Opinion
A164786
10-27-2023
THE PEOPLE, Plaintiff and Respondent, v. MARIA MOORE, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 18CR019696B
Rodriguez, J.
A jury convicted defendant Maria Moore of first degree murder committed by lying in wait and for financial gain. The trial court sentenced her to life in prison without the possibility of parole. On appeal, Moore contends reversal is required because her trial counsel's performance was so deficient it amounted to a constructive denial of counsel under United States v. Cronic (1984) 466 U.S. 648 (Cronic). Moore further claims the judgment should be reversed due to prejudicial instructional error. We affirm.
BACKGROUND
Early on October 8, 2018, Dominic Sarkar was fatally shot in his home. At trial, the prosecution's theory was that Moore and codefendant Marvel Salvant hatched a plan to murder Sarkar and cash in on his life insurance policies.
Moore met Salvant in or about 2007 through one of his former girlfriends. Over the years, they kept in touch, mostly through texts.
Moore met Sarkar in or about 2006. They occasionally had sex, but did not have a dating relationship. In April 2016, she purchased a $500,000 life insurance policy on him from Banner Life Insurance Company, with both of them making payments on the policy. She was the primary beneficiary of the policy; in September 2016, she changed the contingent beneficiaries on the policy from his two daughters, M. and E., to her own son. In 2017, Sarkar purchased a $300,000 life insurance policy from Transamerica on himself, making M. the beneficiary. In January 2018, he changed the beneficiary on the Transamerica policy from M. to Moore.
In May 2018, Salvant was living in the Sacramento area and dating L.W. At the time, he drove a green two-tone station wagon. Sometime before an October 6 breakup, he showed L.W. a firearm and holster he had in his possession. Also sometime before October 6, he told her that he was "surveillancing [sic] a home where an Indian guy lived" so he could "rob it" before "the Indian guy or his family went on vacation."
Unless otherwise indicated, all relevant events occurred in 2018.
Salvant also dated S.D. She knew he drove a green Subaru Outback and lived in the Sacramento area. She occasionally saw a bicycle in his car; she also knew he had a headlamp. Near the end of August 2018, he told her "he was expecting to receive money from a person by the name of Maria" because "she was coming into some money and they were going to do a business together, or business deal" in which "Maria" would lend him $20,000 to "get his business up and running." He told S.D. that "Maria" was "his ex's best friend at one point," that she "had a son that was disabled," and that "for some reason . . . she was going to get some insurance money." Salvant was hoping to receive the money "before Thanksgiving."
On July 29, a message was sent from Moore's phone to G.S.'s phone stating," 'Dominic Sarkar still doing what he does best. Hopefully his life will end soon.'" On August 2, another message was sent from her phone to G.S.'s phone stating," 'doesn't matter; they are all going down soon.'" On August 6, a third message was sent to G.S.'s phone stating," 'Dominic Sarkar is still in the house, but they all going down soon.' "
Police were unable to locate G.S. or to access the messaging application he used.
On September 19, Moore sent $500 to Salvant via a wire transfer from a convenience store in Sunnyvale; he received the funds at a check cashing store in the Sacramento area that same day. On September 26, a Facebook message was sent from his account to a user named "M[.]" asking about where he could find some "hardware," which is slang for a firearm. In the afternoon of October 2, a text was sent from Salvant's phone to Moore's stating," 'it's just a waiting game.'" A reply text from Moore's phone said," 'Yap.'" On October 5, Salvant went to an indoor shooting range, where he rented a nine-millimeter caliber firearm for shooting practice. He bought a corresponding magazine with ammunition.
Around 10:43 a.m. on October 7, a text was sent from Salvant's phone to Moore's phone, advising" 'I am set to do everything tonight'" and asking if they could talk. A call to his phone was placed from hers. Four more voice calls were made between the two phones that afternoon. At around 11:45 p.m., surveillance footage from Sarkar's neighborhood showed a Subaru Outback driving around as if it was "casing [the] neighborhood." The footage showed the Subaru parking around 11:51 p.m., after which a person rode a bicycle away from the Subaru toward Sarkar's house and then back toward the Subaru around 12:21 a.m. The Subaru then drove away from Sarkar's house and left the neighborhood.
Shortly after midnight on October 8, one of Sarkar's neighbors heard and saw flashes of three to four gunshots. The neighbor saw a male with a medium build, wearing dark clothing and a headlamp, flee on a bicycle.
Responding to a 911 call of possible shots fired, Fremont police did a protective sweep of Sarkar's house. While clearing the house, one of the responding officers found Sarkar in his bed with multiple gunshot wounds, including one to his head. Nine 9-millimeter caliber shell casings were found on the floor in Sarkar's bedroom; it was later established the casings came from the same gun. The officers also found Sarkar's packed luggage, his credit and debit cards, cash, a new cellphone, and the Banner and Transamerica life insurance policies. Fremont Police Detective Brent Butcher arrived at the scene around 2:00 a.m. Based on the condition of the premises - neat and not ransacked - he did not believe a robbery had occurred. From interviews with Sarkar's roommates, the detective learned Moore knew Sarkar, and she "frequented the house from time to time."
On the afternoon of October 8, the detective contacted Moore, who agreed to meet the next day to help with the investigation. The detective also initiated a search for wire transfers, which revealed Moore's September wire transfer to Salvant. He looked up Salvant's criminal history, which revealed a felony conviction in 1992.
On October 9, Moore told the detective she had known Sarkar for 12 years and, while "they were not boyfriend and girlfriend, . . . they had an occasional sexual relationship." Moore "seemed to get a little bit nervous" when the detective asked her "if she had sent money to anybody recently," and she denied doing so despite having wired Salvant money in September. She also said the only person who had given her money recently was Sarkar. Moore told the detective she had been at Sarkar's house between 3:00 p.m. and 7:00 p.m. on October 7 before leaving to help a friend. When Moore asked the detective if she could try to collect on Sarkar's life insurance policy, he told her she should "just hold on." Moore gave the police permission to search and extract information from her cellphone. Her phone contained a number for a contact named "M.S.," with whom she had exchanged several calls between October 1 and 8.
On October 11, a surveillance team located Salvant at an address in Citrus Heights, with a green Subaru Outback parked in the driveway matching the description of the vehicle reported to have parked near Sarkar's house on the night of the murder. That same day, Moore called the detective to ask if she could collect on the life insurance policy because "the victim's daughters were going to be coming from India and she said she was going to be helping them, but had no money."
On October 12, a Facebook account belonging to L.W. sent Salvant's Facebook account a message stating," 'You shared things with me that I will take to my grave. I even still have that other gun holster.'" On October 25, a surveillance team observed him arrive at Moore's apartment complex in a green Subaru. After some time, Moore and Salvant left the complex together; about "10 to 15 minutes" later, he drove away and she walked back into the complex. On November 5, police obtained and executed a wiretap on phones belonging to the two.
At some point, police placed electronic tracking devices on Moore's and Salvant's respective cars.
The detective interviewed Moore at the police station on November 14, where she told him about her attempts to transfer $13,000 from Sarkar's account and collect on the life insurance policy. When the detective told her the police had a suspect vehicle, her "demeanor and body language immediately changed" and she "seemed a little nervous."
Moore filed a claim on the Banner life insurance policy on November 22.
On November 15, a surveillance team followed Moore to a parking lot in Redwood City where she met Salvant. The pair walked away from the lot and returned about an hour later, at which point she gave him something the police could not see. The two then drove away in their respective cars. A search of her car on December 5 revealed a cellphone containing messages between Moore and a cellphone connected to Salvant.
Police arrested Salvant on December 18. A search of his Subaru revealed a business card for a gun supply store, bank cards, and a cellphone; while a search of his residence disclosed a headlamp, gloves bearing "a dark red substance," and indicia belonging to Salvant. The detective later examined the Subaru; he opined the car could fit a bicycle if the seats were folded down and miscellaneous items were removed from the rear cargo area. On the same day, the detective interviewed Moore at the police station. The detective told her Salvant's car had been observed in the vicinity of Sarkar's house around the time of the shooting; she acknowledged she had known Salvant for some time through his previous girlfriend "Erica," but she claimed it had "been a while" since she last spoke to him. Police arrested Moore later that day.
Meanwhile, police executed a search warrant for Moore's home in Sunnyvale. A search of her room revealed "some life insurance paperwork . . . related to" Sarkar, his passport, checks written to her from him, a $13,000 cashier's check receipt, an affidavit signed by her for collection of his personal property, and a travel itinerary.
During the subsequent custodial interview, Moore said she last saw Salvant in "October or November"; she further insisted she had not seen him since at least six or seven months before that or even talked to him since Sarkar's death. Moore downplayed her connection to Salvant, refusing to acknowledge they were friends and denying she knew his last name. When confronted with evidence of her wire transfer to him, however, she reluctantly acknowledged the transfer. She was unable to explain why he would be contacting her while surveilling Sarkar's residence in the days before the murder. She said her texts with Salvant related to his former girlfriend "Erica," but she could not provide any further details about the texts.
The police also conducted a custodial interview of Salvant. He stated that, although he drove through Fremont "a lot" on drives to and from Monterey, he had not stopped in Fremont for at least the preceding four months. He identified Moore as the best friend of his "son's mama[]"; he texted with Moore to "talk to her about Ericka." He said he and Moore texted "a lot." Although he considered her to be "like family," they did not talk very often. He could not remember when he last saw her. He denied receiving money from her; he continued to deny receiving money from her even after he saw surveillance footage showing him receive the wire transfer from her. He also denied knowing the meaning of L.W.'s Facebook message to him about taking things he had told her to the "grave." He did not know Sarkar had died. He refused to acknowledge the car seen on the surveillance footage around Sarkar's house was his Subaru. He further denied it was his voice on a phone call with Moore discussing Sarkar's insurance proceeds. He denied any involvement in the murder.
Salvant clarified his ex-girlfriend's name was spelled with a "k."
DISCUSSION
Moore contends her trial counsel's ineffectiveness was so pervasive she was constructively denied counsel in violation of her constitutional rights. (See Cronic, supra, 466 U.S. at pp. 658-659; U.S. Const., 6th &14th Amends.; Cal. Const., art. I, §§ 7 &15.) She additionally claims reversal is required due to instructional error. We disagree.
We begin with Moore's constitutional claim. Generally, to prevail on a claim of ineffective assistance of counsel, a defendant must show both that his or her counsel's performance fell below an objective standard of reasonableness and there is a reasonable probability of a more favorable outcome absent the unprofessional errors. (Strickland v. Washington (1984) 466 U.S. 668, 688, 695 (Strickland); People v. Ruiz (2023) 89 Cal.App.5th 324, 329.) In Cronic, which was decided the same day as Strickland, the United States Supreme Court carved out three narrow exceptions to the general obligation to demonstrate prejudice to prevail on an ineffective assistance of counsel claim. (Cronic, supra, 466 U.S. at pp. 658-659; Bell v. Cone (2002) 535 U.S. 685, 695.) The first and most obvious is where the accused is denied the presence of counsel at a "critical stage." (Cronic, at p. 659.) Second, a presumption of prejudice is warranted where "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing." (Ibid., italics added.) Finally, there is a presumption of prejudice where the magnitude of the circumstances are such that even a competent attorney would be unable to render effective assistance. (Id. at pp. 659-660.)
Moore argues her claim fits within the second exception identified in Cronic because her counsel "failed to function as a meaningful adversary" on her behalf. Not so. The record reflects counsel filed motions in limine on Moore's behalf, including motions to suppress evidence. Counsel also joined codefendant Salvant's (unsuccessful) motion to sever the trials. At trial, counsel successfully prevented police testimony that Moore personally communicated by phone; instead, police could only attribute communications to Moore's phone, but not to Moore herself.
Counsel also cross-examined the detective at length, during which the detective confirmed there were no eyewitnesses to the shooting. Counsel also elicited testimony that nothing of "evidentiary value" was discovered in the fingerprint and DNA testing done during the investigation. With respect to Moore's connection to the murder, counsel asked the detective if the police had adequately explored other motives for Sarkar's murder, including a possible case of mistaken identity because "gang members . . . had lived in the home before" and "somebody might have thought these gang members were still living in the home." Counsel elicited testimony there was no history of animosity between Moore and Sarkar during their relationship of "10 or 12 years." Counsel's questions also highlighted Moore had a good relationship with Sarkar's family, which explained why she might want quick access to Sarkar's money to help his family. Finally, trial counsel elicited testimony from the detective that Moore had not incriminated herself or Salvant during her police interviews despite the detective's use of ruses and a sometimes hostile demeanor to trigger such incrimination.
Counsel began his closing argument by observing the prosecution's case was purely circumstantial. Counsel told the jury it could convict Moore only if the prosecutor had proven beyond a reasonable doubt that Salvant murdered Sarkar and that Moore conspired with or aided and abetted Salvant. As to Salvant's involvement, Moore's counsel highlighted the lack of an eyewitness or forensic evidence.
Moving to Moore's status as a coconspirator, counsel emphasized the jury could not consider Salvant's hearsay statements against Moore unless it determined she was his coconspirator. Counsel noted that, of the "about 40 witnesses," many had "nothing to do with" Moore or her role in the murder. Counsel summarized the evidence that related to Moore as the two life insurance policies, "the Western Union transfer," "some phone calls, some text messages, and some meetings that were observed with video, but no audio."
Regarding the insurance policies, counsel argued Sarkar apparently consented to the beneficiary changes and such consent did not have to be the result of Moore's "manipulation" but rather was reasonably explained by the need to have someone in the United States to serve as beneficiary to help Sarkar's family in the event of his death. Counsel characterized the wire transfer as financial help for a friend in need; he asserted Moore would not have paid Salvant by such an easily traceable means if the payment had been for committing a murder. Counsel observed that, out of "thousands of calls," the police had selected only 16 to give to the jury; even among those calls, several concerned Moore's attempt to obtain money, which counsel reiterated could be explained by a desire to help Sarkar's family after his death. Counsel argued the" 'waiting game,'" " 'I am set to do everything tonight,'" and" 'can you talk?'" texts were too vague to establish any criminal purpose. He then argued that the surveilled meetings between Moore and Salvant were not "odd or strange" given their relationship. Finally, counsel emphasized Moore did not incriminate herself despite various police interrogation tactics during her interviews.
Reduced to its essentials, Moore's claim rests on complaints that her counsel failed to conduct cross-examination of the prosecution's witnesses; slept during the testimony of a crime scene investigator; failed to join in codefendant Salvant's (unsuccessful) motion to suppress the wiretap evidence; failed to object to inadmissible hearsay; failed to present a defense theory of the case; and failed to point to exculpatory inferences on Moore's behalf.
Bell v. Cone, supra, 535 U.S. 685 is instructive in this regard. There, the high court rejected the claim that an attorney's failure to adduce mitigating evidence and present a closing argument warranted application of Cronic. In so holding, the court explained, "When we spoke in Cronic of the possibility of presuming prejudice based on an attorney's failure to test the prosecutor's case, we indicated that the attorney's failure must be complete." (Bell, at pp. 696-697, italics added.) Then, quoting Cronic, the court emphasized, "We said 'if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.'" (Bell, at p. 697.) Bell's argument was "not that his counsel failed to oppose the prosecution throughout the . . . proceeding as a whole, but that his counsel failed to do so at specific points." (Ibid.) Bell explained challenges to "aspects of counsel's performance" such as failing to adduce mitigating evidence and waiving closing argument "are plainly of the same ilk as other specific attorney errors . . . held subject to Strickland's performance and prejudice components." (Id., at pp. 697-698.)
We conclude the alleged deficiencies Moore raises on appeal regarding counsel's performance - inadequate cross-examination, failure to join an unsuccessful motion to suppress, failure to object to inadmissible hearsay, failure to present a defense theory, and failure to elicit exculpatory evidence - do not evince a complete failure to represent her but pertain to specific points squarely within the ambit of Strickland. (E.g., Cole v. United States (7th Cir. 1998) 162 F.3d 957, 958 [Cronic analysis requires "complete failure to cross-examine"]; Kimmelman v. Morrison (1986) 477 U.S. 365, 384 [failing to file suppression motion not per se ineffective assistance of counsel]; Bell v. Cone, supra, 535 U.S. at pp. 697-698 [claim counsel failed to present mitigating evidence analyzed under Strickland standard].)
Finally, to the extent Moore claims trial counsel slept during the testimony of the crime scene investigator, this claim is both factually unfounded and legally insufficient to establish a constructive denial of counsel under Cronic. Although Salvant's counsel said she saw Moore's counsel sleeping for "at least ten minutes" during the crime scene investigator's testimony, she did not raise it with the trial court; instead, Salvant's counsel mentioned it to the prosecutor who, having not seen it himself, felt obligated to bring it to the court's attention.
Moore's counsel indicated the courtroom was cold, and he had been "hinging forward" to keep himself warm. Counsel further admitted he had been "a little sleepy," but he doubted he had been asleep for ten minutes. Counsel added there had not "been really a witness . . . requir[ing] crossexamination" with respect to Moore's defense. The trial court observed it had "at a time or two notice[d] eyes closed," but it could not determine whether defense counsel was asleep. Having not witnessed any sleeping, the court would not presume counsel had been asleep.
There is no "per se rule that any dozing by defense counsel during trial merits a presumption of prejudice." (Burdine v. Johnson (5th Cir. 2001) 262 F.3d 336, 349.) But a constructive denial of counsel under Cronic has been found based on factual findings that an attorney slept through a "substantial" portion of trial. (Burdine, at pp. 348-349; Javor v. United States (9th Cir. 1984) 724 F.2d 831, 833.) Here the record suggests counsel may not have been sleeping at all, and the trial court could not determine otherwise. (See United States v. Petersen (9th Cir. 1985) 777 F.2d 482, 484 [trial court found attorney had not slept through a substantial portion of trial and doubted he had slept at all].) In any event, even indulging in the assumption that counsel slept for 10 minutes, that can hardly be characterized as a substantial portion of the trial, especially given that the witness was not particularly relevant to Moore's defense. (Cf. Javor, at p. 834.)
We conclude the alleged deficiencies of trial counsel fall within the ambit of Strickland, not Cronic. As such, Moore is required to demonstrate prejudice, which she has not done. Accordingly, her claim of ineffective assistance of counsel raised on appeal necessarily fails.
In a related habeas corpus petition, Moore asserts a Strickland claim, arguing her trial counsel's failures to object to inadmissible hearsay testimony and failure to introduce exculpatory testimony constituted ineffective assistance of counsel. By separate order issued with the filing of this opinion, we summarily deny Moore's petition for habeas corpus.
Moore's claim of instructional error does not fare any better. The jury was instructed on three theories of liability for Sarkar's murder: direct commission (CALCRIM Nos. 520 &521), aiding and abetting (CALCRIM Nos. 400 &401), and uncharged conspiracy (CALCRIM Nos. 416 &418). Moore argues the uncharged conspiracy instructions were confusing and lowered the prosecution's burden of proof. We disagree.
CALCRIM No. 416 advised the jury, among other things, that the People had to prove "[t]he defendant intended to agree and did agree with the other defendant to commit murder for financial gain." CALCRIM No. 418 instructed the jury it could not consider Moore's or Salvant's out-of-court statements unless established by a preponderance of the evidence they had conspired to commit a crime. But Moore argues the instructions failed to clarify the preponderance standard did not apply to the murder charge thus allowing the jury to find her guilty by that lower standard rather than beyond a reasonable doubt. She further contends the court should have advised the jury that when an uncharged conspiracy is used to prove guilt, the uncharged conspiracy itself must be proven beyond a reasonable doubt. Not so.
It is well settled that instructional error is not determined by isolated parts of the instructions or from one particular instruction. (People v. Smithey (1999) 20 Cal.4th 936, 963-964.) Rather, we read the instructions as a whole to determine whether there is a reasonable likelihood they confused or misled the jury. (See e.g., People v. Hughes (2002) 27 Cal.4th 287, 341.) In addition to the challenged instructions, the court gave CALCRIM No. 220, explaining the presumption of innocence and the People's obligation to prove their case against the defendants beyond a reasonable doubt.
We conclude there is no reasonable likelihood the instructions confused or misled jurors concerning the differing burdens of proof attached to the admission of the hearsay evidence (CALCRIM No. 418) and the substantive murder offense. (CALCRIM Nos. 520 &521.) We further conclude it is not reasonably likely a jury would conclude the lower standard of proof would apply to the murder offense. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016.) In Reliford, the California Supreme Court recognized jurors are routinely asked to apply different standards of proof in a variety of contexts, including the admissibility of a conspirator's statement. (Id. at p. 1016 [noting, among other CALCRIM analogs, CALJIC No. 6.24 (admissibility of coconspirator's statements)].) In those circumstances, the court presumes "jurors can grasp their duty-as stated in the instructions-to apply the preponderance-of-the-evidence standard to the preliminary fact identified in the instruction and to apply the reasonable-doubt standard for all other determinations." (Ibid.) We presume the jurors understood, correlated, and correctly applied the reasonable doubt standard in finding Moore guilty of murder. (See People v. Carey (2007) 41 Cal.4th 109, 130.) This refutes Moore's contention that an uncharged conspiracy must be proved beyond a reasonable doubt.
The California Supreme Court has explained," 'like aiding and abetting, conspiracy (as used here) is itself a theory of liability.... The instructions given here did not tell the jury that it could presume any particular element of murder, including intent, based on proof of predicate facts. Instead, the instructions specified that, as an alternative to finding, based on the elements of murder, that [Moore] . . . committed or aided in the crime, it could find h[er] responsible for the crime based on h[er] participation in a conspiracy to commit murder.'" (People v. Valdez (2012) 55 Cal.4th 82, 150 (Valdez).)
In Valdez, the court rejected the defendant's claim the trial court erred by failing to instruct the jury that, to convict the defendant of murder based on conspiracy, under a theory of derivative liability, it must unanimously agree as to the existence and scope of the conspiracy and the defendant's participation therein beyond a reasonable doubt. (Valdez, supra, 55 Cal.4th at p. 153.)" '[I]t is settled that as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of murder as that offense is defined by statute, [the jurors] need not decide unanimously by which theory he is guilty....' . . . 'Not only is there no unanimity requirement as to the theory of guilt, the individual jurors themselves need not choose among the theories, so long as each is convinced of guilt.'" (Ibid., italics and citations omitted.) Applying these principles, Valdez concluded there was no instructional error where an uncharged conspiracy was used "as an alternative theory of liability for the charged, substantive crime of murder." (Id. at p. 154.)
A court discharges its obligations by instructing on the elements of the uncharged conspiracy as a theory of liability and the prosecution's burden to prove the defendant's guilt of murder beyond a reasonable doubt. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1202-1203, abrogated on another point in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) That is what the court did here. Accordingly, we reject Moore's claim that the instructions allowed her to be convicted of murder by a preponderance of the evidence rather than beyond a reasonable doubt.
People v. O'Malley (2016) 62 Cal.4th 944, cited by Moore, does not alter this conclusion. There, unlike here, the defendant was charged with the separate offense of conspiracy to commit murder. (Id., at p. 953.) It was in this context that the court defined the elements of conspiracy and described the requirement that the prosecution prove the defendant's guilt beyond a reasonable doubt. (Id. at p. 992.)
In sum, we conclude the trial court did not err in instructing the jury on the theory of uncharged conspiracy.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Tucher, P. J., Fujisaki, J.