Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego CountySuper. Ct. No. SCD182868, Frederick Maguire, Judge. Affirmed in part, reversed in part, and remanded.
NARES, J.
A jury convicted Alejandro Cesar Trujillo of first degree murder (Pen. Code, § 187, subd. (a)) and found true an enhancement allegation that he intentionally and personally discharged a firearm causing death to a person (Pen. Code, § 12022.53, subd. (d)). At trial, the court permitted the defense to introduce evidence that the victim, Alexander Cole, had a character trait for violence. Over Trujillo's objection under Evidence Code section 352, the court allowed the prosecution under section 1103, subdivision (b) (hereafter section 1103(b)) to introduce rebuttal evidence that Trujillo had admitted under oath in a prior criminal proceeding that he had threatened to commit a crime that could have resulted in death or great bodily injury (Pen. Code, § 422) to someone not involved in the present case.
The information, trial court minutes, and abstract of judgment all indicate that defendant's true name is "Alejanoro Cesar Trujillo" and that "Alejandro Cesar Trujillo" is an alias. The probation report indicates the opposite. Because the briefing and notice of appeal in this case were filed under "Alejandro Cesar Trujillo," we continue to refer to him by that name.
All further statutory references are to the Evidence Code unless otherwise specified.
The court sentenced Trujillo to 25 years to life for the murder conviction, doubled to 50 years based on his strike prior (Pen. Code, § 667, subd. (e)(1)), plus 25 years to life for the firearm enhancement, and an additional five-year term for his prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)), for a total prison term of 80 years to life. Believing it had no discretion, the court imposed a restitution fine under Penal Code section 1202.4, subdivision (b)(1) (hereafter Penal Code section 1202.4(b)(1)) in the statutory maximum amount of $10,000.
Trujillo contends (1) his murder conviction must be reversed because the court prejudicially abused its discretion under Evidence Code section 352 by permitting the prosecution to introduce evidence that he had previously committed the offense of making a criminal threat; and (2) the $10,000 restitution fine must be reversed, and the case remanded for resentencing, because the record indicates the court erroneously believed it had no discretion under Penal Code section 1202.4(b)(1) with respect to that fine.
We conclude the court did not abuse its discretion when it allowed the prosecution to introduce rebuttal evidence that Trujillo had admitted making a criminal threat, and thus we affirm his conviction in the present case. We further conclude, however, that the court erred by failing to exercise its discretion in setting the amount of the restitution fine under Penal Code section 1202.4(b)(1). Accordingly, we reverse the restitution fine and remand this matter with instructions that the court exercise its discretion under Penal Code section 1202.4(b)(1). In all other respects the judgment is affirmed.
FACTUAL BACKGROUND
A. The People's Case
On May 15, 2004, between 3:00 and 4:00 a.m., Trujillo arrived at the home where the victim, Cole, was temporarily living. Trujillo confronted Cole outside the front door and an argument ensued. During the altercation, Trujillo shot Cole twice. He fired the second shot about five seconds after the first. The second, bullet entered Cole's brain just behind the ear. The brain injury was fatal.
After shooting Cole, Trujillo ran towards the street and climbed into a Ford Escort. Three others were in the car, and Trujillo sat behind the front passenger's seat. After an officer in a police car turned on his overhead red and amber lights to order the driver of the Escort to pull over, the driver led the police on a high-speed chase. The Escort eventually stopped in a cul-de-sac and Trujillo and another passenger fled on foot, jumped a fence, and ran down an embankment. Police caught Trujillo hiding beneath a sport utility vehicle. They also recovered a pair of black gloves on the other side of the fence in the vicinity of where Trujillo had fled on foot. DNA evidence showed both Trujillo and Cole had worn the gloves. The semiautomatic pistol used in the shooting was recovered along the route of the high-speed chase, lying against the right-hand curb, which would have been the passenger side of the Escort.
B. The Defense
Cole, Cole's girlfriend, and Trujillo lived together in the same trailer home until they were evicted two weeks before the shooting. Cole and Trujillo together used crystal methamphetamine and marijuana on a daily basis. They were like brothers, but Cole did all of the giving, doing things like bailing Trujillo out of jail and giving him food and a place to stay.
Cole owned four guns, including a .22-caliber rifle, a nine-millimeter Lugar, and a .38-caliber revolver. Both Trujillo's brother and Cole's girlfriend identified the gun used in the shooting as appearing to be one of Cole's guns. With Trujillo present, Cole would often shoot his guns at stacks of phone books in his trailer for the purpose of testing his homemade silencers. Cole bragged about using his guns to commit robberies. Cole's girlfriend never saw Cole carry a gun and did not believe Trujillo had any reason to think Cole carried a gun.
Cole physically abused his girlfriend on a regular basis, and Trujillo witnessed some of the abuse. The beatings escalated to an incident, immediately before their eviction from the trailer, in which Cole struck his girlfriend with a billy club about 10 times and caused her to be hospitalized. The beatings Trujillo witnessed did not bother him and he ignored them. Cole never displayed any physical aggression toward Trujillo.
Trujillo and Cole argued about 20 times during the two years they lived together in the trailer. Trujillo instigated most of the arguments, most of which concerned money. During one of the arguments, Trujillo pulled a gun from his waistband and threatened Cole with it.
The night before they were evicted from the trailer, Trujillo accused Cole of stealing or selling Trujillo's missing bong. Pounding on the locked door of the trailer, Trujillo angrily told Cole to come outside so they could take care of the problem. Trujillo left after Cole repeatedly told him to do so through the locked door.
After one argument with Trujillo, Cole told Trujillo's brother he would kill Trujillo if Trujillo really wanted to fight. Trujillo's brother told Trujillo that Cole would shoot Trujillo if he wanted to fight Cole. Trujillo was shocked because the statement seemed completely out of character for Cole.
Cole had a high level of methamphetamine and an average level of marijuana in his system when he was shot. High levels of methamphetamine can induce violent impulsive and irrational behavior. Marijuana can make agitated, impulsive or unpredictable behavior more pronounced. Chronic methamphetamine users tend to suffer from paranoia and hallucination, as well as irritable and irrational behavior. However, regular methamphetamine users can develop their own predictable patterns of behavior since the best predictor of future behavior is past behavior. One could predict that a mild-mannered chronic methamphetamine user would remain mild-mannered under the influence of methamphetamine. Trujillo drank alcoholic beverages the night before the shooting, but he generally "[held] his liquor" pretty well.
Dr. Clark Smith, a specialist in drug and alcohol treatment, examined the toxicology reports performed on Cole and Trujillo after the shooting. Trujillo had low levels of methamphetamine and marijuana in his system when he was arrested for the shooting. He was not tested for alcohol. The amount of methamphetamine in his blood indicated that its effect in his system could be expected to range from mild to moderate stimulation, to very little effect, depending on Trujillo's experience using methamphetamine.
C. The People's Rebuttal
In March 2003 Trujillo admitted under oath that he willfully and unlawfully threatened to commit a crime that if carried out could have resulted in great bodily injury or death. Trujillo also admitted that he intended his victim to take the threat seriously and believe that something was going to happen to him. The threat had nothing to do with any of the other people involved in the present case.
DISCUSSION
I. SECTION 352
Trujillo first contends his conviction must be reversed because the court prejudicially abused its discretion under section 352 by permitting the prosecution to introduce rebuttal evidence that he had previously committed the offense of making a criminal threat. We reject this contention.
A. Background
Prior to trial, defense counsel indicated he intended to introduce evidence showing that violence was a character trait of the victim, Cole. The prosecutor objected to this evidence on the ground it was not relevant. The court ruled that the defense could present such evidence in support of a theory of perfect or imperfect self-defense.
At trial, the defense presented evidence that Cole owned guns and frequently fired his guns at stacks of phone books in his trailer to test his homemade silencers. The defense also introduced evidence that Cole physically abused his girlfriend on a regular basis, and once beat her with a billy club about 10 times, causing her to be hospitalized. The defense also showed that Cole bragged about using his guns to commit robberies and once threatened to shoot Trujillo.
The prosecution asked the court to inform the jury under section 1103(b) that Trujillo had previously admitted under oath in a criminal proceeding that he had threatened to commit a crime that could have resulted in death or great bodily injury to someone not involved in the present case. The court granted the request over Trujillo's objection under section 352.
In accordance with this ruling, the court informed the jury on rebuttal that it would "take judicial notice that on or about the date of July 15, 2003 . . . Trujillo in a court proceeding . . . was sworn and was asked the following questions and gave the following answers. [¶] Question: 'On or about March 7, 2003 you did willfully and unlawfully threaten to commit a crime, which if carried out could have resulted in great bodily injury or death.' To that was an affirmative response by Mr. Trujillo."
The court also stated to the jury: "Next question: 'But do you agree, sir, you intended the threat to be taken seriously by your victim.' [¶] Mr. Trujillo: 'I admit that I did threaten him. Yes, I do take the responsibility.['] [¶] Next question: 'You wanted him to believe something was going to happen to him, didn't you?' [¶] 'Yes, sir.' [¶] Question: 'Yes, you did because otherwise you would not have made the threat, would you, Mr. Trujillo?' [¶] 'That is correct, sir.' [¶] Now I will further take judicial notice of the fact that . . . this incident that Mr. Trujillo gave sworn testimony about was on March 7, 2003 so therefore[] it did not involve the subject incident that is on trial for now. It did not involve any of the same people. So the person who was threatened on that day was not, in fact, [Cole] and had nothing to do with anybody in this particular case."
B. Standard of Review
"'[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the relative probativeness and prejudice of the evidence in question [citations].'" (People v. Jablonski (2006) 37 Cal.4th 774, 805.) "[The] trial court's determination 'will not be overturned on appeal in the absence of a clear abuse of that discretion, upon a showing that the trial court's decision was palpably arbitrary, capricious, or patently absurd, and resulted in injury sufficiently grave as to amount to a miscarriage of justice.'" (People v. Lamb (2006) 136 Cal.App.4th 575, 582, quoting In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385.)
C. Analysis
In general, "evidence of a person's character or a trait of . . . character . . . is inadmissible when offered to prove his or her conduct on a specified occasion." (§ 1101, subd. (a).) However, section 1103(b) expressly allows rebuttal evidence of a criminal defendant's character for violence if offered by the prosecution after the defense has presented evidence that the victim had a character for violence. Section 1103(b) provides: "In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a)."
Even if character evidence is admissible under section 1103(b), however, it must also be admissible under section 352, which provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Italics added.)
Here, Trujillo concedes the statements the court read to the jury were admissible under section 1103(b) because his defense counsel had introduced evidence of Cole's character for violence. He maintains, however, that the court abused its discretion under section 352 by admitting evidence of his prior criminal threat offense because the prejudice inherent in that evidence substantially outweighed its probative value. This contention is unavailing.
Trujillo asserts that because his prior felony offense of making a criminal threat in violation of Penal Code section 422 is not a violent felony under Penal Code section 667.5, subdivision (c), the evidence of that offense was not probative of his character for committing violent crimes. However, Evidence Code section 1103(b) draws no such distinction. While a verbal threat is less probative of character for committing violent crimes than physically violent conduct, the evidence of Trujillo's criminal threat had substantial probative value because it showed his violent character and was relevant to several critical issues in the present case, including whether Trujillo or Cole was the aggressor, whether the murder was premeditated, and whether Trujillo acted in self-defense. Trujillo's statements admitting his commission of the prior criminal threat rebutted the evidence Trujillo presented in an attempt to show that his victim, Cole, had a violent character and was the aggressor. We conclude Trujillo's statements pertaining to the criminal threat, although made against a person other than Cole, had substantial probative value.
Trujillo also asserts that even if the rebuttal evidence was probative, its slight probative value was substantially outweighed by its prejudicial effect. He suggests the prejudicial effect of the other crimes evidence was heightened because the jury was not advised that he had already been punished for the prior offense. However, at the prosecutor's request, the court withheld any mention of Trujillo's guilt out of concern such a reference would cause undue prejudice. Moreover, Trujillo's counsel took part in shaping the evidence to ensure it was not unduly prejudicial. Specifically, at his request, the court told the jury that Cole was not the victim of Trujillo's threat and that the circumstances surrounding the threat were unrelated to the shooting incident.
Finally, because we have concluded the court did not err, we need not address Trujillo's contention that "there was a reasonable probability that [he] would have achieved a better result had the improperly admitted evidence been excluded . . . ."
II. RESTITUTION FINE
Trujillo also contends the $10,000 restitution fine must be reversed, and the case remanded for resentencing, because the record indicates the court erroneously believed it had no discretion under Penal Code section 1202.4(b)(1) with respect to that fine. We conclude the restitution fine must be reversed and the matter remanded.
Penal Code section 1202.4(b)(1) provides: "(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony . . . ." (Italics added.) This statute plainly requires a sentencing court that imposes a felony restitution fine to exercise discretion in setting the amount of the fine within the statutory range. The exercise of discretion by a sentencing court in setting the amount of a felony restitution fine under Penal Code section 1202.4(b)(1) is guided by the provisions of subdivisions (b)(2) and (d) of that section.
Penal Code section 1202.4, subdivision (b)(2) provides: "In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (Italics added.)
Here, in setting the amount of Trujillo's restitution fine in the amount of $10,000, the maximum allowed under Penal Code section 1202.4(b)(1), the court demonstrated its belief it lacked discretion to set the amount between $200 and $10,000, stating: "Restitution fine under [Penal Code section] 1202.4(b) is set in the amount of $10,000. There's no discretion in that." (Italics added.) The court did not opine what it would have done if it had such discretion.
Because the record affirmatively shows the court failed to exercise its discretion in setting the amount of Trujillo's felony restitution fine, as required by Penal Code section 1202.4(b)(1), the $10,000 restitution fine must be reversed and the matter remanded with instructions that the court exercise its discretion in determining the amount of the fine to be imposed under that section.
DISPOSITION
The Penal Code section 1202.4(b)(1) felony restitution fine is reversed. In all other respects the judgment is affirmed. The matter is remanded with instructions that the court exercise its discretion under Penal Code section 1202.4(b)(1) in setting the amount of the restitution fine to be imposed under that section.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.
Subdivision (d) of Penal Code section 1202.4 provides: "In setting the amount of the fine pursuant to subdivision (b) in excess of the two hundred-dollar ($200) or one hundred-dollar ($100) minimum, the court shall consider any relevant factors including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration of a defendant's inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required."