Opinion
B224729
12-13-2011
THE PEOPLE, Plaintiff and Respondent, v. KENNY RAUL MORALES, Defendant and Appellant.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA335978)
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael E. Pastor, Judge. Affirmed.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Kenny Raul Morales challenges his conviction for first degree murder. He argues his confessions were improperly admitted, the record lacks sufficient evidence to support the murder conviction, evidence of the scene of the crime was improperly admitted, and the prosecutor committed misconduct. We affirm.
FACTUAL BACKGROUND
In September 2006, appellant Kenny Raul Morales, a Mara Salvatrucha (MS) gang member, had an altercation with a rival Harpys gang member. About a week later, on September 25, Jesse Juarez was shot and killed in an alley. D.S. was in the alley with Juarez when Juarez was shot. D.S. identified appellant as the shooter. According to D.S., the shooter exited a vehicle, asked "where you vatos from," grabbed a long rifle from inside the car, and started shooting.
Prior to trial, in an interview with Los Angeles Police Department (LAPD) officers conducted on December 11, 2007, appellant admitted being in the car with his fellow MS gang members and admitted that a fellow MS member shot Juarez. Appellant denied being the shooter. Appellant admitted having had an altercation with a Harpys gang member prior to the shooting.
In the same December 11 interview, appellant described what happened prior to and after the Juarez shooting. Appellant explained that prior to Juarez's shooting the MS gang members "were looking for" someone, and they shot the wrong guy. Appellant said more specifically that they were looking for the Harpys gang member who had been involved in the earlier altercation. Prior to the shooting, "Peewee" informed appellant that "we're going to do something." Peewee's girlfriend drove Peewee, appellant, Peewee's brother "Feeno," and "Scooby." According to appellant, when they spotted Juarez, Feeno exited the car and shot Juarez. Appellant responded affirmatively when asked if he knew "what was going to go down." After the shooting, they all left together, and Feeno told appellant not to discuss the killing. The driver sped away through the alley after the shooting.
In a written statement dated December 11, 2007, appellant explained: "What happened was that Feeno came out of the car holding the gun. He wanted to kill a guy from Harpy's, but the guy he killed was not he [sic]. I do not know what was going to happen. But they went . . . by the alley so that when they would come out from school . . . the car was parked by the side of the school. . . . [¶] . . . Feeno was the one that killed the guy at the entrance of the alley."
PROCEDURAL BACKGROUND
Appellant was charged with the willful, deliberate, and premeditated murder of Juarez. Firearm enhancements and a gang enhancement were alleged.
The court rejected appellant's request to exclude statements he made in his February 8, 2007, and December 11, 2007 interviews. The court granted appellant's request to exclude statements made in a December 28, 2007 interview. The trial court also overruled defense counsel's objection to the admission of photographs and a videotape of the alley where the incident occurred.
In the December 28 interview found inadmissible, appellant stated that prior to the shooting, he had been told they were going to do a mission. Appellant also explained that a mission may involve a shooting. Because the evidence was found inadmissible, we do not rely on it.
At trial, the prosecution's gang expert LAPD Detective Frank Flores opined that a hypothetical murder with circumstances similar to the present case was committed for the benefit of a gang. LAPD Officer Jeff Bruner had numerous contacts with appellant in which appellant admitted to being an MS member. Two witnesses testified for the defense. Dr. Mitchell Eisen discussed eyewitness identifications and Mr. Alex Alonso testified on criminal street gangs.
The jury convicted appellant of first degree murder (Pen. Code, § 187, subd. (a)). It further found the gang enhancement (§ 186.22) and the allegation that a principal used and intentionally discharged a firearm (§ 12022.53, subds. (b), (c), (d), & (e)) true. However, jurors deadlocked on the personal use and intentional discharge allegations under section 12022.53, subdivisions (b), (c), and (d), and the court declared a mistrial as to those charges. Appellant was sentenced to prison for 50 years to life. This appeal followed.
DISCUSSION
1. Admission of Officers' Pretrial Interviews of Appellant
Appellant argues that his statements made to officers during a February 8, 2007 interview were in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and were involuntary. Appellant also argues that his December 11 statement - the one summarized in the facts - was involuntary. According to appellant, the December 11 interview "is a hornbook example of detectives breaking a suspects [sic] will by sheer persistence until the suspect provides a story that the interrogators (not the suspect) want." We discuss his arguments in reverse chronological order.
A. December 11 Statement
"The use in a criminal prosecution of a confession, admission or statement which is obtained by force, fear, promise of immunity or reward is a denial of the state and federal constitutional guarantees of due process of law." (People v. Esqueda (1993) 17 Cal.App.4th 1450, 1483 (Esqueda).) We independently examine whether the prosecution proved the confession was voluntary. (People v. Howard (1988) 44 Cal.3d 375, 394 (Howard).)
To evaluate whether a confession is voluntary, courts examine "'both the characteristics of the accused and the details of the interrogation.' [Citations.] [¶] Characteristics of the accused which may be examined include the accused's age, sophistication, prior experience with the criminal justice system and emotional state. [Citations.] [¶] Details of the interrogation may prove significant in deciding whether a defendant's will was overborne. For example, courts may consider whether the police lied to the defendant. 'While the use of deception or communication of false information to a suspect does not alone render a resulting statement involuntary [citation], such deception is a factor which weighs against a finding of voluntariness [citation].' [Citation.]" (In re Shawn D. (1993) 20 Cal.App.4th 200, 209.) The "'"mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent [statement or admission] involuntary." [Citation.] In terms of assessing inducements assertedly offered to a suspect, "'[w]hen the benefit pointed out by the police . . . is merely that which flows naturally from a truthful and honest course of conduct,' the subsequent statement will not be considered involuntarily made. [Citation.]" [Citations.]'" (Esqueda, supra, 17 Cal.App.4th at p. 1484, quoting Howard, supra, 44 Cal.3d at p. 398.)
With respect to the December 11 confession, appellant identifies no indicia of coercion. Although appellant initially claimed to have been in court at the time of the shooting, appellant's initial denial and later admission does not show the admission was the product of coercion. Exhortation that a suspect should tell the truth is not tantamount to coercion. (Howard, supra, 44 Cal.3d at p. 398.) There is no indication that appellant's will was overborne by the detectives' questioning.
Not only was there an absence of evidence of coercion, but there was ample evidence that appellant wanted to speak to the detectives and did so voluntarily. Appellant was advised of his Miranda rights at the outset of the December 11 interview and waived them. When officers asked if appellant wanted to talk about what happened, appellant immediately began talking. Appellant later reiterated that he wanted to talk. Appellant never requested to terminate the interview and never expressed a desire to stop talking. Finally, although appellant was 17, he already had experience with the criminal justice system. He was under house arrest at the time of the February 8 interview and was incarcerated for carrying a loaded firearm at the time of the December 11 interview. Based on the totality of the circumstances, the court properly concluded appellant's December 11 confession was voluntary. (People v. Hill (1992) 3 Cal.4th 959, 981 [voluntariness of a confession must be tested by the totality of the circumstances].)
This case is distinguishable from Esqueda in which the court found officers had coerced a confession. In Esqueda, a suspect was questioned overnight, with no rest. (Esqueda, supra, 17 Cal.App.4th at p. 1485.) The suspect had been drinking and was distraught and exhausted. (Ibid.)Officers "implied questioning would only stop if [the defendant] gave them the story they wanted" and implied that if he told officers the killing was accidental "he would not have to go to prison and would be out with his children." (Id. at pp. 1485-1486.) The defendant indicated several times that he did not want to talk further. Police did not stop interrogating the defendant even after he stated that he did not wish to talk. Officers warned him that "his refusal to talk would be interpreted as evidence of premeditation and support a charge of first degree murder." (Ibid.) Here in contrast, the interview was not prolonged, appellant was not in a compromised mental state, officers made no promises of leniency, and appellant never indicated a desire to terminate the interview.
B. February 8 Statement
Officers interviewed appellant February 8, 2007, inside his home, where he was under house arrest. No Miranda warnings were given. (Miranda, supra, 384 U.S. 436.) Officers asked permission to enter the home. Appellant's father or stepfather was present. Appellant said that he was under house arrest. Officers told appellant that part of his probation included cooperating with the police. Officers told appellant they wanted to talk to him about his friends. Appellant said that he was formerly in the MS gang and his moniker was Satanas. Appellant knew someone had been killed but claimed to have been in court the day of the killing. Officers warned him that he was on probation and they would take him back to "Los Padrinos" (a juvenile detention center) if he lied.
Given our conclusion that appellant's December 11 interview was properly admitted, appellant's statements in the February 8 interview even assuming they were improperly admitted were not prejudicial under a harmless beyond a reasonable doubt standard. (Esqueda, supra, 17 Cal.App.4th at p. 1487 [applying harmless beyond a reasonable doubt standard to assess prejudice of the admission of statements which were involuntary and lacked the required Miranda warnings].) Appellant simply denied being present at the time of the shooting and claimed to have been in court. Appellant did not place himself at the scene of the shooting as he did during his subsequent interview. Although appellant admitted to being a member of the MS gang, he had previously told officers of his gang membership, an undisputed issue. Thus, even if the court erred in admitting the February 8 interview, reversal is not warranted. (People v. Cahill (1993) 5 Cal.4th 478, 510 [the improper admission of an involuntary confession warrants reversal only if it is prejudicial].)
2. Sufficiency of the Evidence
Appellant argues that the record contains insufficient evidence to support his conviction on an aiding and abetting theory. According to appellant, he was merely present at the scene of the shooting and did not know in advance of the unlawful purpose of the perpetrator.
"'"When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence — i.e., evidence that is credible and of solid value — from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt."' [Citations.] When undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment." (People v. Hill (1998) 17 Cal.4th 800, 848-849.)
Appellant is liable as an aider and abettor only if he aided the perpetrator with knowledge of the perpetrator's wrongful purpose. (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.) Although mere presence at a crime scene does not constitute aiding and abetting, such circumstance is relevant in determining aiding and abetting liability. (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530.) Companionship and conduct before and after the offense are also relevant as is flight. (In re Lynette G., at p. 1094; In re Juan G. (2003) 112 Cal.App.4th 1, 5.)
Substantial evidence supports the verdict. Appellant admitted that Peewee told him "hey, we're going to do something" prior to the shooting. Appellant admitted that he knew "what was going to go down." Appellant knew that they were looking for a member of Harpys, who had been involved in an altercation a week earlier. Appellant stated "[t]hey were trying to kill that guy from Harpys . . . ." Knowing all of this, appellant chose to enter the car with his fellow gang members and to look for the Harpys gang member. Additionally, evidence that a long rifle was retrieved from the vehicle just before the shooting supports the inference that appellant knew that the purpose was not simply to find the Harpys gang member but also to shoot him. Appellant was with his fellow gang members before and after the shooting, supporting the inference that he fled from the scene. Based on this evidence, a reasonable jury could infer that appellant intended to aid and encourage his fellow gang members in the murder of Juarez.
3. Pictures and Videotape
Appellant argues there was no foundation for a videotape of the alley where the shooting occurred or for still pictures derived from the video. He argues that "there was insufficient evidence that the video was what it purported to be, a depiction of activity in the alleyway . . . at or near the time of the shooting." But contrary to appellant's argument, O.E. testified that he owns a building nearby and videotapes the alley. He testified that he gave the video to police officers. O.E. was inside at the time of the shooting and was present when police officers asked for the video. He testified that the video was from the date of the shooting and he identified the alley where the shooting occurred in the videotape. Thus, there was evidence that the videotape showed activity in the alleyway at or near the time of the shooting.
O.E. testified after the defense case in response to defense counsel's foundational objection. But even if the objection initially was meritorious, after O.E.'s testimony a proper foundation had been laid.
In any event, appellant fails to demonstrate any prejudice from the admission of the videotape. Appellant's statement that the videotape could have shown that the suspect's vehicle was in a different location from where appellant described it and that the videotape could be used to show that appellant was near the scene of the shooting does not show prejudice because the location of the vehicle was largely irrelevant and appellant admitted to being at the scene of the shooting.
4. Alleged Prosecutorial Misconduct
A. Prior Arrest
During cross-examination, Officer Bruner referred to an arrest report when defense counsel asked him about a contact with appellant. Defense counsel moved for a mistrial, which the court denied. The court found that the response was relevant to defense counsel's questioning and defense counsel "opened it up." The court indicated that it was "prepared . . . to strike out any reference to arrest in the context of the September encounter and to admonish the jurors to disregard it." The court concluded, "I think it is an innocuous, kind of casual reference in the scope of everything, and I don't think it rises to the level of a mistrial . . . ." Defense counsel decided to "forego the court's willingness to give a curative instruction on a tactical basis."
Appellant cites People v. Green (1980) 27 Cal.3d 1, 34 for the proposition that the issue is not forfeited even though defense counsel declined to have the trial court provide a curative instruction. In Green, the court held that when a defendant raises the issue of prosecutorial misconduct for the first time on appeal, it is forfeited if a timely objection and admonition would have cured the harm. (Ibid.) Here, defense counsel chose to forego a curative instruction. There is no support for appellant's claim that a curative instruction would not have cured the harm; to the contrary the court could have timely admonished the jurors to disregard the evidence. Appellant forfeited the argument that the admission of the evidence constituted misconduct. (People v. Bonin (1988) 46 Cal.3d 659, 689 ["[s]imply to object or make an assignment of misconduct without seeking a curative admonition is . . . not enough"].)
Next, citing authority for the proposition that a prosecutor is guilty of misconduct when he or she elicits inadmissible statements from his or her witnesses, appellant argues the prosecutor committed misconduct. (People v. Cabrellis (1967) 251 Cal.App.2d 681, 688.) Appellant fails to cite any authority for the proposition that a prosecutor commits misconduct when defense counsel elicits inadmissible evidence. Here, defense counsel, not the prosecutor elicited the evidence appellant now challenges.
In any event, even assuming the issue is preserved and meritorious, the admission of the reference to appellant's prior arrest was harmless beyond a reasonable doubt. The evidence against appellant was overwhelming. Appellant admitted to being in the car with his fellow gang members when one of them shot Juarez. Appellant admitted that he knew what was "going down" and it was undisputed that he was with Feeno before and after the shooting. A brief reference to an arrest report could not have affected the verdict.
B. Closing Argument
When arguing that Feeno, not appellant was the shooter, defense counsel showed a picture of Feeno which counsel had altered using a computer program. The court sustained an objection by the prosecutor. During rebuttal, the prosecutor expressed surprise stating he understood that defense counsel had a job to do "but I am almost at a los[s] for words. I never would expect or never have seen somebody put up a doctored, completely doctored photo up and try to sell that to you. [¶] . . . I am seriously at a loss for words about somebody who would -- you being presented with something that has been doctored and then try to put it up there and sell it. [¶] I understand there is a job to do."
The next day at the beginning of the proceedings, defense counsel moved for a mistrial on the ground that the prosecutor impugned his integrity during rebuttal. The court found that the prosecutor did not intentionally impugn the actions of defense counsel but was surprised that defense counsel would use an altered photograph. The court subsequently stated that the "display of a photo-shopped photograph was way outside the evidence and was misleading and improper." The court denied the motion for a mistrial.
The parties dispute whether defense counsel's objection to the prosecutor's closing argument was timely. Respondent cites authority that the failure to timely object results in forfeiture. (See, e.g., People v. Morrison (2004) 34 Cal.4th 698, 730, fn. 14.) That authority, however, does not assist in determining when an objection is timely.
We conclude the objection was timely. Closing arguments and final instructions concluded at 4:25 p.m. on March 16, and the proceedings for the day concluded at 4:30 p.m. Defense counsel made his motion for a mistrial at 9:05 on the next court day. It was in time for the court to provide an admonition that cured the alleged harm.
The court instructed the jury as follows: "Ladies and gentlemen, let me remind you of the recurring admonitions in this case. And in particular, the admonition that you have an overall responsibility to give both sides a fair and impartial trial based only on the evidence and the legal instructions. [¶] The arguments of the attorneys are not evidence in this case. You must disregard and not consider anything that an attorney may have said that may impugn another attorney. This is not about personalities. This is about the evidence and the law that applies in this case. [¶] So please disregard anything that you may have heard an attorney say that may criticize personally or impugn another attorney. That simply has no place in this case. You have to decide the case based on the evidence and the law."
On appeal, appellant argues that the prosecutor's argument "left no doubt as to the prosecutor's position that counsel was . . . 'some sleazebag defense attorney'" who was trying to mislead the jury by use of "doctored evidence." Appellant argues that denigrating defense counsel and accusing defense counsel of fabricating evidence constitutes prosecutorial misconduct. Appellant argues he suffered prejudice.
The general principal that a prosecutor may not argue that defense counsel fabricated or manipulated evidence is well established. (People v. Bemore (2000) 22 Cal.4th 809, 846.) "Such attacks on counsel's credibility risk focusing the jury's attention on irrelevant matters and diverting the prosecution from its proper role of commenting on the evidence and drawing reasonable inferences therefrom." (Ibid.) Here, the prosecutor should have focused his remarks on the altered picture rather than on his surprise over defense counsel's conduct. The prosecutor could have rebutted the defense counsel's argument without mentioning defense counsel.
We need not decide whether the argument constituted misconduct because even assuming the prosecutor committed misconduct, the misconduct was not prejudicial under any standard. The court instructed the jury that its verdict must be based on the evidence in the case, not on the arguments of counsel. Jurors are presumed to follow the court's instruction. (People v. Holt (1997) 15 Cal.4th 619, 662.) The prosecutor also argued that the jury should base its verdict on the facts, not on arguments of counsel. Moreover, jurors deadlocked on the personal use and intentional discharge firearm enhancements, suggesting they could not reach a verdict on whether appellant was the shooter. Thus, it appears that at least some of the jurors credited defense counsel's argument that Feeno, not appellant shot Juarez. That was the argument supported by the doctored photograph. In other words, contrary to appellant's claim that the prosecutor's argument affected defense counsel's credibility, the record shows that it did not. More significantly, the evidence including appellant's own confessions was so overwhelming that the prosecutor's brief reference to defense counsel could not have affected the verdict.
DISPOSITION
The judgment is affirmed.
FLIER, J. We concur:
BIGELOW, P. J.
GRIMES, J.