Opinion
E070294
10-10-2019
THE PEOPLE, Plaintiff and Respondent, v. RAYMUNDO ALBERTO RODRIGUEZ-CORDOVA, Defendant and Appellant.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel and Adrian R. Contreras, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI17001354) OPINION APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed. Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
After defendant and appellant Raymundo Alberto Rodriguez-Cordova killed a man by running into him with a pickup truck, he was tried and convicted of first degree murder. (Pen. Code, § 187, subd. (a).) The trial court sentenced him to prison for a term of 25 years to life.
In this appeal, defendant contends the trial court erred by (1) excluding evidence of an altercation between defendant and the victim several months before the murder; (2) failing to instruct the jury on voluntary manslaughter; (3) failing to instruct the jury on the effect of provocation on the degree of murder using CALCRIM No. 522; and (4) instructing the jury, using CALCRIM No. 362, that it could infer guilt from a false or misleading statement by defendant relating to the charged crime, in the absence of any evidence defendant made such a statement. He argues that these errors were prejudicial, either individually or cumulatively, and require reversal of his conviction.
We find no error and therefore affirm the judgment.
I. BACKGROUND
About noon on May 15, 2017, defendant was driving a pickup truck, on his way to drop off his passenger, his brother, after they ran an errand at a store. Shortly after leaving the parking lot of the store, while driving on a street with two lanes of traffic in each direction, defendant began screaming at someone riding a bicycle on the sidewalk on the opposite side of the street but in the same direction of travel (both truck and bicycle were travelling westbound; the bicycle was on the south side of the street). Defendant's brother testified that he heard defendant scream something like "Karma is a bitch." Another witness heard defendant say, "Talk your shit now, motherfucker."
The victim looked back at defendant's truck, but continued riding the bicycle on the sidewalk away from the truck. Defendant followed, coming closer by driving on the wrong side of the road. After a short distance the victim rode into the parking lot of a dry cleaners and stopped near the side of a parked truck. Defendant followed, turning into the parking lot. Defendant accelerated toward the victim and then turned sharply into him, pinning him between the side of the parked truck and the front of defendant's truck. The parties disputed at trial whether defendant's truck either bounced back or reversed and struck the victim a second time before driving away, or whether the victim was only struck once. A forensic pathologist who later examined the victim's body opined that he died of his injuries within minutes.
Police located the truck two days after the victim's death. It had a damaged front end, including a broken front passenger headlight, which had been secured with clear packing tape that appeared to be new. Its front grill was also partially broken in a manner that matched with pieces of grill found at the crime scene.
Three days after the victim's death, police located defendant. The detective who contacted defendant testified that he initially gave a false name and date of birth, and denied having any identification. After the detective ran a records search, which revealed no person with the name and date of birth defendant had given, he again asked defendant for his information, but defendant gave the same responses. The detective told defendant that he believed he was lying, and that he "believed that he was the suspect in our homicide." Defendant again insisted that he had given correct information, and asserted that he was not the person they were looking for. The detective arrested defendant for possessing drug paraphernalia, and during the subsequent search incident to arrest discovered his identification card in a wallet. Defendant also had in his possession a set of keys. A police evidence technician was later able to start defendant's truck with those keys, although they did not work to unlock it.
Defendant did not testify on his own behalf. The only witness called by the defense was a detective who also testified during the prosecution's case, and who had interviewed defendant's brother. The detective testified that defendant's brother told him that defendant had shouted, "I'm going to fuck you up," at the victim. The brother had used the term "karma" in describing to the detective defendant's appearance during the incident, saying "it looked like his face had no karma."
A jury found defendant guilty of murder as charged, and further found that he had acted willfully, deliberately, and with premeditation. The trial court sentenced him to prison for an indeterminate term of 25 years to life.
II. DISCUSSION
A. Exclusion of Evidence
1. Additional Background
The defense sought to introduce evidence of a confrontation that occurred between defendant and the victim in March 2017. According to the defense's offer of proof, defendant's aunt was prepared to testify that she witnessed the victim come to a hotel room where defendant was staying with family members. Defendant left the room to speak with the victim, saying to him, "'not here, let's take this outside.'" Once they were both outside, the victim pulled out a "realistic looking BB gun" and shot defendant with it. Defendant then "'beat . . . up'" the victim.
The trial court excluded the aunt's testimony as irrelevant absent some evidence of a "link" between the March 2017 confrontation and the May 2017 homicide. The court offered to "revisit" its decision to exclude the aunt's testimony if the defense could show such a link.
2. Applicable Law
Murder is the unlawful killing of a human being with malice aforethought, whether express or implied. (People v. Lasko (2000) 23 Cal.4th 101, 107; Pen. Code, § 187, subd. (a).) Express malice, also called intent to kill, requires showing the defendant either desired the death of the victim or knew to a substantial degree of certainty that death would occur. (People v. Smith (2005) 37 Cal.4th 733, 739.) Implied malice requires a showing the defendant consciously disregarded human life. (People v. Lasko, supra, at p. 107.) A homicide is first degree murder if it is done in a willful, deliberate, and premeditated manner; all other murders are of the second degree, with exceptions not relevant here. (Pen. Code, § 189; see People v. Breverman (1998) 19 Cal.4th 142, 153.) Voluntary manslaughter is an unlawful killing "without malice" that occurs "upon a sudden quarrel or heat of passion." (Pen. Code, § 192, subd. (a).)
What would otherwise be first degree murder may be mitigated to second degree murder or voluntary manslaughter by provocation. A murder is of the second degree if the jury finds that the defendant "formed the intent to kill as a direct response to . . . provocation and . . . acted immediately," i.e., without deliberation or premeditation. (People v. Wickersham (1982) 32 Cal.3d 307, 329, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.) Thus, provocation sufficient to mitigate a murder to second degree murder requires only a finding that the defendant's subjective mental state was such that he did not deliberate and premeditate before deciding to kill. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295.) In contrast, provocation sufficient to reduce murder to voluntary manslaughter requires not only that the defendant subjectively experienced a heat of passion resulting from the provocation, but also that the response was objectively reasonable, i.e., that the victim's conduct or perceived conduct was sufficiently provocative that it would cause a person of average disposition to act rashly or without due deliberation and reflection. (People v. Moye (2009) 47 Cal.4th 537, 550.)
We review the trial court's evidentiary rulings under the deferential abuse of discretion standard. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1366-1367.) We will disturb the trial court's ruling only if the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Clark (2016) 63 Cal.4th 522, 572.) Further, we assess the trial court's ruling, not its reasoning, and affirm if it is correct on any ground. (People v. Brooks (2017) 3 Cal.5th 1, 39.)
3. Analysis
Defendant contends that the exclusion of his aunt's testimony regarding the March 2017 confrontation between him and the victim was an abuse of discretion and a violation of his constitutional right to present evidence in his defense. Specifically, he contends that the testimony should have been admitted to support his contention that he acted under a heat of passion sufficient to mitigate the killing to voluntary manslaughter or, in the alternative, second degree murder. We are not persuaded.
The People contend defendant forfeited any claim that his constitutional rights were violated by failing to object in the trial court. We find it more expedient to address defendant's arguments on their merits, and decline to reach the merits of the People's forfeiture argument. (See People v. Williams (2000) 78 Cal.App.4th 1118, 1126 [addressing on appeal issue that would otherwise be forfeited to "forestall a petition for writ of habeas corpus based on a claim of ineffectual counsel."].)
It is well established that evidence of a previous altercation between the victim and the defendant, standing alone, does not constitute legally sufficient provocation to support a heat of passion defense. Even where sufficiently provocative conduct occurred, if "'sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter . . . .'" (People v. Breverman, supra, 19 Cal.4th at p. 163.) For example, in People v. Moye, supra, 47 Cal.4th 537, the trial court found that, without more, evidence of a fight between the defendant and the victim the night before the killing "would not constitute sufficient legal provocation . . . ." (Id. at p. 551.) Another instructive authority is People v. Middleton (1997) 52 Cal.App.4th 19. In that case, the victim pointed a gun at the defendant, and the defendant struck him. While the victim was on the ground, the defendant went to get his gun, returned, and shot the victim. The court held the lapse of time—only long enough to go retrieve the gun—negated any use of provocation to reduce the killing to manslaughter. (Id. at p. 34.)
Here, a period of two months elapsed between the March 2017 provocation and the May 2017 killing. There is no evidence of any repeated or ongoing pattern of provocation by the victim during that period. (Cf. People v. Berry (1976) 18 Cal.3d 509, 514 [victim "continually provoked defendant" over a two-week period before killing]; People v. Wright (2015) 242 Cal.App.4th 1461, 1490 [involving a "provocatory course of conduct lasting several months"].) Nor is there any other evidence tending to show that an ordinary person in defendant's position would still, in May 2017, have had his or her reason obscured by the March 2017 confrontation with the victim. To the contrary, on the record presented, as a matter of law, an ordinary person's passions would have cooled by then. The proffered testimony therefore did not support a defense argument that the jury should return a voluntary manslaughter verdict.
The proffered testimony also did not tend to support any defense argument in favor of a second degree murder verdict. Nothing in the evidence showed that defendant "'formed the intent to kill as a direct response'" to his March 2017 confrontation with the victim, or that he "'had acted immediately,'" as required to raise a reasonable doubt on the issue of premeditation. (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1705, quoting Wickersham, supra, 32 Cal.3d at p. 329.) The evidence showed that defendant flew into a rage when he saw the victim again, and it is plausible that this rage was related to their earlier confrontation. But on the record presented, it was a direct and immediate response to seeing the victim again, not to their confrontation from months before. We are aware of no authority supporting the proposition that merely seeing a person the defendant has a grudge against, or desires revenge against, could constitute provocation of the sort that mitigates culpability for murder.
To be sure, evidence that the defendant's motive was revenge, coupled with evidence that he was not expecting to see the victim, may be minimally relevant to disprove premeditation and deliberation, albeit not under the rubric of acting under the heat of passion because of a provocation. Defendant's aunt's account at most would tend to support an argument that defendant's reaction to seeing the victim arose from previous issues between them. But the jury was presented with other such evidence. The jury could infer as much from defendant's shouted statements, as reported by his brother and another eyewitness: "Karma is a bitch" and "Talk your shit now, motherfucker." Arguably, perhaps, as defendant proposes in briefing, the details of the grudge underlying defendant's reaction to unexpectedly seeing the victim had some relevance as "context" for his statements, and therefore the jury's determination of whether or not he was acting with deliberation and premeditation when he killed the victim. There was also a risk, however, that the jury would consider the earlier incident between defendant and the victim for improper purposes, such as evidence of the victim's character. (See Evid. Code, §§ 1101, 1103.) It would not have been unreasonable for the trial court to find any marginal relevance of the aunt's testimony to be outweighed by a substantial risk that the evidence would be used for an improper purpose, and to exclude the evidence on that basis. (See Evid. Code, § 352, cl. (b).)
In sum, defendant has not demonstrated that the trial court abused its discretion by excluding his aunt's proffered testimony. B. Instruction on Voluntary Manslaughter
The trial court denied a defense request that the jury be instructed on voluntary manslaughter, finding that there was insufficient evidence to warrant giving the instruction. Defendant argues that this decision was erroneous. We find no error.
Voluntary manslaughter is a lesser included offense of murder. (People v. Breverman, supra, 19 Cal.4th at p. 154.) An instruction on a lesser included offense must be given only if there is substantial evidence from which a jury could reasonably conclude that the defendant committed the lesser, uncharged offense but not the greater, charged offense. (Id. at pp. 154, 162.) "'[E]very lesser included offense, or theory thereof, which is supported by the evidence must be presented by the jury.'" (People v. Thomas (2012) 53 Cal.4th 771, 813.)
Here, there was no substantial evidence that could have supported a voluntary manslaughter verdict. Defendant points to the "verbal altercation" between defendant and the victim, but fails to acknowledge that the "altercation" was entirely one-sided. Defendant began angrily screaming at the victim when he saw him, but there is no evidence that, on the day of his death, the victim did or said anything to defendant, either to provoke defendant's anger or in response to defendant's screaming. Moreover, "a voluntary manslaughter instruction is not warranted where the act that allegedly provoked the killing was no more than taunting words, a technical battery, or slight touching." (People v. Gutierrez (2009) 45 Cal.4th 789, 826.) There is no evidence the victim here did even that much on the day defendant killed him. It can be inferred from defendant's statements, as reported by the eyewitnesses, that the victim and defendant had a "past altercation." But, as discussed above, that too is not enough to support a finding of voluntary manslaughter. (E.g., People v. Breverman, supra, 19 Cal.4th at p. 163.)
The trial court was correct to decline the defense's request to instruct the jury on voluntary manslaughter. C. Instruction on Effect of Provocation on Degree of Murder
The trial court instructed the jury on the difference between first and second degree murder using CALCRIM No. 521. The trial court did not further instruct the jury with CALCRIM No. 522, regarding the effect of provocation on the degree of murder. Defendant contends that the trial court should have given CALCRIM No. 522. As discussed above, however, there is no substantial evidence of provocation, so the trial court was correct to refrain from giving any instruction on the issue. D. Inference of Guilt from False Statements
CALCRIM No. 521, as given, is as follows: "The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the act that caused death. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill may [sic] rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second degree murder."
CALCRIM No. 522, in relevant part, is as follows: "Provocation may reduce a murder from first degree to second degree . . . . The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder."
Also, we note again that evidence that defendant's motive was revenge, coupled with evidence that he was not expecting to see the victim, may be relevant to determining whether he acted willfully, deliberately, and with premeditation, but such evidence does not fall within the rubric of provocation.
Defendant asserts the trial court should not have given a standard instruction on inferring consciousness of guilt from false statements by the defendant, CALCRIM No. 362, and that by giving the instruction the court violated his constitutional rights to due process and trial by an impartial jury. He contends that there is no evidence defendant made a false or misleading statement relating to the charged crime. We find no error.
The instruction at issue is the following: "If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
Again, we decline to address the People's contention that the argument was forfeited, finding it more expedient to address the issue on the merits. (See People v. Williams, supra, 78 Cal.App.4th at p. 1126.)
The California Supreme Court has "repeatedly . . . approved use of such instructions in analogous circumstances," including where there is evidence that the defendant gave a false name upon arrest. (People v. Watkins (2012) 55 Cal.4th 999, 1028.) Defendant distinguishes Watkins on its facts, noting that in that case, "the defendant gave a false name when he was arrested for the crimes for which he was eventually convicted," whereas here defendant's initial arrest was for possession of drug paraphernalia. (See id. at p. 1005.) We are not persuaded that this is a distinction that makes a difference. The only reason defendant's initial arrest was not on a murder charge was the delay, caused by defendant's own false statements, in establishing his identity. Moreover, instructions like CALCRIM No. 352 are constitutionally suspect when, "'under the facts of the case, there is no rational way the trier could make the connection permitted by the inference.'" (People v. Gomez (2018) 6 Cal.5th 243, 290.) Here, regardless of the basis for defendant's initial arrest, it is reasonably inferred that defendant's lies about his identity were, first and foremost, an attempt to mislead the detective about his involvement in the death of the victim, demonstrating an awareness that his actions leading to the death of the victim were wrongful. The trial court did not err by instructing the jury with CALCRIM No. 352. E. Cumulative Error
Defendant argues that he is entitled to reversal because of cumulative error. We have found no error, so the cumulative error doctrine does not apply.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: CODRINGTON
Acting P. J. MENETREZ
J.