Syda Kosofsky, Santa Cruz, Under Appointment by the Court of Appeal, for Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Sr. Assistant Attorney General, Stan Helfman and Christopher J. Wei, Deputy Attorneys General, for Respondent.
Syda Kosofsky, Santa Cruz, Under Appointment by the Court of Appeal, for Appellant.Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Sr. Assistant Attorney General, Stan Helfman and Christopher J. Wei, Deputy Attorneys General, for Respondent.
Dora Diaz was charged and convicted of willful, deliberate, and premeditated attempted murder (Pen.Code, §§ 187, 189, 664, subd. (a)) (count one) and three counts of criminal threats ( § 422) (counts three, four, and five). Defendant was sentenced to a total prison term of life with possibility of parole consecutive to a three year, four month prison term. On appeal, defendant Diaz argues that the trial court erroneously admitted gang evidence and committed multiple instructional errors. She also attacks the imposition of a booking fee.
All further statutory references are to the Penal Code unless otherwise specified.
Adrian Alexander Bonilla was originally charged with attempted murder in count one and with felony assault in violation of section 245, subdivision (a)(1), in count two. During the hearing on the in limine motions, defense counsel mentioned that Bonilla had resolved his case.
Defendant Diaz's petition for writ of habeas corpus, which we considered with this appeal, is resolved by a separate order.
A. Prosecution's Case
Eduardo Morales (“Morales”), the stabbing victim in this case, was 21 years old at the time of trial in September 2010. In September 2009, Morales was living in a two-bedroom apartment with his mother Marta Rosales and her three young children, his mother's husband Alvaro Hernandez, the husband's brother Cesar Hernandez (also known as Cesar Hernandez Castro), his brother Carlos Danilo Morales, and his sister-in-law Indira Pineda. Morales slept on the couch in the living room.
A romantic relationship between Morales and Diaz began when he was 15 or 16 years old and they been together for about four years before the stabbing incident, which occurred in the early morning hours of September 5, 2009. The two usually met at her house on the corner of Julian Street and 19th Street or somewhere else. During the time that they were involved, Diaz was married and had four children. Her oldest child was L.S., who Morales thought was about 16 years old. According to Morales, a week or two before the incident, Diaz broke up with Morales over the phone and told him that she did not love him anymore.
Between about 1:00 a.m. and 1:30 a.m. on September 5, 2009, Morales heard hard knocking on the door and the window of his apartment, apartment one. When he peeked out the window, he saw Diaz and two females whom he did not know. The window was partly open and Morales heard Diaz and the others say, “Come out you fucking asshole.” He went to put on his shoes and, while he was putting them on, he heard the window break.
On the night of the September 2009 stabbing incident, Morales's mother Rosales was in bed when she heard Diaz yelling and the window break; she then went into the living room. Rosales called 911. Pineda, Morales's sister-in-law and Rosales's daughter-in-law, was awakened by screaming. Pineda recognized Diaz's voice. As Pineda was going into the living room, she heard Diaz yelling for Morales to come outside and saw Rosales in the living room and Morales near the front door. Diaz sounded aggressive and was calling Morales names and using vulgar language, like “son of a bitch,” “fucking asshole,” and “asshole, jerk.”
Rosales knew Diaz from Guatemala; they had lived in the same village or town. Pineda also knew Diaz from Guatemala, where they had been neighbors in the same village or city when Pineda was a child. Here in San Jose, Diaz would often come to the street in front of their apartment and shout for Morales to come out. Pineda had seen Diaz outside the apartment when Diaz visited Morales. But Diaz did not spend time with Rosales's family. Neither Rosales nor Pineda knew the other two females.
Morales had a feeling of dread when the window broke but he knew his family was inside the house. Diaz repeatedly demanded that Morales come out. Morales opened the door a little, stepped partially out the door, and saw broken glass. He asked, “What's going on?” and “Why are you doing this to me?” Diaz and the other two women attacked Morales, grabbing him by the hair and dragging him two or three meters into the driveway in front of his apartment. Diaz was calling Morales “a son of a fucking bitch” and a “fucking asshole” and yelling profanities at Morales. Pineda heard Diaz say to Morales, “I'm going to kill you son of a bitch.” Morales heard someone say “puro catorce,” which in English means “only 14” and which, to Morales, indicated a Norteno gang. Rosales was telling the women to “let him go” and they were shoving her out of the way. The women were hitting him with their hands, both open and closed, all over his body and kicking him with their feet; Morales was covering himself. He was knocked to the ground.
Morales was scared. He had not expected Diaz to do anything like that to him. Diaz stepped back from the assault and snapped twice and whistled. Three men emerged from behind a car and crossed the street and began hitting Morales as well. Morales again heard “puro catorce” as the men arrived. The men kicked Morales, pulled his hair, and hit him with open hands. Diaz was hitting him again. Morales suddenly felt something in his right side stomach area and felt weak. Rosales was yelling at them to leave Morales alone and Morales was trying to get away. Rosales was pulling on the shirt of one of the men and she did not realize that the man was stabbing Morales until she saw blood gushing out. She then saw his knife. Rosales did not see Diaz holding a weapon of any type.
Morales was feeling very lightheaded and saw a hand with a blade coming at him and put up an arm to protect himself. The blade went all the way through his left forearm. During the attack, Morales was trying to cover up his body. Morales heard them repeatedly call him a “fucking asshole” and heard someone say “puro norte,” which means “only north” and conveyed to him that they were in a gang.
According to Morales, one of the two females accompanying Diaz was wearing a white shirt, was taller than him, and had “white skin” and long “dark yellow hair,” and appeared to be about 17 or 18 years old. He remembered that the other female was short and Hispanic. Morales did not see any tattoos on them but he knew that Diaz had a red butterfly tattoo on her back. Rosales recalled that one of the two was wearing a sort of gray-colored sweater and the other was wearing a red shirt.
The men's clothing made Morales think they were “Cholos,” by which he meant they were in a gang. One man looked like Diaz's son L.S. and he was wearing a white shirt with some red lettering; this was the person who stabbed him. Another man's face was familiar from the neighborhood. The man whom Morales believed was Diaz's son was about Morales's height, he was “a little bit fuller than” Morales, who weighed about 200 or 210 pounds.
The attack lasted about five minutes and then sirens were heard. All the assailants except Diaz ran off, got into the car, a Lincoln, and seemed to be waiting for Diaz.
Before she took off, Diaz approached Morales and lifted his shirt. She saw his wound, called him a “fucking asshole,” and laughed. She told Morales, “If you don't die from this one, you'll die next time around.”
Pineda, who had witnessed the stabbing, was scared. Pineda told Diaz something to the effect, “leave him alone, he's already hurt.” Diaz looked angry and appeared ready to hit Pineda; Pineda grabbed Diaz's hands to prevent Diaz from hitting her. Diaz was calling Pineda a “fucking bitch.” Pineda said, “Please don't hit me because I'm pregnant.” Even though he felt dizzy, Morales, who was wearing tennis shoes, kicked Diaz in order to protect his sister-in-law. Diaz gestured for the assailants to come back and one of them was about to come back across the street when a siren was heard. Diaz told Pineda, “I'm going to kill you.” Diaz said to Pineda and Rosales, “You're going to pay for this.” Diaz indicated that she was going to kill everyone who lived there “one by one.” Pineda remembered trembling because she was terrified. Pineda did not see any type of object in Diaz's hand on the night of the incident.
The sirens sounded closer and Diaz left. Morales testified that he heard Diaz say “puro catorce” as she was leaving.
Cesar Hernandez, the brother of Rosales's husband, slept in the living room of apartment one. At trial, he identified Diaz from the incident. He did not go outside until Rosales was saying that Morales was about to die. When he went outside, he saw Morales against a wall, grabbing himself. Morales was bleeding and he saw a lot of blood. He saw people getting into a car across the street. He heard Diaz angrily yell that “she wasn't garbage that she could be left so easily.” He saw Diaz and Pineda yelling at each other. He went back into the house and then, looking out the window, he saw Diaz leave.
Alvaro Hernandez, Rosales's husband, was asleep when the incident began. After Rosales woke him up, he heard a woman screaming outside, and Rosales said, “Get up because they're going to kill him.” When he went to the front door, he saw a woman screaming at Rosales that she was going to kill everyone. He heard Pineda saying, “Leave, leave.” A group of men and women were crossing the street and getting into a car parked on the other side of the street. The threatening woman took off. He saw that Morales was hurt and bleeding a lot.
Alvaro Hernandez gave Morales a shirt to wrap around himself right after the attack. Rosales was on the phone to police.
The recorded 911 call was played for the jury. The recording contains inaudible portions and a few snatches of voices of unspecified speakers. At one point, Rosales reported that “she came with many cholos” and “[a] man stabbed him—” No threats can be heard on the recording.
On September 5, 2009, Rommel Macatangay, a San Jose police officer, was dispatched to a disturbance and arrived at about 2:00 a.m. He was the first to arrive. He saw large quantities of blood in multiple locations, broken glass, and a broken window of an apartment. Morales, who was bleeding heavily, was with family members at the front of the apartment complex's driveway. Officer Macatangay informed dispatch of the medical emergency situation. Morales told the officer that he had been stabbed.
Francis Magalang, a San Jose police officer, was on duty the night of September 5, 2009. He was dispatched to the scene of a reported stabbing. He arrived at about 2:05 a.m. and saw the victim sitting on a curb. His clothes were heavily soaked in blood and he was bleeding heavily. Officer Magalang noticed a trail of blood starting from the doorway of an apartment, going along the driveway, and ending at the curb line where the victim was sitting. Emergency personnel arrived shortly thereafter. The emergency personnel removed the victim's clothing.
Eduardo Sandoval, a Spanish-speaking, certified bilingual San Jose police officer assisted with the investigation of the stabbing incident on September 5, 2009. He first spoke privately with Rosales, the mother of the victim, who was “in complete shock,” “in tears, and terrified.” She was fearful for her life and the lives of family members. Officer Sandoval spoke privately with Pineda. She also appeared to be in a state of shock and terrified. The officer briefly spoke separately in private with Alvaro Hernandez and Cesar Hernandez, who were both still shaken up but had not seen the actual stabbing.
Dan Collins, a San Jose police officer, was asked to assist in locating suspects in a stabbing incident and was on the lookout for suspect Diaz, whose description he had been given, and a dark Lincoln Town Car. Officer Collins and San Jose Police Officers Joseph Njoroge and Guy Ezard proceeded to 903 East Julian Street, the address of a Lincoln registered to Diaz and Diaz's last known mailing address. The front door of the corner house located at that address faced East Julian and its garage faced the cross-street.
The officers parked and approached the house at 903 East Julian Street on foot at about 3:30 a.m. Someone on the porch turned toward the officers and then went down the stairs, and started to run westbound on East Julian Street, away from the officers. Officers Collins and Njoroge pursued, identified themselves as law enforcement, and ordered the person, who appeared to be female, to stop. Officer Njoroge described her as a short, heavy-set female wearing flip-flops. She was trying to run, but it was more of a fast-paced walk. Officer Njoroge testified that she had an unsteady gait and appeared intoxicated.
The fleeing female crossed an intersection and then, about mid-block, she stumbled and fell and the officers caught up with her. At that point, Officer Collins observed that she was a Hispanic female who matched the description of suspect Diaz, who had been described as a short Hispanic female, approximately 200 pounds. After being asked her name in Spanish, the woman identified herself as “Dora Diaz.” She was wearing dark jeans.
Officer Collins could not recall whether Diaz had smelled of alcohol and he did not conduct a field sobriety test. Officer Njoroge testified that he smelled alcohol on Diaz, her speech was slurred, she had “red bloodshot watery eyes” and she appeared heavily intoxicated. But Officer Njoroge acknowledged at trial that Diaz had been responsive to police commands and questions. Officers Collins and Njoroge each identified defendant Diaz at trial as the female who had tried to flee.
As the officers were attempting to obtain more information from Diaz, a dark Lincoln Town Car drove past them eastboundon East Julian Street, slowing to a near stop against a green light and then turning north onto 19th Street. Officer Collins put out a broadcast regarding the vehicle.
Officer Ezard, who had remained watching the residence at 903 East Julian, saw a male look out the front door, look at him, and close the front door. The officer called for additional officers to set up a “perimeter” of the house. As additional resources were arriving, a dark Lincoln Town Car, which matched the description of the vehicle seen leaving the stabbing incident, pulled up near the residence's garage. Derrick Antonio, a San Jose police officer who arrived about that time, saw the vehicle arriving. Officer Ezard told the driver to stop the vehicle.
Officer Antonio ordered the occupants, a Hispanic male driver and a Hispanic female passenger, to get out of the car. He ordered the male to the ground. The male had numerous tattoos, including a star tattoo on his face. Officer Njoroge described the female as a 15 or 16 year old who was intoxicated. When Officer Njoroge examined the interior of the vehicle, he noticed what appeared to be blood in the back passenger compartment. When Officer Ezard looked inside the car after the occupants had been removed, he saw some blood smear stains on the rear, passenger-side door.
Jason Cook, a San Jose police officer who was assisting with the investigation, was reassigned to a perimeter position to secure 903 Julian Street, which was in the “JSP” or “Julian Street Posse” gang area. Officers Cook and Antonio assisted in the search of the residence. All areas of the home were being used as sleeping quarters. The living room had two bunk beds and was messy. Approximately eight individuals were inside the house.
Officer Cook first spoke with a 38–year–old male, Gerardo Sosa. The officer also spoke to L.S., one of his two teenage sons who were present. L.S. was approximately 17 years old and he had no immediately visible tattoos. The other son, Guillermo Rodriguez, an 18–year–old Hispanic male, had “SJ” tattooed on his left arm and “ES” tattooed on his right arm. Rodriguez was wearing a red belt with a buckle with the letter “S” on it and another buckle with the letter “J” on it. Officer Antonio spoke with Rodriguez. Inside the residence, Officer Antonio found a cell phone with photographs of Rodriguez. The cell phone's screen said “VBW.”
Joseph Kalsbeek, a San Jose police officer assigned to process evidence and take photographs, went to the residence at 903 East Julian on the corner of 19th. He confirmed that the photographs taken accurately depicted what he had seen. A number of photographs showed the suspect Lincoln sedan that had parked at that location. The officer saw blood inside the vehicle on the rear passenger door, seat, and door handle and on the front passenger seat. At trial, Morales identified the vehicle in the photographs as the car from behind which the three men emerged and which left the area after the stabbing. Cesar Hernandez identified the vehicle in the photographs as the car that he saw that night.
A photograph showed the initials “JSP” in very large letters spray painted on the street in front of the house at 903 East Julian Street. Inside the residence, Officer Kalsbeek located some blood on the wall and the light switch near the front door. There was also a blood stain on the inside of the front door of the house and on the carpet or cement.
Officer Kalsbeek was directed to bloody clothing and shoes under a bottom bunk in the living room area, which other officers had discovered. He photographed a white T-shirt with some red design and lettering, white Nike shoes, and a tan Dickies shirt.
Officer Kalsbeek returned to the stabbing scene at the apartment complex and took photographs documenting it. A number of the apartment units, including apartment one which was closest to the street, opened onto a driveway. There was a broken window next to the front door of apartment one and a large amount of blood on the ground in front of that apartment. There was some bloody clothing, which had holes consistent with puncture wounds, in front of apartment one. A blood trail led westbound on the driveway in front of apartments two and three. There was blood on the wall and door of apartment three and a trail of blood going from apartment three to a fence across the driveway facing the apartment. There was blood at the base of the fence and on the fence itself. The officer noticed shoe patterns in the blood. A bloody cell phone, in several pieces, was found at the scene. On cross-examination, Officer Kalsbeek acknowledged that he had been unable to match the shoe tread of Diaz's shoes to any shoe pattern in the blood.
At some point, Officer Kalsbeek received and photographed Diaz's jeans, which had blood stains on the left upper thigh and the left rear pocket. He also received a cell phone that had a red shark logo as wallpaper.
The following items of evidence that had been collected were submitted to the Santa Clara County Crime Lab for DNA analysis: victim Morales's clothing, Diaz's shoes and clothing, and the white T-shirt, the tan Dickies brand shirt, and the Nike Cortez shoes found under the bed at 903 East Julian. A blood sample was taken from defendant Diaz and a cheek swab was taken from Morales for DNA analysis. Ashley Elliott, a DNA analyst from the Santa Clara County Crime Lab, did a preliminary screening on all the evidence. Both defendant Diaz's shoes and her jeans reacted positively to the presumptive test for blood. The white T-shirt, the tan Dickies shirt, and the white Nike shoes from under the bed produced a presumptive positive for blood. Cuttings were taken from each item for further DNA analysis.
Cathleen Trowbridge, a criminologist at the Santa Clara County Crime Lab, testified as an expert in DNA analysis. She tested items received from Ashley Elliott. Two cuttings from Diaz's clothing produced DNA from a single source, Morales. A swab from Diaz's shoes produced a mixture of DNA from at least four individuals, including Morales and Diaz. The three cuttings taken from clothing found under the bed and swabs from the shoes found under the bed produced DNA from a single source, Morales.
The emergency room physician at the Regional Medical Center diagnosed Morales with multiple stab wounds, two to the left mid-forearm, two to the right mid-chest, and two to the lower back. He was also diagnosed with traumatic right hemathorax (blood in the lungs), liver laceration, and right pulmonary contusion. He suffered acute blood loss resulting in anemia. His treatment required a blood transfusion, a chest tube to drain blood from the lung, and suturing. In addition, Morales had lacerations and soft tissue contusions to the left arm and lacerations to the right back and flank. His injuries were considered life threatening and he was admitted to the intensive care unit.
Roughly two or three hours later after Officer Magalang had responded to the scene, the officer spoke with Morales at the hospital for five to 10 minutes. Morales's wounds were dressed and bandaged. He was heavily medicated and very groggy.The officer spoke in English and the victim answered in broken English.
Francisco Hernandez, a city of San Jose police officer, spoke Spanish and was a certified bilingual officer. On September 8, 2009, Officer Hernandez spoke with Rosales for about 10 minutes. Rosales reported that Diaz had said, “I hope you die from this. If you don't, you will next time” and “Die, die, die.” She said that Diaz had been dating her son.
Sometime after his discharge, Morales returned to the hospital for the removal of stitches and staples. He took pain medication for about a month and a half. At the time of trial, he was still experiencing numbness in his right, middle chest and was not able to fully extend his fingers. He still did not have his usual hand strength. He still had scars.
Morales acknowledged that he had asked the prosecutor to drop charges against Diaz when he came into court in November 2009. Morales told the prosecutor that Diaz did not hurt him. At trial, Morales explained that he had spoke out of fear and was afraid that some of Diaz's relatives might go to his house where children were present and hurt someone.
Morales spoke with private investigator Claudia Silva in November 2009 and he then said that Diaz had nothing to do with the assault on him. At trial, Morales explained that he had spoken out of fear because he did not want anything to happen to his family. The next day, Morales went to speak to investigator Silva again and told her that he was retracting what he had said the previous day and that Diaz did in fact assault him.
Morales spoke with Sergeant Alfonso sometime after speaking with the prosecutor. Morales then said that Diaz did not break the window. Morales remembered that, during the same conversation, he told the sergeant that Diaz was not one of people who stabbed him and he indicated that another person had stabbed him and defense counsel had “used the name Bonilla in talking about that person.” At trial, Morales testified that the person that had actually stabbed him looked like Diaz's son L.S.
Morales was afraid of Diaz at the time of the attack and was still afraid of her at the time of trial. He was scared that people would be looking for him and he was worried for his family and did not want anything to happen to his mother's children. Since the incident, he had continued to feel nervous and traumatized and he said that he fearfully looked around every time he went out and was not sleeping as well as he used to. Rosales testified that she is still afraid whenever she goes out. Pineda was also still afraid at the time of trial.
At trial, Morales testified that he was not a gang member, he did not have friends who were gang members, and he did not hang around people who were gang members. He hung out with people who were from Guatemala like him and spent most of his time with his family. He had never before had any sort of problems with the group that attacked him.
Morales acknowledged that he knew Diaz was married when he began dating her. He admitted that he had been very much in love with Diaz and had her name tattooed over his heart about six months before the incident. Morales had other tattoos in addition to the “Dora” tattoo. Those included tattoos of his father's name, a bird, a rose, a cross, and a virgin. He also had a tattoo of the Spanish word for “love,” a letter on each finger. He obtained all the tattoos, except the “Dora” tattoo, while in Guatemala prior to dating Diaz.
Anthony Alfonso, a San Jose police officer, was a detective with the family violenceunit of the police department during September 2009. He had previously worked for three years as a detective in the gang investigation unit investigating all crimes committed by Nortenos. At the time of trial, he was a patrol supervisor. Detective Alfonso testified as an expert regarding gangs, gang activity and gang investigation.
Detective Alfonso had spoken with Morales, through a Spanish-speaking detective, four or five times after the incident. He first spoke with Morales at Morales's home on September 9, 2009. They spoke for a couple of hours. In Detective Alfonso's opinion, none of Morales's tattoos were gang tattoos.
Detective Alfonso explained that the general purpose of a gang is to commit crimes, to intimidate and control their neighborhood, and use violence to enhance the gang's reputation. If an assailant calls out the name of a gang during an assault, the information that a gang is responsible spreads quickly to the streets and bolsters the gang's reputation and an individual gang member's status. Groups of gang members may attack members of other gangs or individuals who are not gang members but live in their neighborhood in order to control the neighborhood.
According to the detective, Nortenos claim northern California and San Jose is consider a Norteno City. Norteno gangs associate with the color red and the letter “N” and the number “14” because “N” is the fourteenth letter of the alphabet. They use the Spanish word for 14, “catorce,” four dots, “anything with San Jose or ‘San Ho’ ” or the San Jose Sharks, the northern star or anything associated with north, or the “408” area code. Displaying a gang's colors or symbols shows allegiance to and pride and membership in the gang and the display is used to intimidate others.
Gang members may be identified by self admission, tattoos, clothing, or other gang members. Norteno tattoos could include, for example, the Spanish word for north, “norte,” the “408” area code, a San Jose zip code, a red Sharks fin, or a star.
Respect is very important in gang culture. A gang member will typically have to react with violence to maintain status if he is disrespected by a rival gang member.
Specific neighborhood Norteno gangs come under the umbrella of the Nortenos. Sometimes San Jose gang members will be connected to, and will tattoo themselves with, a reference to a geographic location within the city, such as “NSSJ” (“North Side San Jose”) or “ESSJ” (“East Side San Jose”). Sometimes a gang will take the name of a street or an apartment. “JSP” stands for Julian Street Posse, which started as a tagging crew in 2000 and evolved into a Norteno criminal street gang.
When someone yells out “puro norte” or “puro catorce” while committing violence, the victims and witnesses will know that Nortenos are responsible. That information enhances the reputation of the gang and the members involved and also serves as a warning to those who might want to cooperate with police.
Detective Alfonso was familiar with the star tattoo visible in the photograph of the Hispanic male driver of the Lincoln He explained that “the star or the northern star can be associated to Norteno, along with other things.” In his opinion, a person with a star tattoo, a four dots tattoo, a 408 tattoo, and a San Jose Sharks tattoo would be a Norteno gang member. He confirmed that red clothing may signify gang membership or affiliation, depending upon the totality of circumstances. A red Sharks logo on a person's cell phone may also identify the person as Norteno, dependingupon the totality of circumstances for that individual.
Based on information received from other officers, Detective Alfonso believed that the house at 903 East Julian Street was a Norteno hangout. The discovery of clothing with red lettering in that residence would reinforce that opinion.
When asked about Rodriguez's tattoos, belt and belt buckles, Detective Alfonso explained that “ESSJ” stood for “East Side San Jose” and indicated Norteno gang membership. He said a red belt was common and indicated that the buckles' “S” and “J” stood for San Jose, which is deemed a Norteno city. When asked about the cell phone displaying “VBW,” the detective stated that the initials stood for “Varrio Bloody Waters,” which was a tagging crew aligned with the Nortenos but not yet a criminal street gang.
In the opinion of Detective Alfonso, L.S. was a gang member. His belief was based on L.S.'s tattoos and admissions. L.S. had “NSSJ,” which stands for “North Side San Jose,” tattooed on his knuckles. L.S. had the number 14 tattooed on his hand. L.S. had admitted to being a member of the Julian Street Posse during at least four police contacts. When L.S. was arrested for a probation violation about a month after the stabbing incident and he had a knife in his possession, L.S. told officers that the knife was for protection against rival gang members.
Even though L.S. is Diaz's son, there were insufficient indicia for Detective Alfonso to conclude that Diaz was a gang member. He agreed that Diaz's husband was not a gang member. He acknowledged that it is quite common for gang members to live with other family members who are not affiliated with the gang.
The detective agreed that gang members are known to carry weapons. Gang members must have their weapons readily available since they do not know when they will be needed given “the very nature of what they do and their violent lifestyle and the rivalries....” Some gang members carry weapons at all times while others hide them nearby. A knife is the most common weapon for gang members because it is extremely easy to get, it is easy to use, and easily concealed. B. The Defense Case
The defense presented no evidence.
See footnote *, ante.
4. Failure to Instruct Jury to Consider Defendant's Oral Statements with Caution
Defendant asserts that the trial court erred by failing to instruct sua sponte that the jury must consider her extrajudicial, oral statements with caution, as explained by the standard CALCRIM No. 358. When warranted by the evidence, a trial court must give a cautionary instruction regarding a defendant's oral admissions sua sponte. (See People v. Carpenter (1997) 15 Cal.4th 312, 392, 63 Cal.Rptr.2d 1, 935 P.2d 708, abrogated by Proposition 115 on other points as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106–1107, 77 Cal.Rptr.3d 287, 183 P.3d 1250.) The bench notes for CALCRIM No. 358 presently observe that People v. Zichko (2004) 118 Cal.App.4th 1055, 1057, 13 Cal.Rptr.3d 509 holds that a court has no sua sponte duty to give such a cautionary instruction in a criminal threats case. (Bench Notes to CALCRIM No. 358 (2012 ed.), p. 134.)
Defendant states that “[e]ven if the words of a threat are not, legally speaking, an admission, it does not follow that there is no need for jurors to consider with caution a statement that is alleged to constitute a criminal threat.” She points to People v. Carpenter, supra, 15 Cal.4th 312, 63 Cal.Rptr.2d 1, 935 P.2d 708 and suggests that Zichko may have been wrongly decided.
In Carpenter, during an attempted rape and the killing of a victim, the defendant said to the victim, “I want to rape you.” ( Id. at p. 345, 63 Cal.Rptr.2d 1, 935 P.2d 708.) Although the Supreme Court recognized that the defendant's statement was “part of the crime itself,” the court concluded that the trial court should have given the cautionary instruction as to that statement. ( Id. at pp. 392–393, 63 Cal.Rptr.2d 1, 935 P.2d 708.) It explained: “The rationale behind the cautionary instruction suggests it applies broadly. ‘The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.’ ( People v. Beagle [ (1972) 6 Cal.3d 441,] 456 [99 Cal.Rptr. 313, 492 P.2d 1].) This purpose would apply to any oral statement of the defendant, whether made before, during, or after the crime.” ( Ibid.)
In Zichko, the defendant made a criminal threat in connection with demanding to withdraw money from a bank but he was found not guilty by reason of insanity. ( People v. Zichko, supra, 118 Cal.App.4th at pp. 1057–1058, 13 Cal.Rptr.3d 509.) The court held that the cautionary instruction regarding oral admissions “is not to be given when defendant's words constitute the crime itself.” ( Id. at p. 1057, 13 Cal.Rptr.3d 509, fn. omitted.) The court's reason was that Zichko's statements “constituted the crime [of criminal threats], not admissions of the crime.” ( Id. at p. 1059, 13 Cal.Rptr.3d 509.) The Zichko court concluded that People v. Carpenter, supra, 15 Cal.4th 312, 63 Cal.Rptr.2d 1, 935 P.2d 708 was “inapposite” to the case because defendant Carpenter's statement, “I want to rape you,” was “not the criminal act of attempted rape.” ( Id. at p. 1059, 13 Cal.Rptr.3d 509)
Zichko 's reasoning is not convincing. An admission has been described as a defendant's “recital of facts tending to establish guilt when considered with the remaining evidence in the case. [Citations.]” ( People v. McClary (1977) 20 Cal.3d 218, 230, 142 Cal.Rptr. 163, 571 P.2d 620, disapproved on another ground in People v. Cahill (1993) 5 Cal.4th 478, 510, fn. 17, 20 Cal.Rptr.2d 582, 853 P.2d 1037.) But the Supreme Court in Carpenter indicated that the cautionary instruction applied to all oral, out of court statements made by a defendant and did not restrict its application to only oral statements that admit or acknowledge a fact. In Carpenter, the Supreme Court mentioned People v. Ford (1964) 60 Cal.2d 772, 780–784, 799, 36 Cal.Rptr. 620, 388 P.2d 892, in which it had found that the trial court “should have given the cautionary instruction regarding evidence of defendant's statements during the entire course of the events surrounding the crime, including some just before and some just after the fatal shooting.” ( People v. Carpenter, supra, 15 Cal.4th at p. 392, 63 Cal.Rptr.2d 1, 935 P.2d 708.) In fact, CALCRIM No. 358 refers to evidence of a defendant's statements and never uses the term “admission.” The Supreme Court has more recently stated: “We have long recognized that this cautionary instruction is sufficiently broad to cover all of a defendant's out-of-court statements. [Citations.]” ( People v. Clark (2011) 52 Cal.4th 856, 957, 131 Cal.Rptr.3d 225, 261 P.3d 243.)
Similarly, CALJIC Nos. 2.70 and 2.71 (Fall 2011 ed.) at pages 112 and 114 broadly define an “admission” for purposes of those cautionary instructions as “a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence.”
Zichko seems to have created a false dichotomy between a statement that constitutes a crime and a statement that is evidence of a crime. In Zichko, the evidence of the defendant's statements in the bank were direct evidence of the fact of those statements, an element of the criminal threats offense, whereas, in Carpenter, the defendant's statement to the victim was direct evidence of his state of mind, also an element of the crime of attempted rape. We discern no real legal distinction between a statement that is “the crime itself” ( People v. Zichko, supra, 118 Cal.App.4th at p. 1059, 13 Cal.Rptr.3d 509) and a statement that is “part of the crime itself” ( People v. Carpenter, supra, 15 Cal.4th at pp. 392–393, 63 Cal.Rptr.2d 1, 935 P.2d 708).
“In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,’ (2) that the defendant made the threat ‘with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the threat—which may be ‘made verbally, in writing, or by means of an electronic communication device’—was ‘on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family's safety,’ and (5) that the threatened person's fear was ‘reasonabl[e]’ under the circumstances. [Citation.]” ( People v. Toledo (2001) 26 Cal.4th 221, 227–228, 109 Cal.Rptr.2d 315, 26 P.3d 1051.)
“The crime of attempted rape has two elements: (1) the specific intent to commit the crime of rape and (2) a direct, although ineffectual, act toward its commission. (§ 21a; People v. Rundle (2008) 43 Cal.4th 76, 138 [74 Cal.Rptr.3d 454, 180 P.3d 224];People v. Carpenter (1997) 15 Cal.4th 312, 387 [63 Cal.Rptr.2d 1, 935 P.2d 708].) A defendant's specific intent to commit rape may be inferred from the facts and circumstances shown by the evidence. ( People v. Guerra (2006) 37 Cal.4th 1067 [40 Cal.Rptr.3d 118, 129 P.3d 321].)” ( People v. Clark (2011) 52 Cal.4th 856, 948, 131 Cal.Rptr.3d 225, 261 P.3d 243.)
Ordinarily, a crime requires both an act and a culpable mental state. (See § 20 [“In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence”]; People v. Anderson (2011) 51 Cal.4th 989, 994, 125 Cal.Rptr.3d 408, 252 P.3d 968.) In general, a crime may be proved by direct or circumstantial evidence, or a combination of both. (See People v. Calhoun (1958) 50 Cal.2d 137, 144, 323 P.2d 427 [“It is settled that a conspiracy may be established by direct evidence or circumstantial evidence, or a combination of both”]; People v. Reed (1952) 38 Cal.2d 423, 431, 240 P.2d 590 [“Circumstantial evidence is as adequate to convict as direct evidence. [Citations.]”]; see also CALCRIM No. 223; Evid.Code, §§ 140, 210, 410, 600, subd. (b); Law Revision Com. com., 29B Pt. 1A West's Ann. Evid.Code (2011 ed.) foll. § 210, p. 41.) Evidence of a defendant's statement might be direct evidence of a crime, circumstantial evidence of a crime, or both.
Accordingly, we assume for purposes of this appeal that Carpenter did require the court to give a cautionary instruction with respect to defendant Diaz's extrajudicial oral statements and the court's failure to instruct sua sponte was error. “We apply the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given. ( People v. Stankewitz (1990) 51 Cal.3d 72, 94 [270 Cal.Rptr. 817, 793 P.2d 23];People v. Beagle, supra, 6 Cal.3d at p. 456 [99 Cal.Rptr. 313, 492 P.2d 1].) ... Mere instructional error under state law regarding how the jury should consider evidence does not violate the United States Constitution. ( Estelle v. McGuire (1991) 502 U.S. 62, 71–75 [112 S.Ct. 475, 481–484, 116 L.Ed.2d 385].) Failure to give the cautionary instruction is not one of the ‘ “very narrow[ ]” ’ categories of error that make the trial fundamentally unfair. ( Id. at p. 73 .)” ( People v. Carpenter, supra, 15 Cal.4th at p. 393, 63 Cal.Rptr.2d 1, 935 P.2d 708.)
In this case, the evidence of defendant Diaz's threatening statements made immediately following the stabbing were both direct and circumstantial evidence. The evidence of those oral statements was direct evidence that the statements were made and circumstantial evidence of Diaz's intent and state of mind. Defendant contends that the lack of a cautionary instruction “encouraged the jury to regard as credible the allegations that [she] threatened” Morales, Rosales and Pineda and this omission was prejudicial error since the alleged victims' testimony was the only evidence of the threats. She also argues that the instructional error was prejudicial because her “statements were important to establishing ... intent to kill—particularly her alleged statement that [Morales] would either die this time or another time.”
Based upon the record before us, we conclude that any error in failing to give a cautionary instruction with respect to the evidence of defendant's statements was harmless. The court thoroughly instructed the jury regarding the presumption of innocence, the prosecutor's burden of proof, evaluation of witness credibility, and reliance on circumstantial evidence. The jury could reasonably infer from the evidence that Diaz orchestrated the attack upon Morales. Pineda heard Diaz tell Morales as he was being dragged outside by the hair, “I'm going to kill you son of a bitch.” A different witness heard Diaz angrily yell that “she wasn't garbage that she could be left so easily.” Morales, Rosales and Pineda each heard Diaz tell Morales something to the effect that if he did not die, he would die the next time. Rosales told an officer essentially the same thing a few days after the incident. The evidence was consistent that Diaz was speaking threateningly after the stabbing even though each person present apparently did not hear or recall at trial everything Diaz said. Defendant Diaz failed to establish that any threatening statements that she made after the stabbing would necessarily have been captured in the recording of the 911 call. Consequently, their absence from the recording has little, if any, probative value with respect to whether the threats were actually made. There is no reasonable probability that the jury would have reached a result more favorable to defendant had the cautionary instruction been given.
With regard to credibility, the court instructed in part: “Consider the testimony of each witness and decide how much of it you believe. In evaluating a witness' testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are how well ... could the witness see, hear or otherwise perceive the things about which the witness testified? [¶] How well was the witness able to remember what happened? What was the witness' behavior while testifying? Did the witness understand the questions and answer them directly? Was the witness' testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case or a personal interest in how the case is decided?”
As to reliance on circumstantial evidence, the jury was instructed: “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also before you may rely on circumstantial evidence to prove the defendant guilty, you must be convinced the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.” The jury was also told: “An intent may be proved by circumstantial evidence. Before you may rely on circumstantial evidence to conclude that a fact necessary to prove the defendant guilty has been proved, you must be convinced the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also before you may rely on circumstantial evidence to conclude that the defendant had the required intent, you must be convinced the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have a required intent and the other reasonable conclusion supports a finding that the defendant did not; you must conclude that the required intent was not proved by the circumstantial evidence.”
See footnote *, ante.
The judgment is affirmed.