crystal left a message with her sibling that she was going to the car show with Rebecca.
Crystal drove her car from Atwater to Rebecca’s house in Merced. Around 11:00 a.m., they left in Rebecca’s car for San Jose. During the trip, Crystal’s cell phone repeatedly rang, but Crystal did not answer every call. Rebecca testified that when Crystal accepted some of the calls, Crystal was upset, agitated, and crying, which was out of character for her. Crystal told Rebecca that her relationship with defendant was “over, I’m done.”
In the meantime, Mancebo received Crystal’s message that she was with Rebecca. Around 2:00 p.m., Mancebo called Crystal’s cell phone to find out what was going on. Crystal seemed distracted and said they were looking for some location. Mancebo never spoke to her again.
Rebecca testified it was raining when they arrived in San Jose and the car show was canceled, so they drove back to Merced. Rebecca noticed that Crystal was sending text messages on her cell phone during the return trip. When they reached Merced, they ate at a restaurant; Crystal seemed fine and was no longer upset and agitated.
Around 7:00 p.m., Rebecca and Crystal returned to Rebecca’s house in Merced. They said goodbye and Crystal left in her own car. Rebecca never saw or spoke to Crystal again.
The search for Crystal
Around 7:00 p.m. on Sunday, May 21, 2006, Mancebo realized that she had not heard from Crystal for awhile. She repeatedly called Crystal’s cell phone and left messages, but Crystal did not answer or return the calls, which was very unusual. As the evening continued without any word from Crystal, Mancebo became concerned that she had been in a car accident or she was stranded on the road. Mancebo called Sandra for help. Sandra testified she repeatedly called Crystal’s cell phone from 7:00 p.m. to 8:30 p.m. and left messages, but Crystal never called back, which Sandra also thought was very unusual. Sandra called defendant’s cell phone but “his phone was dead so I couldn’t get through to ring or anything.”
Around 11:00 p.m., Crystal’s family called the Atwater Police Department and reported Crystal was missing. Mancebo was crying and upset, but the officer advised her not to worry because Crystal was an adult and may have gone to an all-night party. Mancebo rejected that possibility because Crystal never went to a party without telling her mother where she was going. The officer left the house without taking any action.
Around midnight, Mancebo called Rebecca and told her that Crystal was missing. Rebecca explained they had returned to Merced around 7:00 p.m., and Crystal drove away and did not say where she was going.
Around 2:00 a.m. on Monday, May 22, 2006, Crystal’s family decided to look for Crystal, and Sandra joined them. They did not know where defendant lived, so they contacted defendant’s sister to find out the address of his apartment. Defendant’s sister and brother-in-law drove to defendant’s apartment in Merced while Crystal’s family followed them.
When Mancebo arrived at the apartment complex, she immediately saw Crystal’s car parked there. The car was unlocked and Crystal’s purse was inside. The purse was open, her wallet and license were still inside, and there were bills “kind of coming out” of her wallet. Mancebo became even more concerned because it was very unusual for Crystal to leave her car unlocked and her purse behind.
Defendant’s brother-in-law escorted the group upstairs to defendant’s apartment, they repeatedly knocked and shouted for both defendant and Crystal, but no one answered. The apartment was dark and everything was very quiet. Mancebo was positive that Crystal would not have voluntarily gone with defendant, and she believed defendant had Crystal tied up in the apartment.
Around 4:30 a.m., Crystal’s family and friends contacted O’Neil, the apartment manager. Mancebo was very upset and explained that Crystal might be in some kind of trouble because her car was there, and asked O’Neil to unlock defendant’s apartment. O’Neil explained that she could not do so without an emergency or a warrant. Crystal’s family and friends left the apartment and continued to call Crystal’s cell phone, but she never returned the calls.
Around 6:30 a.m., Crystal’s family and friends returned to the apartment complex and again contacted O’Neil. Mancebo was crying, very upset, and screaming that she knew Crystal was in the apartment and defendant was going to harm her. They again asked O’Neil to enter defendant’s apartment, and O’Neil agreed because Mancebo was so upset. O’Neil did not have an extra key to the apartment but she told Crystal’s parents that she would go in if she found an open window.
O’Neil crawled through a window into the apartment. It was early morning and just becoming light. O’Neil was inside for about five minutes and looked through the entire studio apartment, including the closets. There was a gift bag and bundle of blankets on the floor, but she did not touch the blankets. A pair of “girl” sandals was also on the floor. O’Neil thought everything else was neat and in place. O’Neil crawled out of the window and told Crystal’s parents and friends that nothing was there. Mancebo continued to cry because she just knew something was wrong.
Atwater police become involved
After O’Neil crawled out of the apartment window, Mancebo and the others went to the Atwater Police Department and again reported that Crystal was missing. At 8:45 a.m., Mancebo met with Officer Armando Echevarria. Mancebo was emotional, crying, and upset, and explained their efforts to find Crystal that night. Mancebo told Echevarria about Crystal’s car and purse, said defendant was very controlling, and it was very unusual for Crystal not to come home. Echevarria conducted a brief background check on defendant, and obtained his photograph and true name.
Echevarria went to defendant’s apartment and met Crystal’s family there. Mancebo showed Crystal’s car to Echevarria. Echevarria knocked on the apartment door, but there was no response. Echevarria met with O’Neil, the apartment manager, and learned she had entered the residence and saw Crystal’s shoes inside.
Echevarria testified that he believed that Crystal was in some kind of danger, based upon the information from Mancebo and O’Neil about defendant’s relationship with Crystal. Echevarria testified he entered the apartment through an unsecured window next to the front door. Upon entering the residence, he saw “a hand protruding from underneath a blanket in the... living room area of the... studio apartment.” Echevarria removed the blanket and found Crystal’s fully clothed body. Crystal had been strangled to death. Echevarria did not see any signs of a struggle in the apartment. There were some gift bags near her hand, and her sandals were on the living room floor.
Defendant’s statement to the police
Sergeant Rod Dash of the Merced Police Department tried to find defendant. He called Malibu Boats and learned defendant did not show up for work. Dash tracked defendant’s cell phone calls, contacted defendant’s relatives, and obtained a telephone number for defendant’s brother, Marco Olivares, in Mexico City.
On Wednesday, May 24, 2006, Sergeant Dash called Marco Olivares in Mexico City, and the telephone call was tape-recorded. Marco was very cooperative, said that defendant was with him in Mexico City, and gave the telephone to defendant. Dash greeted defendant and asked how he was feeling. Defendant voluntarily gave a narrative account of the events leading to Crystal’s death and admitted he strangled Crystal to death with his hands.
Defendant said Crystal’s family and friends did not know what she was like, and she had mental health problems and acted like two different people. Defendant said he begged Crystal to get help but she refused to take her medication. Defendant said Crystal was always the person who wanted to break up and come back; she complicated his life. Crystal always called him and wanted to know what he was doing. She accused him of flirting with other women, and used her key to his apartment to see if he was with someone else.
Defendant said Crystal’s family knew about their relationship until they broke up several years ago, but her family did not know they reconciled. Crystal tried to keep things from her parents, and he told her that it was not right and they should talk to her mother. Defendant told Dash that his coworkers knew he was upset about his relationship with Crystal, and “they just told me you must love her a lot or you must really care for her.”
Defendant told Dash that the incident began when they exchanged text messages on Sunday, May 21, while Crystal was with a friend. Dash mentioned that Crystal had been at a car show in San Jose, and defendant immediately responded that Crystal did not tell him that she went out of town to a car show. Defendant said they had broken up and he did not want to see her anymore, but Crystal insisted on coming to his apartment that evening.
Defendant said some of Crystal’s text messages were hurtful, and she threatened to turn him into authorities for working under his brother’s name. Dash asked defendant why one of his text messages to Crystal said that he was not threatening her. Defendant sent that message in response to Crystal’s threats that he would be sorry because she was going to move on, meet someone else, and get a new boyfriend. Defendant said his response meant that he was not threatening or breaking up with her.
Defendant said Crystal arrived at his apartment around 7:00 p.m., and no one else was there. They did not use drugs or alcohol. Defendant was upset because he had been in the hospital two days earlier and she had not contacted him. He told her to leave him alone. Crystal said he suffered because he wanted to, and asked defendant to leave her alone. Defendant asked why she came over if she felt that way. Crystal asked for the nude photographs that were on defendant’s cell phone. Crystal said if she did not get the photographs, she was going to call Social Security and “she was pretty much going to give me out that I was using my brother’s name to work, and that I was going to be sorry and she was going to put me in the streets. She wasn’t going to, you know, rest until she sees me in the street.”
Defendant asked Crystal to admit if she was seeing someone else, because “one thing that I won’t be able to stand is actually you know for me to find things on my own.” Crystal laughed and said that was for her to know and defendant to find out. Defendant asked her to be honest, and Crystal said “this is the way I am, this is the way you met me and if you want to be with me, then fine. If not then just go and find somebody else.”
Sergeant Dash asked defendant why he did not erase or give the nude photographs to Crystal. Defendant said that Crystal initially said she was there to see how he was, and defendant was upset because he texted her about his recent hospital stay. Crystal then said she wanted the cell phone pictures. Defendant said he snapped when Crystal said she was going to turn him in for working under his brother’s name. Crystal threatened to make his life miserable, and he felt that “she used me the whole time.” Defendant told Crystal that he could not believe she would turn him in for using his brother’s name because “you know the consequences.” Crystal replied that he was stupid to tell her what he was doing.
Sergeant Dash asked defendant why the pillows and blanket were on the floor. Defendant said Crystal wanted to have sex and he refused. Crystal said they could have sex if he gave her the pictures. Defendant said he gathered all the gifts that Crystal gave him, placed them in a gift bag, and gave them back to Crystal. Defendant told Dash that they had been engaged, and Crystal threw the engagement ring at him during their argument. Defendant said they did not have a “noisy” fight and he doubted any of the apartment tenants heard their conversation.
Defendant said he snapped when Crystal threatened to turn him in for working under his brother’s name. He put both hands around her neck and strangled her. Crystal resisted, tried to pry his hands away from her throat, and told defendant she was pregnant. Defendant let her go when she said she was pregnant. Defendant said he thought about what Crystal said, and he realized that Crystal could not be pregnant because she had been on birth control during their relationship. Defendant explained what happened next: So that’s when I even got worse. I was like oh, so you’re trying to lie to me more. So that’s when I, I started strangling her again.”
Defendant sat on top of Crystal on the floor and strangled her with both hands. Crystal fought back, reached for the gift bag, and tried to hit him. Defendant thought that Crystal died sometime between 10:00 p.m. to 10:20 p.m.
Defendant said that after Crystal died, he was going to call the police but he was scared and freaked out. Around 11:30 p.m., he walked to the bus station in Merced and got on a southbound bus. He crossed the border and bought another bus ticket to Mexico City. Dash asked defendant if he left a window open in his apartment when he left that night. Defendant said he locked the door and left the windows open.
Sergeant Dash testified he asked defendant to describe the type of blanket that covered Crystal’s body. Dash asked that question to ensure that he was talking to defendant and not his brother, because that fact would only be known by someone who had been in the apartment. Defendant correctly said Crystal’s body was covered by a blanket which depicted Al Pacino from the movie “Scarface.”
Defendant said he was sorry about what happened because Crystal was “everything” to him, he still loved her, and he was not a monster. He wanted to cooperate with the police because “I really need to give out my version” and there were “a lot of people who never knew how Crystal was or who Crystal really was.” Defendant wanted to attend Crystal’s funeral, which was scheduled for the next day, but he realized her family would not want him there. Defendant voluntarily turned himself in and the officers picked him up in Texas.
During defendant’s telephone conversation, Dash asked about his prior arrest for using someone’s name. Defendant said the arrest occurred when Crystal called the police and reported he was using his brother’s name and identification papers. The prosecution introduced a certified copy of the criminal complaint and of the sentencing minute order relating to defendant’s prior misdemeanor conviction on August 25, 2004, for violating section 529.2, false impersonation of another person, Marco Olivares, with the offense committed on June 7, 2004; defendant was sentenced to 10 days in county jail, to be served on weekends, and received a $100 fine.
The autopsy
Dr. Ruth Kohlmeier, a forensic pathologist, testified Crystal died from manual strangulation to the neck. There were bruises, scrapes, and major trauma around both sides of her neck, and multiple pinpoint hemorrhages in both eyes, consistent with strangulation. The perpetrator’s hands applied pressure to the veins, organs, and arteries in the neck, which drained blood and cut off the oxygen flow to the brain. Crystal’s face and neck were reddish and “markedly congested,” consistent with the strangulation squeezing blood into but not out of her head, such that the blood had pooled in her head. There were defensive bruises on Crystal’s right breast and left knee, fingernail scratches on the back of the right side of Crystal’s neck, and blood around her pierced left ear. The fingernail scratches would have occurred as the victim tried to remove the attacker’s hands from her neck but scratched herself with her own fingernails instead. There were no drugs or alcohol in Crystal’s system and no evidence that she was sexually assaulted.
Dr. Kohlmeier explained that a conscious victim will automatically fight and resist manual strangulation to restore the oxygen supply to the brain, but the victim would lose consciousness in a short period of time and die. In response to a hypothetical question, Dr. Kohlmeier testified that if a man who was five feet six inches tall and weighed 165 pounds was straddling the top of a woman who was five feet tall and weighed 110 pounds and tried to strangle her with his hands, the victim would “fight like a banshee” and try to push off her attacker, like a “mini-wrestling match type thing.” If the perpetrator stopped strangling the victim while she was still conscious, the blood flow would be restored to the brain and the victim would regain normal neurological functions. If the perpetrator resumed strangling the victim, the entire process would start over again and victim would try to fight. As the strangulation continued, however, the victim would grow weaker and weaker, and the struggle would become less intense. The victim would lose consciousness in three to four minutes, and death could occur in five minutes or longer depending upon the dynamics of the situation.
Defense case
Defendant did not testify or call any witnesses. In closing argument, defense counsel set forth defendant’s theory of the case: that the homicide was not premeditated or willful, he was not guilty of first or second degree murder, he did not intend to kill Crystal, and he was only guilty of voluntary manslaughter because Crystal’s threats to turn him in for using his brother’s name and her lies about being pregnant constituted provocation for heat of passion.
DISCUSSION
I. Denial of the suppression motion
As previously explained, Crystal’s body was found in defendant’s apartment when Officer Echevarria crawled through a window and entered the apartment without a search warrant. There is no evidence that the police seized additional evidence from the apartment as a result of the warrantless entry and search.
Defendant moved to suppress the evidence seized as a result of the warrantless search, namely Crystal’s body and the condition it was in, along with the fruits of that illegal search, consisting of defendant’s telephonic confession to Sergeant Dash. The trial court denied the suppression motion and found Echevarria’s warrantless entry was lawful under the community caretaking exception.
On appeal, defendant contends Echevarria’s warrantless entry was invalid and the suppression motion should have been granted. Respondent argues the court’s ruling was correct and all evidence was admissible pursuant to the inevitable discovery doctrine.
A. Suppression hearing evidence
At the pretrial suppression hearing, the prosecution called Elizabeth Mancebo (Crystal’s mother) and Darlene O’Neil (the apartment manager) to testify as to background information regarding defendant’s relationship with Crystal, Crystal’s disappearance, Mancebo’s efforts to find Crystal that night, the discovery of her unlocked car and purse at the apartment complex, O’Neil’s entry into defendant’s apartment, O’Neil’s discovery of Crystal’s sandals and the bedding on the floor, and O’Neil’s leaving the blankets untouched. Their hearing testimony was consistent with their subsequent trial testimony, previously summarized.
Officer Echevarria testified extensively as to his investigation and the reason he climbed through the window into defendant’s apartment. He met with Crystal’s mother at the police department at 8:45 a.m. on Monday, May 22, 2006. Mancebo was very upset, emotional, and distraught during all of his contacts with her that day. Mancebo reported that Crystal was missing and her disappearance was very unusual, Crystal constantly remained in contact with her throughout the day, Crystal always called if she was running late or going someplace, and she failed to return cell phone calls and messages.
Echevarria testified that Mancebo told him that defendant was Crystal’s boyfriend but they recently broken up because of his excessive drinking. Mancebo was concerned about Crystal’s disappearance because defendant was a controlling individual, and he said on more than one occasion that “‘she’s mine and she’ll always be mine.’” Mancebo said she had gone to defendant’s apartment, contacted the manager, and the manager entered the apartment. Echevarria testified Mancebo did not say anything about what the manager found inside the apartment. Mancebo showed Crystal’s purse and wallet to Echevarria and explained she found the items inside Crystal’s car, which was parked at defendant’s apartment complex.
Mancebo told Echevarria that she believed Crystal was either injured or being held against her will by defendant. Echevarria described Mancebo as extremely persistent and adamant that “there was something wrong with her daughter” and Crystal was inside defendant’s apartment. Mancebo was also concerned because O’Neil, the apartment manager, referred to defendant as “Marco,” whereas Mancebo knew him as “Julio Cesar,” and she was not sure who he really was.
Echevarria obtained a booking photograph of “Julio Cesar Olivares” from Merced County, and Mancebo identified him as Crystal’s boyfriend. Echevarria learned that a month or two earlier Crystal contacted the Merced Police Department and reported that defendant made harassing telephone calls and terrorist threats to her.
Echevarria testified he went to defendant’s apartment complex and met Mancebo there. Echevarria knocked on defendant’s door but there was no answer. Echevarria spoke to a tenant who lived next door. He showed defendant’s photograph to the tenant, and the tenant confirmed that defendant lived in that apartment. The tenant did not hear any disturbance the previous evening.
Echevarria also contacted O’Neil, who informed Echevarria about her contacts with Mancebo earlier that morning. O’Neil told Echevarria that she went into the apartment and she did not see anyone, but she saw Crystal’s sandals or shoes on the floor. She specifically told Echevarria that the shoes belonged to Crystal. O’Neil did not tell Echevarria anything about the blankets on the floor. O’Neil said she had previously talked to defendant and he was despondent about breaking up with Crystal. O’Neil also told Echevarria that defendant worked at Malibu Boats. Echevarria asked O’Neil for permission to enter the apartment and she agreed. Echevarria did not have a warrant to enter the apartment.
Around 10:00 a.m., Echevarria went to an unsecured window next to the apartment’s front door, announced his presence, and looked through the window. No one responded. The window was slightly ajar and unlatched, and Echevarria removed the screen and entered the apartment.
Echevarria testified that he “immediately observed a hand protruding from a blanket that had been thrown on the floor clenching what appeared to be a bag of some sort.” Echevarria smelled the distinctive odor “of what I’ve come to recognize as the early days of decomposition.” Echevarria removed the blanket and found Crystal’s body. When he removed the blanket, the distinctive decomposition odor became stronger. Echevarria conducted a protective sweep of the premises, but there was no one in the apartment.
Also at the suppression hearing, the prosecution introduced evidence about the police department’s efforts to find defendant. Based on the information from O’Neil, Echevarria contacted defendant’s employer and determined defendant was not at work. Sergeant Dash arrived at the apartment and saw Crystal’s body partially covered by the blanket, and Echevarria briefed him about the situation. Dash met with O’Neil and determined the apartment was rented by both Crystal and “Julio Olivares.” Dash went to Malibu Boats and learned defendant worked under the name of “Marco Olivares” so he could receive insurance benefits. Dash showed defendant’s photograph to an employee, who confirmed that “Marco” was defendant.
While O’Neil testified at the suppression hearing and trial that both defendant and Crystal were on the apartment’s lease, there is no evidence that O’Neil gave this information to Echevarria before he conducted the warrantless entry of the apartment.
Dash testified defendant had completed forms at Malibu Boats that listed contact information for his family, and the officers used that information to contact defendant’s family. A search warrant was obtained for defendant’s cell phone records, and Dash tracked defendant’s cell phone activity from Merced to the Mexican border. The officers determined defendant’s mother lived in Mexico. They called defendant’s brother, Marco, and learned defendant was with him in Mexico.
Dash testified about his telephone conversation with defendant, when he confessed to strangling Crystal in the apartment. Dash conceded he asked defendant questions about the apartment and the blanket that covered Crystal, based on Dash’s own observations, which defendant could only answer if he had been inside.
Dash testified defendant was the only suspect in Crystal’s death. Dash explained that based upon his 19 years of experience as a law enforcement officer, when there is a history of domestic violence between a couple and a homicide occurs, the other spouse or partner is the most likely suspect pursued by the police.
B. The parties’ arguments
Defendant moved to suppress all evidence seized as a result of Echevarria’s warrantless entry and search of his apartment, namely Crystal’s body and the condition it was in. Defendant argued there were no exigent circumstances because there was no evidence that anyone in the apartment complex heard a disturbance from defendant’s apartment, the manager reported she entered the apartment but no one was inside, and the police had no reason to believe they needed to enter the apartment to render emergency aid or assistance to anyone. While Crystal’s disappearance and the presence of her car at the apartment may have created probable cause to obtain a warrant, Defendant contends such an assertion was “merely speculation” because she had been missing for 15 hours.
Defendant argued that even if Crystal’s continued absence would have led to probable cause for a search warrant, such a fact did not support the inevitable discovery doctrine. “Though it is reasonable to conclude that police would have eventually found [Crystal’s] body, to assume that they would have found the body in the same condition and location is pure speculation.” Defendant argued the court should suppress any evidence regarding the location, position, and condition of Crystal’s body.
Further, contends defendant, the court should suppress the fruits of Echevarria’s illegal entry, consisting of defendant’s telephonic confession to Sergeant Dash. Defendant argued the discovery of Crystal’s body led to the investigation into defendant’s whereabouts, that investigation culminated in the telephonic confession, and that conversation would not have occurred without the discovery of Crystal’s body.
The prosecutor argued Echevarria’s warrantless entry was justified by the police department’s community caretaking function to conduct a welfare check on someone who had been missing for several hours. It was reasonable to believe that Crystal did not intend to stay very long at the apartment, since she left her purse in her unlocked car, and the apartment manager found Crystal’s shoes inside the apartment. The prosecutor argued such evidence supported Echevarria’s warrantless entry to conduct a welfare check for Crystal in the apartment. In the alternative, the prosecutor argued the evidence was still admissible pursuant to the inevitable discovery doctrine, because there was a reasonably strong probability the police would have found Crystal’s body in the apartment because the neighbors would have smelled the odor from the decomposing body. The prosecutor argued that it was reasonable to assume the police would have pursued defendant in connection with Crystal’s disappearance, and the investigation would have led the officers to the same telephone conversation with defendant in Mexico City.
C. The court’s ruling
After hearing the evidence, the court found the apartment manager could not give consent for Echevarria’s warrantless entry. The court also found the warrantless search was not supported by the exigent circumstances exception because there was no evidence for a reasonable officer to believe a person was in the apartment and in imminent danger of harm to require immediate action, since O’Neil had already entered the apartment and did not see anyone in need of help.
A landlord may not give valid third-party consent to the search of a residence rented to another. (People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1200 (Walker).)
However, the court denied the suppression motion and found Echevarria’s warrantless entry was valid under the police department’s community caretaking function, and Echevarria’s testimony established that a reasonably prudent officer would have perceived a need to act in proper discharge of his duties.
“Here you had a mother who was extremely distraught and convinced her daughter’s—the loss of contact with her daughter was highly unusual in light of their relationship.
“All the information that I recited that Detective Echevarria articulated would convince a reasonable prudent officer that some action should be needed and including a second inspection of the apartment. This exception applies and is confirmed by the manager’s own conduct in that initially she refused to enter the apartment at mother’s request but when the mother kept coming back and relating additional facts the manager felt the need to enter the apartment and to investigate the issue. And so it’s kind of a confirmation of Detective Echevarria’s conduct is no less unreasonable. In fact, it’s very reasonable under the circumstances.
“It was the car, the purse, the no contact, the shoes, the manager related she saw Crystal’s shoes in the apartment. There was no explanation as to Crystal’s whereabouts. The reports of harassing phone calls and threats would have raised concerns, the breakup of the relationship, defendant being described as controlling, and then having made statements that Crystal would always be his raised concerns.
“The Court does find that the reasonable—that Detective Echevarria exemplified the conduct of [a] reasonable prudent officer in reacting to the mother’s concerns in entering the apartment just to make sure that there wasn’t—that there was a need to look to check for Crystal.”
The court did not address the inevitable discovery issue since it found the search to be valid.
D. Community Caretaking Exceptionggg
Defendant contends Echevarria’s warrantless entry of the apartment was not justified under the community caretaker exception. “The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Absent exigent circumstances, an officer’s warrantless entry into a residence is presumptively unreasonable under the Fourth Amendment. (Groh v. Ramirez (2004) 540 U.S. 551, 559; People v. Celis (2004) 33 Cal.4th 667, 676.) Exigent circumstances include hot pursuit of a fleeing felon, imminent destruction of evidence, the need to prevent a suspect’s escape, the risk of danger to the police or to other persons inside or outside the dwelling, or emergency situations requiring swift action to prevent physical harm to a person. (People v. Thompson (2006) 38 Cal.4th 811, 818.)
The community caretaking exception recognizes that law enforcement officers typically perform a broad range of duties, including activities that are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” (Cady v. Dombrowski (1973) 413 U.S. 433, 441 (Dombrowski).) “In performing this community caretaking role, police are ‘expected to aid those in distress, combat actual hazards, prevent potential hazards from materializing and provide an infinite variety of services to preserve and protect public safety.’ [Citation.]” (U.S. v. Coccia (1st Cir. 2006) 446 F.3d 233, 238.) “‘The policeman, as a jack-of-all-emergencies, has “complex and multiple tasks to perform in addition to identifying and apprehending persons committing serious criminal offenses”; by default or design he is also expected to “aid individuals who are in danger of physical harm,” “assist those who cannot care for themselves,” and “provide other services on an emergency basis.”’ [Citations.]” (People v. Madrid (2008) 168 Cal.App.4th 1050, 1056, fn. 3.)
In People v. Ray (1999) 21 Cal.4th 464 (Ray) (lead opn. of Brown, J.), a plurality of the California Supreme Court extended the community caretaking exception to a warrantless entry of a residence. Ray explained that when officers act pursuant to the exigent circumstances exception, they are searching for evidence or perpetrators of crime, there is an emergency that leaves no time for a warrant, and they possess probable cause that the premises to be searched contains such evidence or suspects. (Id. at p. 471.) In contrast, the community caretaking exception is only invoked “‘when the police are not engaged in crime-solving activities.’ [Citations.]” (Ibid.) “‘[T]he defining characteristic of community caretaking functions is that they are totally unrelated to the criminal investigation duties of the police.’ [Citation.] Upon entering a dwelling, officers view the occupant as a potential victim, not as a potential suspect.” (Ibid.)
Ray, supra,“The appropriate standard under the community caretaking exception is one of reasonableness: Given the known facts, would a prudent and reasonable officer have perceived a need to act in the proper discharge of his or her community caretaking functions?” (Ray, supra, 21 Cal.4th at pp. 476-477 (lead opn. of Brown, J.).)
Ray supraThe authority granted law enforcement under the community caretaking exception must be “narrowly delimited by the known facts viewed in light of the rationale for the exception,” and the warrantless search must be “‘suitably circumscribed to service the exigency which prompted it. [Citations.]’” (Ray, supra, 21 Cal.4th at p. 477 (lead opn. of Brown, J.).) In addition, the courts must be particularly careful to ensure that officers are not allowed to falsely rely on this exception as a “subterfuge,” when their true intention is to seek out criminals or evidence of crime. (Ibid.) “Any intention of engaging in crime-solving activities will defeat the community caretaking exception even in cases of mixed motives. [Citation].” (Ibid.)
Ray also discussed the “emergency aid doctrine,” which is “a subcategory of the community caretaking exception,” and permits officers to make a warrantless entry of a dwelling to render emergency aid and assistance to a person who they reasonably believe to be in distress and in need of that assistance. (Ray, supra, 21 Cal.4th at pp. 470, 471 (lead opn. of Brown, J.).) “This justification requires specific, articulable facts indicating the need for ‘“swift action to prevent imminent danger to life or serious damage to property....” [Citation.]’ [Citations.]” (Id. at pp. 472-473.)
Ray discussed the application of both doctrines to the facts of the case, where two police officers were dispatched to the defendant’s home on the afternoon of Christmas Day in response to a neighbor’s call that “‘the door has been open all day and it’s all a shambles inside.’” (Ray, supra, 21 Cal.4th at p. 468 (lead opn. of Brown, J.).) The neighbor did not know if anyone was home. The officers found the front door was two feet open, and they could see through the open door that the front room appeared to be ransacked. (Ibid.) The officers repeatedly knocked and announced their presence but there was no response. There were no signs of forced entry but, based on his experience, one officer believed there was a “‘95 percent’ likelihood they had encountered a burglary or similar situation.” (Ibid.) The officers decided to enter the residence to conduct a security check, “‘to see if anyone inside might be injured, disabled, or unable to obtain help’ and to determine whether a burglary had been committed or was in progress.” (Ibid.) No one was inside, but the officers saw large amounts of cocaine and money in plain view. (Ibid.)
Ray held the officers’ warrantless entry through the open front door was not valid under the emergency aid component of community caretaking. (Ray, supra, 21 Cal.4th at p. 472 (lead opn. of Brown, J.).) While the officers were concerned about the possibility of an injured person inside the residence, they had no knowledge of any facts that would lead a reasonable person in their position to believe “entry was immediately necessary to aid life or limb. [Citation.]” (Id. at p. 473.)
However, the Ray plurality held the officers’ warrantless entry was valid under the community caretaking exception because they “acted reasonably to protect the safety and security of persons and property when they briefly entered defendant’s residence without a warrant and then observed contraband in plain view.” (Ray, supra, 21 Cal.4th at p. 468 (lead opn. of Brown, J.).) “While the facts known to the officers may not have established exigent circumstances or the apparent need to render emergency aid, they warranted further inquiry to resolve the possibility someone inside required assistance or property needed protection. In such circumstances, ‘entering the premises was the only practical means of determining whether there was anyone inside in need of assistance [or property in need of protection].’ [Citations.]” (Id. at p. 478, brackets in original.)
In a separate concurring opinion in Ray, three members of the court held the officers’ entry into the residence was permissible under the traditional exigent circumstances doctrine, and they did not discuss whether any other exception to the warrant requirement applied. (Ray, supra, 21 Cal.4th at pp. 480-482 (conc. opn. of George, C.J.).) The dissenting opinion found the warrantless entry was illegal and rejected both exigent circumstances and the creation of a community caretaker exception. (Ray, supra, 21 Cal.4th at pp. 482-488 (dis. opn. of Mosk, J.).)
In the instant case, Echevarria’s warrantless entry into the apartment is not supported by the emergency aid component of the community caretaking exception. As in Ray, Echevarria did not have any facts that would have led a reasonable person to believe entry was immediately necessary to aid life or limb. While Crystal’s mother was understandably frantic about her daughter’s whereabouts, O’Neil had already entered the apartment and reported no one was inside, and there was no evidence that the neighbors heard any disturbance from the apartment.
As for the community caretaking exception, defendant contends this court should not follow Ray’s analysis because it is contained in a plurality opinion that is flawed and has been criticized. (See, e.g., Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 918 [nonbinding effect of plurality opinions].) Even if we were to follow Ray’s plurality opinion, however, it is an extremely close question as to whether Echevarria’s warrantless entry through the window and into the apartment was valid under the community caretaking exception. Echevarria clearly had information to connect Crystal to the apartment: her mother reported that defendant was Crystal’s boyfriend, Crystal’s unlocked car was found at the apartment complex, her purse was left in the car (which her mother reported was unusual behavior), the next-door tenant confirmed defendant lived in that apartment, and O’Neil told Echevarria that she saw Crystal’s shoes in the apartment when she crawled in through the window. It could be argued that based upon the information that tied Crystal to the apartment, particularly O’Neil’s observation of her shoes, Echevarria was obliged to take another look at the apartment to make sure that no one was inside and needed assistance.
While O’Neil provided the information about Crystal’s shoes, however, she also advised Echevarria that she checked the apartment and no one was inside. O’Neil’s entry occurred several hours before Echevarria arrived at the apartment complex, but there is no evidence that anyone was seen entering the apartment between O’Neil’s entry and Echevarria’s arrival, or that the apartment’s door and windows had been disturbed in any way since O’Neil had crawled through the window. In addition, there is no evidence that O’Neil told Echevarria about the bundle of blankets on the floor or that Crystal’s name was also on the apartment lease. The information about the blankets, together with the other facts about Crystal’s car, shoes, and legal connection to the apartment, could have led to a reasonable person to believe that Crystal was inside and a safety check was necessary. In contrast to Ray, however, the entirety of the evidence presented to Echevarria established that no one was in the apartment. While Mancebo was sure that defendant had done something to Crystal, Echevarria’s entry at that point would have constituted an investigation into a possible crime rather than checking on the well-being of an occupant.
We thus are unconvinced that the community caretaker exception applies here; we turn instead to the inevitable discovery doctrine.
E. Inevitable Discovery
Respondent contends that even if the community caretaking exception does not apply, Echevarria’s warrantless entry into the apartment was justified pursuant to the inevitable discovery doctrine. The inevitable discovery doctrine acts as an exception to the exclusionary rule and permits the admission of otherwise excluded evidence “if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police.” (Nix v. Williams (1984) 467 U.S. 431, 447 (Nix).)
Although the trial court did not address the inevitable discovery doctrine when it denied defendant’s suppression motion, the doctrine may be applied on appeal because the factual basis for the theory was fully set forth in the record. (People v. Robles (2000) 23 Cal.4th 789, 801, fn. 7 (Robles); People v. Boyer (2006) 38 Cal.4th 412, 449.)
“Under the inevitable discovery doctrine, illegally seized evidence may be used where it would have been discovered by the police through lawful means. As the United States Supreme Court has explained, the doctrine ‘is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.’ [Citation.] The purpose of the inevitable discovery rule is to prevent the setting aside of convictions that would have been obtained without police misconduct. [Citation.] The burden of establishing that illegally seized evidence is admissible under the rule rests upon the government. [Citations.]” (Robles, supra, 23 Cal.4th at pp. 800-801, fn. omitted.)
“[I]nevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification....” (Nix, supra, 467 U.S. at pp. 444-445, fn. 5.) The doctrine does not require certainty, but the prosecution “must show a ‘reasonable probability that [the challenged evidence] would have been procured in any event by lawful means.’ [Citations.]” (Walker, supra, 143 Cal.App.4th at p. 1215, first set of brackets in original.)
“The inevitable discovery doctrine applies only when the fact that makes discovery inevitable is born of circumstances other than those brought to light by the illegal search itself. [Citation.]” (U.S. v. Reilly (9th Cir. 2000) 224 F.3d 986, 995.) The government can meet its burden by showing that the evidence would have been uncovered by officers in carrying out routine procedures. (Id. at p. 994.) However, the inevitable discovery doctrine will not apply in situations where the police had probable cause but simply did not attempt to obtain a warrant. (Id. at p. 995; Robles, supra, 23 Cal.4th at p. 801; Walker, supra, 143 Cal.App.4th at pp. 1215-1216.) “[T]o excuse the failure to obtain a warrant merely because the officers had probable cause and could have inevitably obtained a warrant would completely obviate the warrant requirement of the fourth amendment.” (U.S. v. Echegoyen (9th Cir. 1986) 799 F.2d 1271, 1280, fn. 7.)
Defendant asserts the inevitable discovery doctrine does not bar the application of the exclusionary rule to the officers’ discovery of Crystal’s body, their determination that defendant was in Mexico with his brother, and defendant’s telephonic confession to Sergeant Dash, because the police obtained such evidence solely because of Echevarria’s warrantless entry into the apartment. However, the historical facts in the record demonstrate a reasonable probability the police would have uncovered the same evidence by lawful means. As to Crystal’s body, Echevarria determined prior to his warrantless entry that defendant lived in that apartment based on the information provided by Mancebo. Mancebo also told Echevarria that some people knew defendant by a different name. Echevarria obtained a photograph of defendant under his true name, and Mancebo confirmed that defendant was Crystal’s boyfriend who lived in the apartment. When Echevarria arrived at the apartment complex, he confirmed defendant lived in that apartment by showing defendant’s photograph to the next-door tenant. Moreover, O’Neil was clearly aware of defendant’s identity, that defendant lived in that apartment, and defendant and Crystal were both on the lease.
Crystal had been missing since approximately 7:00 p.m. on Sunday, May 21, 2006, when she no longer responded to cell phone messages, which her family and friends described as very unusual. Echevarria climbed through the apartment window around 10:00 a.m. on Monday, May 22, 2006, about 15 hours after her disappearance. Echevarria testified the window was already ajar when he climbed through it, and defendant later told Sergeant Dash that the windows were open when he left Crystal’s body in the apartment. As Echevarria approached the blanket on the floor, he smelled the distinctive odor “of what I’ve come to recognize as the early days of decomposition,” and the distinctive decomposition odor became stronger when he removed the blanket and exposed the body.
If Echevarria had not entered the apartment, Crystal’s body would have continued to decompose in the typically warm spring month of May, the distinctive odor would have become more pronounced than that which Echevarria experienced, and defendant’s next-door neighbor and other apartment residents would have smelled the same odor through the apartment’s open windows and reported the smell to the authorities.
The inevitable discovery doctrine also applies to the officers’ efforts to find defendant and his subsequent telephone confession to Sergeant Dash. Prior to the warrantless entry, Echevarria learned from Mancebo about defendant’s controlling conduct toward Crystal and that they recently broke up because of defendant’s excessive drinking. Echevarria also learned that Crystal had recently filed a police report that defendant made harassing calls and terrorist threats to her. O’Neil, the apartment manager, advised Echevarria that defendant worked at Malibu Boats and he was despondent about breaking up with Crystal.
At the suppression hearing, Sergeant Dash testified that when there is a history of domestic violence between a couple and a homicide occurs, the other spouse or partner is the most likely suspect pursued by the police. Even prior to the discovery of Crystal’s body, defendant would have been a prime suspect in her disappearance based on the information from her family and friends about his controlling behavior, the discovery of her unlocked car containing her purse and license, her unusual behavior of not returning cell phone messages, and O’Neil’s discovery of Crystal’s shoes inside the apartment.
Dash went to Malibu Boats to speak to defendant’s employer, based on the information provided by O’Neil, and obtained contact information for defendant’s relatives. That information led the police to the telephone number for defendant’s brother in Mexico City, and defendant’s brother handed the telephone to defendant without being advised of any information obtained from the warrantless entry. The record thus shows that the police found defendant in Mexico City without reliance upon any information from Echevarria’s warrantless entry into the apartment.
More importantly, however, the transcript of Sergeant Dash’s telephone call reveals that defendant immediately confessed to killing Crystal and offered a lengthy narrative account of the incident without Dash confronting him with any information obtained from Echevarria’s warrantless entry into the apartment. Indeed, Dash did not even tell defendant that Crystal’s body had been found. When defendant came onto the line, Dash simply asked, “[h]ow are you doing?” Defendant replied he was just “terrible.” Dash said: “I can believe that. How are you doing?” Defendant said he just wanted to see his mother “for the last time.” Dash asked if he was feeling all right. Defendant replied: “Not really, I can’t really find the right answers to tell you how I’m feeling” and “I’m totally destroyed cuz’, just don’t like, just can’t believe what I did.”
Dash told defendant that lots of people in Merced were worried about him, including his coworkers. Defendant replied: “They told me a lot of times and they pretty much knew what was going on and like I said, you know, I just snapped and the things that she told me, you know, I thought that you know, she was going to use them against me....” Dash asked defendant what he meant. Defendant said that Crystal threatened to report he was working under his brother’s name and “she was not going to stop until she... sees me actually on the streets.” While Dash asked defendant what type of blanket covered Crystal’s body, based on information Echevarria gave Dash about the apartment, that question occurred much later in the conversation, after defendant had already given a narrative account of his conversation with Crystal and the reasons why he snapped and strangled her.
We thus conclude there is a reasonable probability that both Crystal’s body and defendant’s telephonic confession would have been inevitably discovered through lawful means entirely unrelated to Echevarria’s warrantless entry into the apartment, and defendant’s suppression motion was properly denied.
II. Ineffective assistance of counsel--defendant’s prior misdemeanor conviction
Defendant contends defense counsel was prejudicially ineffective in failing to object to the prosecution’s introduction into evidence, in its case-in-chief, of his prior misdemeanor conviction for false impersonation of his brother. Defendant argues the prior conviction constituted inadmissible character evidence and the certified court record of the conviction and sentence should have been excluded.
“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 215.)
The failure to object is considered a matter of trial tactics “as to which we will not exercise judicial hindsight. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 520.) We defer to counsel’s reasonable tactical decisions in examining ineffective assistance claims and there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
As we will explain, the entirety of the record reveals that defense counsel had tactical reasons for failing to raise certain objections. Given the nature of defendant’s claims, we will summarize the factual points and then address his ineffective assistance contentions.
A. Theprior misdemeanor conviction
During his trial testimony, Sergeant Dash disclosed that defendant acknowledged in the telephone interview his prior arrest for using someone’s name; defendant then remarked to Dash that the arrest occurred because Crystal called the police and reported he was using his brother’s name and identification papers. When Crystal threatened to report him again, defendant told Dash, he suggested she should not because “you know the consequences.” Defendant said he “snapped.”
Thereafter, the prosecutor advised the court that she intended to introduce a certified copy of records pertaining to defendant’s prior misdemeanor conviction for false impersonation of his brother. The prosecutor argued the evidence was relevant to discount defendant’s claim of motive on the tape-recorded conversation, since the “central issue” was whether Crystal’s alleged threats were “sufficient provocation” such that a reasonable person would have acted in a similar fashion.
The court queried whether the prior misdemeanor conviction itself was admissible, and the prosecutor said yes. Defense counsel stated: “That’s fine. I mean, as far as that goes, it’s something Mr. Olivares is going to potentially discuss. As I saw right now, I do anticipate him testifying. I’m not overly concerned about that.” The prosecutor clarified that she intended to introduce the prior misdemeanor conviction in her case-in-chief, and not to impeach defendant’s potential trial testimony. She explained that defendant discussed the reason he “snapped” in his confession, that Crystal threatened to turn him into Social Security. The certified copy of records of defendant’s prior misdemeanor conviction showed what type of punishment he received, demonstrating that he was on notice as to what would happen if Crystal turned him in again. Defense counsel acknowledged notice of this evidence but asked for the certified copies, and the prosecutor agreed to provide them. The court deferred the matter until later in the trial.
When the court returned to the admissibility of the prior conviction, defense counsel requested a continuance because he needed more time to talk with defendant as to whether he wanted to testify. The court denied the continuance motion and the parties addressed the prior misdemeanor conviction. Defense counsel stated there were “reasons” for introducing the certified copy of the conviction but he requested a limiting instruction. The court agreed to instruct the jury that defendant’s prior misdemeanor conviction was being received for the limited purpose of motive.
Defense counsel asked the court to advise defendant of his right to testify. As the court went through the advisements, defendant explained that he did not have enough time to discuss his testimony with his attorney. The court decided to grant defense counsel’s earlier motion for a continuance to allow further time for defendant to consult with his attorney as to whether he would testify.
Thereafter, the jury returned, the prosecutor introduced the certified copy of records of defendant’s prior misdemeanor conviction for false impersonation of his brother in 2004, for which he was sentenced to 10 days in county jail and received a $100 fine. The court immediately instructed the jury:
this evidence is received for the limited purpose as to the issue of motive, possible motiveWhen the trial resumed after the continuance, defense counsel advised the court that he met with defendant, they discussed “at length” the benefits and consequences of testifying, and defendant decided not to testify.
B. Closing arguments
In her closing argument, the prosecutor asserted that Crystal’s alleged threat to turn defendant in to the authorities for working under his brother’s name was trivial and insufficient to constitute the requisite provocation to reduce first degree murder to second degree murder or voluntary manslaughter. The prosecutor also cited to defendant’s admission that he stopped strangling Crystal when she claimed to be pregnant, thought about her claim, decided she was lying, and started to strangle her again, as showing that he reflected on his decision and thus showed the premeditation and intent to kill necessary to find first degree murder.
In his closing argument, defense counsel set forth defendant’s theory of the case--that the homicide was not premeditated or willful, he did not intend to kill Crystal, and he was only guilty of voluntary manslaughter because Crystal’s threats to turn him in and put him on the streets constituted provocation.
There was some implications there I m sure you can all reach, but that s not supposed to come into your deliberations either, okay some kind of motive or knowledge of the punishment you could be looking at, that s it.Defense counsel argued the prosecutor could not rely on selected portions of the defendant’s tape-recorded statements, but the jury had to consider the entirety of his conversation with Sergeant Dash, particularly defendant’s explanation that he “snapped,” and he was “not in his right mind” or thinking clearly when Crystal threatened to turn him in and ruin his life. Defense counsel argued that defendant’s actions were not premeditated, willful, or deliberate, and he was not guilty of first degree murder. Crystal “provoked” him by threatening to expose him for working under his brother’s name, and “she told him she wasn’t going to rest unless he was out on the streets...” Defense counsel continued:
I m going to get you locked up for a misdemeanor and you can do a couple of days in jail again, no. She was telling him, I am going to ruin your life.Defense counsel argued Crystal further tried to “manipulate” defendant by lying about being pregnant, which was “another provocation and that’s when he really snapped. That’s when he totally lost it and went over the top.”
Defense counsel argued the entirety of the evidence showed defendant did not form premeditation or deliberation, he did not have the intent to kill, he was not guilty of either first or second degree murder, and the homicide constituted voluntary manslaughter instead. Counsel extensively discussed the voluntary manslaughter instructions and argued that a reasonable person would “basically freak out” if someone threatened to ruin his life and get him thrown on the streets. Crystal’s statements constituted the requisite provocation for heat of passion, which resulted in defendant acting under intense emotion that obscured his reasoning and judgment.
C. Analysis
Defendant contends defense counsel was ineffective for failing to object to the prosecution’s introduction of his prior misdemeanor conviction in its case-in-chief, the prior conviction was inadmissible character evidence, and the certified copy of the record of his conviction was inadmissible hearsay. Evidence Code section 1101, subdivision (b) permits the admission of uncharged acts when relevant to establish some fact other than a person’s character or disposition, such as motive, intent, identity, or common scheme and plan. (People v. Ewoldt (1994) 7 Cal.4th 380, 393, 400; People v. Balcom (1994) 7 Cal.4th 414, 422.) Motive, or lack of motive, is always relevant in a criminal prosecution. (People v. Perez (1974) 42 Cal.App.3d 760, 767; People v. Morales (1979) 88 Cal.App.3d 259, 263-265.) “Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice.” (People v. Hillhouse (2002) 27 Cal.4th 469, 504.) “Motive is an intermediate fact which may be probative of such ultimate issues as intent [citation], identity [citation], or commission of the criminal act itself [citation].” (People v. Scheer (1998) 68 Cal.App.4th 1009, 1017-1018.)
Defendant claims defense counsel was ineffective because the court would have been required to exclude evidence of his prior misdemeanor conviction if counsel had objected. However, evidence of the conduct underlying such a conviction may be admissible subject to the court’s exercise of discretion. (People v. Chatman (2006) 38 Cal.4th 344, 373.) Additionally, the record here suggests a tactical reason for counsel’s failure to object. It was undisputed that defendant strangled and killed Crystal; the disputed issue was whether the homicide was first or second degree murder, or voluntary manslaughter. Even if defense counsel objected to admission of evidence of the the conduct underlying defendant’s prior misdemeanor conviction for false impersonation of his brother, an objection would have been overruled because evidence of defendant’s motive, or lack of motive, was relevant and admissible at his trial. Defendant acknowledged in his telephonic confession that Crystal had already turned him in for working under his brother’s name, but this time she threatened to ruin his life and put him in the streets. Defendant’s prior misdemeanor conviction for false impersonation of his brother was relevant and admissible as evidence to dispute his claim of motive. Defendant claimed Crystal threatened to turn him in and he snapped, but the evidence underlying his prior conviction showed that he only received a misdemeanor conviction, a fine, and 10 days local time served on the weekends, and the anticipation of again receiving the same punishment was insufficient to constitute the motive or provocation to kill Crystal. Indeed, in closing argument, the prosecutor anticipated defense counsel’s theory of the case and argued that even though Crystal had already turned defendant in for using his brother’s name, he received a very minor penalty, he knew what to expect if she turned him in again, and such a motive could not constitute the requisite provocation to reduce murder to manslaughter.
Even if the certified copy of the record of his prior conviction was inadmissible in the prosecution’s case-in-chief, the entirety of the record presents a clear tactical reason for defense counsel’s failure to object to the prosecution’s evidence. Defense counsel’s closing argument relied upon both defendant’s telephonic statements to Dash and his prior misdemeanor conviction to argue that Crystal’s threats to turn defendant in and ruin his life constituted sufficient motive and provocation, that he acted under the heat of passion, and the homicide was voluntary manslaughter instead of murder. In making these arguments, counsel specifically cited to defendant’s prior misdemeanor conviction and remained purposefully vague as to what might have happened if Crystal reported him a second time for using his brother’s name:
Instead, counsel asked the jury to focus on what Crystal wanted to do to defendant if she turned him in again: “So this isn’t, oh, I’m going to get you locked up for a misdemeanor and you can do a couple of days in jail again, no. She was telling him, I am going to ruin your life. I’m going to get you fired. I’m going to make sure you’re homeless. I’m going to ruin your life.... I’m going to just destroy everything you’ve worked for. Of course that’s going to—that’s—of course that is a provocation. Of course, that’s the kind of provocation that’s going to [cause] somebody to act under emotion.”
We thus conclude the entirety of the record reflects a clear tactical reason why defense counsel did not object to evidence of defendant’s prior misdemeanor conviction for false impersonation of his brother.
III. The court’s response to the jury’s question
Defendant next contends the court improperly responded to the jury’s question during deliberations, when it asked about the possible implications if Crystal reported defendant to the authorities for working under his brother’s name. Defendant also contends defense counsel was ineffective for failing to move to reopen his case to present additional evidence.
A. Background
During deliberations, the court received the following question from the jury:
The court advised the prosecutor and defense counsel how it proposed to respond. Counsel and defendant personally agreed with the court’s proposed response. The parties stipulated that the court could go into the jury room and read the response. Consistent with what it had proposed, the court wrote its response on the jury’s note:
“We cannot provide you with an answer. You must base your decision on the evidence presented.”
B. Analysis
1. The court’s response
Defendant contends the court failed to properly respond to the jury’s question in violation of section 1138, which provides that when the jury “desire[s] to be informed on any point of law arising in the case,... the information required must be given.” “The satisfaction of this obligation [under section 1138] does not always require the trial court to elaborate on standard jury instructions already given. When the instructions [are] full and complete, the trial court has the discretion to determine what additional explanations are sufficient to satisfy the jury’s request for information. Comments that diverge from the standard jury instruction are often risky to undertake. [Citation.]” (People v. Briscoe (2001) 92 Cal.App.4th 568, 589 (Briscoe).)
“[J]ury questions can present a court with particularly vexing challenges. The urgency to respond with alacrity must be weighed against the need for precision in drafting replies that are accurate, responsive, and balanced. When a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jury’s inclination. Although comments diverging from the standard should be embarked on with care, a trial court must do more than figuratively throw up its hands and tell the jury it cannot help. It must consider how it can best aid the jury and decide whether further explanation is desirable, or whether the reiteration of previously given instructions will suffice. [Citation.]” (People v. Moore (1996) 44 Cal.App.4th 1323, 1331, italics added.)
The court must be particularly cautious when the jury’s question has factual, in addition to legal, implications. In Briscoe, the jury sought clarification from the trial court about whether a robbery at gunpoint constituted a provocative act in and of itself. The prosecutor argued that the jury should be told that robbery at gunpoint did constitute a provocative act in and of itself. Defense counsel argued that the jury’s question was one of law to be answered in the negative, because the provocative act must be an act beyond the robbery itself. The trial court viewed the jury’s inquiry as a factual question turning on the circumstances of each case. It noted that the underlying offense was robbery, not robbery at gunpoint. The trial court reasoned that if robbery could be committed without a gun, then the use of a gun might constitute the provocative act beyond that required to commit the underlying robbery in an appropriate case. Ultimately, the trial court told the jury that this was a factual determination for it to make and suggested that it review the instructions defining a provocative act. (Briscoe, supra, 92 Cal.App.4th at p. 588.) On appeal, the defendant argued the court abdicated its statutory duty under section 1138, the jury’s question raised a simple point of law, the court should have instructed the jury that robbery at gunpoint was not a provocative act, and its actual response confused the jury. (Id. at pp. 588-589.)
Briscoe held the trial court “was prudent to respond to the jury’s inquiry as it did” because the question did not involve a simple matter of law, but was instead properly characterized as a question of fact, and resolution of the inquiry turned upon the particular facts of the case. (Briscoe, supra, 92 Cal.App.4th at p. 589.)
Defendant contends the trial court’s response to the jury’s question herein was misleading and confusing, the court should have realized that the jury was focusing on provocation, and the court’s response prevented the jury from relying upon the absence of sufficiently persuasive evidence. We note that defense counsel’s failure to object to the court’s response waives appellate review of the section 1138 issue. (People v. Roldan (2005) 35 Cal.4th 646, 729, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Nevertheless, the jury’s question in this case, as in Briscoe, raised entirely factual issues that had not been addressed by the evidence in the case. As such, the court correctly declined to provide an answer to the jury’s fact-based question and properly instructed the jury to base its decision on the evidence presented.
2. Assistance of Counsel
Defendant contends counsel was ineffective for failing to object to the court’s response to the jury’s question. Defendant asserts that counsel should have moved to reopen his case so he could introduce evidence that the potential consequences of Crystal’s threats to turn him in for using his brother’s name would have been far more severe than his prior misdemeanor conviction.
The trial court has broad discretion to order a case reopened and allow the introduction of additional evidence. (People v. Goss (1992) 7 Cal.App.4th 702, 706.) The trial court has authority to order a case reopened for good cause even after jury deliberations have begun. (People v. Green (1980) 27 Cal.3d 1, 42, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 239, and People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.) In exercising such discretion, the court must consider the stage in the proceedings at which the motion was made, the defendant’s diligence (or lack thereof) in presenting the new evidence, the prospect that the jury would accord the new evidence undue emphasis, and the significance of the evidence. (People v. Marshall (1996) 13 Cal.4th 799, 836.)
While the court may have had discretion to grant a defense motion to reopen during deliberations, the entirety of the record establishes a tactical reason for defense counsel’s agreement with the court’s response to the jury and his failure to request to introduce evidence on that issue. As we have already explained, defense counsel clearly made the tactical decision to inform the jury about defendant’s prior misdemeanor conviction to bolster defendant’s telephonic account of the reason he “snapped” and strangled Crystal. In closing argument, counsel remained purposefully vague as to the possible punishment he might have faced if Crystal turned him in again, but instead focused the jury’s attention on Crystal’s threats that she would ruin his life and put him into the streets. While it was undisputed that defendant killed Crystal and left her body in his apartment, counsel was able to use the testimony of defendant’s friends and defendant’s telephonic statements to present a view of him that was as sympathetic as possible—that defendant used his brother’s identity so he could get a job, he was gainfully employed, his friends thought he was a nice young man, and his apartment manager wanted to introduce him to her own daughter. If counsel had introduced evidence as to what might have happened if Crystal reported him again, that sympathetic view might have been undermined as the jury heard about the penal, immigration, and employment laws he might have been violating. The record again presents a tactical reason for counsel’s decision.
IV. Assistance of counsel—argument and instructions
Defendant next contends defense counsel was ineffective in failing to object to the prosecutor’s closing argument, which purportedly misstated the legal standards for provocation and voluntary manslaughter. He also contends counsel was ineffective in failing to request pinpoint instructions that provocation could reduce first degree murder to second degree murder.
A. Background
As explained ante, the prosecutor asserted in closing argument that Crystal’s alleged threat to turn defendant in to the authorities for working under his brother’s name was trivial and insufficient to constitute the requisite provocation to reduce first degree murder to second degree murder or voluntary manslaughter. The prosecutor also cited to defendant’s admission that he stopped strangling Crystal when she claimed to be pregnant, thought about her claim, decided she was lying, and started to strangle her again as showing that he reflected on his decision and thus showed his premeditation and intent to kill, supporting a first degree murder conviction.
Defendant argues defense counsel should have objected to the following section of the prosecutor’s closing argument as misstating the legal standards for provocation and manslaughter:
This isn t the Julio Olivares standard of provocation. This is a reasonable person standard“A reasonable person in the same situation would have acted the same way. And I’m arguing to you there is no way that a reasonable person... in a situation similar to what the defendant was in would have killed another person because of the things they were arguing about.
“Second reason that they argued was because he was afraid that she was going to turn him into Social Security or that she was—she was going to call the police because he’s been using his brother’s identity. No reasonable person is going to kill another person for those trivial reasons. That is not reasonable. That is absolutely not adequate provocation.
There is just no way any reasonable person is going to say, I killed that person, I was justified in killing that person because I refused to delete pictures of this person, naked pictures, because she was going to turn me in to the police for using my brother s identity“Now you’re going to have a copy of the minute order that was moved into evidence, by me, showing that the defendant had already been convicted of the same offense for impersonating his brother. And you’ll see what his punishment was.
“THE COURT: Overruled.
We have already recounted defendant’s closing argument. In rebuttal, the prosecutor refuted the assertion that Crystal’s threat to put defendant in the streets was sufficient provocation to kill someone. “Not in this universe. No way.” The prosecutor argued that defendant deliberated and reflected on his decision to kill Crystal. “Unreasonable. I’m going to put you out on the street is sufficient for justification for him to have killed her. Unreasonable,” and the only reasonable interpretation of the facts was that defendant murdered Crystal with premeditation and deliberation.
B. Analysis
1. Prosecutor’s closing argument
Defendant contends the prosecutor misstated the legal standards for provocation and manslaughter in her closing argument and defense counsel was ineffective for failing to object.
The California Supreme Court recently summarized the principles of murder, manslaughter, heat of passion, and provocation in People v. Moye (2009) 47 Cal.4th 537 (Moye).
“‘[N]either heat of passion nor imperfect self-defense is an element of voluntary manslaughter’ that must be affirmatively proven. [Citation.] Rather, they are ‘theories of partial exculpation’ that reduce murder to manslaughter by negating the element of malice. [Citation.]”
“‘“To satisfy the objective or ‘reasonable person’ element of this form of voluntary manslaughter, the accused’s heat of passion must be due to “sufficient provocation.”’ [Citation.]’ [Citation.] ‘[T]he factor which distinguishes the “heat of passion” form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]’ [Citation.]
People v. Moye supra People v. AvilaThus, while the defendant “‘must actually, subjectively, kill under the heat of passion,’” the circumstances giving rise to the heat of passion “‘are also viewed objectively.... “[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,” because “no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.” [Citation.]’ [Citation.]” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1143-1144.)
The prosecutor misled the jury, claims defendant, by arguing that the determination of heat of passion should be based on the defendant’s conduct, rather than on the circumstances in which the defendant was placed. Defendant’s argument is based on People v. Najera (2006) 138 Cal.App.4th 212 (Najera), where the defendant was convicted of committing second degree murder when he stabbed the victim after exchanging crude insults with him. In closing argument, the prosecutor repeatedly described manslaughter as a “‘legal fiction’” in which malice is negated by heat of passion or suddenly quarrel, and “the law says you can cut the defendant a break and not go murder and go voluntary manslaughter.” (Id. at p. 220.) The prosecutor argued that in determining whether the defendant acted in the heat of passion, there was “a reasonable, ordinary person standard.... Would a reasonable person do what the defendant did? Would a reasonable person be so aroused as to kill somebody? That’s the standard.” (Id. at p. 223.) In rebuttal argument, the prosecutor stated: “‘[T]he reasonable, prudent person standard... [is] based on conduct, what a reasonable person would do in a similar circumstance. Pull out a knife and stab him? I hope that’s not a reasonable person standard.’” (Ibid.)
Najera held that the prosecutor misstated the legal standards, and that “[a]n unlawful homicide is upon ‘a sudden quarrel or heat of passion’ if the killer’s reason was obscured by a ‘“provocation”’ sufficient to cause an ordinary person of average disposition to act rashly and without deliberation. [Citation.] The focus is on the provocation--the surrounding circumstances--and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion.” (Najera, supra, 138 Cal.App.4th at p. 223, italics added.)
“The prosecutor interspersed correct statements of the law with the incorrect ones stating, for example, ‘[w]ould a reasonable person be so aroused as to kill somebody? That’s the standard.’ The effect of the prosecutor’s statements was, however, to create confusion. Does the jury determine sudden quarrel or heat of passion based on the level of provocation or on the defendant’s conduct in response to the provocation?” (Najera, supra, 138 Cal.App.4th at p. 224.)
Najera noted the jury was clearly confused because it asked the court to clarify whether a reasonable person test applied to aroused passions and the person’s conduct. (Najera, supra, 138 Cal.App.4th at p. 224.) Najera held the court correctly instructed the jury to follow the instructions, and while the prosecutor’s remarks were misleading, defense counsel’s failure to object was not prejudicial because the victim’s conduct that constituted the supposed provocation was not sufficient to give manslaughter instructions. (Id.at pp. 225-226.)
Defendant argues that, as in Najera, the prosecutor herein improperly argued that heat of passion required that an ordinarily reasonable person would have killed in response to the provocation, and defense counsel’s failure to object to the prosecutor’s argument constituted prejudicial ineffectiveness. However, the prosecutor’s argument did not misstate the legal standards for provocation, heat of passion, and voluntary manslaughter, but instead focused on both the objective and subjective components of heat of passion. As respondent notes, the prosecutor did not focus on whether defendant’s response was reasonable, as in Najera, but on whether the circumstances were sufficiently provocative that it would cause an average person to be so inflamed that he would lose reason and judgment. The prosecutor clarified that provocation did not depend on defendant’s own subjective standards and what he personally felt, and that the reasons that supposedly constituted provocation were trivial and insignificant. The point of the prosecutor’s argument was that to find voluntary manslaughter the provocation had to cause a person of average judgment to act rashly. Defense counsel was not prejudicially ineffective in failing to object to the prosecutor’s closing argument.
2. Pinpoint instructions and alternative theories
Defendant’s final claim of ineffective assistance is that defense counsel should have requested pinpoint instructions on provocation and second degree murder, he improperly relied on voluntary manslaughter as the sole defense theory, and he should have presented the jury with second degree murder as an alternative argument.
What would otherwise be deliberate and premeditated first degree murder may be mitigated to second degree murder if the jury finds that the defendant “formed the intent to kill as a direct response to... provocation and... acted immediately,” i.e., without deliberation or premeditation. (People v. Wickersham (1982) 32 Cal.3d 307, 329, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.) Provocation sufficient to mitigate a homicide to second degree murder requires only a finding that the defendant’s subjective mental state was such that he did not deliberate and premeditate before deciding to kill. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296; People v. Padilla (2002) 103 Cal.App.4th 675, 677-678.) Instructions as to provocation reducing first degree murder to second degree murder are pinpoint instructions that must be requested by the defense. (People v. Rogers (2006) 39 Cal.4th 826, 877-878.)
The jury herein was instructed as to first degree murder, second degree murder, and voluntary manslaughter. Defense counsel’s closing argument suggests a tactical reason as to why counsel did not request pinpoint instructions that provocation could reduce first degree murder to second degree murder. Defense counsel was adamant that there was no premeditation, deliberation, or willfulness to support first degree murder. Counsel was also adamant that defendant did not have the intent to kill and thus he did not commit second degree murder. Instead, counsel made the tactical choice for the jury to solely focus on provocation as it related to voluntary manslaughter and find defendant not guilty of any type of murder.
Nevertheless, even if counsel was ineffective for failing to request pinpoint instructions as to second degree murder and subjective provocation, defendant has failed to show prejudice, i.e., a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different. (People v. Williams, supra, 16 Cal.4th at p. 215.) The evidence of how Crystal was killed was supplied by defendant’s own voice, as he recounted the incident to Sergeant Dash. Defendant described how he snapped when Crystal threatened to turn him in to authorities for working under his brother’s name, and he put his hands around Crystal’s neck and started to strangle her. Defendant said Crystal fought back, tried to pry his hands away from her throat, and told defendant she was pregnant. Defendant let her go when she said she was pregnant. Defendant said he thought about what Crystal said, and he realized that Crystal could not be pregnant because she had been on birth control during their relationship.
Defendant explained what happened next: “So that’s when I even got worse. I was like oh, so you’re trying to lie to me more. So that’s when I, I started strangling her again.” Defendant sat on top of Crystal on the floor and strangled her with both hands, she tried to hit him with the gift bag, and he killed her.
Defendant’s undisputed account showed that he murdered Crystal with premeditation, deliberation, and willfulness. While he may have snapped when she threatened to turn him into authorities, he stopped strangling her long enough to think about her claim of being pregnant, decided she was lying, and made the deliberate decision to strangle and kill her. Even though she physically tried to resist, defendant kept his hands around her throat and cut off the oxygen supply for the requisite three to five minutes to induce unconsciousness and murder her. Defense counsel was faced with a daunting task in this case, given the admissibility and voluntariness of defendant’s telephonic confession, and counsel valiantly tried to present the jury with the most sympathetic view of defendant and the circumstances that led to the homicide. Given the entirety of the record, counsel’s failure to request pinpoint instructions on provocation and second degree murder was not prejudicial.
V. Denial of new trial motion
Defendant contends the court improperly handled his posttrial complaints of ineffective assistance as part of his new trial motion, the court should have instead conducted a Marsden hearing for defendant to explain his concerns about his defense attorney, and the matter must be remanded for a postverdict Marsden hearing.
A. Background
After the verdict, defendant filed a motion to substitute retained counsel, Cristobal Perez, in place of his deputy public defender, Mr. Green, only for purposes of a motion for new trial.
On February 27, 2008, Mr. Perez appeared in court with defendant and stated that he had been substituted “for the purposes of investigating and/or litigating a motion for new trial only. I may be retained if it is successful, but at this time I’m only substituting in.” The court clarified that Mr. Perez’s involvement was limited to exploring whether to file a motion for new trial and pursuing that motion, while Mr. Green was still attorney of record for sentencing purposes, and continued the matter.
Thereafter, Mr. Perez filed a motion for new trial on defendant’s behalf. The motion asserted that the court committed numerous instructional and evidentiary errors and raised the inference that defense counsel, Mr. Green, should have objected to those errors. The motion also asserted there was newly discovered evidence of defendant’s inability to form specific intent, because he suffered a mental breakdown and was hospitalized shortly before the homicide. The motion asserted that Mr. Green failed to obtain and introduce this evidence, even though a defense psychiatrist prepared a report about the destructive relationship between defendant and the victim. The motion asserted the psychiatrist was not called as a defense witness because of defense counsel’s lack of diligence. The motion also requested the court to reduce defendant’s first degree murder conviction to second degree murder because of the various errors committed by the court and defense counsel.
Defendant’s motion was supported by a police report from the investigation, which stated that an officer determined defendant went to a hospital on May 18, 2006, he was treated for vomiting, and he was given medication for stomach problems. Another report included an interview with defendant’s sister, who stated that he suffered a “nervous breakdown and had to go to the hospital” a few days before the homicide.
The prosecutor’s opposition asserted that defendant’s ineffective assistance claims were based upon defense counsel’s tactical decisions. The prosecutor noted there was no newly discovered evidence of defendant’s alleged mental status because defense counsel retained a psychiatrist and obtained a report from him, counsel obviously decided against calling the psychiatrist, and direct evidence of defendant’s mental distress was introduced through his statements during the telephonic interview.
On May 15, 2008, the court conducted a hearing on defendant’s new trial motion; Mr. Perez appeared with defendant but Mr. Green was not present. The following exchange occurred:
what I want to approach about this is kind of like quasi Marsden-type situation. And if Mr. Green is going to be here I would feel very uncomfortable about, you know, proceeding and, you know, it s almost like a Marsden situation“THE COURT: Well, not quite.
“[THE PROSECUTOR]: Judge, the defense attorney doesn’t have standing to raise a Marsden motion.
I m not talking about a Marsden issue, I m trying to avoid Mr. Green embarrassment and so forth, that s the bottom line“THE COURT: Well, you know, I’m not sure it would be inappropriate to—so that you feel that you can speak freely that during that portion of your argument we’ll just ask Mr. Green, if he doesn’t mind, if he’s willing to step out. But, you know, he may have a right to defend his reputation as well.
it s like a Marsden situation. Obviously defendant raised those issues and the public is excluded and so forth.Mr. Perez complained he did not timely receive the prosecutor’s opposition and asked for a continuance. The court found the opposition was timely filed and denied the continuance request, and then called a brief recess so Mr. Green could appear.
The court reconvened the hearing when Mr. Green arrived, and Mr. Perez extensively argued the merits of the new trial motion consistent with his moving papers. He argued defense counsel was ineffective in failing to call any defense witnesses, even though the psychiatrist had prepared a report on defendant’s mental state and was ready to testify and there was no valid tactical reason for refusing to introduce that evidence. Mr. Perez stated there was “nothing personal” against Mr. Green, but the case “was over his head” and a more experienced attorney should have represented defendant.
During the hearing, Mr. Perez called defendant to testify in support of the new trial motion. Defendant testified that from the beginning of his case, he only talked to Mr. Green three times and his investigator once, and the longest meeting was 45 minutes. Mr. Green visited him once during the trial for about 15 minutes, they discussed whether defendant should testify, and defendant decided not to. Defendant further testified they talked about calling the psychiatrist, and Mr. Green said there was no need to. On cross-examination, defendant admitted Mr. Green met with him about the pretrial suppression hearing, but he could not remember if Mr. Green explained what was going on during the trial. Defendant also admitted that during the trial the court granted a weekend continuance so they could discuss whether he was going to testify, and admitted Mr. Green met with him over that weekend and they discussed that issue.
After defendant’s testimony, Mr. Perez argued “too much prejudicial evidence” was introduced at trial, the psychiatrist should have been called, and “there would have been a better result had things been done... differently.” He continued:
. I guess I skated around those words being a defense attorney myself.The prosecutor replied that Mr. Green was one of the most competent and astute defense attorneys that she had ever opposed and that he made a tactical decision not to call the psychiatrist after he reviewed the expert’s report.
The court denied the motion for new trial and to reduce the conviction to second degree murder. As for the ineffective assistance claim, the court found Mr. Green had the psychiatrist’s report and it was within the realm of his tactical decision not to call that witness. Thereafter, Mr. Green resumed his representation of defendant for the sentencing hearing.
B. Analysis
Defendant contends that even though he did not expressly request a Marsden hearing, Mr. Perez’s statements at the hearing on his motion for new trial placed the court on notice that defendant had complaints about the adequacy of his defense attorney and triggered the court’s duty to conduct a Marsden hearing. Defendant argues he was never given an opportunity “at any point in the process to personally articulate his grievances with counsel,” and the trial court violated Marsden by failing to conduct an inquiry into his grievances.
“When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] ‘“Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’” [Citations.]’ [Citation.] While the law does not require that defendant use the word ‘Marsden’ to request substitute counsel, we will not find error on the part of the trial court for failure to conduct a Marsden hearing in the absence of evidence that defendant made his desire for appointment of new counsel known to the court. [Citation.]” (People v. Richardson (2009) 171 Cal.App.4th 479, 484.)
The duty to conduct a Marsden inquiry arises when the defendant gives at least some clear indication that he wants a substitute attorney. (People v. Nakahara (2003) 30 Cal.4th 705, 718.) A statement by a defendant that he wants to file a motion for a new trial based upon the ineffectiveness of his trial counsel has been found sufficient to put the court on notice of a request for a Marsden hearing. (People v. Mendez (2008) 161 Cal.App.4th 1362, 1367 (Mendez); People v. Mejia (2008) 159 Cal.App.4th 1081, 1086 (Mejia).) The court does not satisfy its duty to conduct the requisite inquiry simply by appointing new counsel to determine whether there is a basis for a new trial based upon the ineffectiveness of counsel. (Mendez, supra, at pp. 1367-1368; People v. Eastman (2007) 146 Cal.App.4th 688, 695-696 (Eastman).)
In Mendez, defense counsel informed the trial court at the sentencing hearing that the defendant was making a new trial motion based on incompetency of counsel. The defendant interjected and complained that certain evidence should have been introduced. The court appointed new counsel for the sole purpose of investigating whether there was a basis for a new trial motion based on ineffective assistance of counsel. The new counsel subsequently reported that any possible ineffective assistance issues were more appropriate for an appeal than a new trial motion, and did not file a new trial motion. The court then terminated counsel’s appointment and assigned the case back to trial counsel. (Mendez, supra, 161 Cal.App.4th at p. 1366.)
In Mendez, this court held the defendant’s remarks triggered the trial court’s duty to conduct a Marsden hearing and the court was not relieved of that obligation simply by appointing substitute counsel to investigate whether there were grounds for a new trial motion. (Mendez, supra, 161 Cal.App.4th at p. 1368.) “Here, the trial court simply listened to new counsel’s ‘opinion’ that there were no ‘issues involving a possible ineffective assistance of counsel claim’ and, with no inquiry at all, assigned [the defendant’s] defense ‘back to his trial counsel.’” (Id. at p. 1368.)
In Eastman, the defendant moved to withdraw his guilty plea, submitted a letter to the court asserting his attorney failed to represent his interests, and accused his attorney of acting in concert with the district attorney to induce him to accept a plea bargain. The court denied the motion to withdraw the plea and did not conduct a Marsden hearing. (Eastman, supra, 146 Cal.App.4th at pp. 691-693.) Eastman held that while the defendant did not ask to replace his attorney, the trial court should have conducted a Marsden hearing since his letter and statements to the court “set forth an arguable case that a fundamental breakdown had occurred in the attorney-client relationship that required replacement of counsel.” (Id. at p. 696.)
In Mejia, the defense attorney advised the court during the sentencing hearing that the defendant wanted to make a new trial motion based on counsel’s ineffectiveness during trial. The codefendant’s attorney stated that his client wanted to do the same thing. The court discussed the matter with the attorneys and considered whether it should appoint substitute counsel to prepare a new trial motion. The court ultimately decided not to appoint conflict counsel to make a determination as to the existence of a colorable claim for a new trial. (Mejia, supra, 159 Cal.App.4th at pp. 1083-1085.) Mejia held the nature of the defendants’ complaints placed the trial court on notice of their request for a Marsden hearing. (Id. at p. 1086.)
Defendant relies on Mendez, supra, 161 Cal.App.4th 1362, and contends his new trial motion, ineffective assistance claims, and Mr. Perez’s statements at the hearing triggered the trial court’s duty to conduct a Marsden hearing, separate and apart from the hearing on the new trial motion. Defendant complains the court failed to conduct any inquiry or question defense counsel, and defendant was never given an opportunity “to personally articulate his grievances” with counsel.
The instant case, however, is inapposite to Mendez, Eastman, and Mejia, because the defendant herein actually retained separate counsel, who filed a motion for new trial based on ineffective assistance. In People v. Dickey (2005) 35 Cal.4th 884 (Dickey), a similar situation occurred where the defendant made a posttrial motion for appointment of separate counsel to represent him in the preparation of a motion for a new trial. Defense counsel advised the court that the defendant’s new trial motion would include ineffective assistance issues. (Id. at p. 918.) The trial court appointed separate counsel, who prepared and filed a new trial motion. The motion was partially based on a claim that defense counsel was ineffective during the guilt phase, and the court committed error because it failed to conduct a Marsden hearing. (Id. at p. 920.) The trial court heard and denied the new trial motion, and found it was not required to conduct a Marsden hearing because the defendant did not request one. (Ibid.)
Dickey held the trial court did not commit Marsden error because the defendant never indicated he wanted substitute counsel appointed for the penalty phase. “To the extent he made his wishes known, he wanted to use counsel’s asserted incompetent performance in the guilt phase as one of the bases of a motion for new trial, and he wanted to have separate counsel appointed to represent him in the preparation of such a motion. As his expressed wishes were honored, he has no grounds for complaint now.” (Dickey, supra, 35 Cal.4th at pp. 920-921.)
In the instant case, defendant retained Mr. Perez as separate counsel to investigate whether there were grounds for a new trial motion. As in Dickey and in contrast to Mendez, Mr. Perez actually filed a new trial motion that raised numerous ineffective assistance claims, including the argument that defense counsel should have called the psychiatrist as a witness. The court conducted an evidentiary hearing, defendant testified in support of the motion, and the motion was ultimately denied. Also as in Dickey, defendant never indicated he wanted to make a Marsden motion to remove Mr. Green as his attorney for the sentencing phase, the court honored his express wishes for retained counsel to file a new trial motion, and he has no grounds for complaint now.
Indeed, it was Mr. Perez who brought up the topic of Marsden, but only because he did not want to argue his new trial motion in front of Mr. Green to avoid “embarrassing him.” Mr. Perez did not have a problem with the prosecutor being present during the hearing, but he seemed to believe that in a Marsden-type situation the public and the defense attorney would be excluded from the courtroom. To the contrary, it is usually the district attorney who is excluded during a Marsden hearing, so as not to inhibit defendant from discussing confidential matters before the court. (See, e.g., People v. Madrid (1985) 168 Cal.App.3d 14, 18-20.) In this case, however, neither Mr. Perez nor defendant appeared hesitant to discuss the alleged ineffectiveness of defense counsel in front of the prosecutor. Instead, Mr. Perez did not want to argue his ineffective assistance claims in front of the defense attorney because, as a defense attorney, he did not want to put Mr. Green “on the spot like that.”
Defendant acknowledges that Mr. Perez filed a new trial motion and raised ineffective assistance claims, but contends that Mr. Perez’s comments at the new trial hearing showed that he “failed to aggressively litigate potential ineffective assistance claims” because he did not want to embarrass Mr. Green. Defendant also acknowledges that he testified at the new trial hearing but contends that his testimony might have been different if the prosecutor had been excluded. While Mr. Perez may have been initially hesitant to argue in front of Mr. Green, the new trial motion raised numerous and specific issues of ineffective assistance, and Mr. Perez vigorously challenged counsel’s competence at the hearing. The court was not obliged to conduct a Marsden hearing given the entirety of the record in this case.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, J., KANE, J.