Opinion
E073515
01-08-2021
THE PEOPLE, Plaintiff and Respondent, v. NATIVIDAD CORTEZ DORADO, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR030898) OPINION APPEAL from the Superior Court of San Bernardino County. Charles J. Umeda, Judge. Affirmed. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Natividad Cortez Dorado lived with Jose Nieves Dorado, one of his ten brothers. The two did not get along very well; defendant held grudges against Jose that went back decades. They had long-standing issues about defendant's use of water for the landscaping, which Jose believed was excessive.
All of the brothers had names starting with N. Defendant and his brothers referred to the victim as both "Jose" and "Nieves." We use "Jose," however, because that is how he is most often referred to in the record.
One night, defendant beat Jose to death — he threw Jose to the floor, kicked him and stomped him while he was down, and hit him with a pickaxe. Defendant then called 911. He told police that he said something to Jose about a hose that he had running out in the yard; Jose then came at him. Defendant started hitting Jose to protect himself. However, he could not stop. He hit Jose with the pickaxe to "get it over with."
In a jury trial, defendant was found guilty of second degree murder (Pen. Code, § 187, subd. (a)), with a deadly weapon enhancement (Pen. Code, § 12022, subd. (b)(1)). He was sentenced to a total of 16 years to life in prison, along with the usual fines, fees, and ancillary orders.
Defendant's sole appellate contention is that the prosecutor erred by misstating the law concerning voluntary manslaughter in her closing argument. The People concede the error, but they contend that it was not prejudicial. We agree that the error was not prejudicial. Defense counsel corrected the prosecutor's misstatements in his closing; the prosecutor did not disagree in her rebuttal; and the trial court gave the jury correct instructions, which contradicted the prosecutor's misstatements and confirmed defense counsel's correction of those misstatements.
I
STATEMENT OF FACTS
Defendant was the youngest of 11 brothers. For 22 years, he had lived with his brother, Jose Nieves Dorado, in a house in Fontana that belonged to a third brother.
A. Defendant's 911 Call.
On July 1, 2016, around 11:30 p.m., defendant called 911. He said, "Something bad happened . . . ." "[M]y brother came home, and he started fighting with me over the water bill." "He tried to beat me up . . . ." "I had to protect myself . . . ." First, defendant hit his brother. Then, he said, "I kicked him, I dropped him, I threw him on the floor." He told the operator that his brother "[i]s on the floor" and "needs a paramedic."
In the call, defendant complained that Jose had "borrowed thousands and thousands of dollars," "mistreated my mom," was "telling the neighbors that this is his house," and "tells my brothers a lot of bad things about me."
B. The Police Investigation.
When police responded, defendant met them outside; he was cooperative. He had been drinking. He gave them a brief statement to the same effect as his 911 call.
Officers found Jose's dead body lying in a laundry room. He had two blunt force cuts on the upper back of his head and several blunt force cuts to his face. He had an injury to the larynx consistent with being stomped. His neck was broken; this "would have led to paralysis at the time of the injury." He had a compound fracture of the right wrist; bruises and cuts to both hands, along with the wrist injury, appeared to be defensive wounds.
"[T]here was blood everywhere." However, none of it was more than about a foot and a half off the floor. Bloodstains on the back door indicated that it had been open when they were deposited. A blood swipe on the floor indicated that the body had been dragged about a foot inside through the back door. Outside the back door, there was a metal "plate" or "step" that was capable of causing Jose's scalp injury. The cause of death was "multiple blunt force injuries."
Defendant had a few scrapes and scratches. In his pocket were some 2015 water bills. Inside the garage, the police found a bloodstained pickaxe.
C. Defendant's Interview.
The police interviewed defendant at the police station. Defendant said he had had three pints of beer, but he was not drunk.
According to defendant, he took care of the plants and trees. Jose told him that, because of drought restrictions, he could water only twice a week.
On July 1, Jose came home between 9:00 and 10:00 p.m. Defendant mentioned something to him about a drip irrigation hose that he had left running.
Jose started "coming towards" defendant. Defendant thought — though he was "not 100 percent positive" — that Jose was angry about the hose being on. Defendant believed "[h]e was gonna beat me up." "I wasn't gonna let him . . . step on me. So I just threw him on the floor." Defendant acted by "reflex," to protect himself. "[A]fter he came towards me, I couldn't stop." "And he got up and still came at me." Defendant hit and kicked Jose.
Defendant demonstrated Jose's action twice, once with his hands down at his sides and once with his hands up with open palms.
Defendant repeatedly said that Jose started "coming towards" him. One time, however, he added, "Luckily he stopped."
At some point, the back door was open. Defendant did not want the neighbors to see, so he "dragged" Jose into the house. He "wanted to get it over with," so he got a pickaxe from the garage, hit Jose with "the thing on the bottom of it" two or three times, then put it back in the garage. "After [they] were finished," he "stomped" Jose two or three (or maybe ten or fifteen) times.
The People give the following sequence of events: (1) defendant threw Jose down; (2) Jose's head hit the metal plate outside; (3) the fall broke Jose's neck, leaving him paralyzed; (4) defendant dragged Jose inside; (5) defendant stomped Jose; and (6) defendant got the pickaxe and hit Jose with it. This is just one possible interpretation of the evidence, and not even the most likely. For example, it conflicts with defendant's statement that, after he threw Jose down, Jose got up and started coming at him again. Also, defendant implied that he hit Jose with the pickaxe before stomping him.
Defendant denied intending to kill Jose. It happened because "everything started building up." There were two main bones of contention that led to him killing Jose. First, when defendant's mother was alive, Jose had done "horrible things" to her — "elder abuse." Second, three days earlier, Jose had told their brother Nasario something that "almost" caused defendant and Nasario to get into a "horrible fight."
Defendant complained to police that Jose was lazy. Some years ago — either 4, 40, or 45 — Jose had borrowed "thousands and thousands of dollars" from defendant and another brother. When defendant's mother was alive, Jose told neighbors, falsely, that the house belonged to him. Jose also told neighbors, again falsely, that defendant used cocaine
D. Nicanor's Testimony.
Defendant's brother Nicanor testified that defendant "wasn't all there." Defendant had lived his entire life with his mother. He and his mother were very close. They would garden together.
When defendant and Nicanor were kids, they gave Jose money to deposit, but they never got it back. Jose and defendant humiliated each other and were disrespectful to each other. Jose also yelled at and verbally abused defendant's mother.
In 2013, defendant's mother died. Defendant was "devastated." As a way of coping, he worked on the yard. He enjoyed it very much. Defendant and Jose would argue because Jose wanted to lower the water bills. Eventually, Nicanor and another brother stepped in and started paying the water bills.
After defendant's mother died, the relationship between defendant and Jose got "worse and worse." Jose bullied defendant; he would call him crazy, dirty, and worthless. During family outings, Jose told defendant to stay in his room. Jose was "keeping food from" defendant. Defendant said he was tired of it "and something was going to happen." Nicanor believed that defendant hated Jose.
E. Defense Expert Testimony.
Dr. Marjorie Graham-Howard, an expert psychologist, had performed a psychological evaluation of defendant. She diagnosed him as having depression, anxiety, schizoaffective disorder, and an alcohol disorder. He had hallucinations and "paranoid delusions." This could increase his level of fear.
His IQ was 64, which put him in the bottom one percent of his age group. This would impair his judgment and his ability to make choices and consider consequences. Alcohol most likely would further impair his judgment.
II
THE PROSECUTOR'S MISSTATEMENTS OF LAW IN CLOSING ARGUMENT
Defendant contends that the prosecutor misstated the law in closing argument.
A. Additional Factual and Procedural Background.
Before closing arguments, the trial court instructed the jury on every kind of criminal homicide: first degree murder, second degree murder, voluntary manslaughter — on both a heat of passion theory and an imperfect self-defense theory — and involuntary manslaughter.
In closing argument, the prosecutor said:
"[PROSECUTOR:] Manslaughter — and the difference between the two is murder has malice, and it doesn't have to be hatred or planning or plotting. It just has to mean you did something that caused the death of someone, either intentionally trying to kill them or doing something so reckless and so dangerous that any reasonable person would understand that death is going to be the result.
"Manslaughter is where you don't have that intent. Someone dies and it's your fault, but you didn't mean to kill them.
"[DEFENSE COUNSEL]: Objection. Misstates the law.
"THE COURT: Overruled."
In discussing heat of passion voluntary manslaughter, the prosecutor said:
"[PROSECUTOR]: It is . . . based on a reasonable person's standards. Would a reasonable person be so upset about those things that they would stomp on their brother's face and head?
"[DEFENSE COUNSEL]: Objection. That misstates the law.
"THE COURT: Overruled."
Defense counsel, in his closing argument, took the position that defendant was guilty of voluntary manslaughter rather than murder.
He also said: "There is no element[] for voluntary manslaughter that says you do not have the intent to kill. In fact, you would need an intent to kill or a conscious disregard for human life to actually have voluntary manslaughter." "[Y]ou can have something that meets the elements for murder, but it's reduced to voluntary manslaughter if the killing happened because of a sudden quarrel or heat of passion."
"I objected during [the prosecutor]'s closing argument, and I'm going to explain why. What she told you was that what happened would not have caused a reasonable person to start stomping on someone.
"That's not the law. The law is not whether a person of average disposition would do what he did. That is not the law. It is there for you to read when you have it. It's, would a person of average disposition have acted rashly and without due deliberation?
"That's the law. So it's not about what an average person would do in terms of — would they kill? . . . It's given these circumstances, given the provocation, . . . what would their emotional state be? Would they act rashly and without due deliberation or not?"
Before the prosecutor's rebuttal argument, outside the presence of the jury, the trial court explained that it had overruled defense counsel's second objection because it felt the prosecutor "wasn't stating what the law was" but rather was "making an argument as to what a reasonable person would do in that situation."
It then commented that defense counsel had misstated the law himself by saying, "It's would a person of average disposition have acted rashly and without due deliberation?"
B. Discussion.
"A claim of prosecutorial misconduct may have merit even absent proof that a prosecutor had 'a culpable state of mind.' [Citation.] For this reason, '[a] more apt description of the transgression is prosecutorial error.' [Citation.]" (People v. Potts (2019) 6 Cal.5th 1012, 1036.)
"'Prosecutorial misbehavior "violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.'"' [Citation.] Under state law, a prosecutor's action that does not cause fundamental unfairness is prosecutorial misconduct only if it involves '"'"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'"' [Citation.]" (People v. Duong (2020) 10 Cal.5th 36, 69.)
"We review the trial court's rulings on prosecutorial misconduct for abuse of discretion. [Citation.]" (People v. Peoples (2016) 62 Cal.4th 718, 792-793.)
"It is prosecutorial misconduct to misstate the law. [Citation.]" (People v. Fayed (2020) 9 Cal.5th 147, 204, pet. for cert. filed Aug. 31, 2020.)
The prosecutor said that manslaughter requires the lack of the intent to kill. This misstated the law. "A defendant commits voluntary manslaughter when a homicide that is committed either with intent to kill or with conscious disregard for life — and therefore would normally constitute murder — is nevertheless reduced or mitigated to manslaughter. [Citation.]" (People v. Bryant (2013) 56 Cal.4th 959, 968, italics added.)
The prosecutor also said that the jury could not find defendant guilty of voluntary manslaughter unless "a reasonable person [would] be so upset about those things that they would stomp on their brother's face and head." That, too, misstated the law. In People v. Beltran (2013) 56 Cal.4th 935, the California Supreme Court held that the test of whether provocation is legally adequate to reduce murder to voluntary manslaughter is not whether, as a result of the provocation, "an ordinary person of average disposition would kill . . . ." (Id. at p. 949.) "[S]ociety expects the average person not to kill, even when provoked." (Ibid.) Rather, it is whether an ordinary person of average disposition would "react from passion and not from judgment." (Id. at p. 939.) "Framed another way, provocation is not evaluated by whether the average person would act in a certain way: to kill. Instead, the question is whether the average person would react in a certain way: with his reason and judgment obscured." (Id. at p. 949.)
The People forthrightly concede that the prosecutor's statements were "improper." They do not argue that defense counsel somehow forfeited the error. Plainly, he did not. He objected to both misstatements. Admittedly, he did not request an admonition; however, by overruling his objections, the trial court proved that doing so would have been futile.
We turn, then, to whether the error was prejudicial. Under the state law standard of harmless error, "'[a] defendant's conviction will not be reversed for prosecutorial misconduct . . . unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.' [Citation.]" (People v. Flores (2020) 9 Cal.5th 371, 403.) Defendant contends that the prosecutorial error here was so egregious that it rose to the level of a violation of due process, and therefore the stricter federal standard of harmless error applies. If, however, prosecutorial error is not prejudicial under the state law standard, then a fortiori we cannot say that it "so infected the trial with unfairness as to make the resulting conviction a denial of due process." (See Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.)
We see no reasonable probability of a different result in the absence of the prosecutorial error, for three reasons.
First, defense counsel confronted and corrected the prosecutorial error in his own closing argument. He objected to the prosecutorial error promptly and diligently; when that failed, however, he did not just gamble on an appellate reversal — he took the matter into his own hands. He reminded the jury that he had objected to the prosecutor's closing argument, and he explained why. He correctly stated that "[t]here is no element[] for voluntary manslaughter that says you do not have the intent to kill. In fact, you would need an intent to kill or a conscious disregard for human life to actually have voluntary manslaughter." He also correctly stated that "[t]he law is not whether a person of average disposition would do what he did. . . . It's, would a person of average disposition have acted rashly and without due deliberation?" In her rebuttal, the prosecutor did not disagree.
Defendant argues that the jury would have accepted the prosecutor's misstatements because the trial court overruled defense counsel's objection to them. However, when defense counsel contradicted the misstatements, the prosecutor did not object, nor did the trial court object on its own motion. The jury was instructed, "If you believe the attorneys' comments on the law conflict with my instructions, you must follow my instructions." (CALCRIM No. 200.) Thus, it would have appeared to the jury that the attorneys might state the law differently from each other or differently from the instructions, and that this was not grounds for objection; however, it was still up to them to follow the instructions.
Second, the prosecutor stated the law on one of the two crucial points correctly before she stated it incorrectly. Specifically, she said, "Another instruction you have is sudden quarrel or heat of passion, and this is asking, was the defendant provoked such that he was obscured by heat of passion or quarrel such to an extent that a reasonable person of average disposition would act rashly without deliberation[?]"
Third, the jury instructions contradicted the prosecutor's misstatements and confirmed defense counsel's correction of those misstatements. (See People v. Adams (2014) 60 Cal.4th 541, 578 [if prosecutor misstated law in closing argument, error was harmless, in part because jury was correctly instructed on the law].)
The trial court gave CALCRIM No. 520, which stated that murder requires that the defendant either "unlawfully intended to kill" or "deliberately acted with conscious disregard for life."
It gave CALCRIM No. 522, which stated that "[p]rovocation . . . may reduce a murder to manslaughter. . . . [C]onsider provocation in deciding whether the defendant committed murder or manslaughter."
And it gave CALCRIM No. 570, which stated:
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.
"The defendant killed someone because of a sudden quarrel or in the heat of passion if:
"1. The defendant was provoked;
"2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; and
"3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment."
Defendant complains that "the jury instruction on voluntary manslaughter did not directly inform the jury that a defendant who acts with the intent to kill can still be found to have committed voluntary manslaughter." This wording is carefully chosen. Yes, CALCRIM No. 570 alone did not directly convey this principle. However, CALCRIM Nos. 520, 522, and 570, when put together, did directly convey it. Or, to put it another way, CALCRIM No. 570 did indirectly convey it. "A single jury instruction may not be judged in isolation, but must be viewed in the context of all instructions given. [Citations.]" (People v. Thomas (2011) 52 Cal.4th 336, 356.)
Defendant also notes that the trial court instructed the jury before, not after, the closing arguments. Nevertheless, defense counsel called the jury's attention to the two points on which he disagreed with the prosecutor. The only way the jury could resolve the discrepancy was by consulting the instructions. It was given a written copy of them. "We presume the jury understands and follows the trial court's instructions, including the written instructions. [Citation.]" (People v. Frederickson (2020) 8 Cal.5th 963, 1026.)
Finally, defendant cites People v. Lloyd (2015) 236 Cal.App.4th 49, which held that a prosecutor's misstatement of law was prejudicial, in part because the trial court overruled defense counsel's objection and thereby "placed its considerable weight behind the misstatement." (Id. at p. 63.) In Lloyd, however, the prosecutor continued to misstate the law in her rebuttal argument. (Id. at p. 62.) Here, after defense counsel corrected her misstatements, the prosecutor desisted and thus implicitly acquiesced. Moreover, as mentioned, she had already stated the law on one of the crucial points correctly.
We therefore conclude that the prosecutorial error was harmless.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.