Opinion
A165612
01-22-2024
THE PEOPLE, Plaintiff and Respondent, v. GEAROLD SOTOLONGO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Humboldt County Super. Ct. No. CR1601149)
Petrou, J.
Gearold Sotolongo appeals from a judgment entered after a jury convicted him of second degree murder. He claims he was prejudiced by the trial court's erroneous evidentiary rulings and the prosecutor's misconduct. We affirm.
BACKGROUND
On a morning in February 2016, Roger Yale had an altercation with Gearold Sotolongo and four other people near a mini mart on Highway 96 in Hoopa. Yale, who was on foot, crossed the highway towards the mini mart with Sotolongo's group following him. Yale was swinging a stick back and forth defensively and tried to separate himself from the group. The group began to walk away, and Yale sat down on the sidewalk near the mini mart. But Sotolongo came back towards Yale, who was still sitting down. Yale stood up, the two grappled, and Sotolongo fatally stabbed Yale.
The People charged Sotolongo with murder and an enhancement for personal use of a deadly or dangerous weapon. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1).) Prosecution Case
The prosecution called a witness who had stopped at the mini mart for gas and saw the stabbing take place "directly in front of [her]." She noticed the altercation between Sotolongo's group and Yale and saw the group follow Yale as he crossed the highway. A man she recognized, Ed D., was "in the front of" Sotolongo's group and "kind of doing all the talking." Ed D. and another member of the group called to Yale to "[c]ome back behind the mini mart." Yale was saying," 'I don't want to fight,'" and wove in and out of the gas pumps "to avoid confrontation." The witness did not see Yale "go after" or "directly swing[] . . . at" anyone with his stick, and she did not hear him threaten to hit anyone. She observed Yale sitting on the sidewalk after the group walked off. Then, Sotolongo "grabbed" Yale, who tried to "wiggle out" of his coat to "get away from [Sotolongo]." Yale "jump[ed] up" at some point, "trying to get away." Sotolongo made stabbing motions as Yale struggled. Yale fell to the ground and Sotolongo walked away. There was a puncture wound on Yale's chest.
Witnesses testified Yale had high levels of methamphetamine in his blood, a pocketknife with a clean blade, and a lightweight willow stick. Mini mart surveillance video played for the jury captured the stabbing and surrounding events. The video shows Sotolongo and Yale briefly grappling in place as Sotolongo's group comes back towards the mini mart, then Sotolongo rushing at or pushing Yale - who is walking backwards - until they move out of the frame.
Defense Case
Several witnesses testified for the defense. Sotolongo's uncle testified that a couple of months before the stabbing, Yale beat him (the uncle) to the point that he "ended up in a coma." He then went out with Sotolongo and two others "for about two weeks" to try to find Yale. In January 2016, they encountered Yale outside of an acquaintance's house. Yale had a stick he was "swinging around" and threatened almost everyone in the group. They decided to leave and got back in their car. Multiple witnesses testified that Yale came up to the car and threatened to kill Sotolongo.
Sotolongo testified. He believed Yale was "a good person" and considered him to be a friend from their high school wrestling community but explained that in the two years leading up to the stabbing Yale was "erratic and, yes, at times violent." Yale threatened to kill him, his uncle, and others during their January 2016 encounter.
On the morning of the stabbing, Sotolongo went into town with a group of people, including Ed D., to panhandle for money to buy alcohol. They ran into Yale sitting down in front of a casino. Ed D. believed Yale owed him $26; he and Yale argued over this as the group and Yale moved towards the mini mart. As the group crossed highway 30 yards behind Yale, Yale took a knife out of his pocket, "pointed it directly at Ed [D.]," and dragged it across the air. Ed D. continued to "aggressively" demand money from Yale outside the mini mart, while Sotolongo "[w]ait[ed] to see the outcome of their debate." Ed D. then announced that he was going home, which Sotolongo interpreted to mean that he was done panhandling.
Sotolongo went back toward the mini mart where Yale was seated; he testified he did so to get a bottle. Yale told him," 'I'll lay you out next to your uncle.'" Then Yale stood up and aggressively threatened to kill Sotolongo.
Looking "crazy," Yale picked up his stick and quickly approached Sotolongo. Sotolongo thought Yale was going to beat him, so he tried unsuccessfully to grab Yale's wrists. Sotolongo grabbed Yale's head and ducked his own head to avoid getting hit with the stick. Then, Sotolongo "realized" he had a knife in his hand and had "stabbed at" Yale. Sotolongo was not trying to kill Yale and was not sure if the knife penetrated Yale's clothing. He then ran away.
On cross-examination, Sotolongo acknowledged that after the stabbing, he gave the knife he had used to attack Yale to Ed D. and fled up a hill but then came back down as no one was pursuing him. He was "covered in blood," but "presumed" it was his own because he had cut his hand during the incident. Sotolongo did not know when he took off his bloody clothes or where he put them. He had "no idea" what Ed D. did with the knife. Sotolongo drank heavily for a week or two after the stabbing and did not remember where he slept the night it happened. He cut his hair and shaved his beard in the ensuing days, but claimed this was to mourn a close friend and not to disguise his appearance. The prosecutor also cross-examined Sotolongo about a series of fights he engaged in while incarcerated.
The Verdict
The trial court instructed the jury to consider the offenses of first and second degree murder, voluntary manslaughter (imperfect self-defense), involuntary manslaughter, and an allegation of personal use of a deadly weapon, as well as the concept of justifiable homicide (reasonable selfdefense). The jury acquitted Sotolongo of first degree murder, convicted him of second degree murder, and found the weapon allegation true.
DISCUSSION
Sotolongo contends the trial court made erroneous evidentiary rulings that undermined his claim that he stabbed Yale in lawful or imperfect self- defense. He also claims the prosecutor committed prejudicial misconduct. We address these arguments in turn.
I. Claimed Evidentiary Errors
A. Exclusion of Evidence That Yale Displayed a Knife
The defense called a witness who observed the incident while working at a nearby deli. The deli worker told an investigator that he saw a knife in Yale's hands, but at trial he testified he did not see anything in Yale's hands other than a stick. The defense tried to question him about his statement to the investigator, but the prosecutor raised a hearsay objection. The prosecutor argued - incorrectly - that the witness said at trial that "he doesn't remember" a knife in Yale's hands. The trial court sustained the hearsay objection on the basis that he "testified that he doesn't . . . remember any objects."
Sotolongo contends this was error because the statement to the investigator was admissible as a prior inconsistent statement under the hearsay exception established by Evidence Code section 1235. While defense counsel did not correct the prosecutor's mischaracterization of the deli worker's testimony or clearly seek to introduce his statement to the investigator as a prior inconsistent statement, the issue of whether it was a prior inconsistent statement was argued by the prosecutor and clearly before the court. Moreover, the prosecutor did not concede that it was a prior inconsistent statement, which it clearly was. Therefore, the issue was not forfeited.
Undesignated statutory references are to the Evidence Code.
Sotolongo further suggests that given the mistaken understanding of the witness's testimony, the prior statement should have been admitted under section 1237 as a past recollection recorded. But defense counsel did not seek to introduce the statement under that section or to lay a foundation to do so. And while he said he could use the statement to "refresh [the witness's] memory," he did not address the prosecutor's response that it would be improper to do so by reading the statement "in front of the jury," nor did he seek to convey the statement to the witness outside the jury's presence. (See People v. Vasquez (2017) 14 Cal.App.5th 1019, 1036.)
However, we find any error was harmless because it was not reasonably probable that Sotolongo would have obtained a more favorable result had the court excluded this evidence. (People v. Marks (2003) 31 Cal.4th 197, 226-227; People v. Watson (1956) 46 Cal.2d 818, 836.) Sotolongo did not testify that Yale came at him with a knife. Rather, Sotolongo testified that immediately before the stabbing Yale came at him with a stick, consistent with the deli worker's trial testimony that Yale had a stick. But video evidence and testimony by an impartial witness together established that Sotolongo was the clear aggressor with a knife while Yale acted defensively and tried to get away. In any event, the jury heard Sotolongo's testimony that Yale brandished a knife at Ed D. in the events leading up to the stabbing, as well as an investigator's testimony that a clean folding pocketknife was found in Yale's rear pocket after the stabbing. In the face of such evidence, the failure to allow questioning of the deli worker regarding his prior inconsistent statement that Yale had a knife was clearly harmless.
B. Admission of Evidence That Ed D. Put a Hit on Yale
On cross-examination, the prosecutor asked the deli worker about a rumor concerning Ed D. and Yale. The witness testified that he heard Yale "had an altercation with [Ed D.] over some drugs and had hit him with a wrench. And this really upset [Ed D.], so he had put out a hit to go beat [Yale] up." Defense counsel objected based on foundation and section 352. The prosecutor argued the testimony was offered for a non-hearsay purpose - to show Yale was not the aggressor and was "using that stick to defend himself" - and not to show that Ed D. had a hit out on Yale. The trial court overruled the defense objections.
Sotolongo contends this was error because the rumor was inadmissible hearsay and unduly prejudicial. Even under the abuse of discretion standard of review (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10), we find the trial court erred as there was no evidence that Yale was aware of the rumor that Ed D. had put out a hit on him. Therefore, the testimony could not properly be offered to show Yale's state of mind. (People v. Spencer (1969) 71 Cal.2d 933, 944 [evidence admissible under state of mind exception to explain conduct].)
The hearsay claim is not forfeited. Given the prosecutor's argument that the rumor was offered for a non-hearsay purpose, we presume the trial court "understood the [defense] objections as encompassing a hearsay objection." (People v. Cowan (2010) 50 Cal.4th 401, 502, fn. 36.)
However, we find the error harmless. The rumor played a very small role in the strong case against Sotolongo. Eyewitness testimony and video evidence was inconsistent with Sotolongo's claim of self-defense. Sotolongo's own testimony suggested that he attacked Yale in response to Yale's taunt about Sotolongo's uncle. And again, it was clear that Sotolongo and Ed D.'s group tried to corner Yale into a fight just before Sotolongo stabbed him. The jury likely concluded that Sotolongo killed Yale as part of this immediate conflict and/or the dispute with Sotolongo's uncle: indeed, the not-guilty verdict on first degree murder suggests the jury rejected any suggestion that Sotolongo had planned to kill Yale per a hit placed by Ed D.
C. Exclusion of Select Testimony by Sotolongo
Sotolongo claims the trial court improperly excluded his testimony concerning his beliefs about what Yale had done to his uncle and whether Yale was the type of person who would back down in a fight. Assuming these rulings were in error, the errors were harmless because the defense introduced a plethora of additional evidence on both points. Sotolongo's uncle testified that Yale beat him into a coma. Sotolongo testified that Yale threatened to "[l]ay [him] out next to [his] uncle," which he considered a serious threat because he saw Yale "threaten [his] uncle" and then seemingly "follow through on his threat." Several witnesses testified about Yale's aggressive behavior on prior occasions, including his threat to kill Sotolongo, and Sotolongo testified to his belief that Yale "didn't back down from anybody.... He didn't back down at the house, and he didn't back down here." The defense argued to the jury that Yale "beat[] [Sotolongo's uncle] into a coma and threaten[ed] Mr. Sotolongo with the same" and that the evidence showed Yale "d[id]n't back down from any[one]."
Sotolongo argues the trial court compounded these errors by omitting from the jury instruction on self-defense that "a defendant's belief that someone else was threatened by the victim may be reasonable even if the defendant relied on information that was not true." This argument is forfeited because Sotolongo did not ask the court to include this clarifying language. (People v. Buenrostro (2018) 6 Cal.5th 367, 428.)
Sotolongo further contends the trial court erred by excluding his testimony that Yale showed signs of methamphetamine use at the time of the stabbing. Any error in this ruling was also harmless given the undisputed evidence that Yale died with high levels of methamphetamine in his blood. In closing, the defense argued to the jury that Yale was "unhinged on methamphetamines" and that the high levels of methamphetamine in his blood reflected long-term use "consistent with his behavior being increasingly erratic and irrational over the past couple of years" as Sotolongo had testified. The prosecutor did not argue to the jury whether Yale was acting under the influence of methamphetamine at the time of the incident.
Considering the evidence and argument presented as to Sotolongo's beliefs about Yale and the strong case against him, there is no reasonable probability he would have benefited by giving the excluded testimony.
D. Combined Effects of Alleged Errors
Sotolongo asserts the combined effect of the claimed evidentiary errors resulted in prejudice and denied him due process, a fair trial, and his right to present a defense. We conclude any purported errors, considered individually or collectively, were either without merit or not so prejudicial as to deny Sotolongo his constitutional rights. (See People v. Cain (1995) 10 Cal.4th 1, 82.)
II. Prosecutorial Misconduct
Sotolongo contends the prosecutor committed numerous acts of misconduct both eliciting evidence and questioning witnesses that, considered together, resulted in prejudice to him and a denial of his federal constitutional rights. The majority of Sotolongo's claims are forfeited because he failed to raise them to the trial court, and the rest do not establish either individual acts or a pattern of action amounting to misconduct.
A. Applicable Law
The federal and state standards regarding prosecutorial misconduct are well established. (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) A prosecutor's intemperate behavior violates the federal Constitution when it comprises a pattern of egregious misconduct that infects the trial with such unfairness as to make the conviction a denial of due process. (Ibid.) Conduct that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves using deceptive or reprehensible methods of persuasion with either the court or the jury. (Ibid.) When the claim concerns comments made before the jury," 'the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.'" (People v. Prieto (2003) 30 Cal.4th 226, 260.)
Generally, a defendant may not complain on appeal of prosecutorial misconduct unless the defendant raised this charge in a timely fashion, and on the same ground, during trial and requested that the jury be admonished to disregard the impropriety. (People v. Prieto, supra, 30 Cal.4th at p. 259.)" '[O]nly if an admonition would not have cured the harm is the claim of misconduct preserved for review.'" (People v. Friend (2009) 47 Cal.4th 1, 29.)
B. Testimony Elicited by the Prosecutor
Sotolongo contends the prosecutor invited inadmissible testimony on several topics, often in bad faith. Though it is misconduct for a prosecutor to intentionally elicit inadmissible testimony, merely eliciting evidence is not misconduct. (People v. Fuiava (2012) 53 Cal.4th 622, 679.)
Sotolongo's claims are forfeited as to asserted improper lay opinion testimony about the surveillance video of the stabbing. His single objection to this category of testimony was sustained, abating any prejudice (People v. Dykes (2009) 46 Cal.4th 731, 764), and he raised no further objection or assertion of misconduct in this regard. Sotolongo's claims about the prosecutor's use of prior inconsistent statements to impeach witnesses are similarly forfeited because he did not object to this conduct during trial. His claims that the prosecutor questioned two witnesses on irrelevant topics to appeal to the jury's passions are also forfeited because the defense raised no objection to these questions.
Contrary to the record, Sotolongo claims he objected to "most of" the purported misconduct he raises on appeal. He contends he has not forfeited his challenges to the remaining acts because they "occurred throughout the trial" and "in front of the jury." Sotolongo relies largely on Hill, which addressed the unusual circumstance of "constant and egregious misconduct" by the prosecutor. (Hill, supra, 17 Cal.4th at pp. 818, 821.) But this case does not resemble Hill. As our discussion reflects, most of the issues raised by Sotolongo were not misconduct and "the court was reasonably responsive to defense objections throughout the trial." (People v. Fuiava, supra, 53 Cal.4th at p. 680.) We decline Sotolongo's invitation to consider his forfeited claims pursuant to Hill.
We see no indication that the prosecutor's supposedly inconsistent objection to impeachment of the deli worker with his prior statement about the knife was in bad faith, rather than due to misremembering his testimony.
Sotolongo claims the prosecutor obtained impeachment testimony from his uncle that was more prejudicial than probative. But he acknowledges he did not object to this testimony below. His claim is forfeited. So too is his claim concerning the introduction of evidence of his own character for violence under section 1103. Contrary to Sotolongo's characterization of the record, defense counsel stated that he had no objection to this evidence.
Sotolongo also argues the prosecutor improperly asked witnesses about his incarceration and arrest. He implies this evidence should have been excluded under section 352. At trial, defense counsel raised one objection to this testimony, arguing that Sotolongo's placement in segregation during his incarceration should be excluded. The trial court sustained this objection. Defense counsel did not request an admonition or make a general objection to testimony about Sotolongo's incarceration and arrest, likely because it was" 'inevitabl[e]'" that the jury would learn of his custodial status through the prosecutor's permissible questioning (for example, about his jailhouse fights). (People v. Ledesma (2006) 39 Cal.4th 641, 681.) Sotolongo has accordingly forfeited any claim of misconduct based on the prosecutor's inquiry into these subjects more broadly.
Finally, Sotolongo contends the prosecutor elicited inadmissible testimony about the rumored hit on Yale. We find no suggestion the prosecutor intentionally elicited testimony that was inadmissible, especially given that he (mistakenly) appeared to believe the testimony was admissible and the court overruled objections to the testimony. (People v. Chatman (2006) 38 Cal.4th 344, 380.) We likewise see no indication that the prosecutor engaged in deceptive or reprehensible conduct or so infected the trial with unfairness as to make the resulting conviction a denial of due process. (People v. Riggs (2008) 44 Cal.4th 248, 298.)
C. Prosecutor's Approach to Questioning Witnesses
Sotolongo urges that, while questioning various witnesses, the prosecutor misstated the evidence, implied he did not believe certain witnesses, and posed sarcastic and argumentative questions. These claims are all forfeited by Sotolongo's failure to object based on prosecutorial misconduct or to request an admonition. The claims also fail on their merits or because the claimed misconduct was harmless.
First, Sotolongo points to an exchange regarding a defense witness's prior statement about Yale's threat to Sotolongo in January 2016. The witness explained that he told an investigator about the January 2016 "fight" between Yale and Sotolongo but the investigator had to leave before they finished their discussion. The prosecutor asked, "So your testimony is that . . . you d[id]n't tell [the investigator] about the time when Mr. Yale threatened to kill Mr. Sotolongo?" The witness responded, "I think you're getting it confused ....I told him what I had heard [about the fight]." The prosecutor asked, "So your testimony is that you did tell that investigator . . . about . . . [Yale's] threats . . . to kill Mr. Sotolongo?" The trial court overruled a defense objection that the question misstated the evidence. The witness replied, "Yes." Sotolongo claims the prosecutor "bullied [the witness] into confirming [an] incorrect characterization of what he had said." But the record reflects that the prosecutor merely sought to clarify the witness's testimony after he seemed to deny he hadn't told the investigator about the threats. This was not misconduct.
Next, Sotolongo contends the prosecutor implied he disbelieved a different defense witness who described the January 2016 fight, and improperly shifted the burden of proof by questioning her testimony about where the fight happened. After the witness testified that she gave Sotolongo and others a ride to an unknown person's house, the prosecutor asked two questions about whether identifying the homeowner might help "verify [the witness's] story." The trial court sustained an objection to the second question. The prosecutor then asked the witness again, "And you're sure you don't recall who that house belonged to?" The witness replied, "I'm sure," and the prosecutor moved on to another line of questioning. While it may have been more appropriate for the prosecutor to hold his implied commentary on the witness's credibility for closing argument, his brief questioning was not likely to be construed or applied by the jury in an objectionable manner - certainly not as improper direction on the burden of proof, which the prosecutor did not even mention.
Sotolongo also identifies a handful of comments the prosecutor made about his own testimony, including a statement that his testimony was "a good story" and comments about his tendency to get into fights. The trial court sustained the single defense objection to these comments. While some of the prosecutor's comments were argumentative, they were supported by the evidence, so there is no indication that the jury misconstrued or misapplied these statements. (See People v. Friend, supra, 47 Cal.4th at p. 32 [argument may include opprobrious remarks warranted by the evidence].) These comments did not rise to the level of misconduct or were harmless.
Finally, Sotolongo takes issue with the prosecutor's cross-examination of his uncle. The uncle denied calling Sotolongo "the pit bull of [the uncle's] group," and when pressed about whether he had told an investigator this, said "I think that referred to their wrestling." The prosecutor then asked, "[S]o if the investigator wrote down that you said '[Sotolongo] is our pit bull' and that [Yale] was scared of [Sotolongo], . . . that would just be a mistake . . . ?" Sotolongo's uncle replied, "I'm not sure. I might have said that." The prosecutor pressed, "So now you might have said that?" and the uncle said, "It could be." This was proper impeachment.
In sum, Sotolongo's claims of prosecutorial misconduct are forfeited. And the questions and statements he identifies were not misconduct or were harmless.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Tucher, P.J., Fujisaki, J.