Opinion
A099513
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. LUIS DOMINGUEZ-CRUZ, Defendant and Appellant.
Luis Dominguez-Cruz appeals his jury conviction for robbery and murder. He contends his accomplices plea agreement was unduly coercive, the prosecutor commented improperly on appellants failure to testify, there was insufficient evidence of substantial movement to support the kidnapping special circumstance, and the accomplice testimony was insufficiently corroborated. We affirm.
Factual and Procedural Background
On the evening of September 5, 2001, Demetrio Lopez-Lopez (the victim), Bulmaro Coronel-Castro, and several other farmworkers, including appellant, cashed their biweekly paychecks together. The victims uncle loaned appellant $200, which appellant wanted to send to his mother in Mexico because she was very ill. Coronel-Castro also gave appellant $400 in partial payment for a car; appellant had told him "that his mother was sick and that he had to pay the money that he owed to the mechanic for the car." The victims uncle dropped the victim off at the house where appellant lived. It was the last time he saw him alive.
When Coronel-Castro returned home that evening after dinner, he found appellant waiting for him. Appellant asked him to go with him to collect a debt, but the friend they went to meet did not arrive. Appellant and Coronel-Castro each drank a 24-ounce beer on the way back to appellants house. Appellant told Coronel-Castro to stay in the car, and later told him to duck down. The victim was sitting outside, drinking beer from a 12-pack. Appellant suggested getting drunk, and took Coronel-Castro and the victim to a bar called The Red Door, where they remained until midnight. Appellant kept giving the victim beer, despite the victims statement that "he couldnt have any more beer because he was already very, very drunk."
When they left the bar, the victim was "very drunk." Appellant and Coronel-Castro had not consumed as much beer and were not as intoxicated. Appellant said he would take them home, and drove off with Coronel-Castro in the passenger seat and the victim asleep in the back. When they passed the home, however, appellant told Coronel-Castro they were going for a ride. When Coronel-Castro asked where they were going, appellant said, "[S]hut up. Dont be afraid. Dont be a fucking chicken." Appellant parked in a dark, dirt area off the highway. He told Coronel-Castro to get the sleeping victim out of the car, but Coronel-Castro refused. Appellant told the victim to get out because they were going to his house. Appellant pulled him out by the shoulder, and they walked away with appellants arm around the victims shoulders. Then appellant told the victim, "This is a robbery. Youre fucking screwed." Appellant knocked the victim down, and he fell on his face. Appellant slashed the victims throat, then searched his pants pockets. Appellant returned to Coronel-Castro and insisted on handing him the knife, which Coronel-Castro threw off to one side. Appellant then ordered Coronel-Castro back into the car and they drove off.
Coronel-Castro and the victim lived at the same house.
When they parked at appellants house, appellant pulled out the victims wallet and placed about $300 on the glove box for Coronel-Castro. Appellant explained he was retaining a larger share, because he did the work. Appellant threatened to kill Coronel-Castro if he told anyone what he had seen. Coronel-Castro had not known in advance that appellant was planning to kill the victim. He was scared of appellant, and slept in the car while appellant slept in the house. The next morning, appellant drove Coronel-Castro to work, and told him not to say anything to the victims brothers, repeating his threat to kill him. Appellant later took back most of the money he had placed on the glove box, leaving Coronel-Castro $100 for food. When the victims brothers asked if he knew anything about the victims whereabouts, Coronel-Castro suggested they ask appellant.
The victims body was discovered the morning after the killing. Police found a boot print approximately six feet from the body that matched the type, size and specific print/wear pattern of a boot appellant was wearing when he was later arrested. The victims pockets had been pulled inside out and smeared with blood, suggesting he was assaulted before he was searched. One of the victims rear pant pockets showed an indentation suggesting he had carried a wallet there, which was missing. A crescent-shaped drag- or scuffmark was also photographed near the body. The autopsy showed the victim had bled to death after having his throat slit. He was five feet two and one-half inches tall and weighed 147 pounds. There were no defensive wounds on the body. The victims blood alcohol level was .25 at the time of the autopsy. His vitreous alcohol level was . 30, suggesting his blood alcohol had been at least that high on the night he was killed.
The victim was identified from a surveillance video made at the bank where he had cashed his check on the night he died. Appellant and Coronel-Castro were also visible on the video. On September 7, the day after the body was found, appellant called the police to report the victim missing. Appellant claimed he and Coronel-Castro last seen the victim at Dianas Market at approximately 8:50 p.m. on the evening he died. When asked if that was correct, Coronel-Castro, who was also present at the interview, nodded his head. One of the victims brothers told a detective, however, that Coronel-Castro had also reported that he and the victim had slept in a car that night. Realizing the two statements conflicted, the detective interviewed Coronel-Casto and offered to protect him if he was afraid. Coronel-Castro eventually admitted being present at the scene and seeing appellant kill and rob the victim. Coronel-Castro repeatedly emphasized his great fear of appellant and his death threats.
In order to corroborate Coronel-Castros story, police arranged for him to make a recorded phone call to appellant. The tape was played for the jury, who heard appellants repeated expressions of concern that the call was being recorded and his admonitions to Coronel-Castro not to say anything. Police then arrested appellant and recovered the murder weapon from the bushes near the body where Coronel-Castro said he had thrown it. The knife was identified by several witnesses as one taken from the kitchen of appellants house or in appellants possession shortly before the murder. Police also recorded conversations between appellant and Coronel-Castro while both were in jail. Neither man knew he was being recorded. The tape was played for the jury. On it, appellant repeatedly advised Coronel-Castro to deny involvement, at one point telling him, "Its your mistake. . . . Because you left the knife laying there. We should have gotten rid of it."
Coronel-Castro originally claimed appellant had thrown the knife into the bushes, but later admitted doing so himself.
Appellant was charged with robbery and murder, with robbery and kidnapping as special circumstances, and knife-use enhancements. The jury convicted appellant of robbery and murder, finding the special circumstances true, but did not reach a verdict on the knife-use enhancements. Appellant was sentenced to life in prison without the possibility of parole for murder, with the robbery sentence stayed pursuant to Penal Code section 654. This timely appeal followed.
Coronel-Castro was originally charged as a principal in the same crimes, as well as with being an accessory after the fact. He pled no contest to accessory after the fact to both robbery and murder, and was facing a prison term of three years eight months when he testified.
Discussion
Appellant first contends Coronel-Castros plea agreement violated the rule that "defendant is denied a fair trial if the prosecutions case depends substantially upon accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion." (People v. Allen (1986) 42 Cal.3d 1222, 1251, quotingPeople v. Medina (1974) 41 Cal.App.3d 438, 455.) An agreement requiring only that the witness testify fully and truthfully, however, has been held valid. (Allen , supra, at p. 1252.)
We assume arguendo that Coronel-Castro is properly characterized as an accomplice for the purposes of this discussion.
During direct examination, Coronel-Castro testified that as part of his plea agreement he had agreed to tell the truth at trial. He also testified that he had told the truth in his statement to police on January 10. On cross-examination, he was asked, "Now, was it your understanding, based on what [the deputy district attorney] was asking you, that you would have to testify according to the way your statement was the day before, on January 10th, in the sheriffs office?" Appellant answered, "Yes."
Defense counsel initially asked, "And when you entered that plea of no contest, was it explained to you that this deal is only good if you testify against Mr. Luis Dominguez-Cruz the way your statement was on the day before, on January 10th?" The court sustained the prosecutors objection that the question misstated the evidence. The questioning then continued: "Q. Is it your understanding—when you were in court on January 10th and pled no contest, do you remember [the deputy district attorney] was asking you a lot of questions; correct? [¶] A. Yes. [¶] Q. And do you remember him asking you that—whether or not you gave an interview to a sheriffs deputy yesterday? [¶] A. Yes. [¶] Q. Now, is it your understanding also that if you dont testify a certain way that there would be certain consequences? In other words, that the charges of murder and robbery will be reinstated against you? [¶] A. Yes. [¶] Q. And that, in addition, you could also be prosecuted for perjury? [¶] A. Yes. [¶] Q. And also that the—the entire plea agreement would be terminated? [¶] A. Yes." This colloquy preceded the interchange quoted above.
Defense counsel moved to strike Coronel-Castros testimony, and argues on appeal that the plea agreement violated appellants due process rights and prevented him from properly cross-examining Coronel-Castro. The trial court noted: "I understand that the arrangement was with Mr. Coronel-Castro that if he tells the truth, the plea bargain will stay. If he does not, it will not. That is the typical arrangement for plea bargains when . . . a former defendant is going to testify against a defendant."
After reviewing the Medina case, the trial court explained: "As I read that opinion, if . . . an agreement is made pursuant to which a defendant will be allowed to plead a certain way or that the plea made will be allowed to continue if he testifies in a certain specific manner, that could result in the exclusion of the testimony. When . . . an agreement is reached where a defendant can plead or will be allowed to have a plea remain with the condition that he testify truthfully and honestly, there is no basis for a motion to exclude the testimony."
The court denied the motion to strike, finding: "As the court recalls the testimony, Mr. Bulmaro Coronel-Castro did say that he was told that he had to answer truthfully when he came into the courtroom to testify. He was asked a question about whether . . . he was required to testify the same as his statement, and he said yes. But he had previously said that he—the statement was true and honest. [¶] So the court at this time puts it all together to come up with an impression that Mr. Coronel-Castro was told he has to answer questions at trial here truthfully and honestly. And therefore, at this time, the motion will be denied." On redirect, Coronel-Castro was asked, "What was the one condition that was required of you? In other words, how were you supposed to testify?" He answered, "Everything very clearly and always to say the truth." Coronel-Castro also confirmed he had always told the truth on the stand.
Appellant cites People v. Gurule (2002) 28 Cal.4th 557, 615, where the court reiterated the Allen rule that "when the accomplice is granted immunity subject to the condition that his testimony substantially conform to an earlier statement given to police [citation], or that his testimony result in the defendants conviction [citation], the accomplices testimony is `tainted beyond redemption [citation] and its admission denies the defendant a fair trial." Appellant neglects to complete the Gurule courts quotation of Allen, however: " `On the other hand, although there is a certain degree of compulsion inherent in any plea agreement or grant of immunity, it is clear that an agreement requiring only that the witness testify fully and truthfully is valid. (Ibid.)
The Gurule court rejected the challenge to the plea agreement in that case, approving a grant of immunity conditioned on the requirement that the witness testify truthfully. (Gurule , supra, 28 Cal.4th. at p. 616.) The court noted the agreement was further conditioned on there being no new evidence showing the witness (rather than the defendant) was the actual killer, a condition that probably resulted in some pressure on him, but concluded that "nothing about the terms of [his] plea bargain was improperly coercive." (Id . at p. 617.) A similar conclusion was warranted here. Coronel-Castro testified that as part of his plea agreement, he had agreed to testify truthfully. He further testified that he had given a true statement to police shortly before he entered into that plea agreement. Logically, his true statements at trial would be congruent with his previous true statements to the police, as he apparently recognized in his answer to defense counsels leading questions on cross-examination. (SeePeople v. Fields (1983) 35 Cal.3d 329, 360-361.)
"Such a plea agreement, even if it is clear the prosecutor believes the witnesss prior statement to the police is the truth, and deviation from that statement in testimony may result in the withdrawal of the plea offer, does not place such compulsion upon the witness as to violate the defendants right to a fair trial." (People v. Jenkins (2000) 22 Cal.4th 900, 1010, citing Allen, supra, 42 Cal.3d at p. 1252.) Appellant has not shown that Coronel-Castros plea agreement was improperly coercive under the circumstances presented here. (Contrast Medina, supra, 41 Cal.App.3d at p. 450 [accomplices grant of immunity subject to express condition that testimony would not materially differ from prior statement] and People v. Green (1951) 102 Cal.App.2d 831, 838-839 [accomplice to receive immunity only if preliminary hearing testimony resulted in defendant being held to answer] with People v. Garrison (1989) 47 Cal.3d 746, 770 [rejecting inference that plea agreement required the witness to testify in accord with his pretrial statements regardless of their truth, even though district attorney stated that the truthfulness of the previous statements was part of the plea agreement] andFields, supra, 35 Cal.3d at pp. 360-361 [upholding plea agreement of witness who was required to testify fully and truthfully at trial, despite her responses on cross-examination indicating that she had agreed to testify in accord with her last statement to police].) The Supreme Court has held that "unless the bargain is expressly contingent on the witness sticking to a particular version, the principles of Medina, supra, 41 Cal.[App.]3d 438 and Green, supra, 102 Cal.App.3d 831, are not violated." (Garrison, supra, at p. 771.) No such contingency was shown here.
Next, appellant contends the prosecutor improperly urged the jury to infer guilt from appellants failure to testify. The record, however, does not support this argument. Responding to defense counsels suggestion that the evidence, including the boot print found near the victims body, was not sufficient to establish appellants guilt, the prosecutor asked the jury to consider: "If the defendant wasnt there, where was he? The law allows me to ask that question, because if he was somewhere else, logically speaking, the defense could have called witnesses to prove that fact. If he had been drinking with some of his buddies from work, you would have heard from those buddies. I mean, someone other than Bulmaro, and Demetrios not here." The prosecutor also commented: "If he had been at home at 201 Wilcox that night, his roommates—and, by the way, youve heard from all of his roommates that shared that bedroom with him . . . . If he had been at home, they would have told you. If he had been anywhere else besides this murder scene, he would have been with friends out drinking and you would have heard from them. But you didnt. And you can consider that fact in deciding whether he was there or not. And the reason you didnt hear from any of those witnesses is because you already know where he was that night. Thats where he was."
Appellant contends the prosecutors argument "clearly impinged on appellants privilege against self-incrimination," in violation of Griffin v. California (1965) 380 U.S. 609. The argument fails. Unlike the cases cited by appellant, the prosecutor did not emphasize the absence of evidence that could be provided only by the defendant, or otherwise draw attention to appellants failure to testify. Instead, the prosecutor drew the jurys attention to the defenses failure to call other witnesses to show that appellant was elsewhere than at the murder scene. This represented fair comment on the evidence, and did not violate appellants constitutional rights. (See People v. Clair (1992) 2 Cal.4th 629, 662; People v. Fierro (1991) 1 Cal.4th 173, 213 [Griffin rule does not extend to comments on the state of the evidence or the defenses failure to introduce material evidence or call logical witnesses].) There was no "reasonable likelihood that any of the comments could have been understood, within its context, to refer to defendants failure to testify." (Clair, supra, at p. 663.)
We therefore need not address the question of whether this issue was waived by defense counsels failure to object to the prosecutors argument below.
Next, appellant contends there was insufficient evidence to support the kidnapping special circumstance finding. He first argues there was no evidence of fear or force beyond that necessary to move the victim, as required by California law. (In re Michelle D. (2002) 29 Cal.4th 600, 605-606.) The Supreme Court has held, however, that the required force is reduced when the victim is incapable of resisting or giving consent, as in the case of an infant or young child. (Id. at pp. 609-610.) Instead, the prosecution may show the defendant acted with an illegal purpose or intent. (Id. at pp. 611-612.) Similar reasoning applies here, where appellant encouraged the victim to become so inebriated that he passed out and was unable to resist appellants attack. (See id. at p. 609 ["where the victim by reason of youth or mental incapacity can neither give nor withhold consent, kidnapping is established by proof that the victim was taken for an improper purpose or improper intent"].) A contrary conclusion would lead to the absurd consequence that a malefactor could take advantage of the vulnerability he had deliberately induced in his victim in order to avoid liability for his criminal acts. (See id. at pp. 606-608, 613.)
Appellant also contends the prosecution failed to prove substantial movement of the victim. He relies on People v. Martinez (1999) 20 Cal.4th 225, 235, which held that "the movement must be `substantial in character [citation], but . . . the trier of fact may consider more than actual distance." Relevant factors include "whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victims foreseeable attempts to escape and the attackers enhanced opportunity to commit additional crimes." (Id. at p. 237, fn. omitted.) Appellant argues that the movement of the victim from appellants car to the place where he was killed, a distance of approximately 60 to 75 feet, was insufficient to meet this standard. The fact that two cases decided more than 20 years ago found distances of 75 and 90 feet insufficient to establish asportation, however, does not demonstrate that a similar distance could not be found substantial under current standards, in light of the totality of the circumstances present here. (Seeid. at pp. 236-237, citing with approval People v. Bradley (1993) 15 Cal.App.4th 1144, 1154 [victim moved 50-60 feet to "necessary environment to commit the targeted crime without interruption or detection"].) Indeed, the Supreme Court in Martinez explicitly turned away from what it described as its previous "narrow approach," specifically overruling prior precedent to the extent it "prohibited consideration of factors other than actual distance in determining whether the asportation was sufficient." (20 Cal.4th at pp. 236-237 & fn. 6.)
We also note that many, if not all, the factors mentioned in Martinez, supra, 20 Cal.4th 225 were present here, viewing the evidence in the light most favorable to the verdict, as we must. (See People v. Galvan (1986) 187 Cal.App.3d 1205, 1213.) By moving the victim away from Coronel-Castro, appellant decreased the chance of interference with his attack and obscured his actions from at least one potential witness. He also reduced the chance of leaving evidence such as blood in the car, decreasing the chance of detection. Moreover, to the extent the victim entered appellants car with the expectation that he would receive a ride home, the event became a kidnapping when appellant instead transported the victim to another location while he was passed out in the back seat for the purpose of robbing and killing him. (See id. at pp. 1214-1215.) The evidence was thus sufficient to support the asportation finding here.
Finally, appellant maintains Coronel-Castoros testimony was not sufficiently corroborated to meet the requirements of Penal Code section 1111. He assumes arguendo there was sufficient independent evidence to connect him to the homicide, but contends "there was no evidence whatsoever apart from the accomplice testimony to support the kidnap and robbery special circumstances, much less to connect appellant to their commission." The jurys finding to the contrary, however, was supported by independent evidence in the record corroborating Coronel-Castros testimony regarding the kidnap and robbery special circumstances. "
Penal Code section 1111 provides, in pertinent part: "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof."
The jury was instructed: "No special circumstance based upon the commission of a crime, other than the murder of which the defendant is accused in this case, shall be found true based upon the testimony of an accomplice, unless that testimony is corroborated by other evidence which tends to connect the defendant with the commission of the crime." We reject appellants suggestion that the final phrase is ambiguous, and could be viewed as referring to the murder itself, because we conclude the earlier language makes it clear that the instruction refers to a crime "other than the murder" with which appellant was charged.
` "The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence `may be slight and entitled to little consideration when standing alone. . . . " ` " `[It] must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged. . . . " " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.) The evidence here included a bank video showing appellant and the victim cashing their checks hours before the murder, as well as evidence of motive that could be inferred from appellants need for money. No cash was found on the body of the victim, whose pockets had been turned out and whose hip pocket showed the outline of his missing wallet. There was a drag mark on the ground near the victims body, along with the imprint of a boot matching appellants. The knife used in the attack was taken from appellants home, and appellant was later recorded blaming Coronel-Castro for leaving the knife near the victim and failing to get rid of it. Coronel-Castros testimony that appellant had intentionally encouraged the victim to become extremely intoxicated, thus increasing his vulnerability, was also corroborated by the forensic evidence showing the victims blood alcohol level was approximately .30 at the time of his death. The evidence was sufficient to corroborate the special circumstance findings of robbery and kidnapping.
Disposition
The judgment is affirmed.
We concur: McGUINESS, P.J. & PARRILLI, J.