Opinion
D071344
11-15-2017
THE PEOPLE, Plaintiff and Respondent, v. LEOPOLDO PACUAN, Defendant and Appellant.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD256225) APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed. Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Leopoldo Pacuan guilty of first degree murder, in violation of Penal Code section 187, subdivision (a), while engaged in the commission of a robbery, within the meaning of Penal Code section 190.2, subdivision (a)(17). At trial, Pacuan presented a third party culpability defense, suggesting that another individual, Nelson Ocampo, had committed the murder. On appeal, Pacuan argues the trial court erred by excluding evidence regarding prior altercations Ocampo had with his wife, including one in which he allegedly threatened her with a knife. Pacuan asserts the evidence was admissible as impeachment evidence pursuant to Evidence Code section 1202 and for completeness under section 356. For the reasons set forth herein, we conclude the court did not err by excluding the evidence. We therefore affirm the judgment.
All further statutory references are to the Evidence Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Pacuan and Raquel Morales, the victim, worked at different branches of LBC Express (LBC), a courier service that wires money and ships packages to and from the Philippines. Pacuan was a courier but injured his shoulder in October 2013, and was on disability thereafter.
On May 17, 2014, Raquel worked her typical shift at LBC from 10:00 a.m. to 7:30 p.m. G.P was working with Raquel that day and also arrived around 10:00 a.m. Ocampo, a cook at a restaurant in the same strip mall, stopped in to LBC after he completed his workday, around 5:00 p.m. On his way in, he removed a pair of latex-style gloves he had been wearing at work and left them on a water pipe in the parking lot near LBC.
We refer to Raquel and her husband, Rico, by their first names to avoid confusion, and to certain other witnesses by their initials pursuant to California Rules of Court, rule 8.90. No disrespect is intended.
A courier made a delivery to the backdoor of LBC around 6:00 p.m. and G.P. locked the door after the courier left. G.P. then placed the money from the transactions he had handled that day into a vault at the back of the store, closed but did not lock the vault, and left through the front door. He did not see Pacuan before leaving.
The store closed at 7:00 p.m. but Raquel stayed to reconcile her accounts. Shortly after closing, at 7:02 and 7:08 p.m., Pacuan made two short calls to LBC on his cell phone from a location near the store and at 7:15 p.m., Raquel assisted him with a wire of $350 to the Philippines. She did not sign the receipt for the wire transfer despite a store policy requiring tellers to do so before allowing the customer to leave. Raquel submitted her daily sales report at approximately 7:29 p.m.
Raquel's husband, Rico, arrived home at around 9:15 p.m. and discovered Raquel was not there. He called her but she did not answer her phone, so he drove to LBC. When he arrived, the door was closed and the lights were off, but a computer screen was still on, which was unusual. Eventually, Rico's sister-in-law, whom he had been communicating with, called the police. The police arrived at LBC at approximately 12:51 a.m. and found the back door latched but unlocked. They entered and discovered Raquel's body lying on the ground. Her face was bruised and there were cuts on her clothing that looked like entrances to stab wounds. Unable to find a pulse, the officers secured the area and called for a homicide unit.
The police noted a significant amount of blood near the safe, but the safe remained locked and they determined no money was missing. Raquel's body was covered in blood but there was an area around her left wrist, where a watch would typically be worn, without any blood on it. One of the medical examiners moved Raquel's arm during the investigation and discovered what appeared to be the tip of a white latex-style glove stuck to it. The police removed the glove tip and placed it into evidence. Officers later determined Raquel's watch, ring, purse, and cell phone were all missing.
After interviewing and taking a DNA sample from Pacuan, the police arrested him and executed a search warrant on his home. They removed a watch from Pacuan's wrist during processing and discovered a number of small blood stains on it. The laboratory later confirmed the blood contained Raquel's DNA. They found a grey latex-style glove that was similar in color and material to the piece discovered on Raquel's body, in a trash can at Pacuan's residence, and also found a ziplock bag containing additional gloves of the same variety. They located Pacuan's vehicle, which looked similar to a vehicle seen on video surveillance near LBC around the time of Raquel's death, and discovered blood on the driver's side door that contained DNA belonging to Raquel. In addition, the laboratory found traces of Pacuan's DNA on the piece of latex-style glove found on Raquel's body.
Trial and Associated Evidentiary Rulings
The People charged Pacuan with Raquel's murder and he pleaded not guilty. As part of their pretrial pleadings, the People asked the court to exclude evidence of third party culpability and, specifically, evidence implicating Ocampo—the cook who left his gloves outside LBC. Pacuan's counsel argued the presence of the gloves and any related follow-up by the police was admissible as relevant to the adequacy of the investigation, but represented to the court that Pacuan did not intend to argue Ocampo committed the crime. The trial court stated it would permit evidence indicating the gloves belonged to Ocampo as well as the reasons the police excluded Ocampo as a suspect, but clarified that it did not view such evidence as third party culpability evidence.
Following the court's ruling, the People requested a conditional examination of Ocampo, as they were aware he had plans to travel to the Philippines before trial. On April 28, the day before the examination was set to occur, Ocampo committed suicide. Thereafter, Pacuan asked the court to admit third party culpability evidence as to Ocampo, arguing that such evidence was relevant and admissible in light of the suicide. The court agreed that the timing of Ocampo's suicide was at least capable of raising a reasonable doubt as to Pacuan's guilt and was therefore admissible third party culpability evidence. The court recognized its ruling opened the door to additional evidence regarding Ocampo's state of mind, but declined to rule on the admissibility of such evidence until the parties had a chance to fully litigate any related issues.
Thereafter, Pacuan filed a motion to admit statements made by Ocampo's daughter indicating Ocampo had a history of domestic violence as well as evidence of a specific incident in September 2013 in which Ocampo allegedly threatened to stab his wife with a knife. Pacuan asserted the evidence was admissible under Evidence Code section 1101, subdivision (b) because both Ocampo's threats and Raquel's murder involved the use of a knife, and for impeachment purposes because Ocampo was charged with a violation of Penal Code section 422, a crime of moral turpitude, in connection with the September 2013 incident. The court determined the evidence was not admissible under Evidence Code section 1101, subdivision (b) because it seemed to be offered primarily as propensity evidence as opposed to evidence of identity, and was therefore inherently prejudicial and of minimal probative value. The court stated it was not aware of any statements made by Ocampo coming into evidence and thus declined to rule on the admissibility of the Penal Code section 422 charges as impeachment evidence.
The court subsequently agreed to admit testimony that Ocampo was depressed prior to his suicide, and Pacuan renewed his motion to admit evidence of Ocampo's previous threats, asserting the evidence was necessary to complete the discussion of the depression diagnosis and thus admissible pursuant to section 356. The court again refused to admit the evidence, for the reasons previously stated and because the incident was too remote from the depression diagnosis, but cautioned the prosecution that any discussion of Ocampo's marital troubles might open the door to evidence concerning the September 2013 incident.
At trial, the parties agreed to a stipulation regarding hearsay statements Ocampo made to two police officers, both indicating Ocampo told them he left the gloves on the water pipe near LBC on his way in to get a box. After the stipulated statement was read, Pacuan asked the court to reconsider his motion to admit the evidence of Ocampo's prior acts of violence, arguing the evidence was now admissible as impeachment evidence pursuant to section 1202. The court explained the stipulation did not present any inconsistent statements necessitating the admittance of evidence concerning Ocampo's prior bad acts and that its previous analysis was still applicable, and denied the motion. Thereafter, the physician testified that Ocampo was depressed and that marital discord was a stressor for Ocampo, but the prosecution offered no further evidence regarding Ocampo's relationship with his wife.
At the conclusion of the trial, the jury deliberated for seven hours and found Pacuan guilty of murdering Raquel. The court sentenced him to a term of life in prison, without the possibility of parole.
Pacuan appeals.
DISCUSSION
Pacuan's sole argument on appeal is that the trial court erred by excluding evidence of Ocampo's alleged prior violent acts toward his wife. He asserts the evidence was admissible either as impeachment evidence pursuant to section 1202, or as necessary to complete the discussion of Ocampo's depression diagnosis pursuant to section 356.
I. Legal Principles
Evidence is relevant if it has a "tendency in reason to prove or disprove of any disputed fact that is of consequence to the determination of the action." (§ 210.) However, the trial court may exclude relevant evidence if the risk of undue prejudice, undue consumption of time, confusion of the issues, or misleading the jury substantially outweighs its probative value. (§ 352; People v. Cudjo (1993) 6 Cal.4th 585, 609.)
Evidence suggesting a third party—as opposed to the defendant—committed the crime at issue is generally admissible if it raises a reasonable doubt as to the defendant's guilt. (People v. Hall (1986) 41 Cal.3d 826, 833.) Typically, this means that there must be at least some direct or circumstantial evidence linking the third party to the crime. (Ibid.) However, even if the evidence raises some doubts and thus has some relevancy, section 352 still applies and the trial court may exclude the evidence if its prejudicial nature outweighs its probative value. (Id. at p. 834.)
Character evidence, including specific incidents of prior misconduct, is not admissible to prove that an individual has a general propensity toward criminal acts, or that the individual acted in a similar manner on a specified occasion, but may be admissible to prove a discrete fact, such as the identity of the perpetrator of a criminal act. (§ 1101; People v. Ewoldt (1994) 7 Cal.4th 380, 393.) In addition, past misconduct may be admissible to impeach a witness's credibility if it reflects on the witness's moral turpitude. (People v. Clark (2011) 52 Cal.4th 856, 931 (Clark).) The trial court has broad discretion when determining whether to admit this type of impeachment evidence, and should consider "whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify." (Ibid.)
If the court admits hearsay statements of a nontestifying witness, evidence offered to attack the credibility of the declarant "is admissible if it would have been admissible had the declarant been a witness at the hearing," except that prior inconsistent statements may be admitted even if the declarant did not have an opportunity to explain or deny them. (§ 1202.) The purpose of this rule is to ensure fairness to a party harmed by the hearsay statement but left without an opportunity to cross-examine the declarant. (People v. Curl (2009) 46 Cal.4th 339, 361 (Curl).) Finally, pursuant to section 356, "[w]here part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party."
We review evidentiary rulings of the trial court, including rulings concerning the admissibility of third party culpability and impeachment evidence, for an abuse of discretion. (People v. Harris (2005) 37 Cal.4th 310, 337.) Accordingly, we do not disturb the ruling of the trial court unless it is arbitrary, capricious, or patently absurd. (People v. Jones (2013) 57 Cal.4th 899, 924.)
II. Analysis
A. The Court Did Not Err by Excluding Evidence of Ocampo's Prior Bad Acts
As an initial matter, we note that the trial court concluded the evidence was not admissible to prove identity pursuant to section 1101, subdivision (b), and Pacuan does not contend the court erred in that ruling. At the same time, the court also explained that it appeared Pacuan was mainly offering the evidence as propensity evidence, that the evidence was not admissible for that purpose under section 1101, and that the potential prejudicial effect outweighed any probative value under section 352.
1. Section 1202
Pacuan argues the evidence was nevertheless admissible as impeachment evidence pursuant to section 1202 in light of the stipulated admission of Ocampo's exculpatory statements to the police. For the evidence to be admissible pursuant to section 1202, Pacuan must establish that it would have been admissible for impeachment purposes if Ocampo had testified at trial. (See § 1202; Curl, supra, 46 Cal.4th 339 at p. 361.)
Pacuan asserts the September 2013 incident was admissible impeachment evidence because Ocampo was charged with a crime of moral turpitude—a violation of Penal Code section 422—and, therefore, the evidence reflected on Ocampo's credibility by suggesting an overall willingness to lie. (See People v. Thornton (1992) 3 Cal.App.4th 419, 424 (Thornton); People v. Wheeler (1992) 4 Cal.4th 284, 295-296 (Wheeler).) However, the cases Pacuan relies on conclude only that past convictions of crimes of moral turpitude are admissible as impeachment evidence and, in the present case, there was no conviction because the city attorney declined to file charges against Ocampo. (See Thornton, at pp. 422, 424 [determining a conviction pursuant to section 422 was admissible as a crime of moral turpitude]; Wheeler, at pp. 288, 295-297 [finding certain misdemeanor convictions admissible as crimes of moral turpitude].) Although the court in Wheeler recognized the trial court had discretion to admit evidence of "nonfelonious conduct" for impeachment purposes, the court did so in the context of discussing the admissibility of a misdemeanor conviction. (Wheeler, at p. 296.)
Moreover, as the court in Wheeler went on to explain, the relevance requirement of moral turpitude also limits a trial court's discretion to admit evidence of past conduct for the purpose of impeachment. (Wheeler, supra, 4 Cal.4th at p. 296.) A conviction pursuant to Penal Code section 422 suggests moral turpitude because it requires the perpetrator to have had a specific intent that the victim receive and understand a threat that would cause a reasonable person to fear for their safety, thereby knowingly causing mental terror. (Thornton, supra, 3 Cal.App.4th at p. 424.) However, as a court had not convicted Ocampo of a violation of Penal Code section 422, there was no associated finding that he had the requisite specific intent, or that he knowingly caused mental terror. Instead, the record suggests Ocampo's threat was not particularly menacing as his wife was not in the room when he made the threat, his demand was merely that she talk to him, and he did not make any attempt to go near her. Therefore, the proffered evidence was not probative of Ocampo's moral turpitude or truthfulness and was not admissible to impeach his credibility. (See Clark, supra, 52 Cal.4th at p. 931; see also People v. Castro (1985) 38 Cal.3d 301, 316-317 [concluding prior convictions are admissible impeachment evidence only if they necessarily involve moral turpitude].)
Pacuan argues People v. Jacobs (2000) 78 Cal.App.4th 1444 (Jacobs) provides significant support for his position, but Jacobs is distinguishable. Most notably, the court in Jacobs admitted evidence of the defendant's prior felony convictions pursuant to section 1202, after also admitting potentially exculpatory hearsay statements the defendant made to police officers at the time of his arrest. (Jacobs, at pp. 1448, 1452-1453.) While felony convictions are generally admissible, courts typically consider uncharged offenses presumptively prejudicial, and, as noted, the city attorney here declined to charge Ocampo in relation to the incident. (Ibid.; Ewoldt, supra, 7 Cal.4th at p. 393.) In addition, the court in Jacobs acknowledged that section 1202 is subject to the limitations of section 352. (Jacobs, at p. 1453.) Although the Jacobs court found the probative value of the defendant's prior felony convictions outweighed any potential prejudice, the trial court in the present case found the prejudicial nature of the proffered evidence outweighed the limited probative value. (Ibid.)
Pacuan argues, rather summarily, that the trial court here incorrectly weighed the pertinent factors under section 352, but we disagree. Ocampo's connection to the crime scene was tenuous as his gloves were found outside LBC, he readily admitted to leaving them there earlier in the day, and there was no DNA or other evidence connecting the gloves or Ocampo to the murder. Although the trial court ultimately permitted third party culpability evidence in light of Ocampo's subsequent suicide, it also admitted evidence the suicide was the result of depression and was unrelated to the murder or Ocampo's upcoming testimony. By contrast, the evidence of Ocampo's altercation with his wife was presumptively prejudicial as it related to an uncharged offense and improperly suggested a general propensity to commit crimes. (See Ewoldt, supra, 7 Cal.4th at p. 393.) As the evidence was prejudicial and was not particularly probative as to Ocampo's general truthfulness, the trial court correctly concluded it was inadmissible pursuant to section 352. (Ibid.; People v. Farmer (1989) 47 Cal.3d 888; see People v. McWhorter (2009) 47 Cal.4th 318, 368-373 [propensity evidence tending to show a general criminal disposition or history of violence does not constitute third party culpability evidence linking the individual to the crime].)
Finally, Pacuan suggests the trial court could have negated any prejudice by issuing a limiting instruction. However, the trial court explicitly considered that possibility, albeit in a slightly different context, and concluded the prejudice outweighed the probative value even with a limiting instruction. We do not believe the trial court abused its discretion in reaching that conclusion.
In declining to admit the evidence pursuant with section 1202, the trial court also noted the evidence Pacuan sought to admit was not inconsistent with any admitted hearsay statement of Ocampo. Aside from his assertions regarding Ocampo's overall truthfulness, which we have already addressed, Pacuan does not dispute that conclusion in his briefing on appeal. --------
2. Section 356
In the alternative, Pacuan asserts the evidence of Ocampo's prior conduct with his wife was admissible in accordance with section 356 to provide context to the testimony regarding Ocampo's depression.
The purpose of section 356 is "to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed." (People v. Arias (1996) 13 Cal.4th 92, 156.) Here, Pacuan did not seek to admit additional portions of the physician's report or diagnosis, but rather sought to admit prejudicial evidence concerning a specific prior incident that was, at most, tangentially related to a single phrase in the physician's report. The trial court had already concluded the evidence was inadmissible pursuant to section 352—a conclusion we agree with as discussed ante—and further concluded the evidence was not particularly helpful in explaining Ocampo's depression or the more general statement that "marital discord" was a stressor for him, particularly since the incident at issue happened some time before the physician's diagnosis. Thus, we agree the evidence was not necessary to complete the testimony or to correct a false impression, and accordingly conclude the trial court did not abuse its discretion in refusing to admit it in accordance with section 356.
The cases Pacuan relies on do not convince us otherwise, as each concerns the admissibility of additional portions of a statement of which the court had previously admitted some portions. (See, e.g., People v. Hamilton (1985) 48 Cal.3d 1142, 1173-1174 [granting the prosecution's request to play a taped confession in its entirety after the defense introduced a portion of the tape]; People v. Vines (2011) 51 Cal.4th 830, 861 [court correctly allowed admission of entire statement in light of admission of certain portions].) Pacuan presents no authority suggesting section 356 permits the admission of additional evidence wholly separate from an admitted statement simply because the additional evidence arguably relates in some way to a single phrase in the previously admitted statement.
B. Any Error Was Harmless
Finally, even if the trial court had abused its discretion in excluding the evidence, we would conclude any such error was harmless.
A trial court's refusal to admit certain evidence concerning appellant's third party culpability defense is harmless and does not warrant reversal unless it is reasonably probable the jury would have reached a result more favorable to the defendant absent the instructional error. (People v. Watson (1956) 46 Cal.2d 818, 837; People v. Bradford (1997) 15 Cal.4th 1229, 1324-1325 [applying the Watson standard where the alleged error concerned the exclusion of third-party culpability evidence].) To make that determination, we review the entire record, "including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict." (People v. Guiton (1993) 4 Cal.4th 1116, 1130.)
Pacuan argues we should apply the more stringent federal standard for reversal set forth in Chapman v. California (1967) 386 U.S. 18, 24—which requires reversal unless any error was harmless beyond a reasonable doubt—because the evidence was critical to his defense and the trial court's ruling violated his constitutionally protected due process right to confront and cross-examine witnesses. (See Chambers v. Mississippi (1973) 410 U.S. 284, 294, 302.) However, we need not determine which standard applies here, as we would conclude any alleged error was harmless under either in light of the overwhelming evidence establishing Pacuan's guilt.
The phone calls, transaction history, and receipt found at LBC indicate Pacuan was at LBC after the store closed on the evening of Raquel's murder, and there is no indication that anyone saw Raquel that evening after Pacuan. Pacuan's DNA was on the tip of latex-style glove found on Raquel's body, and the police found gloves of a similar color and style at his residence. The police found blood that matched Raquel's DNA on the watch Pacuan was wearing at the time of his arrest and on the inside door of his vehicle, which was similar in appearance to a vehicle captured on video surveillance arriving at and then leaving from LBC on the night of the murder. Despite this evidence, Pacuan offered no alibi to account for his whereabouts on the night of the murder.
On the other hand, the only evidence linking Ocampo to the crime was the pair of gloves he admittedly left on the water pipe outside LBC, which notably did not contain Raquel's DNA, and the timing of his suicide the day before he was scheduled to testify. Pacuan argues the jury may not have believed Ocampo's explanation for the gloves if the court had allowed the proffered impeachment evidence, but the jury already had reason to doubt Ocampo's story insofar as the defense argued his suicide suggested his involvement in the murder. Further, even if the jury doubted Ocampo's explanation for the gloves, the location of the gloves was the only thing tying Ocampo to the crime scene and, by contrast, there was ample evidence placing Pacuan at the scene at the time of the murder.
Therefore, even if the court erred in refusing to admit the evidence of Ocampo's prior altercations with his wife, we would conclude any error was harmless under either the Watson or Chapman standard.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. NARES, J.