Opinion
F041354.
11-10-2003
THE PEOPLE, Plaintiff and Respondent, v. MARIO TORRES, SR., Defendant and Appellant.
A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Mario Torres, Sr., was convicted of first degree murder (Pen. Code, § 187) and child endangerment (§ 273a, subd. (b)) in the stabbing death of his girlfriend, Shellavee Rodriguez. With enhancements, he was sentenced to a total of 56 years to life in prison.
All statutory references are to the Penal Code unless otherwise stated.
He argues his conviction must be reversed due to instructional errors, insufficient evidence, admission of evidence that violated his right to due process and equal protection, and imposition of fines in violation of the constitutional prohibition against excessive fines. We disagree with Torress contentions and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Rodriguez had two children, Frankie and Rebecca. Torres is Rebeccas father. The relationship between Torres and Rodriguez is best described as volatile. Both had serious drug habits — Torres preferred heroin, while Rodriguezs drug of choice was methamphetamine. The two cohabited intermittently, with Torres leaving when the two began to argue.
Torres testified that in the months preceding the stabbing he became concerned with their lifestyle. He entered a methadone treatment program in Reno, Nevada, to overcome his heroin addiction. He relapsed each time he returned to visit Rodriguez. Torres claimed heroin helped him deal with his frustration when he argued with Rodriguez.
The day before the stabbing, Torres was supposed to turn himself into the Stanislaus County Sheriff to serve a 30-day sentence for spousal abuse. He spent a few days with Rodriguez and Rebecca before the stabbing. His time with Rodriguez was spent using methamphetamine. He claimed he barely slept the three days before the stabbing.
On the morning of the stabbing, Torres woke up to find Rodriguez using methamphetamine. Rodriguez then went to the store where she bought a snack for Frankie. Torres became upset because Rodriguez did not buy him or Rebecca anything. He took Rebecca to the store where he bought a beer for himself and some snacks for Rebecca. When he returned, he played with Rebecca for a short period of time and then went into the bedroom to talk to Rodriguez.
Torres testified that he told Rodriguez she needed to stop using and selling methamphetamine. Rodriguez told Torres she did not need another lecture. Torres claimed he snapped. He struck Rodriguez three times on the head and pulled out his knife to make her listen to him. He testified he only meant to poke Rodriguez in the arm with the knife.
Rodriguez was stabbed three times. There was one wound on her shoulder that penetrated to the bone. A second wound on her back penetrated the ribcage but did not penetrate any internal organ. The third wound in the chest penetrated the ribcage, lung and heart, causing Rodriguez to bleed to death. Before she bled to death, Rodriguez told the ambulance attendant that Torres stabbed her and stated he was going to kill her.
Torres was charged with murder and child endangerment. The information also alleged that he personally used a dangerous weapon, in violation of section 12022, subdivision (b), and alleged that a conviction for armed robbery and the resulting prison term constituted violations of section 667, subdivisions (a) and (d), and section 667.5, subdivisions (a) and (b).
The jury returned guilty verdicts for first degree murder and child endangerment. Torres admitted the prior conviction. He was sentenced to 25 years to life for the murder, doubled pursuant to section 667, subdivision (e)(1), plus five years pursuant to section 667, subdivision (a), and one year pursuant to section 12022, subdivision (b). A concurrent term of six months was imposed for the child endangerment conviction.
DISCUSSION
I. Instructional Errors
Torres begins by attacking the instructions. We first note that Torres did not object to any of the proposed instructions and therefore any claim of instructional error is waived. (People v. Guiuan (1998) 18 Cal.4th 558, 570.) Nonetheless, we review the merits of the argument in anticipation of the inevitable claim of ineffective assistance of counsel.
A. CALJIC Nos. 8.11 and 8.20
Torres was convicted of first degree murder. The prosecution theorized that Torres killed Rodriguez with express malice and premeditation. Accordingly, the trial court instructed the jury with CALJIC Nos. 8.11, malice aforethought, and 8.20, deliberate and premeditated murder. Torres asserts that these instructions, when combined with the prosecutors closing argument, impermissibly confused the concepts of express malice and premeditation. According to Torres, the jury was informed that premeditation was the same as express malice, requiring only that a decision be arrived at before the killing.
As read to the jury, CALJIC No. 8.11 stated: "Malice may be either express or implied. [¶] Malice is express when there is manifested an intention unlawfully to kill a human being. [¶] Malice is implied when, one, the killing resulted from an intentional act; two, the natural consequences of the act are dangerous to human life; and, three, the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life. [¶] When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. [¶] The mental state constituting malice aforethought does not necessarily require any ill-will or hatred of the person killed. [¶] The word `aforethought does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act."
As read to the jury, CALJIC No. 8.20 stated: "All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree. [¶] The word `willful, as used in this instruction, means intentional. [¶] The word `deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. [¶] The word `premeditated means considered beforehand. [¶] If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation so that it must have been formed upon preexisting reflection, not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder in the first degree. [¶] The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. The true test is not in the duration of time but, rather, the extent of the reflection. [¶] A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it induces an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree. [¶] To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill."
Express malice was defined as a manifested intention to kill a human being unlawfully. The instruction stated that it was unnecessary to find deliberation or a lapse of considerable time between the manifested intention and the actual killing. Instead, the jury was informed that express malice must precede, rather than follow, the act. This instruction correctly defines express malice. (People v. Stanley (1995) 10 Cal.4th 764, 796.)
Premeditation was defined as considered beforehand. The instruction went on to state that deliberation and premeditation are not determined by the amount of time that passes between the decision and the act but by the extent of the reflection. "A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree. [¶] To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill." This instruction correctly defines a deliberate and premeditated murder. (People v. Millwee (1998) 18 Cal.4th 96, 135, fn. 13; People v. Perez (1992) 2 Cal.4th 1117, 1123; People v. Lucero (1988) 44 Cal.3d 1006, 1021.)
Torres relies on express malice and premeditation requiring something to occur before the killing. He contends the two inevitably become confused because both must occur before the act that results in the death of the victim. We disagree.
A review of the instructions confirms there is no danger of confusion. Express malice and premeditation are defined correctly. Any rational jury would not confuse the two concepts. The fact that both must occur before the killing is inevitable in every express malice first degree murder. There is no evidence here that the jury necessarily confused the two concepts. Considering the instructions as a whole, we do not think there was any reasonable likelihood the instructions confused the jury. (People v. Catlin (2001) 26 Cal.4th 81, 151.)
The thrust of Torress argument appears to be that in closing, the prosecutor improperly led the jury to believe that the two concepts were identical. It is the trial court, however, that instructs the jury on the relevant law. (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) The jury was instructed that it must apply the law provided by the trial court to the facts that the jury determined to be true. (CALJIC No. 1.00.)
Moreover, the prosecutors comments are neither evidence nor a statement of the law, merely argument. The jury was instructed that if anything said by an attorney conflicted with the trial courts instructions on the law, the jury was required to follow the trial courts instructions. (CALJIC No. 1.00.) We presume the jury followed the instructions it was given. (People v. Pinholster (1992) 1 Cal.4th 865, 919.) There was no error in the instructions on express malice and premeditation.
B. CALJIC No. 2.50.02
Torres argues that the trial court erred in instructing the jury with CALJIC No. 2.50.02. This instruction informed the jury that if it determined the defendant committed a prior offense(s) of domestic violence, "you may but are not required to infer that the defendant had a disposition to commit another offense involving domestic violence. [¶] If you find that the defendant had this disposition, you may but are not required to infer that he was likely to commit and did commit the crime of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offense. [¶] If you determined an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all the other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime." (Italics added.)
As read to the jury, CALJIC No. 2.50.02 stated: "Evidence has been introduced for the purposes of showing that the defendant engaged in an offense involving domestic violence on one or more occasions other than that charged in this case. [¶] `Domestic violence means abuse committed against an adult or fully emancipated minor who was a spouse, former spouse, cohabitant, former cohabitant or person with whom the defendant had had a child, has had a child or is having or has had a dating or engagement relationship. [¶] `Cohabitant means two unrelated adults persons living together for a substantial period of time resulting in some permanency of relationship. [¶] Factors that may be — that may determine whether persons are cohabiting include but are not limited to, one, the sexual relations between the parties while sharing the same living quarters; two, sharing of income or expenses; joint use or ownership of property; four, where the parties hold themselves out as husband and wife; five, the continuity of the relationship; and, six, the length of the relationship. [¶] `Abuse means intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself or another. [¶] If you find that the defendant committed the prior offense involving domestic violence, you may but are not required to infer that the defendant had a disposition to commit another offense involving domestic violence. [¶] If you find that the defendant had this disposition, you may but are not required to infer that he was likely to commit and did commit the crime of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offense. [¶] If you determined an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all the other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. Unless you are otherwise instructed, you must not consider this evidence for any other purpose."
Torres asserts that this instruction informed the jury that if it found that Torres committed the other acts of domestic violence beyond a reasonable doubt, it could convict him of the charged crime with only this evidence. Torres reasons as follows: (1) the italicized portion of the instruction informed the jury it could find the prior acts of domestic violence true by a preponderance of the evidence, and (2) the jury was informed that finding the prior acts of domestic violence true by a preponderance of the evidence was not sufficient to find the charged crime true beyond a reasonable doubt. Therefore, Torres concludes that the jury may have decided that if it found the prior acts of domestic violence true beyond a reasonable doubt, that finding was sufficient to find the charged crime true beyond a reasonable doubt.
Were we writing on a clean slate, we would reject this argument for a variety of reasons, including that the strained logic borders on the absurd, the interpretation ignores the remainder of the instructions, and the argument suggests the jury is unable to comprehend and follow the instructions. We are not, however, writing on a clean slate.
This argument was rejected by the Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007 in the context of CALJIC No. 2.50.01, which is utilized when the prior crimes involve sexual offenses. The Supreme Court concluded, "no juror could reasonably interpret the instructions to authorize conviction of a charged offense based solely on proof of an uncharged sexual offense. It is not possible, for example, to find each element of the charged crimes, as the jury was instructed to do before returning a guilty verdict, based solely on the [prior sexual] offense. Nor is it possible to find a union or joint operation of act or conduct and the requisite intent for each charged crime, as the jury was also instructed to do. Hence, no reasonable jury could have been misled in this regard." (Reliford, at p. 1015.)
The Supreme Court in Reliford reviewed the 1999 version of CALJIC No. 2.50.01. The trial court instructed with the 2002 version of CALJIC No. 2.50.02. However, the language at issue was the same in both instructions.
Supreme Court precedent binds us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We also note that the instruction read to the jury includes the following cautionary instruction not included in Reliford: "If you determined an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all the other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt...." This caution makes it virtually impossible for the instruction to be interpreted in the manner suggested by Torres.
C. CALJIC No. 2.51
Torres also claims that the trial court erred in instructing the jury with CALJIC No. 2.51, which states, "Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty."
Torres contends that the presence of motive does not tend to show guilt but may lead to an inference regarding identity. He spends a great deal of effort parsing the instruction into single phrases or words and arguing that these words or phrases may mislead a jury. We think this effort was wasted.
"`"It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." [Citations.]" (People v. Wilson (1992) 3 Cal.4th 926, 943.) The issue is whether a reasonable jury would be misled by the instruction. (People v. Frye (1998) 18 Cal.4th 894, 957.)
CALJIC No. 2.51 has been subjected to numerous attacks. (See, e.g., People v. Snow (2003) 30 Cal.4th 43; People v. Prieto (2003) 30 Cal.4th 226; People v. Cash (2002) 28 Cal.4th 703; People v. Hillhouse (2002) 27 Cal.4th 469; People v. Stanley, supra, 10 Cal.4th at p. 764.) Torres does not cite any case in which the instruction was found erroneous. We located only one, People v. Maurer (1995) 32 Cal.App.4th 1121. Maurer considered the instruction in a section 647.6 prosecution, annoying or molesting a child. To prove this crime, the People were required to establish that the conduct was motivated by an unnatural or abnormal sexual interest in the minor. (Maurer, at p. 1125.) The appellate court held that since the defendants motivation was an element of the crime in a section 647.6 prosecution, it was error to instruct the jury with CALJIC No. 2.51. (Maurer, at p. 1127.)
This case obviously is distinguishable from Maurer because Torres was convicted of murder, not annoying or molesting a child. Motive is not an element of the crime of murder. (People v. Hillhouse, supra, 27 Cal.4th at pp. 503-504.)
Therefore, there was no conflict between CALJIC No. 2.51 and the elements of the crime.
The cases cited by Torres are inapposite. Torres cites Hillhouse and Cash for the proposition that in some situations instructing with CALJIC 2.51 is erroneous. Both of these cases, however, upheld the use of the instruction. The situations where the instruction was found erroneous referred to Maurer. As explained above, Maurer is also inapposite.
Torres also argues that the jury may have confused motive and intent and substituted motive for the required intent because there was evidence of motive at a past time. Motive and intent are separate and disparate mental states, each accurately defined by the instructions. (People v. Hillhouse, supra, 27 Cal.4th at p. 504.) Motive is the reason a person chooses to commit a crime, not the mental state (such as intent) required when the crime is committed. (People v. Cash, supra, 28 Cal.4th at p. 738.) Since the instructions did not use the terms "motive" and "intent" interchangeably, it is not reasonably likely the jury understood the terms to be interchangeable. (Id. at p. 739.)
Presumably, Torres is referring to the evidence of prior instances of domestic violence. Unfortunately, Torress brief fails to identify the past instances of motive.
II. Sufficiency of the Evidence
Torres urges us to reduce his conviction to second degree murder, asserting that the evidence was insufficient to establish beyond a reasonable doubt that he acted with deliberation and premeditation.
Our review of the sufficiency of the evidence is deferential. We "`review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Hillhouse, supra, 27 Cal.4th at p. 496; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) We presume the existence of every fact the trier of fact reasonably could deduce from the evidence that supports the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We will not substitute our evaluations of a witnesss credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citations.] `Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. "`If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." [Citations.] [Citation.] `"Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt." [Citations.]" (People v. Stanley, supra, 10 Cal.4th at pp. 792-793.)
We apply these standards here. Torres was convicted of first degree murder on a theory that the murder was deliberate and premeditated. "A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] `Deliberation refers to careful weighing of considerations in forming a course of action; `premeditation means thought over in advance. [Citations.] `The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly...." [Citations.] [Citations.]" (People v. Koontz, supra, 27 Cal.4th at p. 1080.)
Torres relies on People v. Anderson (1968) 70 Cal.2d 15 to support his assertion that the prosecution failed to prove deliberation and premeditation. In Anderson, the defendant was convicted of first degree murder. The Supreme Court held the evidence was insufficient to support a first degree murder conviction and reduced the conviction to murder in the second degree. (Id. at pp. 33-34.)
The Supreme Court concluded that the type of evidence "sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing — what may be characterized as `planning activity; (2) facts about the defendants prior relationship and/or conduct with the victim from which the jury could reasonably infer a `motive to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of `a pre-existing reflection and `careful thought and weighing of considerations rather than `mere unconsidered or rash impulse hastily executed [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a `preconceived design to take his victims life in a particular way for a `reason which the jury can reasonably infer from facts of type (1) or (2)." (People v. Anderson, supra, 70 Cal.2d at pp. 26-27.)
"As we have cautioned, however, `[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law of murder in any way. [Citations.] In other words, the Anderson guidelines are descriptive, not normative. `The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive. [Citation.]" (People v. Koontz, supra, 27 Cal.4th at p. 1081.)
Torres contends he was affected by the victims conduct immediately preceding the stabbing and over the course of the preceding months. According to Torres, he became mad and snapped. Torres, however, commits the age-old error on appeal of ignoring the evidence that supports the verdict while emphasizing the evidence that supports his argument. Our task is to review all the evidence.
Torres alleges that Rodriguez was a drug addict, a lousy housekeeper and a horrible mother. Evidence of these allegations came primarily from Torres, an admitted drug addict, who had no home of his own and had abandoned his two children from a different relationship. The jury may not have believed Torress testimony on these issues.
Moreover, as Anderson counsels, there was evidence of the prior relationship between Torres and Rodriguez from which the jury could infer a motive to kill the victim, the second Anderson factor. The relationship between the two was volatile. Torres was accused of throwing beer cans and a hot pan at her and chasing her with a wrench. Torres admitted that whenever he spent extended periods of time with Rodriguez, they would argue. Torres threatened to stab Rodriguez on a previous occasion and told her he was going to kill her before he stabbed her.
The method of killing, the third Anderson factor, also supports a finding of deliberation and premeditation. This was not some frenzied attack with extensive stab wounds as occurred in Anderson. Rodriguez was stabbed three times. Two of the wounds passed into the chest cavity, one of which punctured the heart. The jury reasonably could infer that Torress intent was to kill swiftly and was the result of deliberation and premeditation.
Also there were facts about what Torres did before the killing that could be considered by the jury to be planning activity, the first Anderson factor. He went to the liquor store and bought himself a beer. At the store he had with him not only the knife clipped to his belt but also a large wooden-handled knife in his back pocket. The jury rationally could infer the second knife was obtained in case the first knife was of insufficient size to kill Rodriguez. The jury also rationally could infer that the beer was obtained to build up Torress courage to complete the plan he already had formed. Torress warnings that he was going to kill Rodriguez also support the inference that he planned the murder.
The cases relied on by Torres are inapposite. The Supreme Court reversed the defendants first degree murder conviction in People v. Berry (1976) 18 Cal.3d 509 because the trial court failed to instruct the jury on voluntary manslaughter. The defendants defense to this count was that he was provoked into killing his wife of one and one-half months because she claimed to have fallen in love with another man and was pregnant with the other mans child. An expert witness testified that the wife was suicidal and intentionally provoked the defendant to complete her desire to die.
In this case, the trial court instructed the jury on voluntary manslaughter. As was noted in Berry, it is up to the jury to determine whether the defendant acted in a heat of passion. (People v. Berry, supra, 18 Cal.3d at p. 515.) Here, the jury determined Torres did not act in a heat of passion within the meaning of the voluntary manslaughter charge. Moreover, the facts between the two cases are distinct. In this case, there were no allegations of recent infidelity, and Torres did not claim such thoughts were in his mind when he killed Rodriguez. Nor was there expert testimony to support Torress claim that Rodriguez intentionally provoked him.
To avoid a petition for rehearing, we note that Rodriguezs first child was conceived while Torres was in jail and that Torres questioned, at one time, whether he was the father of Rodriguezs second child. From the record, however, it does not appear these issues motivated Torres on the afternoon in question.
In People v. Borchers (1958) 50 Cal.2d 321, the trial court reduced the jurys verdict of second degree murder to voluntary manslaughter. The defendant testified that he acted out of a heat of passion when he learned that his fiancée admitted an affair with another man, claimed she was forced into the affair because of her past, and that she asked the defendant to kill her and her young son. Here, the trial court did not reduce the charge, and the facts differ greatly from Borchers.
The facts of this case form a compelling case for deliberation and premeditation, and certainly provide substantial evidence to support the first degree murder conviction.
III. Evidence Code Section 1109
Torres argues that Evidence Code section 1109 violates his right to due process and equal protection under both the state and federal Constitutions. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) The statute, according to Torres, violates due process, both on its face and as applied.
A. Due Process
Evidence Code section 1109 permits in domestic violence prosecutions the admission of prior acts of domestic violence if the probative value of such acts outweighs their prejudicial effect. (Evid. Code, § 1109, subd. (a)(1).) In People v. Falsetta (1999) 21 Cal.4th 903, 917-918 (Falsetta), the Supreme Court held that Evidence Code section 1108 does not violate a defendants right to due process. Evidence Code section 1108 permits admission of prior sexual offenses when the defendant is prosecuted for a sex offense.
Torres urges us to distinguish Falsetta on two grounds: first, we are addressing a different statute admitting different evidence and, second, the prior act evidence in this case did not result in a prosecution or conviction. We reject each contention.
As to the first ground, there is no meaningful basis to distinguish the two statutes from a due process standpoint. As to the second ground, while the evidence admitted in Falsetta was a prior conviction, the statute was not limited to admission of prior convictions and the Supreme Court did not limit its analysis of the statute only to prior acts that resulted in convictions. Therefore, we are bound by Falsetta and conclude the statute does not violate a defendants right to due process. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096, People v. Jennings (2000) 81 Cal.App.4th 1301, 1310, People v. Brown (2000) 77 Cal.App.4th 1324, 1332-1333, People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1029, and People v. Johnson (2000) 77 Cal.App.4th 410, 416-420 reached the same conclusion.
We note that in one portion of the opinion the Supreme Court stated that both of the defendants prior sex offenses resulted in convictions based on guilty pleas. The opinion, however, cannot be read to require a conviction before the prior sex offense is admissible, nor is the plain language of the statute limited to prior acts that resulted in convictions.
Torres also argues that Evidence Code section 1109 violated his right to due process as applied in this case. According to Torres, because the jury learned he was punished for only one of the prior acts of domestic violence, the jury may have convicted him of this crime to punish him for the other incidents. We see no such danger in this case.
We begin our analysis with the other acts of domestic violence. Testimony was presented regarding four separate incidents. The first occurred when Torres became upset with Rodriguez for failing to care for the children. During the ensuing argument, Torres knocked a pan of soup off the stove and cut the telephone line when he left. Rodriguez told the responding officers that after the argument, Torres said he first would cut the phone lines and then would cut her. Torres admitted he knocked the pan of soup off the stove and cut the phone line after an argument with Rodriguez. According to Torres, he cut the phone line because the phone was in his name and he did not want her to run up a large phone bill, which he would have to pay. Torres pled guilty to misdemeanor assault.
The second incident occurred when Torres and Rodriguez began arguing because Torres called Rodriguezs son, Frankie, a profanity. Rodriguez responded by throwing a beer can at Torres, which did not hit him. The argument continued outside where Rodriguez attempted to spray Torres with pepper spray. When the pepper spray canister did not work, Rodriguez threw the canister at Torress car. Torres retrieved a wrench from his car and chased Rodriguez. Rodriguez fled into the house and locked Torres outside.
The third incident occurred when Rodriguez and Torres argued because Rodriguez believed Torres had broken the windshield of her car. Torres claimed that Rodriguez threw a beer can at him, while others testified that Torres threw a beer can at Rodriguez. The police were called when Torres used a screwdriver to punch holes in the speakers located in the trunk of Rodriguezs car. Torres admitted stabbing the speakers because he was upset.
The fourth incident occurred a few weeks before Rodriguez died. Rodriguez showed up at a friends house around 2:00 a.m. claiming Torres stuck her with a syringe. The friend saw a small scratch on Rodriguezs back. Torres denied this incident took place. The police were not called.
We see no risk of the jury punishing Torres for the prior incidents by convicting him of killing Rodriguez. These incidents differed dramatically from the stabbing for which Torres was being tried. Most of the incidents involved arguments and minor violence by both Torres and Rodriguez. There was no violence that remotely approached this case. The police were called infrequently.
More importantly, Torres admitted stabbing Rodriguez. Torres did not claim he was not the perpetrator, thus increasing the risk of the jury convicting him because of the prior offenses. Here, the only issue was whether the stabbing occurred during a heat of passion or was a premeditated murder.
The cases cited by Torres do not affect our analysis. Falsetta and People v. Balcom (1994) 7 Cal.4th 414 recognize that whether the prior act resulted in a conviction is a factor that the trial court can consider in performing an Evidence Code section 352 analysis. Neither case suggests that a prior act may not be admitted merely because there was not a conviction.
People v. Harris (1998) 60 Cal.App.4th 727 held the trial court erred in admitting evidence of a prior conviction because the probative value of the evidence was substantially outweighed by its prejudicial effect. (Evid. Code, § 352.) The defendant previously was convicted of a brutal rape and attempted murder, while the current crime involved two rapes where the defendant was accused of using his influence as a medical provider over the victims to facilitate the rapes. The appellate court held evidence of the prior conviction should not have been admitted because the two cases were so dissimilar and the prior conviction was so brutal.
People v. Smallwood (1986) 42 Cal.3d 415, disapproved on other grounds in People v. Bean (1988) 46 Cal.3d 919, 939, footnote 8, addresses a trial courts ruling on a motion to sever and discusses the danger of admission of other charged crimes. This issue was not presented in this case because the admissibility of this evidence was governed by Evidence Code section 1109.
In People v. Frazier (2001) 89 Cal.App.4th 30, the appellate court reversed a conviction for a sex offense because it found the pre-1999 revision of CALJIC 2.50.01 unconstitutional as it allowed the jury to convict the defendant solely on the evidence of his prior uncharged acts of molestation. (Frazier, at p. 35.) The same instruction also was at issue in People v. Orellano (2000) 79 Cal.App.4th 179 and People v. Vichroy (1999) 76 Cal.App.4th 92. None of these cases held admission of the evidence itself was a due process violation. In this case, the jury was instructed with the 2002 version of CALJIC No. 2.50.02, which does not contain the same infirmity as the pre-1999 revision of the instruction.
We think there was no due process violation.
B. Equal Protection
Torres also asserts that Evidence Code section 1109 violates his right to equal protection because it permits disposition evidence and, with the exception of Evidence Code section 1108, such evidence is precluded in other criminal prosecutions.
Falsetta did not present an equal protection challenge to Evidence Code section 1108. Nonetheless, the Supreme Court cited with approval the discussion in People v. Fitch (1997) 55 Cal.App.4th 172, which rejected an equal protection challenge to section 1108. "Fitch likewise rejected the defendants equal protection challenge, concluding that the Legislature reasonably could create an exception to the propensity rule for sex offenses, because of their serious nature, and because they are usually committed secretly and result in trials that are largely credibility contests. [(Citation.] As Fitch stated, `The Legislature is free to address a problem one step at a time or even to apply the remedy to one area and neglect others. [Citation.] [Citations." (People v. Falsetta, supra, 21 Cal.4th at p. 918.)
Torress argument recently was rejected in People v. Jennings, supra, 81 Cal.App.4th at pp. 1309-1313. No purpose will be served in repeating the thorough analysis found in Fitch and Jennings. We agree with the reasoning of these cases and reject Torress equal protection challenge to Evidence Code section 1109.
IV. Prosecutorial Misconduct
Torres contends that the prosecutor committed misconduct during closing argument. "[T]he prosecutor has a wide-ranging right to discuss the case in closing argument. He has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper. Opposing counsel may not complain on appeal if the reasoning is faulty or the deductions are illogical because these are matters for the jury to determine. [Citations.] The prosecutor may not, however, argue facts or inferences not based on the evidence presented." (People v. Lewis (1990) 50 Cal.3d 262, 283; see also People v. Farnam (2002) 28 Cal.4th 107, 169.)
"`Under state law, a prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct, even if such action does not render the trial fundamentally unfair. [Citations.] [¶] Nevertheless, as a general rule, to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm.... [Citations.] [Citation.] `To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements. [Citation.] [Citation.]" (People v. Gurule (2002) 28 Cal.4th 557, 657.)
We begin by noting that Torres did not object to any of the asserted grounds of misconduct at trial. Therefore, these claims have been waived. (People v. Gurule, supra, 28 Cal.4th at p. 657.) Nonetheless, we address the merits to resolve the claim of ineffective assistance of counsel. As will be seen, we disagree with each of these arguments.
A. Express Malice and Premeditation
In a continuation of his instructional error argument, Torres claims that the prosecutor committed misconduct during closing argument by confusing the issues of express malice and premeditation. We have reviewed the prosecutors closing argument. We also have reviewed the passages cited by Torres. We have not identified any deceptive or reprehensible methods used by the prosecutor to persuade the jury. Nor is there any possibility the jury understood or applied the complained-of comments in an improper manner.
Both attorneys made it clear in closing argument that the only issue at trial was whether Torres acted with deliberation and premeditation. Torress counsel argued that Torres acted in a heat of passion and, at most, was guilty of voluntary manslaughter. The prosecutor correctly stated the law in closing and argued that she believed the evidence supported a verdict of first degree murder. We could not find, and Torres does not identify, any incorrect statement of the law by the prosecutor.
Torress complaint can be reduced to this — it was unfair for the prosecutor to rely on the same facts to establish both express malice and premeditation. We reject this complaint as unsupported by law and commonsense. Torres was free to argue that the facts did not support the prosecutors argument and to point out why the prosecutor was wrong. In fact, his attorney did just that. Simply because the jury found the prosecutors argument more persuasive does not provide grounds for appeal.
The trial court instructed the jury on the correct legal principles and informed the jury that any conflict between the law provided by the trial court and the attorneys statements of the law must be resolved by reference to the trial courts instructions. The jury was provided with a copy of the instructions while it deliberated. The prosecutor correctly stated these same principles in closing. There was no misconduct.
B. Reasonable Doubt
Torres next complains the prosecutor tried to shift the burden of proof to the defense during closing argument when she stated, "You have to have some doubt thats based on reason, a reasonable doubt, because anything is possible." According to Torres, this statement informed the jury that it must be able to articulate reasons in support of their doubt before it could be reasonable doubt.
It is impossible to interpret this statement in the manner suggested by Torres. The prosecutor paraphrased, in part, CALJIC No. 2.90. This instruction defines reasonable doubt, as "not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt." There is no basis to complain about the prosecutors comment.
C. Lack of Malice
Torres next complains that the prosecutor twice stated in closing argument that to find him guilty of manslaughter, the jury would have to find he acted without malice. According to Torres, the prosecutor shifted the burden of proof to Torres to establish a lack of malice.
The specific comments were, "And, of course, to get to manslaughter, you have to find that there is no malice whatsoever" and "Also to get to manslaughter, you have got to find that there is absolutely no malice. You have got to find no malice."
Once again, we disagree. The prosecutor was stating to the jury the correct legal distinction between murder and manslaughter. To find manslaughter, the jury must conclude that the prosecution failed to prove that the defendant acted with malice. If malice is present, the crime must be either first or second degree murder.
While the prosecutor, perhaps, could have been a little more accurate in her phrasing, there was no misconduct. There is no evidence the jury was misled by these comments, and we conclude that no reasonable jury could have been misled by these comments.
D. Lack of Remorse
Torres also asserts that the prosecutors comments about his lack of remorse constituted misconduct. Once again, we think otherwise.
"[U]nless a defendant opens the door to the matter in his or her case-in-chief [citations], his or her remorse is irrelevant at the guilt phase." (People v. Jones (1998) 17 Cal.4th 279, 307.) During the presentation of the Peoples case, the prosecutor asked about Torress demeanor immediately after the stabbing. There were no questions about remorse. When Torres testified, he claimed he acted in a heat of passion, which theoretically opened the door for testimony about remorse. The People did not call any rebuttal witnesses on the issue of remorse, instead relying on demeanor testimony already received to argue there was no remorse.
Torress demeanor after the stabbing, described by the witnesses as very stoic or very cool, which included initial denials of involvement in the stabbing, were inconsistent with the claim of heat of passion. The prosecutor was entitled to comment upon this demeanor in closing. There was no misconduct.
V. Restitution Fine
Torres contends the $10,000 restitution fine violates the United States Constitution and the California Constitution prohibition against excessive fines. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) We disagree.
Torres relies on U.S. v. Bajakajian (1998) 524 U.S. 321 where the Supreme Court held that the Eighth Amendment is violated when a punitive fine is "grossly disproportional to the gravity of a defendants offense." (Id. at p. 334.) The fine held to violate the Eighth Amendment was $ 337,144 for failing to declare the amount of currency being taken out of the country. (Id. at p. 324.)
Section 1202.4, subdivision (b)(1) provides the maximum restitution fine that may be imposed is $10,000 for a felony and provides a formula for determining the amount of the fine: $200 for each year of incarceration. The trial court has wide discretion in determining the amount of a restitution fine. (Ibid.; People v. Gangemi (1993) 13 Cal.App.4th 1790, 1798.)
The trial court followed the statutory formula in imposing Torress $10,000 restitution fine. Torres was convicted of first degree murder, not failing to declare the amount of currency taken out of the country. The fine is $10,000, not over $300,000. Bajakajian is irrelevant. The gravity of the offense amply supports the fine. This fine does not violate either the state or federal Constitutions.
DISPOSITION
The judgment is affirmed.
WE CONCUR: DIBIASO, Acting P.J. and VARTABEDIAN, J.