People v. Pinedo CA2/6 ( 2021 )

Filed 4/21/21 P. v. Pinedo CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B300596
(Super. Ct. No. 17F-10453)
Plaintiff and Respondent, (San Luis Obispo County)
v.
JIM PINEDO,
Defendant and Appellant.
Jim Pinedo appeals the judgment entered after a jury
convicted him of attempted second degree murder (Pen. Code,1 §§
187, subd. (a), 664; count 1), assault with a firearm (§ 245, subd.
(a)(2); count 2), three counts of inflicting corporal injury on a
spouse or partner (§ 273.5, subd. (a); counts 3, 8, and 12),
threatening a witness (§ 140, subd. (a); count 4), dissuading a
witness (§ 136.1, subd. (b)(2); count 5), false imprisonment (§ 236;
count 9), simple assault (§ 240; count 11), and battery (§ 243,
All statutory references are to the Penal Code unless
1
otherwise stated.
subd. (e)(1); count 13). The jury further found that in committing
the attempted murder appellant intentionally discharged a
firearm causing great bodily injury (§ 12022.53, subds. (b)-(d)),
and that in committing counts 2 through 5 he personally used a
firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily
injury (§ 12022.7, subd. (e)). Appellant also pleaded no contest to
unlawful possession of a firearm (§ 29800, subd. (a)(1); count 6),
violating a domestic relations order (§ 273.6, subd. (a); count 7),
infliction of corporal injury on a spouse or partner (§ 273.5, subd.
(a); count 10), and making criminal threats (§ 422, subd. (a);
count 14). The trial court sentenced him to an aggregate term of
39 years to life in state prison.
Appellant contends the trial court erred in denying his
motion for a mistrial alleging spectator misconduct. He also
raises claims of evidentiary error, prosecutorial misconduct, and
cumulative error. We affirm.
STATEMENT OF FACTS
I.
Uncharged Prior Acts of Domestic Violence
Appellant and D.C. began dating in 2010. Around July
2016, appellant slapped D.C. in the face after she called his
former girlfriend C.M. a “bitch.” On another occasion, appellant
tied D.C.’s hand to a broom stick, turned on a torch, and set it
next to the mattress on which she was lying.
In December 2014, appellant choked C.M. after discovering
that she was dating someone else. C.M. reported the assault to
the police, but delayed doing so because she was afraid of
appellant.
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II.
July 2016 assault (count 11)
Around July 8, 2016, appellant got into an argument with
D.C. about her clothing. When D.C. tried to leave, appellant held
a knife to her throat and accused her of having something to do
with the recent death of his brother.
III.
June 2017 Infliction of Corporal Injury (count 12)
Around June 8, 2017, appellant punched D.C. in the temple
during an argument in her bedroom. Patricia Lomeli was
sleeping in an adjacent bedroom and was awakened by D.C.’s
scream. Lomeli got up and knocked on the locked door to D.C.’s
bedroom. Appellant hit D.C. again and told her to be quiet. D.C.
told Lomeli that she was fine, but Lomeli asked her to open the
door.
Daniel Monahan, who lived with D.C., heard her muffled
screams. Monahan then heard Lomeli knocking on D.C.’s
bedroom door and telling D.C. to open the door. Lomeli
subsequently pried the door open with a butter knife and told
appellant to leave, but he declined to do so. Monahan entered the
bedroom, told appellant to leave, and said he should fight him
rather than fighting with a woman. Appellant ran out of the
room and Monahan chased him out of the house to make sure he
did not return.
D.C. had a black eye, scratches or bruises around her
mouth, and a lump on her forehead. She appeared to be in pain
and was scared and shaking. On several prior occasions,
Monahan had noticed bruising on D.C.’s chest, neck, and arms.
3
IV.
Battery and Criminal Threats (counts 13 & 14)
Sometime between May and July of 2017, appellant drove
D.C. to the residential property where he lived with his mother
Maria and his sister Melissa Mendia. As they were driving,
appellant grabbed D.C. by the back of her head and pulled her
down to his lap. Appellant walked D.C. around his property and
told her he had dug a hole on the property and was going to bury
her in it. As they walked toward the residence, appellant struck
D.C. on the back of her head.
V.
June 21, 2017 Infliction of Corporal Injury and False
Imprisonment (counts 8 & 9)
On June 21, 2017, D.C. rented a room at a motel in Paso
Robles. She decorated the room with rose petals because she
wanted the occasion to be romantic. When appellant arrived, he
became upset about the rose petals and began arguing with D.C.
He looked through her cellphone, saw something that made him
angry, and began questioning and hitting D.C. She was initially
afraid to leave but eventually was able to get away from
appellant.
VI.
June 24, 2017 Infliction of Corporal Injury (count 10)
On the afternoon of June 24, 2017, D.C. called 911 and
asked for help in a whispering voice. Appellant could be heard in
background arguing with D.C., who asked appellant to stop the
truck and let her go. During the call, San Luis Obispo County
Deputy Sheriff Gregory Smith and his partner were able to locate
appellant’s truck and conducted a traffic stop. D.C. had large
bruises on her biceps, scratch marks on her left elbow, and dirt
4
all over her pants and arms. She appeared extremely frightened
and refused to answer Deputy Smith’s questions. D.C. eventually
agreed to talk after the deputy repeatedly assured her that she
did not have to be afraid because he and his partner were there to
help her.
D.C. told Deputy Smith that she had an argument with
appellant and was able to get out of the truck. Appellant also got
out and punched her, causing her to fall to the ground, then
dragged her about 20 feet back to the truck. D.C. eventually got
back into the truck because appellant had her cellphone and she
did not want to get stranded. Once she was back in the truck,
she surreptitiously called 911 and left the line open.
Appellant was arrested and charged in case number 17F-
06436 with inflicting corporal injury in violation of section 273.5,
subdivision (a). That same day, he was served with a domestic
violence protective order (DVPO) prohibiting him from having
any contact with D.C. and requiring him to stay at least 50 yards
away from her. He was subsequently released on bail.
Appellant bragged about the incident to his friend Clint
Anderson and told D.C. to lie about it to the police. Anderson
advised D.C. to leave appellant, but she said she could not do so
because she loved him. D.C. also said she would do anything to
defend appellant and wanted to be with him for the rest of her
life.
VII.
Attempted Murder and Related Offenses (Counts 1-7)
On the morning of October 2, 2017, appellant attended a
court appearance in case number 17F-06436. Later that
morning, D.C. walked into Twin Cities Community Hospital
alone with a gunshot wound to her neck. She told a nurse she
5
had been shot while sitting in a car in Paso Robles. She did not
identify the shooter but denied that her wound was self-inflicted.
At 11:30 a.m., Deputy John Blank responded to the
hospital and saw D.C. being treated in the trauma unit. By that
point, she was unresponsive and could not be interviewed.
Witnesses told Deputy Blank that D.C. was with a Hispanic man
in his 40’s when she arrived at the hospital. Surveillance video
from the hospital showed D.C. near the ambulance bay at around
11:06 a.m., then entering the front door of the emergency room
shortly thereafter. Around the same time, a gold SUV could be
seen driving by the front door of the emergency room.
Later that day, D.C. was transported to another hospital
for treatment. She was intubated and remained in a coma for 10
days. The bullet in her neck, which consisted of multiple
fragments, was never removed from her body.
Appellant owned and drove a gold Nissan SUV. D.C.’s
blood was subsequently found on the vehicle’s front passenger
seat, and her purse, shoes, and work name tag were inside the
vehicle.
a. D.C.’s Statements and Conduct After the Shooting
On October 12, 2017, San Luis Obispo Sheriff’s Detective
Jason Hall interviewed D.C. at the hospital. A recording of the
interview was played for the jury at trial. D.C. told Detective
Hall that on the morning of October 2, appellant and another
man drove her to the courthouse where appellant had an
appearance in case number 17F-06436. D.C. spoke to appellant’s
attorney and said she was going to recant her statements that
appellant had assaulted her. After appellant’s hearing, he and
D.C. returned to appellant’s residence and went to a shed on the
property where they often spent time together. Appellant was
6
angry with D.C. because he thought she had not done enough to
recant her accusations against him. As D.C. was sitting on a
couch in the shed, she heard a gunshot and ringing. She looked
over and saw appellant pointing a rifle at her from approximately
six feet away. Appellant fired the gun again and hit D.C. in the
neck. D.C. never told the detective that she shot herself or had
attempted to do so.
D.C. was released from the hospital on October 15. On
October 17, D.C. had a Facebook Messenger conversation with
her friend Anissa Gutierrez. D.C. told Gutierrez, “I got shot by
the guy I was seeing.” When asked where appellant had shot
her, D.C. replied, “He shot me at his house [in] my neck.” In
another conversation that same day, D.C. stated “I thought for
sure I was done for when he shot me.” She went on to state that
appellant “has me so fucked up in the head” and that “[h]e really
fucked me up.”
On October 18, appellant had a Facebook Messenger
conversation with Juan Hernandez. Hernandez asked D.C.,
“[W]hat the hell were you doing? He had whooped you before and
you still went back.” D.C. replied, “I know. I was stupid.” D.C.
later stated “I got shot” by “a guy I was seeing” because “[h]e’s
crazy.” In another Facebook Messenger conversation that same
day with Beverly Burch, appellant said, “I remember everything.”
On October 20, Detective Devashish Menghrajani came
into contact with D.C. during a search of the property where
appellant lived. D.C. told Detective Menghrajani that on the day
of the shooting she was sitting on the couch in the shed while
appellant was standing up. The next thing she recalled was
walking out of the shed while bleeding from her neck. Appellant
then took her to the hospital in a gold SUV. D.C. denied that she
7
had attempted to commit suicide and said she would never do so
and that her mother would know this. She never told the
detective she was attempting to shoot herself or that the gun
accidentally fired when appellant tried to grab it from her. She
told the detective that she still often pictured appellant holding
the gun with which she was shot, but then tried to retract the
statement. Detective Menghrajani got the impression that D.C.
was not telling him everything.
When D.C. spoke with Detective Hall again later that same
day, she admitted that she lied when she told Detective
Menghrajani she did not remember what had happened and that
what she had previously told Detective Hall during her October
12 interview was truthful. She lied to Detective Menghrajani
because she still loved appellant and wanted to protect him. She
characterized it has a “sick kind of love,” acknowledged that
appellant had a lot of control over her, and said she wished she
could hate him and stop thinking about him.
On October 25, D.C. met with San Luis Obispo County
District Attorney Investigator Rosalba Denny. D.C. told Denny
that just prior to the shooting, appellant had been upset with her
because he believed she had not done enough to recant her
accusations against him. She mentioned that appellant had a
rifle and fired two shots, the second of which hit her. She said
she kept going back to appellant because she loved him and
asked, “How do you love someone who doesn’t love you back?
Because, I mean, he shot me?” That same day, D.C. stated in a
Facebook message that “[m]y heart hurts from having to face the
realization that this guy who I love so much thought of me as
nothing.”
8
On November 1, D.C. had a Facebook Messenger
conversation with Dawn Holloway. Holloway asked if D.C. was
okay and D.C. replied “[y]es, as good as I can be. He almost
killed me. I was in a coma for two weeks.” In a November 11
Facebook message, D.C. stated that she missed appellant and
added “I am stupid. I know.” She also stated “the[re] was a
domestic violence case and retraining order he broke when he
shot me.” On November 13, D.C. stated in a Facebook Messenger
conversation that she “got shot by the guy [she] was seeing . . .
with a .22 rifle” from eight feet away, that he shot her after she
had gone to court “trying to get him cleared by saying [she] lied,”
and that she “went to see him after he shot [her]” and wanted “to
save him from going to jail.”
On November 16, D.C. attended one of appellant’s pretrial
hearings. Appellant’s sister Melissa Mendia entered the
courtroom, sat next to D.C., and hugged her. At some point, they
left the the courtroom together and Denny saw them speaking
outside. Denny was concerned that Mendia might be trying to
dissuade D.C. from testifying against appellant. Denny
approached D.C. and asked if she could talk to her alone. When
asked how she was feeling about the case, D.C. replied that “it
wasn’t that he shot her but that . . . he pointed the gun at her.”
D.C. then resumed her conversation with Mendia.
On November 27, D.C. stated in a Facebook Messenger
conversation “I’m in love with the person who shot me.” In a
December 5 Facebook Messenger conversation, D.C. stated “[h]e
shot me in the neck” and added “I’m in love with him [I’m] stupid
but love can’t be turned off with a switch.” When asked how she
could love someone who had tried to kill her, D.C. replied “[l]ook,
all I know is I do.”
9
On December 9, D.C. sent an email to the District
Attorney’s victim advocate stating that she did not feel protected
and was recanting her allegations against appellant and would
not testify against him at his upcoming preliminary hearing.
D.C. sent a similar email to Denny on December 15. When
Denny spoke to D.C. on the phone later that same day, D.C. said
she was spending time with appellant’s family but did not feel
comfortable around them because she did not know their
intentions. In a Facebook Messenger conversation that same
day, D.C. stated “the pain I’m going through is not from the gun.
It’s from family. It’s the whole court issue. It’s being in love with
someone who tried to kill me. Because I do love him and my
heart hurts for him.”
On December 30, Monahan met with D.C. at D.C.’s request.
Monahan asked D.C. if it had “anything to do with the D.A.
investigator trying to get in touch with [him],” and D.C. replied in
the affirmative. D.C., who did not know that Monahan had
already talked to the investigator, told him not to do so and asked
him not to testify against appellant because she still loved
appellant and did not want him to go to prison. D.C. also
expressed concern that if Monahan testified she would be charged
with perjury.
b. Appellant’s Post-Crime Statements and Conduct
Michael Davenport lives on property adjacent to the
property where appellant lived. On the afternoon of the shooting,
Davenport noticed that appellant’s gold SUV was parked on his
property. Davenport contacted appellant’s mother Maria and
asked her to have the vehicle moved, but no one did so. About a
week later, Davenport removed the vehicle from his property
with a forklift and placed it on the street. On October 9, the
10
vehicle was deemed abandoned and was towed from the street at
the request of the California Highway Patrol.
On December 27, appellant told Maria and Mendia during
a telephone call from jail that D.C. was “doing her job” and that
he wanted her to stay with them. After D.C. joined the
conversation, appellant said he had sent a messenger with a
letter to Mendia and asked D.C. to talk to Mendia. In another
phone call the following day, appellant proposed to D.C. and she
accepted. Appellant told D.C., who had a recent history of
methamphetamine abuse, that she needed to use drugs one more
time and told her to tell everyone she had done so. During the
same call, appellant told Mendia that D.C. “needs to go dirty.”
During a December 29 phone call, appellant told Mendia
she was not doing enough to help him and told her to talk to
“Chicotorrin” and “do whatever it takes.” Chicotorrin is the
nickname of Imeldo Mercado, who lived on the the same property
as appellant, Maria, and Mendia. Appellant told Mendia she
needed to talk to Mercado because law enforcement was going to
contact him and told D.C. to “go over there.” During a January 2,
2018 phone call, appellant told Mendia to tell Mercado “all he
[had] to say” was that appellant was not at the property when the
shooting occurred and that he had not heard any gunshots that
day.
c. D.C.’s Preliminary Hearing Testimony
At the preliminary hearing, D.C. testified she that she had
come to the courthouse with Maria and Mendia, that she did not
want to testify, and that she was recanting her statements
against appellant. In response to the prosecutor’s questions, D.C.
answered “I don’t know” or “I don’t remember.” Under
questioning by defense counsel, D.C. testified that on the day of
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the shooting appellant told her he was going to end their
relationship because he had discovered she was using
methamphetamine. D.C. claimed that she picked up a rifle to
shoot herself and told appellant she was going to do so, and that
the rifle accidentally fired when appellant tried to pull it away
from her. According to D.C., she lied to the police about the
circumstances of the shooting because she was angry that
appellant had simply dropped her off at the hospital and was not
there when she awoke from her coma. She also claimed that she
had lied about the prior incident of domestic violence for which
appellant had been charged in case number 17F-06436. On
redirect, she admitted that she never told the police she had tried
to kill herself and also acknowledged her prior statements to
Detective Hall.
VIII.
Expert Testimony
Dr. Joye Carter, a forensic pathologist with the coroner’s
division of the San Luis Obispo Sheriff’s Department, opined
among other things that D.C.’s injuries were consistent with D.C.
being upright and the gun being held above her neck when she
was shot.
Richard Ferry, a marriage and family therapist, offered
expert testimony on domestic violence and intimate partner
battering. Among other things, Ferry testified that victims of
domestic violence often recant their accusations in an effort to
protect their abuser.
12
DISCUSSION
Mistrial Motion
Appellant contends the trial court erred in denying his
motion for a mistrial based on the spectator misconduct of D.C.,
Mendia, and Maria. We are not persuaded.
“Misconduct on the part of a spectator is a ground for
mistrial if the misconduct is of such a character as to prejudice
the defendant or influence the verdict.” (People v. Lucero (1988)
44 Cal.3d 1006, 1022.) Trial courts exercise broad discretion in
deciding whether spectator misconduct is prejudicial. (Id. at
p. 1024.) The court may deny a motion for mistrial based on
spectator misconduct where it is “satisfied that no injustice has
resulted or will result from the events of which the complaint
ensues.” (People v. Slocum (1975) 52 Cal.App.3d 867, 884.)
Prior to trial, the court told D.C. that she was not
permitted to be in the courtroom during trial and ordered her not
to speak to any witnesses about the case. During trial, the court
admonished the jury not to talk to or allow themselves “to be
addressed by any person with regard to any matter concerned
with the trial.”
One morning during trial, Juror 10 sent the court a note
stating “[w]e would like to make you aware that the ‘victim’ in
this case is invading our space and staring at us, which is quite
intimidating. The ‘sister’? walked by one juror and physically
moved her out of the way.”
After showing the note to the attorneys, the court noted
that during the last recess the prosecutor had expressed her
concern that D.C. was out in the hallway in close proximity to the
jurors and that her attorney had been summoned to court to
13
address the situation. The court also told D.C.’s attorney to tell
her she was not allowed to intimidate or interfere with the jurors.
When Juror 10 was questioned about the note, she said
that some of the jurors were talking in the hallway when they
noticed that D.C. and Maria were staring at them. As the jurors
were leaving the prior Friday, Juror 10 said goodbye to Juror 11
and D.C. and Maria replied “[b]ye, thanks. You too.” Juror 10
mentioned the incident to the bailiff to make sure the court knew
she was not speaking to D.C. or Maria. Juror 10 also stated that
D.C. and Maria had been near the jurors and staring at them
since almost the beginning of trial. Juror 10 also recounted an
incident in which Mendia had walked by Juror 3 and physically
moved her out of the way. Juror 10 assured the court that these
incidents would have no impact on her ability to be a fair and
impartial juror.
The court proceeded to individually question each of the
jurors about the issue. Juror 3 told the court that it was Juror 1
who had been physically moved by Mendia. Juror 3 recounted
that D.C., Mendia, and Maria “had walked close to us” and
characterized the situation as “uncomfortable.” Juror 3 stated
that nothing about the incident would affect her ability to be fair
to both sides in the case, and agreed to follow the court’s
instruction not to allow anything that happened outside the
courtroom to affect her decision.
Juror 1 recounted that D.C. and Maria were “making an
attempt to hover around the jurors” and were talking about and
pointing at them. D.C. also touched Juror 1 while walking past
her, but Juror 1 just moved out of her way. Juror 1 assured the
court that nothing about these behaviors and observations would
affect her ability to be fair and impartial, and that she would not
14
allow anything that happened outside the courtroom to affect her
decision.
Juror 2 recalled an incident in which jurors had “tripp[ed]
over” D.C. and Maria as they were all leaving at the same time.
Juror 4 had not witnessed any situation in the hallway, but had
seen D.C. and Maria in the hallway and it “just kind of felt a
little too close for comfort.” Juror 5 had seen D.C., Maria, and
Mendia in the hallway together and said the jurors tried to move
away from them “because it kind of gets uncomfortable when
they stay right here in front of the jury.” Juror 6 recalled “a lot of
close contact and a lot of staring.” Jurors 7 and 9 had not
observed anything unusual. Juror 8 had not seen any contact
between jurors and witnesses, but noted that appellant’s family
was “hanging around and constantly looking at” the jurors. Juror
11 noted that Juror 10 had told her about the incident in which
D.C. and Maria had said goodbye to her. Juror 12 had observed
D.C. touch a woman’s arm as they were walking toward the
courtroom. Each of the jurors stated that nothing they had heard
or observed outside the courtroom would affect their ability to be
fair and impartial jurors, and that they understood and would
follow the court’s instructions on that issue. All four alternate
jurors made similar statements.
Defense counsel moved for a mistrial, asserting that the
jurors had been exposed to “erroneous information” and an
“improper display” of the relationship between D.C. and
appellant’s family. Counsel argued that notwithstanding each
jurors’ assertions to the contrary, their observations would affect
how they evaluated the prosecution’s upcoming evidence that
appellant’s family was trying to influence D.C. In opposing the
motion, the prosecutor rejected the assertion that the jurors had
15
been exposed to “erroneous information” and noted that each
juror and alternate juror had indicated they were not influenced
by anything they had heard or observed and would follow the
court’s instructions to disregard any such information. The court
found the jurors’ and alternate jurors’ representations credible
and accordingly denied the motion for a mistrial. The court
subsequently denied a motion for a new trial brought on the same
grounds.
The court did not abuse its discretion in denying either
motion. In arguing to the contrary, appellant essentially argues
that the court could not credit the jurors’ assurances that what
they had seen or heard would not affect their ability to be fair
and impartial jurors, and that they would follow the court’s
instructions on that issue. We agree that the court conducted a
sufficient inquiry into the matter. Moreover, the court had the
opportunity to observe each juror’s demeanor and found each of
them credible. Nothing in the record provides a basis for us to
reject these credibility determinations. (People v. Harris (2008)
43 Cal.4th 1269, 1304-1305.) Nor does appellant offer anything
to overcome the presumption that each juror understood and
followed the court’s instructions on the issue. (People v. Melendez
(2016) 2 Cal.5th 1, 33.) Accordingly, appellant fails to
demonstrate that the denial of his mistrial motion was an abuse
of discretion.
D.C.’s Statements Regarding Suicide
Appellant contends the trial court erred in admitting
evidence of D.C.’s prior statements to Detective Menghrajani
regarding the fact that she would not attempt to commit suicide.
We conclude the evidence was properly admitted as prior
inconsistent statements under Evidence Code section 1294.
16
Evidence Code section 1294 provides in pertinent part: “(a)
The following evidence of prior inconsistent statements of a
witness properly admitted in a . . . preliminary hearing[,] or trial
of the same criminal matter pursuant to [Evidence Code] Section
1235 is not made inadmissible by the hearsay rule if the witness
is unavailable and former testimony of the witness is admitted
pursuant to Section 1291: [¶] . . . [¶] (2) A transcript,
containing the statements, of the . . . preliminary hearing[] or
prior proceeding concerning the same criminal matter.”2 The
statute “appears to have been designed to overcome the
admissibility problems associated with out-of-court statements
which are inconsistent with an unavailable witness’s former
testimony by requiring that the recorded statement be introduced
at the prior hearing where the witness actually testified. It is
well settled that the inherent unreliability typically associated
with such out-of-court statements may be deemed nonexistent
when the defendant has had an opportunity to question the
declarant about the statements.” (People v. Martinez (2003) 113
Cal.App.4th 400, 409.)
2 Evidence Code section 1235 states: “Evidence of a
statement made by a witness is not made inadmissible by the
hearsay rule if the statement is inconsistent with his testimony
at the hearing and is offered in compliance with [Evidence Code]
Section 770.” Evidence Code section 770 provides in relevant
part that “[u]nless the interests of justice otherwise require,
extrinsic evidence of a statement made by a witness that is
inconsistent with any part of his testimony at the hearing shall
be excluded unless: [¶] (a) The witness was so examined while
testifying as to give him an opportunity to explain or deny the
statement.”
17
A prior inconsistent statement admitted under Evidence
Code section 1294 “is admissible to establish the truth of the
matter asserted in the statement under the conditions set forth
in Evidence Code sections 1235 and 770. The ‘fundamental
requirement’ of section 1235 is that the statement in fact be
inconsistent with the witness’s . . . testimony. [Citation.]”
(People v. Johnson (1992) 3 Cal.4th 1183, 1219, footnote and
italics omitted.) “‘Inconsistency in effect, rather than
contradiction in express terms, is the test for admitting a
witness’[s] prior statement.” (Ibid.; People v. Thomas (2017) 15
Cal.App.5th 1063, 1076.) A trial court’s decision to admit such
evidence “is a matter committed to its discretion ‘“and will not be
disturbed except on a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.”’ [Citation.]”
(People v. Geier (2007) 41 Cal.4th 555, 585.)
In her October 20, 2017 interview with Detective
Menghrajani, D.C. stated: “The last thing that—from what
everybody believes is that they knew I was there with [appellant]
and that’s why everybody’s going after the fact that—I—they all
know I’m not going to commit suicide. Kay, even my mom’s like,
she loves herself way [too] much in order to do something like
that. But, she—everybody’s knowing it’s not suicide—they know
his mom wouldn’t do it or his sisters, so who else could it possibly
be.” When D.C. was confronted with this statement at the
preliminary hearing, she replied, “[t]hat was not said. . . . I know
I did not say that.” Detective Menghrajani subsequently testified
at the preliminary hearing that D.C. had told him “she would not
commit suicide,” that “she want[ed] to live,” and that “her mother
also knows that she would not want to commit suicide.”
18
At trial, the prosecution moved to admit D.C.’s prior
statements under Evidence Code section 1294, on the ground that
those statements were inconsistent with her preliminary hearing
testimony that her gunshot wound was the result of her attempt
to commit suicide. Appellant objected on grounds of lack of
foundation, hearsay, relevance, vagueness, and speculation.
Defense counsel argued that D.C.’s statements were not
inconsistent with her preliminary hearing testimony that she had
attempted to commit suicide, but rather merely reflected the
perception of her family members that she would not do so. The
court admitted the evidence, agreeing with the prosecution that
the statements were more than a mere opinion regarding what
other family members might believe about the issue. Although
Detective Mengharajani’s testimony on the issue was not
identical to what D.C. had actually said, the court concluded that
it was similar enough to warrant admission and that appellant
had a full and fair opportunity to cross-examine D.C. about the
statement at the preliminary hearing.
The court did not abuse its discretion. D.C. adamantly
denied making prior statements that had been both recorded and
transcribed. Instead of claiming that her comments were not
meant to convey that she had not attempted to commit suicide,
she simply denied making them. Moreover, a reasonable trier of
fact could conclude that her recorded statements were
inconsistent with her belated claim that she had tried to kill
herself. She did not state that everyone thought she would not
commit suicide, but rather that everyone “knew” she would not do
so. Although she did not expressly state that she had not
committed suicide and would never attempt to do so, such an
express statement was not a prerequisite to admissibility under
19
Evidence Code section 1294. (People v. Johnson, supra, 3 Cal.4th
at p. 1219.) To the extent that Detective Menghrajani’s
testimony differed from what D.C. actually said, the jury was also
presented with the actual statements and defense counsel had
the opportunity to exploit those differences.
Moreover, any error in admitting the statements was
plainly harmless. Appellant characterizes the alleged error as a
violation of his due process rights, but he raised no such claim
below. Accordingly, his constitutional claim is forfeited. (People
v. Kipp (2001) 26 Cal.4th 1100, 1125.) In any event, the error
would be harmless regardless of the standard of review. We
agree with the People that “appellant overstates the significance
of the challenged evidence, which was a minor aspect of the
prosecutor’s compelling case and was mentioned just briefly
during a lengthy closing argument.” The evidence of appellant’s
guilt was overwhelming, and D.C.’s belated claim that she had
tried to commit suicide was patently incredible. Among other
things, her testimony on this issue was impeached by her own
prior statements to the police, as well as her statements in
numerous Facebook conversations that were admissible to
impeach her credibility under Evidence Code section 1202. (See
post, pp. 22-25.)
In a related claim, appellant asserts that the prosecutor
committed misconduct by offering the challenged evidence—
which he characterizes as “false”— and by “failing to correct the
false evidence, and reinforcing the prejudice arising from that
error by highlighting that evidence in closing argument.”
Appellant did not make any such objection in the trial court, so
the claim is forfeited. (People v. Bemore (2000) 22 Cal.4th 809,
845-846.) Appellant fails to establish that any objection would
20
have been futile. In any event, the challenged evidence was
properly offered and admitted, and the prosecutor’s references to
that evidence during closing argument were entirely proper.
(See, e.g., People v. Lucas (1995) 12 Cal.4th 415, 473 [recognizing
that “[p]rosecutors have wide latitude to discuss and draw
inferences from the evidence at trial”].) Moreover, the jury was
instructed that counsels’ arguments were not evidence and we
presume the jury understood and followed those instructions.
(People v. Bennett (2009) 45 Cal.4th 577, 614 (Bennett).)
D.C.’s Facebook Messages
Appellant contends the court erred in admitting evidence of
numerous statements D.C. made in Facebook messages after the
shooting. The prosecution offered the statements to impeach
D.C.’s testimony at the preliminary hearing pursuant to Evidence
Code section 1202,3 and as evidence of her state of mind under
Evidence Code sections 1250 and 1251.4 The trial court
3 Evidence Code section 1202 states in pertinent part:
“Evidence of a statement or other conduct by a declarant that is
inconsistent with a statement by such declarant received in
evidence as hearsay evidence is not inadmissible for the purpose
of attacking the credibility of the declarant though he is not given
and has not had an opportunity to explain or deny such
inconsistent statement or other conduct. Any other evidence
offered to attack or support the credibility of the declarant is
admissible if it would have been admissible had the declarant
been a witness at the hearing.”
4 Evidence Code section 1250 provides in pertinent part:
“(a) . . . [E]vidence of a statement of the declarant’s then existing
state of mind . . . is not made inadmissible by the hearsay rule
when: [¶] (1) The evidence is offered to prove the declarant’s
21
concluded that the messages were not admissible under Evidence
Code section 1202, but were admissible to prove her state of mind
under Evidence Code sections 1250 and 1251.5
Appellant claims that although the messages were not
offered for the truth of the matters asserted and the jury was so
instructed, “jurors were compelled to assess whether [D.C.’s]
Facebook statements were truthful in order to consider that
evidence as proof of [D.C.’s] state of mind. . . . In some instances,
messages included [D.C.’s] beliefs and recollections of the
shooting, and her speculation of appellant’s intent, resulting in
deprivation of appellant’s right to due process.”
state of mind . . . when it is itself an issue in the action; or [¶] (2)
The evidence is offered to prove or explain acts or conduct of the
declarant. [¶] (b) This section does not make admissible
evidence of a statement or memory or belief to prove the fact
remembered or believed.” Evidence Code section 1251 states in
pertinent part: “[E]vidence of a statement of the declarant’s state
of mind . . . at a time prior to the statement is not made
inadmissible by the hearsay rule if: [¶] (a) The declarant is
unavailable as a witness; and [¶] (b) The evidence is offered to
prove such prior state of mind . . . when it is itself an issue in the
action and the evidence is not offered to prove any fact other than
such state of mind.”
5 D.C.’s October 17, 2017 Facebook message (Exhibit 31A),
in which she stated “I got shot by the guy I was seeing” and “[h]e
shot me at his house in my neck[,]” was admitted for the truth of
the matters asserted pursuant to Evidence Code section 1370.
Appellant does not challenge this ruling on appeal, although he
asserts that the statements “did not establish the shooting was
intentional as opposed to accidental.”
22
We agree with the People that the trial court erred in
concluding that the statements were not admissible to impeach
D.C.’s credibility under Evidence Code section 1202. The court
reasoned that the statements could not be admitted under that
section because appellant had no opportunity to cross-examine
D.C. about them.
This conclusion is contrary to the express language of
Evidence Code section 1202, which makes clear that the
inconsistent hearsay statements of a declarant who does not
testify at trial are admissible to impeach his or her credibility
even though the declarant “is not given and has not had an
opportunity to explain or to deny such inconsistent statement[s].”
As our Supreme Court has recognized, “‘[Evidence Code s]ection
1202 deals with the impeachment of a declarant whose hearsay
statement is in evidence as distinguished from the impeachment
of a witness who has testified. It clarifies two points. First,
evidence to impeach a hearsay declarant is not to be excluded on
the ground that it is collateral. Second, the rule applying to the
impeachment of a witness—that a witness may be impeached by
an inconsistent statement only if he [or she] is provided with an
opportunity to explain or deny it—does not apply to a hearsay
declarant.’ [Citation.]” (People v. Blacksher (2011) 52 Cal.4th
769, 806, fn. 22, italics omitted (Blacksher).)
Evidence Code section 785, which was enacted as part of
the same bill that enacted Evidence Code section 1202, allows the
credibility of a witness to be attacked by any party. (Blacksher,
supra, 52 Cal.4th at p. 807; People v. Osorio (2008) 165
Cal.App.4th 603, 616-617 (Osorio).) “Because the Legislature did
not expressly make Evidence Code sections 785 and 1202
mutually exclusive, Osorio concluded that both sections should be
23
read together and as a single statute, these two sections allow a
prosecutor to use a prior inconsistent statement to partially
impeach a hearsay statement the prosecutor had previously
introduced.’ [Citation.]” (Blacksher, at pp. 807-808.) “[T]he
result in Osorio was . . . correct. The inconsistent statements at
issue in Osorio were not hearsay because they were not admitted
for their truth. Accordingly, the defendant's inability to cross-
examine the declarant about those statements raised no
confrontation clause concerns.” (Blacksher, at p. 808; see also id.
at fn. 23.)
D.C. refused to testify at trial. At the preliminary hearing,
she recanted what she had told the police and claimed she had
been accidentally shot while attempting to commit suicide. In his
opening statement, appellant’s attorney made clear to the jury
that the defense would be relying on D.C.’s preliminary hearing
testimony. Because the defense put D.C.’s credibility at issue,
the prosecution could properly attack her credibility during its
case-in-chief. (People v. Mendoza (2011) 52 Cal.4th 1056, 1085.)
Evidence Code sections 785 and 1202 permitted the prosecution
to attack D.C.’s credibility with her prior inconsistent statements.
(Blacksher, supra, 52 Cal.4th at p. 807.) There were no
confrontation clause concerns because the statements were not
offered for their truth. (Id. at p. 808.) Moreover, the jury was
instructed that the statements were not admitted for their truth
and we must presume the jury understood and followed those
instructions. (Bennett, supra, 45 Cal.4th at p. 614.)6
6Prior to admitting evidence of the first Facebook message
(People’s Exhibit 29A), the court told the jury: “You’re going to be
hearing a number of statements that are attributed to . . . [D.C.’s]
24
Because the statements were admissible to impeach D.C.’s
credibility under Evidence Code section 1202, we need not decide
whether the statements were also admissible to prove D.C.’s state
of mind under Evidence Code sections 1250 and 1251. (See
People v. Martinez (2003) 113 Cal.App.4th 400, 408 [“When a trial
court erroneously relies on one hearsay exception to admit
evidence that otherwise would have been admissible under a
different exception, it cannot be said that the evidence was
admitted in error”].) In any event, we agree with the People’s
assertion that “[e]ach and every one of the challenged Facebook
messages” were properly admitted as “evidence of her actual
state of mind or beliefs about the shooting, which in turn
impeached the credibility of her preliminary hearing testimony.”
Facebook account. I want to make sure that you all understand
that these are out-of-court statements that were allegedly made
by [D.C.] to a number of different individuals on prior occasions.
The statements are being offered only to show her state of mind
and to explain her acts or conduct. If you conclude that she made
the statements, you may not use the statements as proof that the
information contained in the statements is true, nor may you use
it for any other reason. They are simply being offered to show
her state of mind or to explain her acts or conduct. Okay. And
that’s going to be true as to all of these items that you are about
to see.”
At the conclusion of the trial, the jury was instructed
pursuant to CALCRIM No. 303 as follows: “During the trial,
certain evidence was admitted for a limited purpose. You may
consider that evidence only for that purpose and for no other.
Evidence was admitted of out-of-court statements made by [D.C.]
to show her state of mind and to explain her acts or conduct. If
you conclude she made the statements, you may not use the
evidence as proof that the information contained in her
statements is true, nor may you use it for any other reason.”
25
Contrary to appellant’s claim, none of D.C.’s Facebook
messages were admitted to prove any fact remembered or
believed as set forth in subdivision (b) of section 1250. To the
extent appellant claims that some of the statements were vague,
speculative, cumulative, or otherwise unduly prejudicial, the
court did not abuse its discretion in concluding otherwise. To the
extent appellant complains that he was deprived of the
opportunity to cross-examine statements made by the individuals
with whom D.C. was communicating in her messages, the court
properly found that those statements were admissible to give
context to D.C.’s statements. (People v. Davis (2005) 36 Cal.4th
510, 536.)
Moreover, this case presents a classic example of a
domestic violence victim recanting her accusations in an effort to
protect her abuser. Even if the Facebook messages had been
excluded, the evidence of appellant’s guilt would be
overwhelming. Accordingly, any error in admitting the messages
would be harmless regardless of the standard of review.
For the first time on appeal, appellant also contends the
prosecutor committed misconduct in discussing D.C.’s Facebook
messages during closing argument. The claim is forfeited, and
appellant fails to demonstrate an objection would have been
futile. (People v. Bemore, supra, 22 Cal.4th at pp. 845-846.)
Moreover, the evidence of D.C.’s Facebook messages was properly
admitted, the jury was properly instructed on the limited
admissibility of that evidence, the prosecutor’s comments on the
evidence fell within the permissible range of legitimate advocacy,
and the evidence of appellant’s guilt was overwhelming.
26
Cumulative Error
Appellant finally contends that the cumulative effect of the
alleged errors compels reversal of the judgment. Because we
reject each assignment of error, appellant’s claim of cumulative
error necessarily fails. (People v. Grimes (2016) 1 Cal.5th 698,
737.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
27
Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Sylvia W. Beckham, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Joseph P. Lee, and Jaime L. Fuster,
Deputy Attorneys General, for Plaintiff and Respondent.