Opinion
C039206.
7-9-2003
THE PEOPLE, Plaintiff and Respondent, v. CASEY JOSEPH CICERO, Defendant and Appellant.
Casey Joseph Cicero was found guilty by a jury of first degree murder during the commission of a robbery or attempted robbery. The jury deadlocked on the issue whether defendant personally used a knife and that allegation was dismissed in the interest of justice. Defendant was sentenced to life without the possibility of parole. The principal issue on appeal is whether there was sufficient evidence of the corpus delicti of the underlying felony apart from defendants admissions. As this contention lacks merit, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts disclose the murder occurred as a result of a drunken plot by defendant and his accomplice, Maria Tenorio, to rob an unsuspecting patron of an adult movie theater. Tenorio testified that she ran into defendant at a party in Carmichael at 10:00 p.m. on July 27, 2000. The two had met previously and had several friends in common. They decided to leave the Carmichael party and visit Nanette Cambrown, whom Tenorio met while both were incarcerated at a jail facility in 1998.
Cambrown was staying at a trailer park in a trailer belonging to Joe Hedgepeth. The trailer park was located adjacent to the adults-only Regency Theatre. Defendant drove to Cambrowns in a car he had borrowed from his girlfriend (defendants car). Tenorio and defendant drank straight vodka at Cambrowns; they both were intoxicated. The trailer was crowded and Tenorio felt bored. Defendant and Tenorio discovered they had but a dollar or two in cash. Tenorio asked defendant if he wanted to make some money. Tenorio thought defendant said yes and the two of them walked out to defendants car. Defendant proceeded to drive to the Regency Theatre. Tenorio believed she and defendant were going to rob someone, although there was no express verbal agreement or formal discussion of specifics.
There was a crowd of people milling outside the theater. The victim, Peter Trujillo, dressed in a business suit, was standing there. Defendant stopped the car and signaled to Trujillo, who approached defendants car. Defendant told Trujillo "this is my old lady," and asked him if he "wanted to party." Trujillo responded affirmatively, and defendant told him to "jump in."
The manager of the theater testified he saw defendant and Tenorio drive up and "talk" to Trujillo, who entered the vehicle before all three drove off. His version differed from Tenorios in that he testified Tenorio, rather than defendant, initiated the encounter by signaling Trujillo.
According to Tenorio, Trujillo got into the back passenger side seat, behind Tenorio. Trujillo told them he had $ 45. Defendant asked Trujillo, "shes pretty, isnt she" and Trujillo agreed. In the meantime, Tenorio retrieved a can of mace from her purse and placed it on her lap. Defendant drove about a mile or so along Roseville Road until they reached an area near some commercial structures, where defendant parked the car. He stuck his hand in his boot and dug around for a few moments alighting from the car. Trujillo and Tenorio also got out. Tenorio saw defendant strike Trujillo with his fist. Trujillo fought back. Tenorio attempted to spray Trujillo with mace but the wind blew the spray back into her eyes, blinding her. She returned to the car and began rubbing her eyes. About a minute later, defendant hopped back into the drivers seat, sped off wildly, and exclaimed: "twenty-five to life."
Defendant drove down an alley, through a gate, and into a building, losing the front bumper and license plate in the process. Tenorio was frightened and demanded that defendant let her out. Defendant eventually abandoned the car at a convenience store and he and Tenorio walked back to Cambrowns party, where defendant admitted he had "just stabbed some guy." Tenorio and defendant thereafter left the party and walked to Tenorios mothers house, where they slept in the backyard. When Tenorio awoke, defendant was gone.
Defendant had in fact stabbed Trujillo in the throat and twisted the blade before removing it. After defendant and Tenorio abandoned him, Trujillo managed to crawl back to Roseville Road, where he hailed a passing vehicle and informed its occupants that he was dying, which he did soon afterward. A trail of blood led to the scene of the stabbing. A detective examined Trujillos clothing and discovered a wallet in the right rear pocket and several bills of U.S. currency (including a $ 20 bill) in his left front pants pocket. The detective also examined Trujillos shoes for obvious scuff marks, which would have indicated a struggle with the assailant but found none.
The morning after the homicide, defendant spoke with Douglas Pugh, who had been at Cambrowns party the previous evening. According to homicide detective Ron Garverick, who interviewed Pugh, defendant told Pugh he was scared because he had stabbed a guy in the chest the previous night. Defendant admitted he was trying to take money from the victim, but the victim fought back, so defendant grabbed him from behind and stabbed him. At trial, Pugh testified he lied to Garverick because he was afraid he would be arrested on an outstanding warrant. He testified he had picked up some of the details of the homicide from friends and the newspaper.
Nanette Cambrown told another investigator that she had seen defendant the morning after the homicide and that he told her he and Tenorio had fought with a guy over some money. At trial, Cambrown could not recall whether she had made these statements to the investigator.
Police interviewed defendant, who stated he was with Pam Ripley from 10:00 p.m. the night of the homicide until noon the next day. When police questioned Ripley about defendants alibi, she denied being with him the night of the homicide and she so testified at trial. During a jail conversation with one of defendants visiting girlfriends, defendant asked her to tell "Pam" to testify that she could not remember if she was with defendant on the night of the homicide. While in jail, defendant also wrote a letter to another girlfriend asking her to tell Tenorio that "if she pleads the fifth they are going to have to dismiss it."
Defendant was originally charged with one count of murder (Pen. Code, § 187) with a special circumstance that the murder occurred during an attempted robbery (Pen. Code, § 190.2, subd. (a)(17)). On the eve of trial, the court granted the Peoples request to amend the information to delete the allegation that defendant had murdered Trujillo with malice aforethought. The amended information added an allegation of defendants personal use of a deadly or dangerous weapon (Pen. Code, § 12022 , subd. (b)(1)).
The jury found defendant guilty of first degree murder and found true the special circumstance. The jury deadlocked on the personal-use allegation, which the court thereafter dismissed.
Some of the jurors apparently gave credit to defendants argument — based largely on the absence of a struggle — that Tenorio had masterminded the robbery and knifed Trujillo while he awaited a sex act.
DISCUSSION
Defendant argues the judgment must be reversed because the corpus delicti rule requires evidence, aside from his admissions, that he committed the underlying felony, which in this case was either robbery or attempted robbery. Alternatively, and in the event we hold the corpus delicti rule does not require such proof, defendant proposes he would have been denied due process and equal protection of the law, since "a person charged with malice murder and a person charged with felony murder only is identically situated, yet the malice-murder defendant only obtains the benefit of the corpus delicti rule." These arguments lack merit.
"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.] Though mandated by no statute, and never deemed a constitutional guaranty, the rule requiring some independent proof of the corpus delicti has roots in the common law. [Citation.] California decisions have applied it at least since the 1860s. [Citation.] "Virtually all American jurisdictions have some form of rule against convictions for criminal conduct not proven except by the uncorroborated extrajudicial statements of the accused. [Citations.] This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened. [Citations.]
"[P] . . . [P]
"The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence of every physical act constituting an element of an offense, so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendants extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169, 1171, fn. omitted (Alvarez).)
"[A] long line of decisions has found the corpus delicti rule inapplicable to felonies used to establish the degree of a homicide. [Citations.]" (People v. Weaver (2001) 26 Cal.4th 876, 929-930.) Thus, "when the People have established the corpus delicti of murder, a defendants extrajudicial statements may be admitted to prove an underlying felony for felony-murder purposes even if the felony cannot be proved by evidence other than such statements. [Citation.]" (Id. at p. 929.)
Defendant attaches great significance to the Peoples decision to amend the information to delete any reference to malice aforethought, and thereby proceed solely on a felony-murder theory to support its first degree murder theory. In such circumstances, defendant posits, the People were required to prove the corpus delicti of robbery or attempted robbery independently of defendants admissions.
The People argue defendant waived his corpus delicti claim by failing to object at trial to the sufficiency of proof of the corpus delicti, citing People v. Wright (1990) 52 Cal.3d 367 at page 404, 276 Cal. Rptr. 731, 802 P.2d 221 (Wright) and People v. Martinez (1996) 51 Cal.App.4th 537 at pages 543-544 (Martinez). Both cases are inapt. In Wright, the appellant argued the trial court erred by admitting his confession before the People had established the corpus delicti of the crime. (Wright, supra, 52 Cal.3d at p. 404.) The Supreme Court deemed the claim waived because the appellant had not objected, and "it may well be that proof of the corpus delicti was available and at hand during the trial, but that in the absence of [a] specific objection calling for such proof it was omitted. [Citation.]" (Ibid.) Martinez cites Wright for the proposition that "failure to enter a corpus delicti objection at trial waives the issue on appeal"; the court then assumed the appellants objection was sufficient before deciding the corpus delicti rule does not require proof of "other-crimes evidence introduced for impeachment purposes in the guilt phase of a trial." (Martinez, supra, 51 Cal.App.4th at pp. 544, 545.)
Defendant is not objecting to the manner in or purpose for which his admissions were introduced; his principal argument focuses on the alleged insufficiency of the proof of the corpus delicti of the underlying felony apart from his admissions. Claims based on insufficiency of the evidence or instructional error with respect to the corpus delicti rule have been entertained on appeal in the absence of an objection in the trial court. (Alvarez, supra , 27 Cal.4th 1161, 1170, 1178.)
The difficulty with this argument is that the record shows the amendment eliminating the reference to malice aforethought was largely disregarded when the jury was instructed. Notwithstanding the amendment, the jury was given the malice instruction (CALJIC No. 8.11) at defendants request, based on his belief that the jury might convict him of second degree murder if it decided there was no underlying felony. The jury also was instructed that "defendant is accused in count [one] of having committed the crime of murder, a violation of Penal Code section 187," and that "each of the following elements must be proved: [P] One, a human being was killed; [P] Two, the killing was unlawful; and [P] Three, the killing was done with malice aforethought or occurred during the commission or attempted commission of robbery." (Italics added.)
Thus, the record reflects that defendant was charged with the crime of murder, and, as defendant concedes, the corpus delicti of murder was established without the aid of defendants admissions to Pugh and Cambrown. "The corpus delicti of the crime of murder having been established by independent evidence, both reason and authority indicate that the circumstances surrounding the commission of the crime can be shown by the extrajudicial statements of the accused, and that such evidence of the surrounding circumstances may be used to establish the degree of the crime committed." (People v. Miller (1951) 37 Cal.2d 801, 806, 236 P.2d 137; accord, People v. Weaver, supra, 26 Cal.4th at pp. 929-930.)
Even if we were to assume the People were required to prove the corpus delicti of robbery or attempted robbery under the circumstances of this case, the evidence thereof was sufficient. Defendant asserts that "apart from appellants alleged confession to Pugh, there was no adequate, independent evidence of an attempted robbery in this case, and the jurors were in any event told, in accord with CALJIC No. 2.72, that "the degree of the crime" was not subject to the corpus delicti rule. [] Thus, if there was error, it was prejudicial."
Defendant is mistaken. According to Tenorios testimony, while at Cambrowns party, she and defendant discovered they were almost out of cash. Tenorio asked defendant if he wanted to make some money, and defendant affirmatively responded by driving Tenorio to an adult movie theater, where defendant acted as though he were a pimp and Tenorio a prostitute. Trujillo took the act to be real: he got into the car, said he had $ 45, and allowed himself to be driven to an isolated location. Tenorio pulled a can of mace from her purse and defendant pulled a knife from his boot, inferably to persuade Trujillo to part with his money without a struggle. When Trujillo resisted, Tenorio sprayed him with mace and defendant stabbed him. In addition to Tenorios testimony, the theater manager identified defendant and Tenorio as the two people who had "talked" Trujillo and persuaded him to enter defendants car; Trujillo was found a short while later with a stab wound to his throat; and his blood was traced back to the crime scene, where debris from defendants car littered the area. Thus, there was sufficient evidence apart from defendants admissions for the jury to infer that defendant had attempted to rob Trujillo and killed him in the process.
Toward the latter part of his discussion of the alleged insufficiency of the corpus delicti evidence, defendant asserts the entire conviction must be reversed because Tenorios accomplice testimony was not corroborated pursuant to Penal Code section 1111. Although defendants failure to put the argument under a separate heading or support it by pertinent authority arguably waives the issue (People v. Baniqued (2000) 85 Cal.App.4th 13, 29), the contention is meritless in any event. Pursuant to Alvarez, supra, 27 Cal.4th at pages 1171, 1179-1180, there no longer exists a limitation on the admissibility of a defendants admissions and, once admitted, they may be considered for any purpose, which would include corroboration of Tenorios testimony.
Furthermore, the instructions informed the jury that the corpus delicti of the elements of first degree felony murder had to be shown apart from defendants admissions. The jury received the first degree felony murder instruction, CALJIC No. 8.21, as follows: "The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of robbery, is murder of the first degree when the perpetrator had the specific intent to commit such crime of robbery. [P] The specific intent to commit robbery and the commission or attempted commission of such crime must be proved beyond a reasonable doubt." The elements of robbery (CALJIC No. 9.40) and attempt (CALJIC No. 6.00) were explained to the jury.
The court also gave the standard corpus delicti instruction, CALJIC No. 2.72, as follows: "No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any admission made by him outside of this trial. [P] The identity of the person who is alleged to have committed a crime is not an element of the crime nor is the degree of the crime."
As noted above, defendant takes issue with the final sentence of CALJIC No. 2.72, suggesting the jury may have believed it could convict defendant of first degree murder on the basis of his admission alone. We are not persuaded. Read together, CALJIC Nos. 2.72, 6.00, 8.21, and 9.40 instructed the jury that the elements of the crime of first degree felony murder required proof of robbery or attempted robbery and that proof of those elements could not rest solely on defendants admissions.
Finally, we note the purpose of the corpus delicti rule has been satisfied in this case. There is no risk the defendant was "falsely convicted, by his or her untested words alone, of a crime that never happened." (Alvarez, supra, 27 Cal.4th at p. 1169.) Defendants assertion that Tenorios testimony at best was "evidence of a homicide in the course of an altercation arising from a meretricious transaction for which Tenorio had enlisted [defendant], not as a robber, but as a pimp and a panderer," errs by viewing Tenorios testimony in the light most favorable to defendant. Tenorios testimony also gives rise to the reasonable inference that defendant and Tenorio, by their actions, attempted to rob Trujillo. Such evidence was substantially more than the "slight or prima facie showing" (id. at p. 1171) of attempted robbery, which is all the corpus delicti rule would require.
In sum, the evidence was sufficient to satisfy the corpus delicti rule with respect to defendants first degree murder conviction. Since defendant received the benefit of the corpus delicti rule, and defendants equal protection and due process argument is premised on disparate treatment, the argument fails.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., and SIMS, J.