Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF149228, Robert E. Law, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Jamie Popper and Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant, Mario Beltran, of first degree murder (Pen. Code, § 187, subd. (a)), during which he discharged a firearm causing death (Pen. Code, § 12022.53, subd. (d)), possessing methamphetamine for sale (Health & Saf. Code, § 11378) and possessing paraphernalia for the ingestion of controlled substances (Health & Saf. Code, § 11364). He was sentenced to prison for two terms of 25 years to life and appeals, claiming he cannot stand convicted of first degree murder on the theory of lying in wait, evidence was erroneously admitted and omitted and, individually and cumulatively, the error from these evidentiary rulings require reversal. We reject his contentions and affirm while directing the trial court to correct errors in the abstracts of judgment.
Facts
According to defendant, a former MS-13 gang member, he met the victim, whom he claimed had been influential in a prison gang, through defendant’s “sex partner, ” Flores, whom he claimed was an associate of a Corona gang. The next encounter between defendant and the victim occurred one or two days later when Flores’s mother brought the victim to defendant’s house, where they smoked Flores’s methamphetamine for two to three hours. Defendant and the victim had four or five conversations between their first meeting and March 17, 2009. Around March 15, 2009, the victim asked defendant, who had a gang tattoo around his eye, what neighborhood he was from and whether he had been to prison, which defendant claimed made him paranoid. On March 17, 2009, while the victim was at defendant’s home and they were smoking methamphetamine over the course of two to three hours, defendant claimed the victim said things to him outside of Flores’s presence that defendant interpreted to mean that defendant was going to be killed. Also outside Flores’s presence, the victim bragged to defendant about being a shot caller while in prison and having killed someone while in jail. The victim also made statements that made defendant believe that his family was in danger. Thereafter, and one to two hours before the shooting, the victim said something to defendant that made defendant believe that a “green light” had been placed on defendant, meaning that he had been marked for death or serious injury, and the victim intended to carry it out, even though defendant did not see a weapon on the victim and, in fact, the victim had no weapon. Defendant theorized that the green light had been placed on him because in 2005, he “snitched” on two people with gang affiliations in a bad check case and a weapon possession case. Defendant retrieved his loaded gun from his bedroom, entered the kitchen and grabbed a potato, returned to the living room where the victim was sitting on the couch with his back to defendant and talking on his cell phone. Defendant fired into the back of the victim’s head through the potato, then turned off the lights. Flores picked up her child and ran out the door. Defendant found the casing he had fired and flushed it down the toilet. Defendant grabbed methamphetamine that the victim had just purchased from Flores and left, then hid the gun in an obscure spot some distance from his home.
According to Flores, she had cohabitated with defendant for one month leading up to March 17, 2009 and the victim had been to their home four or five times, always upon invitation, during that month to purchase drugs from Flores. Defendant and the victim appeared to get along with each other. After calling and saying he was coming, which defendant knew, the victim came to their home on March 17 and bought drugs from Flores for $350, a transaction defendant witnessed. Defendant and the victim bagged some of the methamphetamine the victim had bought from Flores and defendant and the victim smoked some of the methamphetamine. The victim invited Flores and defendant to accompany him to a casino, but Flores said they could not due to the presence of her child. The victim called two people on his cell phone from the living room. While he was so engaged, defendant went into the bedroom, giving Flores what she considered a dirty look. Suddenly, a shot went off and defendant turned off the lights. Flores told defendant to turn them back on and she grabbed her child and left. Defendant followed Flores outside and she asked him why he had shot the victim. She testified variously that defendant told her that he had to because the victim had threatened him and his family and that defendant did not say this. Flores had not heard the victim threaten defendant or his family, but she had been in an out of the home that day while the victim was there and had also been on the phone. Defendant did not tell Flores that he saw a weapon on the victim. Flores was picked up after the shooting by a member of 4th Street, Corona Varrios Locos gang, who was a friend of the victim’s from their prison days together. The victim was also from 4th Street in Corona. Flores told this man that she did not know why defendant had shot the victim. Flores did not tell this person that defendant had shot the victim in self defense or in defense of his family. In fact, she told him there were no problems between defendant and the victim before the shooting. Flores did not tell the police that defendant had told her that the victim had threatened his family. Rather, she told the police that she did not know why defendant shot the victim. She told a detective that when she asked defendant immediately after the murder why he had shot the victim, he told her to shut up and he was acting like he didn’t care. She told this detective that defendant had never told her that he thought the victim was coming after him. Flores had not told anyone about defendant believing the victim was after him until the time of trial.
Issues and Discussion
1. Conviction of First Degree Murder Based on the Theory of Lying in Wait
Defendant was charged with willful, premeditated and deliberate murder. During opening statement, the prosecutor asserted that the evidence would show that defendant, at some point that evening, decided that the victim had to die, then walked into his bedroom and after looking into the living room to make sure the victim had not followed him and looking at Flores, got his gun, then got a potato, re-entered the living room and, again after checking to see that the victim had not moved, fired through the potato into the back of the victim’s head. The prosecutor added, “[Defendant] executed [the victim] in cold blood.” Defendant took the stand as the second to the last witness to testify at trial. Based on testimony he gave during his cross-examination by the prosecutor, when the parties began discussing jury instructions after the conclusion of evidence, the prosecutor proposed giving the jury an instruction on the lying-in-wait theory of first degree murder, in addition to the premeditated and deliberate theory. Defense counsel objected, saying, “Lying in wait is a totally different theory, totally different approach I might have took. [sic] I might have picked different jurors. [Defendant] might not have testified. I would have asked different questions, maybe called different witnesses.... I wasn’t made aware of it until... after the trial was over.” The trial court overruled defendant’s objection, observing that lying in wait was a regular theory of first degree murder, it required premeditation and, therefore, was not substantially different from the premeditation/deliberation theory, and did not “expand on the requirements or reduce the requirements of [that theory]. It’s just a[n] argument that the facts suggest the concealment of purpose [as] another consideration.”
Defendant does not contest the adequacy of this testimony to support the giving of an instruction on the lying-in-wait theory of first degree murder.
The jury was instructed as to this theory, “The [d]efendant murdered by lying in wait if he concealed his purpose from the person killed, he waited and watched for an opportunity to act, and then from a position of advantage, he intended to and did make a surprise attack on the [victim].”
Defendant here contends that his federal constitutional rights to notice were violated by the trial court allowing the jury to rely on the lying-in-wait theory. We disagree.
“Whether defendant received constitutionally adequate notice that the prosecution was relying on a particular theory of guilt entails a resolution of a mixed question of law and fact [which]... is predominately legal. As such, we undertake an independent review.” (People v. Cole (2004) 33 Cal.4th 1158, 1205.)
We begin with a case cited by defendant for the proposition that the prosecution may not mislead a defendant into believing he will be defending against one theory before raising a new theory for the first time at the conclusion of a case. In People v. Gallego (1990) 52 Cal.3d 115 (Gallego), the defendant had been charged, inter alia, with murder and a special circumstance allegation had been made that the murder occurred in the commission of a kidnapping. (Id. at p. 188.) The trial court instructed the jury on first degree murder under theories of premeditated and deliberation and felony (robbery)-murder. (Ibid.) In response to the defendant’s assertion that the information did not put him on notice that he would have to defend against the felony-murder theory, the California Supreme Court observed, “[W]e have long held that a pleading charging murder adequately notifies a defendant of the possibility of conviction of first degree murder on a felony-murder theory. [Citations.] [¶] We nevertheless recognize... that ‘an information which complies with [Penal Code] sections 951 and 952 may not in some cases give sufficient notice to conform with constitutional requirements.’ [Citation.] Defendant, citing Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, asserts he was afforded constitutionally inadequate notice of the prosecution’s felony-murder theory in this case, and that Sheppard requires reversal. We disagree. [¶]... [¶] Contrary to defendant’s view, this case is unlike Sheppard, and does not reveal an ‘ambush’ by the prosecution. The Sheppard court observed, ‘[a]t no time during pretrial proceedings, opening statements, or the taking of testimony was the concept of felony-murder raised, directly or indirectly.’ [Citation.] In the present case, by contrast, defendant himself testified that the murders were committed while he... w[as] engaged in a robbery. In addition, the Sheppard court noted that after each side rested both parties ‘submitted and argued their requested jury instructions to the court. Again, there was no mention by the prosecutor of felony murder.’ [Citation.] The result, as expressed by defense counsel in Sheppard on the morning of closing argument, was an ‘ambush’.... In the present case, by contrast, the prosecut[or] submitted felony-murder instructions along with the other instructions, avoiding the ‘ambush’ situation faced by the defendant in Sheppard. We conclude defendant was not denied the notice guaranteed him under the Constitution.” (Id. at pp. 188-189, italics added.)
Defendant cites no cases holding that in the circumstances here, a constitutional violation occurs by the addition of a theory of first degree murder to that alleged in the charging document. Defendant’s reliance on Sheppard is misplaced, for reasons best expressed by the California Supreme Court in Gallego.
Defendant argues that the fact that the duration of the lying in wait be substantial enough to show a state of mind “equivalent to premeditation or deliberation, ” while premeditated and deliberate murder requires both, and this difference means that his right to notice was violated. However, this argument is unpersuasive in light of the holding in Gallego. This is so because felony-murder has entirely different elements than premeditated and deliberate murder, yet the California Supreme Court concluded that a defendant charged with the latter could be convicted of the former without his right to notice being violated.
In his reply brief, defendant asserts that the prosecution’s burden of proof was lessened by allowing jurors to convict him of lying in wait, the duration of which showed premeditation or deliberation, and not both. This would be true only if the California Supreme Court has concluded that both are required to establish first degree murder and defendant concedes that this is not the case (People v. Ruiz (1988) 44 Cal.3d 589, 613-615; People v. Hardy (1992) 2 Cal.4th 86, 161-164), and we are bound by these decisions (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450). Although defendant, confusingly, goes on to assert that a theory of first degree murder that does not require both deliberation and premeditation is “invalid, ” the cases he cites in support, People v. Guiton (1993) 4 Cal.4th 1116, 1128-1130 and People v. Green (1980) 27 Cal.3d 1, 69-70 [overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 233-237 and People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3], neither of which addressed lying in wait, do not so hold.
Defendant seeks to avoid the application of Gallego by pointing out that the defendant there had been charged with “generic” murder without specifying a theory. However, the Supreme Court in its holding in Gallego did not focus on the general nature of the charges brought against the defendant, but, rather, on the fact that he had not been ambushed, as had the defendant in Sheppard, because his own trial testimony supported the theory of felony murder and the prosecutor had asked for instructions on felony murder. Both of those events occurred here.
The fact that support for a lying-in-wait theory was expressly developed only during cross-examination by the prosecutor is, contrary to defendant’s assertion, also of no significance—the issue is whether defendant was sand-bagged by the prosecution when it requested an instruction on lying-in-wait murder. The truth is the truth whether defense counsel solicited it or the prosecutor solicited it. From the moment defendant made those statements on the stand, the defense was on notice that he could be guilty of murder by lying in wait. The defense case was still open at that point. Indeed, another defense witness was called after defendant concluded his testimony. If defendant needed time to prepare a defense for lying in wait, he could have requested one, but did not.
See the second paragraph of footnote one, ante, page five.
Contrary to defendant’s assertion, in Gallego, it was defendant’s testimony both during direct and cross-examination that established that he had committed the murder during a robbery. (Gallego, supra, 52 Cal.3d 115, 146, 147.) In fact, the evidence defendant cites in Gallego dealing with what he asserts is the “central basis of his defense—[that] he intended to rob but not to rape” was elicited during cross-examination of defendant by the prosecutor. (Id. at p. 147.)
In People v. Cole (2004) 33 Cal.4th 1158, the prosecutor announced during a conference on jury instructions that he intended to proceed on a theory of lying in wait, in addition to the two other theories he had said before trial began he would use. (Id. at p. 1204.) The trial court instructed the jury on lying in wait, over the defendant’s objection. (Ibid.) Noting that defendant did not move to reopen when the prosecutor requested the instruction, the California Supreme Court concluded that defendant had waived the matter. (Id. at p. 1205.)
In People v. Gurule (2002) 28 Cal.4th 557, the California Supreme Court rejected the defendant’s contention that Sheppard required reversal of his conviction for first degree murder where he first learned of the prosecution’s intent to proceed on a lying-in-wait theory during discussions on jury instructions. (Gurule, at pp. 629-630.) The court pointed out, “[I]t was not at that time too late to move to reopen the proceedings to allow the defense to produce evidence addressing the theory. [Citation.] Defendant, then, had sufficient time to confront the facts that alleged supported the theory, eliminating the possibility that any lack of notice was fatally unconstitutional. Sheppard... is thus distinguishable.” (Id. at p. 630.)
Of course, we recognize that when those facts come out of the defendant’s own mouth, it might be quite difficult for the defense to “confront” them. Nevertheless, it is not a violation of defendant’s right to notice.
Defendant having failed to persuade us through the application of precedent that the trial court erred in allowing the jury to be presented with a lying-in-wait theory, we need not apply either standard of harmless error or automatic reversal.
2. Exclusion of Evidence
The defense called as a witness a former sheriff’s detective who was currently an investigator with the Public Defender’s Office. He opined, inter alia, that the victim was a gang member and could issue and execute a green light. He was asked a hypothetical question in which a hit man informs the target that there is a green light on the target. The target believes that the threat is real and he shoots and kills the hit man, believing the hit man is going to kill him. The witness was asked, “Based on your gang experience and training, ... in this gang culture, is this... a type of reaction that you would expect a gang member to do [sic]?” The prosecutor made a relevancy objection and there was a side-bar conference which was not reported. There is no ruling on the record before us and the witness was not directed to and did not answer the question.
Later, outside the presence of the jury, defense counsel said he had wanted to “get into hypotheticals with [this witness] just regarding... what... type of reaction would you expect a gang member to do [sic] when there’s a green-light and so forth.” The trial court said, “We’re going to adopt the reasonable gang member[’s] interpretation of conduct? And interpose a new and different standard if you’re in gangs other than the one that’s imposed by the law in the State of California?” Defense counsel answered, “No, sir.” The trial court said, “But my ruling is that we’re not going to go there. [¶]... [¶] And that’s what I told you[.] [¶]... [¶] The gang can have their own rules, and they do. But they’re not going to play out in a court of law in the State of California to give self-defense justification or any other reason to act. Reasons to act must conform to the Penal Code, the statutes of the State of California. Not someone else’s rules.”
Defendant here asserts that the trial court’s exclusion of this witness’s answer was in error. First, defense counsel made no offer of proof, so we have no idea what his answer would have been. This makes a determination whether defendant was sufficiently prejudiced by exclusion of this evidence to require reversal impossible. It also makes defendant’s varied projections as to what else this witness would have said and how this testimony would have supported defendant’s claims no more than a guessing game. We may, at best, and for purposes of this argument only, assume what the witness’s answer to this one hypothetical question would have been.
Assuming that the witness’s testimony would have been that he would expect a gang member to kill the person he believed was about to kill him, we examine the impact its exclusion had on defendant’s assertions of imperfect self defense and provocation reducing the murder to manslaughter. The requirements for imperfect self defense is that the defendant “actually believed that he or... someone [else] was in imminent danger of being killed or suffering great bodily injury, and the [d]efendant actually believed that the immediate use of deadly force was necessary to defend against that danger” and one or both of those beliefs were unreasonable. Both requirements are completely subjective. The defendant, in his statements to the police pretrial and during his trial testimony, made clear that he believed both of these. The jury’s job was to determine whether this was true. The witness’s opinion that he would expect a gang member to kill someone he believed was going to kill him added nothing to the issue whether defendant believed that he was going to be killed and needed to use deadly force to protect himself. It was, therefore, as the trial court ruled, irrelevant. Even if one reasons backward, i.e., the fact that defendant killed the victim suggests that he must have subjectively believed he was in imminent danger and needed to use deadly force to protect himself (a questionable premise) is not assisted by the witness’s opinion that he would expect a gang member to kill someone he believed was going to kill him. In fact, any witness would expect anyone, gang member or not, to at least try to disable, if not kill, someone they believed was about to kill them. Defendant misconstrues the witness’s anticipated testimony by asserting that it “tend[ed] to corroborate that [defendant] honestly believed a green light meant certain death.” The anticipated testimony addressed neither whether defendant honestly held that belief, as the hypothetical assumed that a gang member honestly believed he was about to be killed, nor whether defendant would anticipate death in these circumstances, as it was also assumed in the hypothetical that the gang member would anticipate death. Nor, as defendant asserts, did the anticipated testimony have a tendency to corroborate defendant’s assertion that he believed that it was the victim and no one else who was to be his hit man. Claiming, as defendant does, that it further corroborated defendant’s assertion that his blood was boiling because of learning about the green light is the same as saying it is proper to have an expert witness testify that he would expect a certain group of people to react to something a certain way as corroboration of the testimony of a member of that group that he, in fact, reacted that way. It is clear that such opinion evidence is improper.
Because we refuse to guess at what else this witness might have testified to, we will not address how it might have undermined the evidence supporting findings of deliberation and premeditation or lying in wait.
The argument against admitting this evidence is even stronger as it relates to defendant’s reliance on provocation to reduce murder to manslaughter. This is so because the provocation must “cause[] a person of average disposition to act rashly or without due deliberation.... [¶]... The [d]efendant’s not allowed to set up his own standard of conduct. [¶]... In deciding whether provocation was sufficient, consider whether a person of average disposition in the same situation, knowing the same facts, would have reacted from passion rather than judgment.” It is in relation to this issue that the comments of the trial court about setting up a standard applicable to gang members rather than the general public are valid.
3. Admission of Evidence
During cross-examination of defendant, the prosecutor asked him if he had experimented with or talked to people about defenses other than self-defense before deciding to go with self-defense. Defendant said he had not. The prosecutor asked defendant about a conversation defendant had had with his sister while he was in jail, which had been recorded. The prosecutor asked defendant if, during that conversation, his sister said that Flores told her that defendant had written a letter to his daughter’s godmother, in which defendant said that he had planned out the victim’s murder. When defendant responded in a way that suggested he did not know about what the prosecutor was talking, the prosecutor read to defendant a portion of what must have been a transcript of the conversation in which the sister told defendant that defendant had revealed in the letter to his daughter’s godmother that he had “all this shit planned out” and defendant responded to his sister that the godmother was stupid and the sister should tell her to “shut... up. I didn’t have shit... planned out. Don’t even listen to that bitch.” Defense counsel objected on the basis of hearsay and relevancy. The trial court overruled the objection. Defendant then admitted that he said that to his sister “‘cause I didn’t have nothing planned out.’” Defendant also admitted that during this conversation, he told his sister that the problem was that he owed some money, which he testified referred to his involvement in the 2005 check cashing case in which he claimed to have acted as a snitch. However, he denied telling her that he killed the victim because he owed him some money.
Defendant here contends that the trial court erred in admitting defendant’s statement that the godmother was stupid, she should be told to shut up, he did not have the murder planned out and his sister should not listen to the godmother. We disagree.
Defendant asserts that whether evidence is hearsay is a question of law that we determine de novo (People ex rel. Lockyer v. Shamrock Foods Inc. (2000) 24 Cal.4th 415, 432). Statements of a party are admissible as an exception to the hearsay rule (Evid. Code, § 1220). Defendant’s statements to his sister were about the crime and were, therefore, relevant.
If what defendant is now objecting to is the prosecutor saying that defendant had written a letter to his daughter’s godmother in which he said that he had the murder all planned, the prosecutor mentioned this the first time without an objection from the defense, therefore, even if defense counsel had been successful in getting the trial court to sustain its hearsay and relevancy objections, this statement would have remained available for the jury to use.
Finally, even if we were to find that the trial court erred in admitting the statements, we would not conclude that reversal of defendant’s convictions is required because the evidence actually helped defendant in that it gave him an opportunity to deny the claim that he had the murder planned out.
4. Cumulative Error
Having concluded there was no error in either the exclusion of the defense witness’s anticipated testimony or in the admission of defendant’s statements to his sister, we necessarily conclude that there was no cumulative error.
Disposition
The trial court is directed to amend the determinate abstract of judgment to change the “total time on attached pages” and “total time excluding county jail term” from 50 years to two 25-years-to-life terms. The court is further directed to amend the indeterminate abstract of judgment to show that the term for the firearm discharge enhancement is 25 years to life, not 25 years as the abstract currently states. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J.MILLER J.
While, as the People have done, it may be argued that lying in wait could be reasonably inferred from facts adduced at the preliminary hearing and before defendant testified, it was not until he testified that the prosecutor researched into whether defendant was entitled to more notice than he received and asked for an instruction on that theory of first degree murder.