Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. GA057323, Teri Schwartz, Judge.
J. Flores Valdez for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
While he was separated from his wife and restrained by court order from approaching her, Ronnie Serut Torres went to her apartment and shot her boyfriend. Torres (appellant) was convicted of premeditated murder and of stalking. On appeal, he states (1) he was entitled to a new trial; (2) he was entitled to instructions on voluntary intoxication and self-defense; (3) the record lacks substantial evidence; (4) there were technical Miranda violations; and (5) he received the ineffective assistance of trial counsel. We find no merit to his arguments and affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
FACTUAL AND PROCEDURAL BACKGROUND
On May 9, 2004, about 9:30 p.m., using a sawed-off shotgun, Torres shot and killed Romeo Bartolome, the boyfriend of appellant’s wife, Mercy Torres. Mercy had filed for divorce four months before the shooting and had obtained a restraining order after appellant, holding a gun, threatened to kill himself and take her with him. Torres had told Mercy that he “didn’t care if he went to jail for violation of the order,” but he was not going to let her date anyone else. Torres told a social worker that the killing was Mercy’s fault because if she had not started a relationship with Bartolome, Torres would not have had to kill Bartolome. Prior to the shooting, Torres had called Mercy about 100 times.
Because we refer to appellant as Torres, we refer to others with the same last name by their first names.
Mercy acknowledged at trial that this was her testimony at the preliminary hearing. At trial, she testified that Torres said only he was going to kill himself.
Juan Casarez saw Torres pacing in front of Mercy’s apartment for about an hour prior to the shooting. Torres was focused on Mercy’s apartment. Mercy told her colleague on the day of the shooting, that when she and Bartolome saw that Torres had a gun, they ran from Torres, but Torres shot Bartolome. (Mercy testified differently at trial.) The sawed-off shotgun was modified to make it easier to conceal and more maneuverable.
1. Torres’s Interview
Shortly after the shooting, Torres told police all of the following: He followed Mercy to find out where she lived. On May 8, Mercy told Torres that she was going to San Diego the next day. On May 9, at 5:30 a.m., Torres went to Mercy’s apartment. Torres was “hiding someplace close.” Torres saw Bartolome driving Mercy’s car sometime between 7:00 and 8:00 a.m. Initially, Torres thought it was Mercy driving, so he followed the car.
Between 8:30 and 9:00 a.m., Torres tried to call Mercy. Torres called again before 10:00 a.m. At that time, he was driving toward San Diego. He called again at 11:00 or 11:30 a.m. When Torres arrived in San Diego, he called Mercy again to let her know that he was there. He wanted to make sure Mercy was in San Diego and that she was not with Bartolome.
When he returned to Los Angeles about 4:30 or 5:00 p.m., Torres called Mercy again. Torres asked Mercy if she loved Bartolome; Mercy responded affirmatively and hung up on Torres. Torres tried to call Mercy several additional times and asked someone else to call on his behalf. About 6:00 or 6:30 p.m., Torres called Mercy and Bartolome answered the phone. Torres explained what happened next: “[T]hat started right there. I went . . . back . . . I put in my guns . . . .” Torres was mad and he went to the garage where he kept his gun. Torres retrieved his shotgun from the garage. Torres was “mad, because I hear the guy[’s] . . . voice.”
Torres put his shotgun in the car and the bullets in the trunk. He drove to Mercy’s apartment, but at that time had no intention of using his weapon. Torres parked the car near a park and walked to Mercy’s apartment. It was then about 7:00 or 8:00 p.m. Torres knocked on the window and broke a screen. Mercy told him to “[g]et out.”
Torres called Mercy and asked her to talk to him. When Mercy told Torres that Bartolome was there, Torres went back to his car. Torres called again and Bartolome answered the phone. Bartolome told Torres that he saw Torres that morning. Bartolome said something like “just you and me” or “[j]ust like one man telling another man” or “[t]alk face to face like that,” but Torres was not exactly sure what was said because Torres “was blank. My brains is blank. . . .”
Torres told Bartolome, “I know you’re gonna call the police, because you know I’m not supposed to be here. I’m waiting for you. I’m already here in the front with Mercy. Are you sure you wanna talk to me. Then . . . I go inside the car, I load it, open the trunk get the bullet, load it.” Bartolome would not let Torres talk to Mercy and told Torres that Mercy did not want to speak to him.
Torres drove from the park to Mercy’s apartment and saw Mercy and Bartolome standing in the driveway. “[T]hen I stop my car, open the door, get my shotgun. Shot the guy. He tried to run away but like I shoot -- I shot him.” “[M]y wife and the guy try to run away. And I tell him, ‘Are you sure you wanna just sacrifice yourself about my wife. If you really love my wife, are you gonna sacrifice yourself?’ ” Torres chased Bartolome as Bartolome ran. Torres tried to shoot Bartolome a second time, but his gun was stuck. Torres went back to his car and drove away.
Torres made the decision to use the gun when Bartolome answered the phone. Torres “did it as intention [sic].” “It’s only for the guy.” Torres drank after the shooting, but not before. Torres stated that Bartolome was taller than he was.
2. Torres’s Trial Testimony
At trial, Torres testified that in one of his calls to Mercy, Bartolome said, “ ‘I have your wife. I have your child. You are nothing now. Go away.’ ” This made Torres feel like “all my rights with my family were taken away from me. As if I was already killed by him in front of my family.” Bartolome said to Torres, “Why don’t you come over here and then we can fix the problem. Me and you man to man and I’m going to wait outside of this apartment.” Torres retrieved his gun and drove to Mercy’s apartment as he was “thinking of hurting somebody.” Torres was mad and hurt and wanted to scare Bartolome. When Torres saw Bartolome and Mercy together, he felt jealous. Bartolome ran toward Torres, scaring him, and Torres pointed his gun at Bartolome. Then, everything went blank.
3. Verdict and Sentencing
A jury convicted Torres of first degree murder. It also found true that Torres personally used a firearm and discharged a firearm within the meaning of Penal Code section 12022.53, subdivisions (b), (c), and (d). The jury also found that Torres was guilty of stalking Mercy in violation of section 646.9, subdivision (b).
All further statutory citations are to the Penal Code unless otherwise indicated.
The trial court sentenced Torres to 25 years to life for the murder count and a consecutive 25 years to life for the gun enhancement under section 12022.53, subdivision (d). The court stayed the sentence for the section 12022.53, subdivisions (b) and (c) violations. The court sentenced Torres to three years for the stalking count. Torres timely appealed.
DISCUSSION
I. Alleged Newly Discovered Evidence
Torres argues that based on newly discovered evidence, the trial court should have ordered a new trial. The so-called newly discovered evidence included the following: (1) Ernesto Raif saw Torres drinking on May 9, and appellant “probably consumed about 3-4 bottles of beer” during the early evening; (2) Romel Mercene saw Torres drinking on May 9 in the late afternoon; (3) Valerio Esteban guessed that Torres probably consumed three to four bottles of beer on May 9, in the early evening; (4) Torres told Nilo Torres that “he was hiding because he saw this big, burly man hovering around his car and standing by as if looking for him and waiting for him to come back to the car.” Torres told him that it was “Romy,” and that Romy was having an affair with his wife and had threatened him before.
“ ‘In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: “ ‘1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.’ ” ’ [Citation.]” ‘[U]nless a clear abuse of discretion is shown, a denial of the motion will not be interfered with on appeal.’ ” (People v. Beeler (1995) 9 Cal.4th 953, 1004.)
Appellant repeatedly states that the evidence in the declarations was newly discovered. Appellant, however, fails to explain why the evidence -- all of which is based on the declarations of his friends -- could not have, with reasonable diligence, been discovered prior to trial. Those who gave statements that appellant drank beer were known to appellant and lived in his apartment building. The evidence that appellant was threatened by the victim clearly would have been known to appellant. Appellant’s bare assertion that the evidence is newly discovered does not show that it was actually newly discovered or that it could not have been discovered with diligence.
The trial court found that trial counsel was aware of the witnesses. Even counsel (who is now counsel on appeal) acknowledged in the trial court, “I agree with the people -- [the evidence] would have been easily discoverable.” Therefore, appellant fails to show the evidence could not have been produced at trial with reasonable diligence, a prerequisite for a new trial based on newly discovered evidence. For that reason, the trial court properly denied the motion for a new trial.
Even assuming the evidence could not have been discovered with diligence, it would not have rendered a different result probable upon remand. Neither the evidence of intoxication nor the evidence of a prior threat undermines the finding of premeditation as appellant argues. Evidence that appellant drank three to four beers the day of the killing does not show either that he was intoxicated, that he was impaired, or that he was unable to premeditate the killing. Appellant was seen pacing for an hour prior to shooting and at least that much time passed between when he was drinking and the shooting.
Appellant argues, “Given the lack of capacity of the appellant to handle alcohol, it is easily conceivable that defendant was not In [sic] his right mind when he committed the homicide.” That argument is based on pure speculation. There was no evidence of appellant’s “lack of capacity . . . to handle alcohol.” There was no evidence that this amount of alcohol intoxicated appellant or that, even if it did, he remained intoxicated at the time he shot Bartolome. Therefore, the very premise of his argument is not supported by this record. In addition, this evidence that appellant had been drinking directly contradicts what appellant told police; when asked if he had been drinking when the shooting happened, appellant responded “no.” The evidence of intoxication was not likely to render a different result upon retrial.
Nor was the evidence of a threat likely to render a different result upon retrial. Nilo presented testimony of what appellant told him about prior threats by Bartolome. Appellant does not explain how this hearsay testimony is admissible. Appellant’s statement that this evidence “shows that appellant was afraid of the victim and thus might have prompted him to arm himself at the time of the confrontation, with the thought that he was defending himself from great bodily harm” is pure speculation. Appellant testified, and the jury must have rejected the testimony, that Bartolome ran toward him, scaring him. Assuming it was admissible, evidence that on another occasion Torres was scared of the victim would not have added much in evaluating his state of mind at the time of the killing given that there was testimony that at that time of the shooting, Torres was scared of Bartolome. The trial court instructed the jury with second degree murder and voluntary manslaughter, and the jury rejected those theories. The trial court did not abuse its discretion in denying Torres’s motion for a new trial motion based on allegedly newly discovered evidence of a threat, as that evidence could have been discovered with diligence and was not likely to lead to a different result upon retrial. Because appellant cannot show at least two of the requirements, we need not consider the other requirements to prevail on a new trial motion based on newly discovered evidence.
II. Alleged Instructional Error
Appellant argues that it was the trial court’s duty to submit instructions on voluntary intoxication. His entire argument on that point is as follows: “appellant submits that it was the trial court’s duty to introduce the applicable Jury Instruction as to voluntary intoxication as a factor in considering the appropriate charge that the defendant may be held to answer. The trial court’s failure to do this constituted reversible error.” Appellant fails to cite to any legal authority or explain why based on the facts of this case such an instruction was warranted. His argument is therefore forfeited. “ ‘Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion.’ ” (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.)
In any event, the argument lacks merit. There was no evidence appellant was intoxicated at the time of the shooting. The only evidence was appellant’s statement to the officer that he had not been drinking prior to the shooting. There was no evidence that the alleged intoxication affected Torres’s “actual formation of specific intent” as required to warrant an instruction on intoxication. (People v. Williams (1997) 16 Cal.4th 635, 677.) Even if there were evidence that appellant was voluntarily intoxicated, there was no evidence it affected his ability to form the intent to kill. (See ibid.)
Appellant states, “The court erred in not finding that elements of self-defense or incomplete self-defense existed and was warranted by a finding of the newly discovered evidence sought to be introduced.” Appellant states this as an issue presented on appeal, but makes no argument and no citation to relevant portions of he record. His only other statement is that “a theory of incomplete self-defense might be important for the court and the trier of fact to note.” This issue is also forfeited because appellant fails to cite to any legal authority or provide any legal argument. (People v. Dougherty, supra, 138 Cal.App.3d at p. 282.)
The record shows that the jury was instructed on unreasonable belief in the necessity to defend. The jury therefore considered it and rejected it when it convicted him of first-degree murder. There is no merit to appellant’s unsupported assertions that the trial court should have given instructions on voluntary intoxication and incomplete self-defense.
III. Alleged Lack of Sufficient Evidence
Appellant argues, “There was no clear evidence provided by the prosecution that the defendant carefully planned and deliberated on the killing of the victim.”
“[W]hile premeditation and deliberation must result from ‘ “careful thought and weighing of considerations” ’ [citation],” we continue to apply the principle that ‘[t]he process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .” [Citations.]’ ” ’ ” (People v. Manriquez (2005) 37 Cal.4th 547, 577.)
Appellant applies the incorrect standard of review. Appellant states that he was frustrated he could not see his children, had no bad intentions to Bartolome, was insulted by Bartolome, did not load the gun until after he reached Mercy’s apartment, and did not intend to use the gun. All of this evidence is based upon an interpretation of the record in the light most favorable to Torres. “ ‘When considering a challenge to the sufficiency of the evidence to support a criminal conviction, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ ” (People v. Williams, supra, 16 Cal.4th at p. 678.)
Appellant also fails to cite to the record on appeal. In this section of his brief, he does cite to the daily transcripts, but that is of no assistance to this court in locating the evidence in the record.
Once the correct standard of review is applied, there was overwhelming evidence of premeditation. After the shooting, appellant told officers: Before 6:00 or 6:30 p.m., he called Mercy, and Bartolome answered the phone. “[T]hat started right there. I went . . . back . . . guns. I put in my guns and then--.” “I was mad, because I hear the guy . . . I hear the guy[’s] voice, so I was kind of . . . upset.” He put the shotgun in the car and bullets in the trunk. He walked by Mercy’s apartment and knocked on the window. By then, it was 7:00 or 8:00 p.m. He called Mercy again and Bartolome answered the phone. Bartolome wanted to talk to Torres. Torres went to the car and loaded three bullets. Torres drove to Mercy’s apartment and saw Mercy and Bartolome standing in the driveway. He “stop[ped] my car, open the door, get my shotgun. Shot the guy. He tried to run away but like I shoot -- I shot him.” Bartolome “tr[ied] to run away.” Torres only intended to hurt Bartolome, not Mercy or their children. Torres “did it as intention [sic].” Torres was going to shoot him again to “make sure,” but his gun malfunctioned.
Based on this evidence, a reasonable trier of fact could infer that appellant was angry that Bartolome was with Mercy, armed himself, drove to Mercy’s apartment, loaded the gun before talking to Bartolome, and shot Bartolome as Bartolome was trying to run away. This evidence is sufficient to infer that Torres reflected prior to killing Bartolome, considered the question of killing, and made a calculated judgment to kill Bartolome. This evidence is sufficient even though Torres testified that he did not intend to kill Bartolome, and that Bartolome ran toward him. The jury rejected theories of second degree murder and voluntary manslaughter and, appellant’s argument is in essence a request that this court reweigh the evidence. The evidence amply supports the jury’s determination that the killing was committed with premeditation and deliberation.
IV. Alleged Miranda Violations
Appellant argues the court should have found a Miranda violation because “[u]pon advisement of his right to remain silent and to an attorney to be present during questioning, detective Barron IMMEDIATELY asks appellant ‘And do you want to talk to me about what happened?’ ” instead of asking him if he voluntarily waived the Miranda rights.
Appellant cites to no legal authority in support of his argument. This argument is forfeited. (People v. Anderson (2007) 152 Cal.App.4th 919, 929; see also People v. Dougherty, supra, 138 Cal.App.3d at p. 282.) The argument is also forfeited for failure to raise the objection in the trial court. (People v. Peters (1972) 23 Cal.App.3d 522, 530.)
Even if we consider it on the merits, it is baseless. “ ‘Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.’ ” (People v. Whitson (1998) 17 Cal.4th 229, 247, quoting Moran v. Burbine (1986) 475 U.S. 412, 422-423.) The record indicates appellant was informed of his Miranda rights, acknowledged he understood each of his rights, and then expressed a willingness to speak. There was no evidence that the police coerced appellant or made improper promises, and appellant does not argue otherwise. Torres testified that he was tired because he had not slept, but also testified that the detectives did not threaten him. Under such circumstances, there was an implied waiver. (People v. Whitson, supra, at pp. 247-248.)
Significantly, appellant testified that he wanted to talk to the police. His counsel also acknowledged that appellant waived his Miranda rights. During opening argument counsel stated: “He got his Miranda rights, but he waived them. He gave them up. He could have remained silent. He gave them up because he felt it was his duty somehow to cooperate with the police. That would be better for him if he cooperated with the police.” Appellant’s statement, made for the first time on appeal, that he never waived his Miranda rights is not supported by the record.
Appellant testified that he did not remember the Miranda warnings, but a tape of the interview shows that they were given.
IV. Alleged Ineffective Assistance of Trial Counsel
Appellant’s entire argument regarding ineffective assistance of trial counsel (an attorney different from the one on appeal) is as follows: “Should this Court adopt the trial court’s finding that the newly-discovered evidence sought to be presented was not ‘newly-discovered’ as per the standards set by Penal Code section 1181, then appellant submits that this should have been within the reasonable realm of attorney competence. Given the crucial nature and materiality of the evidence sought to be presented, the trial Court should have found ineffective assistance of counsel as a ground to retry the case if only to allow the introduction of said evidence.” (Emphasis omitted.)
This argument is forfeited. (People v. Anderson, supra, 152 Cal.App.4th at p. 929.) Appellant fails to cite to any legal authority. He fails to provide the standard for ineffective assistance. He fails to explain why such conduct constituted ineffective assistance of counsel.
Even if we consider the issue, it is meritless. To show ineffective assistance of counsel, appellant must show: not only that counsel’s performance was deficient but that “the deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 687.) Assessing prejudice in this context requires analyzing “whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Id. at p. 695; People v. Young (2007) 156 Cal.App.4th 1165, 1172.) “[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case, the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” (Strickland, supra, at p. 696.)
It is possible that trial counsel discovered the evidence that appellant now argues was newly discovered and chose not to present it to the jury. The Attorney General correctly points out that a possible tactical reason for choosing not to present such evidence was that it directly contradicted appellant’s statements to the police that he had not been drinking. In addition, the trial court found that counsel was aware of the witnesses.
Assuming for the sake of argument the conduct was deficient, there was no prejudice as we explained in the first part, ante. The so-called newly discovered evidence does not raise a reasonable probability the result would differ if it had been presented. The evidence of intoxication does not show appellant could not form the specific intent to premeditate, and the evidence of a threat was cumulative to evidence presented at trial. In addition, the evidence against appellant was overwhelming. There was no issue of identity as appellant was identified by his ex-wife and testified that he shot Bartolome. As we detailed in discussing the sufficiency of the evidence, appellant’s confession shows step-by-step his thought process prior to the shooting and his motivation for the shooting.
Finally, in his statement of facts appellant states that trial counsel was ineffective for failing to raise a “Miranda issue.” That is the extent of his argument, which also is forfeited. In any event, as we discussed, the record shows that appellant impliedly waived his Miranda rights, and therefore, at least based on the record on appeal, there was no showing that counsel’s performance was deficient for failing to raise an issue with respect to appellant’s confession.
V. State Bar Referral
It is unusual to discuss counsel’s conduct in a written opinion; however, this case warrants it. We struck appellant’s opening brief because it failed to comply with the California Rules of Court, rules 8.204 and 8.360. We ordered counsel to file a new brief. Instead of remedying the deficiencies, counsel filed almost the same brief a second time. Counsel added the following sentence, “The sentence is now final and appealable.” He also deleted a few lines from the statement of the case and repeated a few sentences in the statement of facts.
The second brief, just like the first, fails to comply with the California Rules of Court. Rather than engage in the futile exercise of striking the brief again, we have chosen to consider the appeal. To forestall a claim of ineffective assistance of appellate counsel, we have considered the arguments on the merits even where they are technically forfeited. (Cf. People v. Cox (1991) 53 Cal.3d 618, 682.)
We must refer a case to the State Bar where counsel is in contempt or is sanctioned over $1,000 dollars. (Bus. & Prof. Code, § 6086.7.) We believe such a referral is also appropriate in this case to allow the State Bar to investigate to determine whether discipline is warranted. (People v. Ryner (1985) 164 Cal.App.3d 1075, 1087, fn. 5 [referring matter to State Bar for investigation pursuant to court’s inherent power; cf. McKay v. Longsworth (1989) 211 Cal.App.3d 1592, 1595, fn. 1].)
In order to assist the State Bar in its investigation, we list some of the deficiencies in counsel’s briefing. This list is intended to be exemplary, not exhaustive. There are no citations to the reporter’s transcript on appeal. Minimal citations to the daily transcripts are of no assistance to this court in evaluating the accuracy of appellant’s statements. His entire statement of facts contains only five citations to the clerk’s transcript and no citation to any other transcript. Entire arguments are made with no citation to legal authority. Several arguments are forfeited because of deficient briefing. The summary of facts contains information that is not in the record and evidence that was not admitted in trial. Even after this court struck appellant’s brief, counsel failed to modify it to comply with the California Rules of Court.
It is possible that appellate counsel had an uphill battle in showing that the reversal or modification of appellant’s convictions was warranted. The evidence in this case was overwhelming and included appellant’s confession to the murder. Any such difficulty does not excuse the filing of a brief that fails to meet even minimal requirements.
DISPOSITION
The judgment is affirmed. We direct the clerk of this court to serve a copy of this opinion on the State Bar immediately after the issuance of the remitittur.
We concur: FLIER, J. EGERTON, J.
Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.