People v. Ramirez CA2/2 ( 2021 )

Filed 5/13/21 P. v. Ramirez CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B301539
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA147299)
v.
BENJAMIN CHRISTINO
RAMIREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Tammy Ryu, Judge. Affirmed with
modifications.
Jin H. Kim, 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, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Benjamin C. Ramirez (defendant) appeals his conviction of
first degree murder (Pen. Code, § 187, subd. (a)) following a jury
trial. The jury found true the allegations that appellant
personally used a firearm within the meaning of Penal Code
section 12022.5, subdivision (a), and personally and intentionally
discharged a firearm causing great bodily injury and death
within the meaning of Penal Code section 12022.53, subdivision
(d). Appellant was sentenced to 35 years to life. The sentence
consisted of 25 years to life for the murder plus 10 years
pursuant to Penal Code section 12022.5. The court struck the
allegation pursuant to Penal Code section 12022.53. The court
found defendant was not entitled to any custody credits.
On appeal, defendant contends that the trial court erred in
admitting statements made by his wife, the victim. Defendant
further contends that his trial counsel was ineffective in failing to
object to the admission of those statements, which he claims
violated his constitutional rights; that the trial court erred in
declining to give a limiting instruction regarding the statements;
that his counsel was ineffective for failing to request such an
instruction; and due to cumulative error, reversal is required.
Finally, defendant claims that the trial court erred in failing to
award him 352 days of presentence custody credits, with which
the People agree. Finding no other error, we order that the
judgment be modified to reflect 352 days of presentence custody
credits, and affirm the judgment in all other respects.
2
STATEMENT OF THE CASE
Defendant was charged by information with the murder of
his wife, Fely Ramirez.1 It was also alleged that defendant
personally used a firearm and personally and intentionally
discharged a firearm causing death.
Following a jury trial defendant was found guilty of first
degree murder, and the firearm allegations were found to be true.
On October 1, 2019, the court sentenced defendant to 25 years to
life and a consecutive term of 10 years for the Penal Code section
12022.5, subdivision (a) firearm enhancement.
FACTUAL BACKGROUND
Prosecution evidence
Defendant’s strained relationship with Fely
Defendant, who was 69 years old at the time of the murder,
and Fely, who was then 67 years old, had been married for over
40 years. They had two adult children, Philip Ramirez and
Kimberly Ramirez-Chan. Philip lived in New York and Kimberly
lived in Los Angeles. Both Philip and Kimberly were in regular
contact with Fely, but not with defendant.
Fely had been a supervisor at Northrup Grumman, while
defendant held various jobs. Defendant and Fely owned rental
properties in Pomona and lived together in a house in Carson.
However, they had grown distant and their marriage was
troubled. They had been sleeping in different bedrooms for about
10 years.
1 Defendant’s wife and children will be referred to by their
first names to avoid confusion.
3
In September 2016, Fely told Kimberly that she had spoken
to defendant regarding divorce and that defendant said, “I’ll kill
you before you take away my Pomona houses.”
In November 2016, Fely met with family law attorney,
Sandy Roxas, for an initial consultation. Fely did not contact
Roxas again until August 2017, when she retained Roxas.
Several days later, Fely instructed Roxas to stop working on her
case. In July 2018, Fely told Roxas she was ready to proceed
with a divorce. Roxas filed a divorce petition on August 31, 2018.
In a group text to Philip and Kimberly about a month
before her death, Fely wrote, “I told him you guys are helping me
to get a divorce!! He said he won’t sign and I told him you don’t
have to sign anything!! [¶] . . . [¶] . . . Then he said, you’re
keeping your pension and keeping my dad’s houses, rentals. [¶]
. . . I said go ahead I don’t live for money!!!!” Around the same
time, Fely sent Philip a copy of a text message that Philip
believed Fely had sent to defendant. The message stated that if
defendant wanted half her pension, “so be it” because money did
not make her happy. Fely also reminded defendant that she
helped to pay for the improvements to their home and the rental
properties and that defendant never acknowledged her
contributions.
Service of divorce papers
Roxas explained to Fely that after filing the petition for
dissolution, the petition and related documents had to be served
on the spouse by a third party. Fely collected the documents
from Roxas’s office. Fely was planning to have Kimberly serve
the documents on defendant. Kimberly attempted service on
defendant on two occasions, but he was not there. Kimberly hid
the documents in Fely’s bed.
4
Fely returned to Roxas’s office on October 4, 2018, and
reported that her daughter had been unable to serve the
paperwork. Fely returned the documents to Roxas with
instructions to hire a process server. Later that day, Fely
returned to the office and retrieved the packet because she had
obtained her own process server: Chris Demirdjian.
On October 5, 2018, Fely, Kimberly, and Philip texted each
other. Fely wrote, “I’m so scared! And nervous! He came home
almost same time as the night before. Around or past midnight.”
Philip responded that if defendant was at home, she could have
him served. Fely texted that she was meeting the process server
that morning at Carl’s Jr. to pay him and bring him to the house.
Fely then forwarded a text message from the process server that
his phone had died and that he could meet Fely at Carl’s Jr. at
9:30 a.m.
Demirdjian met Fely at the Carl’s Jr. about a mile and a
half from her residence. A security video from across the street
showed both Demirdjian’s car and Fely’s Honda Accord arriving
at the residence at 9:17 a.m. The two went through a side gate to
the back patio area where Fely called out for defendant. When
defendant poked his head out of a sliding door, Demirdjian threw
the divorce papers inside. Defendant tried to shut the sliding
glass door, but Demirdjian managed to throw the paperwork
inside the house. Demirdjian then left the residence, leaving
Fely in the backyard. Later that evening, Demirdjian attempted
to contact Fely about giving her a proof of service, but he could
not reach her.
At 10:02 a.m., the security camera across the street
captured defendant leaving the residence from the front door and
driving away in the Honda Accord.
5
At 10:34 a.m., Kimberly texted Fely, “Any updates?” She
did not receive a response to her message. Both Kimberly and
Philip tried calling Fely, who did not answer, which was unusual.
Fely’s children contacted Roxas’s office and left messages
indicating that they were looking for Fely and were concerned.
The children requested information on Fely’s license plate
number because they wanted to look for her vehicle.
Philip called the sheriff’s department and asked them to do
a wellness check. Los Angeles County Sheriff’s Deputy Charles
Smith conducted a welfare check at Fely and defendant’s
residence. He rang the doorbell several times and looked around
the property to ascertain if anyone was in the house. He called
out a name but did not hear a reply. He did not see anyone, and
the house was locked and secured.
Discovery of Fely’s body and evidence
Kimberly and Philip contacted Don Ocubillo, Fely’s niece’s
husband, and explained that Fely had served defendant with
divorce papers. Kimberly asked Ocubillo to go to the Carl’s Jr.
and to Fely’s house to see if Fely was there. Ocubillo went to the
Carl’s Jr. but did not see Fely or her car. He then went to Fely
and defendant’s home, where he saw defendant’s truck in the
driveway. Ocubillo checked the perimeter of the house, knocked
on doors, tried to call both Fely and defendant and sent them text
messages. Ocubillo got no response. He became concerned
because Fely and defendant were usually quick to respond.
Ocubillo called Kimberly and Philip and told them he
needed to pick up his daughters from school, but would return
later with the house key that he had. When Ocubillo and his
daughters returned with the key, Ocubillo told his daughters to
wait outside. When he took a few steps inside, he noticed
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someone sitting on the sofa. Ocubillo approached and recognized
Fely, who appeared to be sleeping because she was covered by a
blanket that ran from her feet to her neck. He kept calling her
name, but she did not respond. He touched her hand, which was
“ice cold.” She did not appear to be breathing. The blanket fell
off, and when Ocubillo went to check for a pulse, he saw blood on
Fely’s head and neck. She had papers on her lap. Ocubillo
noticed a hole in Fely’s chest. When Ocubillo heard his
daughters asking to come inside, he ran outside and told his
daughters to get in the car. He then called 911. Ocubillo also
called Kimberly and Philip.
Detective Jason Parolini responded to the 911 call and
spoke briefly to Ocubillo before going inside where he saw Fely
seated on a couch with her feet on an ottoman. A red blanket
was pulled up to her torso. Parolini checked for a pulse on the
left wrist, which was “extremely stiff.” Paramedics arrived and
they declared Fely dead at the scene. Fely died from multiple
gunshot wounds, including shots to the left temple, upper chest,
and left breast. The shots were fired in quick succession because
all three wounds showed hemorrhaging. Three expended bullets
were later recovered from her body and booked into evidence.
Parolini pulled the blanket down and saw that divorce
papers were sitting on Fely’s upper legs. He placed the
paperwork on a nearby coffee table. He noticed black marks with
holes in Fely’s shirt over her chest. She had blood dripping from
her mouth, and there were indications that the shots were fired
at close range.
Detective Steven Sully and Deputy Daivat Jani also
responded to the home. They found Fely’s body sitting on the
couch with her feet on an ottoman. Sully found one casing in the
7
living room and one in the adjacent sun room. Both were “10/22
long rifle” casings. Sully and Jani found a shotgun in the
bedroom, along with some ammunition for the shotgun, flags
designed to be placed in the muzzle of a gun, and a “10/22”
handgun. There was also a safe containing additional firearms
and ammunition. A total of five firearms were recovered, which
included two shotguns, a rifle, a handgun with a wooden grip,
and the .22-caliber handgun. Four of the guns were registered to
defendant. The firearms and ammunition were booked into
evidence.
The recovered casings were fired from the recovered .22-
caliber Browning handgun. The three expended bullets recovered
from Fely’s body were fired from the same handgun. The gun
had a safety switch and a “disconnector,” which required the
shooter to “release the trigger and pull it again” in order to fire a
subsequent shot. The gun had a trigger pull of three and three-
quarter pounds. There were no signs of forced entry in the house.
A copy of the divorce summons was booked into evidence.
Handwritten notes were discovered in a gun safe in a box
labeled “chocolate ammo.” In a three-page note in Fely’s
handwriting, dated December 7, 2017, was written:
“You cannot treat me nice one day and treat me like a
piece of shit the other days! Why? What did I do to
you? Got a living trust is that why? We have been
married for 41 years. I did not do that until you have
an affair! You disregard me and don’t respect me.
You control the rental money. When I used to—when
I use rental money is because I need to pay bills.
Such as property taxes and Citibank credit card! I
am so tired of fighting! You go ahead and do
whatever you want. Leave me in peace. Because I
know you’ll be back to being mean to me in no time!
8
You are better off without me and vice versa same
goes to me!”
A second note in defendant’s handwriting stated:
“What you are doing! [Sic.] You are taking the
advice of Letty! She wants you to have everything.
In parentheses, greed. This is why she is divorce
with Ben, comma, and he treat her like shit! There is
never another person if there was I would have left
you long ago!!!”
Defendant’s actions after the murder
A video camera from the house directly across the street
showed defendant exiting the front door of the home at 10:02 a.m.
and driving off in Fely’s silver Honda Accord on the day of the
murder. At 10:52 a.m., defendant withdrew $10,371.04 from two
Bank of America accounts held jointly by Fely and him, leaving
both accounts with zero balances. At 11:40 a.m., defendant went
to Wells Fargo, where he also held joint accounts with Fely, and
made a cash withdrawal of $111 from one of the accounts, leaving
a balance of zero.
Olivia Garcia was a tenant in a residence in Pomona that
was owned by defendant and Fely in October 2018. Garcia had
been paying the rent online by transferring it into defendant’s
account. At 3:15 p.m. on the day of the murder, Garcia received a
call from defendant, who told her that the account would be
closed and that Garcia should pay rent to his brother since
defendant was getting divorced from Fely. Garcia’s daughter,
Juliana, who lived with Garcia, also talked to defendant,
although she could not recall the date. They discussed rent, and
defendant told her that his brother would be managing the
property. At some point defendant went to the house, and
Juliana gave him the water bill. Around 3:30 p.m., defendant
9
called another tenant, Lizeth Calvillo, and told her that future
rent payments should go to his brother.
On October 6, 2018, the day after the murder, Detective
Sully returned to the residence after a neighbor spotted
defendant in a car on a street behind the house. Defendant was
detained and then released on October 8, 2018. Defendant was
arrested again on October 18, 2018, in Pomona. After his arrest,
defendant sent two letters to Garcia and her daughter explaining
that he and Fely had divorced and provided information where
rental payments should be made. Defendant asked if Garcia was
able to open a new utility bill in her name and for Garcia’s phone
number so he could call her collect. He also suggested she could
write or visit him if she needed to reach him. He also sent a
letter to Calvillo, but she did not open it.
Defendant’s interview with police
On October 19, 2018, Detective Carrillo and his partner,
Sergeant Troy Ewing, interviewed defendant. The interview was
recorded.
Defendant had type 2 diabetes and took seven different
types of medication. He admitted that all of his medication was
at his house, but he did not want to return there because Fely
had served him with divorce papers. Defendant stated that Fely
and “her son” had been trying to get him out of the house for the
past six months. He admitted that he and Fely had drifted apart
and that they slept in separate bedrooms for a decade. Defendant
also admitted that he collected firearms and had a “556 AR-15,” a
“KSG shotgun,” and a “.22 Browning Buck Mark.” Defendant
kept his guns in a safe, and only he knew the combination.
Defendant normally kept the guns unloaded, but after an
10
intruder entered the house recently, he decided to keep the “.22”
loaded in case it happened again.
Defendant remembered being served divorce papers by a
tall, heavyset male. After the process server dropped the papers
at his feet, Fely stated, “You’ve been served.” Defendant begged
Fely not to divorce him and that he would do whatever she
wanted. However, Fely said no, because she was “already in that
mode” and was “dead set in leaving and going.”
Fely sat down on the couch. She told defendant that she
did not love him anymore. Defendant was hurt and again begged
her not to divorce him. Defendant claimed that Fely was “going
on and on” about how “evil” or bad defendant was and how he
mistreated her. Defendant recalled crying. He added, “I swear to
God it’s like—it’s almost like she’s—she’s very nice and calm in
one minute and the next minute she can be like talking bad about
a person.”
Defendant went to his bedroom and retrieved the
semiautomatic handgun and loaded the shotgun.2 He believed
the semiautomatic was already loaded. He intended to shoot
himself with the shotgun.
Defendant did not intend to kill Fely and again asked her
not to divorce him. He remembered just “pop, pop, pop and—and
everything blanked.” Fely was sitting on the couch when he first
shot her. He placed the divorce papers on her lap, but he did not
know why. Defendant insisted that he had not intended to shoot
Fely and that he had not shot her in the head. Instead,
defendant shot her “in the center mass.” Defendant stated that
2 Later in the interview, defendant stated that he did not
recall going into his bedroom or opening the gun safe.
11
everything went blank after he heard the first shot, but later
conceded that he remembered pointing the gun at Fely’s chest.
Defendant returned to the bedroom and placed the gun on
the bed. Defendant had intended to kill himself, and did not
know why he did not kill himself.
Defendant then got in the car and drove “anywhere.” He
did not remember where he had shot Fely and did not know she
was dead. After driving for some time, defendant “could barely
move and walk” because he had not taken his insulin. He felt as
if his joints were “paralyzed.” Defendant stated that when he is
sick, he forgets things. At the time of the killing, he had not
taken his insulin for about 15 or 30 days because he had run out
of it.
Defendant was driving on “PCH” when the vehicle’s wheel
detached. He eventually drove back from Seal Beach to his home
with a flat tire. He parked in the back. He planned to get his
medications by climbing over the fence. Defendant did not park
in the front because he did not feel it would be smart to do that,
and it was more convenient to park in the back. Defendant never
made it over the fence because he was arrested.
Defendant did not mention closing the bank accounts or
contacting the tenants during the interview.
Defense evidence
Defendant did not present any evidence on his behalf.
DISCUSSION
I. Hearsay statements
Defendant argues that the trial court erroneously admitted
several of Fely’s statements that mischaracterized defendant as a
money-obsessed man who disrespected and mistreated her,
12
cheated on her, and threatened to kill her if she tried to get
possession of the rental properties. In addition, defendant argues
that some of the statements should have been excluded under
Evidence Code section 352 as being substantially more
prejudicial than probative.3
A. Relevant procedural background
Prior to trial the prosecution sought to admit a number of
statements by Fely, including (1) text messages between Fely and
her adult children on the morning of her murder; (2) the notes
written by Fely and defendant that were kept in the gun safe;
and (3) text conversations between Fely and her adult children
regarding Fely’s relationship with defendant and her fear of him.
The prosecution argued that the hearsay rule did not bar
admission of the statements pursuant to sections 1250 and 1251,
which permit admission of a declarant’s state of mind. Fely’s
statements showed that she was afraid of defendant, that he was
mean to her, and that she was scared of serving him with divorce
papers. The messages were also relevant to establish a motive
for the murder.
The prosecution also argued that some of the statements
were admissible to show the effect on the listener. The
statements explained why Kimberly supported her mother’s
efforts to obtain a divorce, assisted her mother by attempting to
serve the divorce papers, and became concerned when Fely did
not respond to her texts. The prosecution also argued that the
statements were admissible under sections 1240 and 1241, which
allow the admission of spontaneous and contemporaneous
3 All further statutory references are to the Evidence Code
unless otherwise noted.
13
statements. The prosecution argued that some of the text
messages fell into this category, as they narrated Fely’s actions
on the day of the murder.
In response, defendant argued that the statements did not
show that Fely feared defendant and that Fely’s state of mind
was not an issue in the case. Defendant also argued that the
statements should be inadmissible under section 352.
The trial court held a hearing on the admissibility of Fely’s
statements. The court inquired as to whether the statements
would be admissible only after the defense presented its evidence
or its theory of the case. The prosecutor responded that
defendant had claimed in his interview that he begged Fely to
stay and told her that he would do whatever she wanted, but that
Fely rejected him. Because defendant had put Fely’s state of
mind at issue, these statements were admissible to show that
Fely was afraid of upsetting defendant, had to “walk on egg
shells” around him, and attempted to “kowtow to him.” Fely’s
statements contradicted the suggestion that she was sitting on
the couch with her feet up on an ottoman in a state of repose at
the time of the murders.
Defense counsel argued that the statements did not show
that Fely feared defendant and that Fely’s state of mind was not
at issue in the case. Defense counsel reiterated that the evidence
was more prejudicial than probative.
The court agreed that Fely’s state of mind was at issue in
the case but was concerned about the trial devolving into a trial
about defendant and Fely’s marriage. The court noted that Fely’s
“fear for her safety” was relevant. The court also found that “any
reference to financial gain or financial issues” was relevant to
premeditation and deliberation, as well as malice. Further, the
14
statements giving defendant notice that Fely wanted a divorce
were relevant to heat of passion and whether defendant was
surprised when served with the divorce papers. The court agreed
that the text messages were relevant to give a timeline to events
and give context to Kimberly’s and Fely’s actions on the day of
the murder.
The court stated:
“So her state of mind including her going to the
divorce attorney to file for divorce, prepare for it,
telling the defendant that she intended to divorce
him because there are some text messages regarding
that, her text messages—and that especially goes to
defendant having notice that his wife intended to do
this sometime soon that he cannot then claim that it
came as a surprise and so—and therefore he was
shocked, surprised, and he committed the crime out
of some sort of a severe emotional state such as crime
of passion.”
The court ruled that any statements regarding Fely’s fear
of defendant were not admissible unless her fear became an issue
in the case. The court continued:
“So any text message or statements made to a third
party about her intention to divorce the defendant,
any statements made to the defendant about her
intention to divorce him is all relevant. And it is at
issue in the case because that goes to motive for the
shooting or the killing that she’s going to divorce
him. . . . So anything that pertains to those areas,
I’m inclined to admit them under 1250 and 1251.”
The parties also argued over the admission of defendant’s
statement “I’ll kill you before you take away the Pomona houses”
made two years prior to the murder. Defendant argued that the
statement was remote in time and was more prejudicial than
15
probative. Counsel added that the statement was based on
“Kimberly’s recollection of something that Fely said.”
The court was inclined to allow the statement because it
was relevant to motive as well as a lack of surprise when the
divorce papers were finally served. The court found that the
probative value of the statement outweighed any prejudice.
Pursuant to its rulings, the trial court admitted the
following: (1) Fely’s September 2016 statement to Kimberly in
which Fely said that defendant told her, “I’ll kill you before you
take away my Pomona houses”; (2) Fely’s written note dated
December 7, 2017, that was found in defendant’s gun safe,
indicating that defendant did not respect Fely and that they were
better off without each other; (3) Fely’s text messages to
Kimberly and Philip in the month or two before the killing, where
Fely told defendant that they were helping her get a divorce,
which included a discussion of how they would divide their
assets; (4) a screenshot of a text that Philip believed Fely had
sent to defendant;4 (5) a text message that Fely sent Kimberly
4 The screenshot read: “So the way it is now is fine. I cannot
be happy few months and be treated mean the next day. All that
is important to me are our children. I want to spend time with
them as much as I can. Both Philip and Kim are not money
hungry. If you want half of my pension so be it. Money doesn’t
make me happy. Don’t forget that all these improvements in this
house in Carson and some of rental improvements came from my
pension and some from the rents. Of course you never ever
acknowledge that without my good job you won’t have what we
have now. The rental came into our life in 2007. I’ve been
working at TRW Northrop since 1983 to 2014. I’m not
downgrading your jobs at Radio Shack, Optima and Sams. Of
course that helps a lot too. But you never realize.”
16
and Philip on October 4, 2018: “I hired my own messenger. He’s
coming to the house, I’ll open the door and lead the messenger to
dad. It doesn’t matter if he takes it or not. Messenger can drop it
off—drop it on his feet, and considered that served. Coming at 8
tomorrow. So if I’m home he’s home. I can contact the guy by
phone in case he runs away, dad is [sic]” and the following text
exchange among Fely, Philip and Kimberly on the morning of
October 5, 2018:
Fely: “I’m so scared! And nervous! He came
home almost same time as the night before. Around
or past midnight.”
Philip: “Is he home now can you call server.”
Fely: “Yes but I need to give him the packet
and pay him up front. I’ll meet him at Carl’s Jr. at
8:30. Then he will go from there.”
Philip: “OK.”
Fely: “I’m hoping dad will be in living room or
kitchen instead of me leading the server to the
bedroom. [¶] . . . [¶] He’s up and cooking the fish he
caught! Fishes.”
Philip: “Get him.”
Fely: “Oh shit!!! [Forwarding text from process
server saying:] ‘Hello Fili. I just saw your message.
My phone died. I can meet you at 9:30.[’]”
Fely: “It’s killing me.”
Philip: “Tell him to hurry.”
Fely: “Now another hour. I know I told him.”
Kimberly: “Any updates?”
17
Defendant argues that Fely’s statements were offered for
their truth, quoting the court: “. . . I’m assuming so. Because
she’s using 1250 which is an exception to . . . hearsay.”
Later, during a discussion about jury instructions, defense
counsel requested CALCRIM No. 303 (limited purpose evidence)
for Fely’s 2016 statement that defendant threatened to kill her,
arguing that the statement was not offered for its truth but to
show motive. Thus, the jury should be given a limiting
instruction. The prosecution disagreed, stating, “I think it came
in to show that that goes toward his motive which would be an
intent to kill which would mean the truth of the statement
presented.” The court declined to give the limiting instruction.
B. Standard of review
A trial court’s ruling on the admissibility of evidence is
reviewed for abuse of discretion. (People v. Guerra (2006) 37
Cal.4th 1067, 1113, disapproved on another ground in People v.
Rundle (2008) 43 Cal.4th 76, 151.) “Under this standard, a trial
court’s ruling will not be disturbed, and reversal of the judgment
is not required, unless the trial court exercised its discretion in
an arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice.” (Guerra, at p. 1113.)
C. Applicable law
“Under the hearsay rule, subject to several exceptions,
‘evidence of a statement that was made other than by a witness
while testifying at the hearing and that is offered to prove the
truth of the matter stated’ is generally inadmissible.” (People v.
Kovacich (2011) 201 Cal.App.4th 863, 884.)
One exception to the hearsay rule is section 1250, which
allows the admission of “‘evidence of a statement of the
declarant’s then existing state of mind, emotion, or physical
18
sensation (including a statement of intent, plan, motive, design,
mental feeling, pain, or bodily health).’” (People v. Kovacich,
supra, 201 Cal.App.4th at p. 884.)5 This exception only applies if
the declarant’s mental state or conduct is at issue. Thus, the
trial court must find that such evidence is relevant to an issue in
dispute. (People v. Riccardi (2012) 54 Cal.4th 758, 814 (Riccardi),
disapproved on other grounds in People v. Rangel (2016) 62
Cal.4th 1192, 1216.)
Direct declarations of an individual’s state of mind, “e.g., ‘I
am afraid of [defendant],’” are hearsay but are considered
5 Section 1250 provides, in full:
“(a) Subject to section 1252, evidence of a
statement of the declarant’s then existing state of
mind, emotion, or physical sensation (including a
statement of intent, plan, motive, design, mental
feeling, pain, or bodily health) is not made
inadmissible by the hearsay rule when:
“(1) The evidence is offered to prove the
declarant’s state of mind, emotion, or physical
sensation at that time or at any other time 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 of memory or belief to prove
the fact remembered or believed.
Section 1251 parallels section 1250, subdivisions (a)(1) and
(b), except it concerns a declarant’s previously existing state of
mind as opposed to the declarant’s state of mind at the time the
statement was made. For the purposes of this discussion, we
refer only to section 1250.
19
exceptions under section 1250. (Riccardi, supra, 54 Cal.4th at
p. 822.) Such statements are hearsay because they are offered to
prove the truth of the matter asserted—that the declarant feared
the defendant. (Ibid.) In such cases, the declarant’s state of
mind must be relevant to the case.
Indirect declarations of the declarant’s state of mind are
not hearsay because they are admitted to circumstantially prove
the declarant’s state of mind or conduct, not to prove the truth of
the statements. (Riccardi, supra, 54 Cal.4th at p. 823.) An
example of such a statement would be, “‘[Defendant] kidnapped
me at gunpoint.’” (Ibid.) The statement is not hearsay to the
extent that it is admitted to show circumstantially the declarant’s
state of mind or conduct. “This nonhearsay category of
statements presents an elevated danger of prejudice if the jury is
unable to distinguish between the truth of the matters asserted
and the inferences concerning the declarant’s state of mind.”
(Ibid.) While a limiting instruction may ensure that the jury does
not consider the statement for the truth of the matter asserted,
“[g]enerally speaking, absent a request, the trial court has no
duty to give an instruction limiting the purpose for which
evidence may be considered.” (Id. at p. 824.) However, when a
party does request a limiting instruction, and the evidence is
admitted for a limited purpose, the trial court must give a
limiting instruction. (§ 355 [“When evidence is admissible as to
one party or for one purpose and is inadmissible as to another
party or for another purpose, the court upon request shall restrict
the evidence to its proper scope and instruct the jury
accordingly.”].)
Even when admissible under one of the exceptions to
hearsay, out-of-court statements are only admissible if relevant
20
to an issue in dispute. (Riccardi, supra, 54 Cal.4th at p. 814.)
Evidence is relevant if it has any tendency to prove a disputed
fact that is of consequence in the action. (Id. at p. 815.) Evidence
that tends to establish material facts such as identity, intent, and
motive is generally admissible. (Ibid.) However, under section
352, a trial court has the discretion to exclude evidence if its
probative value is substantially outweighed by the probability the
evidence will create a substantial danger of undue prejudice. A
trial court enjoys “broad discretion” under section 352 to admit or
exclude evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060,
1124, abrogation on other grounds recognized in People v. Leon
(2020) 8 Cal.5th 831, 848.)
D. The trial court did not abuse its discretion in
admitting the disputed statements
1. Fely’s September 2016 statement to Kimberly
Defendant first challenges the trial court’s admission of his
2016 statement to Fely that “I’ll kill you before you take away my
Pomona houses.” In making his primary argument, defendant
focuses only on the portion of this analysis whereby Fely relayed
the defendant’s words to Kimberly. Defendant argues that the
statement was not admissible under section 1250 because it was
not a direct declaration of Fely’s state of mind. The statement did
not directly declare that Fely feared defendant, that she intended
or planned to do something, or that she was experiencing any
physical sensation. In addition, defendant argues, the statement
was expressly forbidden under section 1250, subdivision (b).
That section forbids the use of the state-of-mind exception to
admit evidence of a hearsay statement of memory to prove the
fact remembered.
21
Defendant relies on People v. Armendariz (1984) 37 Cal.3d
573 (Armendariz) (superseded by statute on another point as
stated in People v. Cottle (2006) 39 Cal.4th 246, 255). In
Armendariz, the defendant argued that the trial court erred in
admitting testimony that the defendant had previously
threatened physical violence against the victim. (Armendariz, at
p. 585.) In response to the defense’s objection, the trial court
deemed the testimony admissible because it was admitted for the
nonhearsay purpose of explaining why the witness went to the
victim’s house to protect him. The Supreme Court found that
this ruling was erroneous. The high court explained: “A hearsay
objection to an out-of-court statement may not be overruled
simply by identifying a nonhearsay purpose for admitting the
statement. The trial court must also find that the nonhearsay
purpose is relevant to an issue in dispute.” (Ibid.) The court
found that the witness’s reason for going to the victim’s house on
that prior occasion “had no bearing whatsoever on any issue in
the trial.” (Ibid.)
Defendant also relies on People v. Arcega (1982) 32 Cal.3d
504. In Arcega, the contested testimony consisted of statements
from the victim’s mother that the defendant was treating the
victim weirdly, following her around the apartment, that she was
afraid of him, and that she had asked him to move out. (Id. at
p. 526.) The trial court admitted the testimony based on the
state-of-mind exception, finding that it established the victim’s
mental state and fear of the defendant. The Supreme Court
reversed, determining that “there was no issue of fact raised by
the defense with respect to [the victim’s] conduct immediately
preceding her death.” (Id. at p. 527.) The defendant “did not
claim that his act of homicide was immediately preceded by any
22
conduct by the hearsay declarant.” Instead, the defendant “had
admitted committing the killings after [the victim] had gone to
sleep.” (Ibid.) The defense had not raised any conduct by the
victim immediately preceding her death that may have provoked
the defendant. (Ibid.)
Here, Fely’s state of mind was also at issue. Fely’s fear of
defendant helped to explain her actions in delaying her divorce
for so long even though she made known to defendant that she
intended to divorce him. In addition, Fely’s fear of defendant
undermined any suggestion that she intended to provoke him at
the time she served the divorce papers. (People v. Jablonski
(2006) 37 Cal.4th 774, 820 (Jablonski) [fear may be at issue when
the victim is said to have behaved in a manner inconsistent with
that fear].) To the extent that the statement was admitted to
show Fely’s state of mind, or explain her actions, it was either not
hearsay or qualified under the hearsay exception. (Riccardi,
supra, 54 Cal.4th at p. 823.)
There were also issues concerning Fely’s behavior and
whether defendant reacted in the heat of passion to Fely’s
actions. Specifically, defense counsel argued to the jury that
defendant’s crime “bumps down to voluntary manslaughter” if
“we take away the willfulness, the premeditation, the
deliberation, the malice.” In closing, defendant’s counsel argued
that there was “an intense emotional reaction,” and that
defendant acted “rashly” under the “impulse of emotion.”
Defendant was asking the jury to find that he acted “rashly and
without time for judgment and reflection.” Defendant argued
that “if you lose it and act rashly without reflection from this
intense emotion, we treat that as something different than if you
cold bloodedly decide you are going to kill someone.”
23
Because defendant was arguing that he should be convicted
of the lesser crime of voluntary manslaughter, defendant put at
issue the question of whether Fely’s act of serving him with
divorce papers caused him to “lose it and act rashly.” Thus,
whether defendant was expecting to be served with divorce
papers and had time to plan his response—or, on the other hand,
whether Fely’s act of serving him with the papers took him off
guard and caused him to “act rashly” were issues for the jury to
decide. The jury had to determine whether defendant knew his
wife intended to divorce him. His statements concerning what he
would do if she tried to take certain property were highly
relevant to explain his motive. Further, “the hearsay rule does
not prevent evidence of a statement made by a party from being
admitted against that party.” (People v. Dennis (1998) 17 Cal.4th
468, 528, citing § 1220; accord, People v. Davis (2005) 36 Cal.4th
510, 535 [“A defendant’s own hearsay statements are
admissible.”].)
The trial court did not abuse its discretion in determining
that defendant’s statement that he intended to kill Fely if she
took his Pomona properties was admissible as evidence of motive
or intent (§ 1250, subd. (a)), and a statement of a party (§ 1220).
Fely’s transmission of this statement to Kimberly showed Fely’s
fear and explained her actions. The trial court did not abuse its
discretion in admitting the statement. To the extent that our
analysis differs from that of the trial court, “‘“we review the
ruling, not the court’s reasoning and, if the ruling was correct on
any ground, we affirm.”’” (People v. Brooks (2017) 3 Cal.5th 1,
39.)
24
2. Fely’s December 7, 2017 note
Defendant argues that the contents of Fely’s December 7,
2017 note to defendant, which was found in the gun safe, were
inadmissible. In the note, Fely explained that defendant
alternated between treating her well and treating her “like a
piece of shit.” She asked if the poor treatment was because she
had gotten a living trust, and that she did so only because he was
having an affair. She complained that defendant disregarded
and disrespected her and controlled the rental money. She told
defendant he could do whatever he wanted, but asked that he
leave her in peace, and that they were better off without each
other. The note contained a direct declaration of Fely’s state of
mind: “I am so tired of fighting!”
The statements in Fely’s note were not admitted for their
truth. The prosecution was not trying to prove that defendant
treated Fely poorly, that she got a living trust, or that defendant
had an affair. Instead, the trial court admitted these statements
on the ground that they showed Fely’s state of mind and her
intention to divorce defendant, and undermined defendant’s
claim that “he was shocked, surprised, and he committed the
crime out of some sort of a severe emotional state such as crime
of passion.” The statements in the note were properly admitted
for this nonhearsay purpose. Out-of-court statements may be
admitted to show their “effect on defendant,” particularly where
the statements have bearing upon the question of premeditation.
(Jablonski, supra, 37 Cal.4th at p. 820.) Defendant placed at
issue the question of Fely’s state of mind and his knowledge of
her intention to divorce him by arguing that he killed her in the
heat of passion.
25
Again, defendant’s position that Fely’s state of mind was
not an issue in the action is unavailing. Fely’s state of mind was
put in issue by defendant, who argued that defendant lost control
and acted rashly when he killed her. Under the circumstances,
the prosecution was entitled to show that Fely was unhappy in
the marriage, feared defendant, intended to divorce defendant,
and had let him know this well in advance of serving the divorce
papers. No abuse of discretion occurred.
3. Fely’s text messages to Kimberly and Philip in
the months before the killing
In the month or two before the killing, Fely sent text
messages to Kimberly and Philip to let them know that she told
defendant that they were helping her obtain a divorce. She also
recounted what defendant said in return—that he would not sign
divorce papers, and “you’re keeping your pension and keeping my
dad’s houses, rentals.” Fely then relayed, “I said go ahead I don’t
live for money!!!!” This exchange occurred about a month before
Fely’s death.6 Defendant argues that the text messages did not
directly declare her state of mind. Instead, they relayed what
Fely said to defendant and what defendant said in return.
Defendant argues that the statements were admitted for the
6 Also included in this discussion is a text that Fely sent to
defendant and then forwarded to Philip, in which Fely told
defendant that neither Philip nor Kimberly were money hungry,
and that if defendant wanted half her pension, “so be it. Money
doesn’t make me happy.” Like the other texts around the same
time period, these statements were admitted to show their effect
on defendant and were relevant to dispute his claim that he acted
under a heat of passion. In addition, they showed Fely’s state of
mind—that she was unhappy in the marriage, wanted a divorce,
and was beginning negotiations with defendant on this subject.
26
truth about events remembered, therefore their admission is
barred under section 1250, subdivision (b).7 Defendant also
argues that, for the same reason, the statements cannot be
admitted as nonhearsay circumstantial evidence of Fely’s state of
mind.
The text messages between Fely and her children relaying
Fely’s statements to defendant about the impending divorce, and
defendant’s reaction to it, were not admitted for their truth. The
prosecution was not attempting to prove that Fely’s children were
helping her with her divorce, or that Fely intended to take
certain items of property in the divorce. Instead, the statements
were admitted to show their effect on the parties. Fely’s desire
for a divorce was relevant to prove defendant’s motive in
murdering her. Both defendant’s state of mind and Fely’s state of
mind were put into issue by defendant by raising a heat-of-
passion defense. For the reasons set forth above regarding the
evidence previously discussed, the trial court did not abuse its
discretion in admitting these statements.
4. Fely’s statements to Kimberly and Philip the
day of the killing
On the morning she was killed, Fely texted her children
that she was “so scared! And nervous! He came home almost
same time as the night before. Around or past midnight.” She
also wrote about the process server, “. . . I need to give him the
packet and pay him up front. I’ll meet him at Carl’s Jr. at 8:30.
Then he will go from there.” She expressed her hope that the
defendant would be in the living room or kitchen so that she did
7 Section 1250, subdivision (b), provides that the section
“does not make admissible evidence of a statement of memory or
belief to prove the fact remembered or believed.”
27
not have to lead the process server to the bedroom. She noted
that defendant was awake and cooking fish and then wrote “Oh
shit!!!” and conveyed that the process server would be delayed.
Fely wrote, “It’s killing me,” and Philip responded, “Tell him to
hurry.” In the last text Kimberly and Philip received from Fely,
she wrote, “Now another hour. I know I told him.”
Defendant argues that some of these text messages were
inadmissible under section 1250 because they did not directly
declare her state of mind. Defendant argues that they were
offered for their truth, therefore were not admissible under
section 1250, subdivision (b).
As to Fely’s direct declarations of her state of mind—that
she was scared, and nervous—defendant argues that these
statements were inadmissible as Fely’s state of mind was not at
issue. Thus, defendant argues, they were inadmissible under
section 350, which provides that only relevant evidence is
admissible. Defendant asserts that a victim’s state of mind is
only relevant under two circumstances: first, when the victim’s
conduct in conformity with that fear is in dispute (Riccardi,
supra, 54 Cal.4th at p. 816); and second, to prove the defendant’s
motive when there is independent, admissible evidence that the
defendant was aware of the declarant’s state of mind before the
crime and may have been motivated by it (id. at p. 820).
Defendant argues that whether or not Fely acted in conformity
with her fear is not in dispute, because it is undisputed that Fely
served defendant with the divorce papers. Further, defendant
argues, there is no evidence that defendant was aware of Fely’s
fear of him or was motivated by it.
Defendant cites People v. Escobar (2000) 82 Cal.App.4th
1085 (Escobar) as an example of a case where the victim’s fear
28
was relevant. In Escobar, the trial court admitted statements the
victim made to a friend three weeks before her husband killed
her: “‘. . . I want to get a divorce. I don’t want to live with him
any longer. But . . . I’m afraid of him because he already told me
that if I leave him he is going to kill me.’” (Id. at p. 1092.) These
statements that the victim feared her husband were relevant to
rebut the defendant’s testimony that she “fearlessly challenged
him . . . , kicked him in the testicles, and insulted him in a very
provocative way.” (Id. at pp. 1092, 1103.) Defendant argues that
in contrast to Escobar, defendant never stated that Fely hurt him
or challenged him, and that her criticism of him never went
beyond telling him that he was a bad man. In other words,
defendant argues that his description of Fely’s conduct
immediately preceding the murder was not inconsistent with any
fear she may have felt.
As set forth above, defendant put Fely’s state of mind at
issue in using a heat-of-passion defense. And while defendant
did not claim to be provoked by any violence on Fely’s part, he did
claim that he “los[t] it” and acted “rashly” upon being served with
the divorce papers. Defendant recalled begging Fely not to
divorce him. And he did not simply recall Fely telling him he was
a bad man—he recalled Fely “going on and on about how evil—or
how bad I am and how I mistreat—don’t treat her right.”
Defendant’s depiction of Fely berating him right after she served
him with divorce papers arguably conflicts with her earlier
expressions of fear and nervousness regarding the act of serving
him. The trial court did not abuse its discretion in allowing the
jury to hear this evidence regarding the contested issue of
whether defendant acted in the heat of passion.
29
Fely’s texts imparting information to Philip and Kimberly
about the events on the date of the murder were also admissible
to explain Kimberly’s and Philip’s actions following the murder
when they did not hear from Fely. (People v. Montes (2014) 58
Cal.4th 809, 863 [“[A]n out-of-court statement can be admitted
for the nonhearsay purpose of showing that it imparted certain
information to the hearer, and that the hearer, believing such
information to be true, acted in conformity with such belief.”].)
Further, the text messages that narrated the events of the day
were admissible under section 1241, which provides that evidence
is not made inadmissible by the hearsay rule if it “[i]s offered to
explain, qualify, or make understandable conduct of the
declarant” and “[w]as made while the declarant was engaged in
such conduct.”8 Through the text messages to Kimberly and
Philip, Fely narrated her efforts to serve defendant with the
divorce papers that morning. The evidence provided a timeline
for the murders and confirmed Demirdjian’s testimony.
Defendant argues that the statements in which Fely
documented her actions on the morning she was killed were
inadmissible because they were not relevant. Defendant claims
that the process server testified to the events of the morning, and
defendant did not contest those facts. Further, defendant argues,
Fely’s actions were not ambiguous such that explanation by way
of the text messages was necessary. However, Fely’s text
8 The trial court did not admit Fely’s text messages on the
morning of her killing under section 1241, but the prosecution
argued that it was a valid ground for admitting them. We may
uphold a trial court’s decision if it is correct on any theory,
regardless of the rationale stated by the trial court. (People v.
Kerley (2018) 23 Cal.App.5th 513, 563.)
30
messages corroborated the process server’s recollection of the
events of the morning and filled in additional information
regarding Fely’s actions.
For the reasons set forth above, the trial court did not
abuse its discretion in admitting the testimony.
E. The trial court did not abuse its discretion in
failing to exclude the statements under section
352
Defendant argues that even if the statements were
admissible under a hearsay exception or as nonhearsay, they
should have been excluded under section 352.9 Defendant
acknowledges that the trial court has “broad discretion” to admit
or exclude evidence under section 352. (People v. Rodrigues,
supra, 8 Cal.4th at p. 1124.) Defendant argues generally that
Fely’s statements had no relevance to any disputed issue in the
case. At the same time, he argues, Fely’s statements tended to
“‘evoke an emotional bias’” against the defendant. (People v.
Wright (1985) 39 Cal.3d 576, 585.) He claims that the evidence
depicted him as a money-fixated individual who disrespected her
and treated her “like a piece of shit.” In addition, despite a 41-
year marriage, he was portrayed as an individual who cheated on
her and stayed out late. Defendant argues that this portrait of a
greedy, abusive, philandering husband would naturally evoke
bias against defendant.
9 Section 352 provides that “[t]he court in its discretion may
exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury.”
31
“‘Prejudic[ial]’ in Evidence Code section 352 does not mean
‘damaging’ to a party’s case, it means evoking an emotional
response that has very little to do with the issue on which the
evidence is offered.” (Rufo v. Simpson (2001) 86 Cal.App.4th 573,
597.) In this matter, the nature of the relationship between Fely
and defendant, her feelings about defendant, her intention to
divorce him, and her communications with the defendant on
those topics were relevant to rebut defendant’s position that he
acted rashly in killing her. They were relevant to show a plan
and a motive and to rebut any suggestion that Fely provoked the
killing by serving the divorce papers. (Id. at p. 595 [“[P]laintiffs
were entitled to present evidence tending to establish motive.
Without persuasive evidence . . . regarding motive, the jurors
might believe there was nothing in the relationship . . . which
would precipitate a murder.”].) In addition, the text messages on
the day of the murder helped to show a timeline of events, to
explain Fely’s actions, and to explain the concern of her children
after they did not hear from her. Given the probative nature of
the contested evidence, the trial court’s decision to admit it was
not beyond the bounds of reason. (See id. at p. 596.)
Defendant argues that the prejudicial impact of Fely’s 2016
statement that defendant told her “I’ll kill you before you take
away my Pomona houses” was particularly significant.
Defendant argues that whatever probative value it held was
diminished due to its remoteness in time from the date of the
killing. In addition, it was particularly prejudicial because it
allowed the jurors to believe that in 2018, defendant was making
good on his earlier threat. Defendant relies on Armendariz,
supra, 37 Cal.3d 573, as support for this argument. In
Armendariz, the victim’s son testified that, 17 months before the
32
killing, the victim said he was afraid of the defendant because the
defendant had demanded money and threatened to assault the
victim if he did not comply. (Id. at p. 585.) The trial court
admitted the evidence to explain why the victim’s son went to the
victim’s house that night. (Ibid.) However, the Supreme Court
reversed, explaining that “[t]estimony that a defendant
threatened his victim prior to committing the crime charged is a
particularly sensitive form of evidence.” (Id. at p. 589.) The high
court concluded that in that case, “it created a substantial danger
that despite the limiting instruction, the jury—consciously or
otherwise—might consider [the victim’s] statement as
evidence . . . of the fact that defendant actually threatened to kill
[the victim] and inferentially harbored an intent to do so . . . .”
(Ibid.)
Armendariz is distinguishable. First, unlike the present
case, the victim’s state of mind was not at issue. The killing was
said to have taken place during a burglary and robbery.
(Armendariz, supra, 37 Cal.3d at p. 577.) In addition, the
identity of the killer was at issue, as the defendant contended
that he went to the victim’s house to look for a place to sleep and
found the victim’s body. (Ibid.) Here, in contrast, the issue for
the jury was whether defendant acted while under a heat of
passion or whether he acted with premeditation. Under the
circumstances, the evidence was relevant, and the trial court did
not abuse its discretion in determining that it was more probative
than prejudicial.10
10 Because we have determined that the trial court did not
abuse its discretion in admitting any of the contested evidence,
we do not address the parties’ competing arguments as to
whether any such error was harmless.
33
II. Ineffective assistance of counsel
Defendant argues that trial counsel provided ineffective
assistance by failing to object that the admission of Fely’s
statements violated his federal due process rights. Defendant
argues that there was a reasonable probability that the outcome
of the trial would have been more favorable to defendant absent
the error, therefore the murder conviction should be reversed.
A. Applicable legal standards
To prove ineffective assistance of trial counsel, defendant
must make two showings: first, that counsel’s performance fell
below an objective standard of reasonableness under prevailing
professional norms; and second, that there is a reasonable
probability that the outcome would have been more favorable to
him absent trial counsel’s error. (Strickland v. Washington
(1984) 466 U.S. 668, 688, 694 (Strickland); People v. Hernandez
(2004) 33 Cal.4th 1040, 1052-1053.)
It is presumed that an attorney’s performance falls within
the wide range of professional competence and that counsel’s
actions or inactions can be explained as a matter of sound
strategy. (People v. Bell (2019) 7 Cal.5th 70, 125.) “‘If the record
“sheds no light on why counsel acted or failed to act in the
manner challenged,” an appellate claim of ineffective assistance
of counsel must be rejected “unless counsel was asked for an
explanation and failed to provide one, or unless there simply
could be no satisfactory explanation.”’” (Ibid.)
Defense counsel has a duty to make timely, appropriate
objections at trial. (People v. Daniels (1991) 52 Cal.3d 815, 891.)
A state defendant can allege that the admission of evidence
violated his federal due process right to a fair trial. (Terrovona v.
Kincheloe (9th Cir. 1988) 852 F.2d 424, 428-429.)
34
B. Counsel did not render ineffective assistance by
failing to object to the admission of Fely’s
statements on constitutional grounds
Defendant argues that his trial counsel was ineffective
because counsel should have objected that the admission of Fely’s
statements violated not only state law but also the federal
constitution. Defendant claims that the admission of Fely’s
statements rendered the trial fundamentally unfair under the
due process clause of the 14th Amendment to the United States
Constitution. (Terrovona v. Kincheloe, supra, 852 F.2d at
pp. 428-429.) The evidence portrayed defendant in a bad light
and permitted the inference that defendant premeditated the
murder, motivated by financial considerations. Defendant argues
that his trial counsel’s failure to object on constitutional grounds
was either an oversight or ignorance of the law, both of which
constitute representation falling below an objective standard of
reasonableness. (In re Wilson (1992) 3 Cal.4th 945, 955-956
[“Counsel’s failure to raise a meritorious objection to
incriminating evidence as a result of ignorance or
misunderstanding” constitutes ineffective assistance]; see Hinton
v. Alabama (2014) 571 U.S. 263, 274 [“An attorney’s ignorance of
a point of law that is fundamental to his case combined with his
failure to perform basic research on that point is a quintessential
example of unreasonable performance under Strickland.”].)
Defendant argues that there is no conceivable tactical reason for
his trial counsel’s failure to object that admitting Fely’s
statements violated defendant’s due process rights.
Defendant cites two cases in support of his argument:
People v. Asbury (1985) 173 Cal.App.3d 362, 365-366, and People
v. Roberts (2011) 195 Cal.App.4th 1106, 1131. Asbury involved
35
trial counsel’s failure to object to certain jury instructions on the
ground that they were barred by collateral estoppel. Because
such an objection was meritorious, it was “inescapable” that his
counsel was ineffective. (Asbury, supra, at pp. 365-366). In
Roberts, the defendant’s trial counsel objected to certain
statements on the ground of hearsay but not on the ground that
such statements were inadmissible because they were not part of
the record of conviction of a prior strike. The appellate court
could come up with no legitimate tactical reason for trial
counsel’s failure to make this meritorious objection. (Roberts,
supra, at pp. 1130-1131.)
Neither case suggests that a due process objection was
meritorious under the circumstances of this case or that making
such an objection was a crucial step in excluding the evidence.
Nothing in the record suggests that the trial was fundamentally
unfair due to the trial court’s admission of Fely’s statements.
Thus, defendant has failed to convince us that his trial counsel’s
actions fell below an objective standard of reasonableness under
prevailing professional norms or that there is a reasonable
probability that the outcome would have been more favorable to
him had his trial counsel made such objections. (Strickland,
supra, 466 U.S. at pp. 688, 694; People v. Hernandez, supra, 33
Cal.4th at pp. 1052-1053.)
As discussed above, the trial court did not abuse its
discretion in admitting Fely’s statements. When evidence is
properly admitted under state law, its admission does not deprive
a defendant of due process. (People v. Merriman (2014) 60
Cal.4th 1, 67 [“Because the evidence was properly admitted
under Evidence Code section 1240, its admission did not deprive
defendant of due process.”]; see Riccardi, supra, 54 Cal.4th at
36
pp. 809-810 [the “routine and proper application of state
evidentiary law does not impinge on a defendant’s due process”].)
Because the statements were properly admitted, defendant was
not prejudiced by his counsel’s failure to object on due process
grounds.
III. Failure to provide limiting instructions
Defendant argues that the trial court prejudicially erred by
failing to grant defendant’s counsel’s request to give the jury an
instruction regarding the limited purpose for which it could
consider Fely’s statements. Defendant argues that the majority
of Fely’s statements were merely circumstantial evidence of her
state of mind, rather than direct evidence of her state of mind.
Thus, defendant argues, the trial court was required to give a
limiting instruction upon request. (Citing § 355; People v. Ortiz
(1995) 38 Cal.App.4th 377, 389.)
A. No error in declining to give the limiting
instruction as to the 2016 statement
Defendant only requested a limiting instruction as to one of
Fely’s statements, specifically, Fely’s 2016 statement that
defendant said, “I’ll kill you before you take away my Pomona
houses.” At trial, defense counsel argued that the statement was
not admitted for its truth, therefore “the limited purpose
instruction” would be appropriate. The court inquired of the
prosecution regarding a limiting instruction, to which the
prosecutor responded, “No. I think it came in to show that that
goes toward his motive which would be an intent to kill which
would mean the truth of the statement presented.” Defense
counsel acknowledged the statement was admitted under section
1251 because of Fely’s unavailability but stated, “we still have a
hearsay issue.” The trial court declined to give the limiting
37
instruction, stating, “And that is why I believe . . . defendant’s
statements that are not written or recorded should be considered
with caution. I think that is sufficient . . . to cover that.” Defense
counsel failed to request limiting instructions as to any other of
Fely’s statements that were admitted at trial.
The discussion at trial regarding defendant’s 2016
statement shows that the parties agreed that statement at issue
was admitted to show defendant’s motive. As discussed
previously, defendant’s statement was also admissible pursuant
to section 1220 as a statement of a party. (See People v.
Becerrada (2017) 2 Cal.5th 1009, 1024 [“no hearsay problem
exist[ed]” as to testimony regarding notations written by the
defendant because the “defendant was a party, and the testimony
was offered against him”].) Therefore, the trial court did not err
in declining to give the limiting instruction as to this statement.11
B. Defendant forfeited his claim as to the
remainder of Fely’s statements
Defendant acknowledges that his failure to request a
limiting instruction as to the remainder of Fely’s out of court
statements would normally result in forfeiture. (Riccardi, supra,
54 Cal.4th at p. 824 [“Generally speaking, absent a request, the
trial court has no duty to give an instruction limiting the purpose
11 Defendant argues that while the limiting instruction may
not have been necessary for defendant’s statement to Fely, it was
necessary for the passing of the statement from Fely to Kimberly.
Defendant argues that because Fely’s statement to Kimberly
(relaying defendant’s statement) was admissible only for a
nonhearsay purpose, the limiting instruction was required. First,
we note that defendant did not make this argument at trial,
therefore it is forfeited. Second, we have already determined that
the statement was admissible (see part I.D.1.).
38
for which evidence may be considered.”].) However, defendant
argues that under the circumstances of this case, such a request
would have been futile. In support of this position, defendant
cites People v. O’Connell (1995) 39 Cal.App.4th 1182, 1190, where
defense counsel’s failure to request a certain jury instruction was
excused because “[a]ppellant’s interpretation of the statute had
been categorically rejected by the court on two occasions prior to
the time the court and counsel engaged in discussions regarding
instructions.” (Ibid.) Here, in contrast, there is no evidence that
the trial court disagreed with the law suggesting that a limiting
instruction is appropriate where mental state is evidenced by
circumstantial evidence.12
Defendant argues that in light of the trial court’s ruling as
to the 2016 “I’ll kill you before you take away my Pomona houses”
statement, it would have been futile for counsel to request the
limiting instruction as to Fely’s other out-of-court statements.
We disagree. Defendant’s 2016 statement was admitted as a
hearsay statement made by the defendant that explained his
motive. Many of the other statements were simply evidence of
Fely’s state of mind and her actions. There is no reason to think
12 Defendant also cites People v. Brooks, supra, 3 Cal.5th at
page 92 as support for his position that points are preserved for
appeal when it would be futile to raise them below. In Brooks,
the Supreme Court found that the defendant did not forfeit his
objection that the trial court erred by inquiring into the
numerical breakdown of a deadlocked jury. Due to the
longstanding law permitting such inquiry, the trial court “would
have been bound to reject any argument that conducting such an
inquiry is inherently prejudicial.” (Ibid.) That is certainly not
the case here, where statutory law requires a limiting instruction
upon request.
39
that the trial court would have necessarily reached the same
conclusion as to those different statements.
Here, defendant forfeited any claim that the trial court
failed to give a limiting instruction as to the remainder of Fely’s
statements because defendant failed to request such an
instruction. The trial court was not expected to give such an
instruction sua sponte. (Riccardi, supra, 54 Cal.4th at p. 824.)
Although we decline to analyze each statement in detail
given defendant’s forfeiture, we note that defendant did not
suffer any prejudice from his counsel’s failure to request, and the
trial court’s failure to give, the limiting instruction as to Fely’s
other statements. Unlike the 2016 statement, the remaining
statements contained direct expressions of Fely’s state of mind,
as well as communications between Fely and defendant as to the
nature of their relationship and the potential division of their
property. None of the remaining statements contained any
particularly damaging information if considered for their truth.
Instead, the statements were admitted to show that the parties
had a difficult relationship and had previously discussed divorce.
This is not unusual or shocking communication for a couple
leading up to the service of divorce papers. Therefore, even if the
trial court had erred, such error would be harmless under the
circumstances of this case. (See, e.g., People v. Nguyen (2015) 61
Cal.4th 1015, 1042 [trial court’s failure to give limiting
instruction regarding state-of-mind testimony harmless where
“purpose of eliciting [the witness’s] statement was clear from the
prosecutor’s question”].)
40
C. Defendant’s ineffective assistance claim on this
point fails
Defendant argues that if he forfeited his claim that the
trial court erred in failing to give a limiting instruction on all of
Fely’s statements, then trial counsel was ineffective in failing to
request such instruction. Defendant argues that trial counsel has
a duty to prepare the case and request all instructions that are
necessary. (See, e.g., In re Cordero (1988) 46 Cal.3d 161, 189.)
Defendant claims that many of Fely’s statements were admissible
only as circumstantial evidence of her state of mind—thus,
counsel should have requested a limiting instruction for all of
Fely’s statements that did not directly declare a state of mind
and not just for the 2016 statement. Defendant further argues
that there was no satisfactory tactical reason for counsel’s failure
to do so. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-
267.)
As set forth above, the legal standard for showing
ineffective assistance of counsel incorporates two elements: that
trial counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms; and that
there is a reasonable probability that the outcome would have
been more favorable to him absent trial counsel’s error.
(Strickland, supra, 466 U.S. at pp. 688, 694; People v. Hernandez,
supra, 33 Cal.4th at pp. 1052-1053.) While defendant
acknowledges that the record does not reveal why counsel did not
request the instruction, he argues that there could be no possible
tactical reason for such omission. We disagree. During the
discussion of a limiting instruction regarding the 2016 statement,
the court noted “if I give the instruction, then I think one of you
should talk about what evidence was submitted or presented for a
41
limited purpose.” Under the circumstances, “counsel may have
deemed it unwise to call further attention” to the statements.
(People v. Hinton (2006) 37 Cal.4th 839, 878.) Thus, there is a
possible tactical reason for counsel’s failure to request the
limiting instruction.13
Further, defendant has failed to show prejudice from any
potential failure on the part of his trial counsel. The admitted
statements contained direct and indirect expressions of Fely’s
state of mind, including her fear, her unhappiness, and her desire
for a divorce. The prosecution was entitled to show defendant’s
awareness of Fely’s desire for a divorce and the parties’
discussion of property allocation. In addition, there is no
indication that the prosecution tried to use the statements for
any purpose other than to show the timeline of events leading up
to Fely’s decision to finally attempt to serve defendant. Under
the circumstances, defendant has failed to show prejudice,
therefore his ineffective assistance claim fails.14
13 We reject defendant’s argument that, having concluded
that the benefit of the instruction was worth the risk of
highlighting the most prejudicial statement—that defendant
threatened to kill Fely, counsel had no reasonable tactical basis
for not requesting a limiting instruction for the other, less
damaging, nonhearsay statements. The opposite could be true as
well—counsel felt that the jury would fixate on the threat, and
remember it no matter what—therefore the limiting instruction
was only worth “highlighting” that very damaging statement and
was not worth highlighting the numerous less damaging
statements.
14 Because we have found no error, we decline to address
defendant’s argument that cumulative prejudice from the errors
violated his Constitutional rights.
42
IV. Presentence custody credits
The parties agree that the trial court erred in denying
defendant custody credits.
Defendant was arrested on October 6, 2018, and released
on October 8, 2018. He was rearrested on October 18, 2018, and
sentenced on October 1, 2019. His actual credit consists of 3 days
from arrest to release and 349 days from rearrest to sentencing,
for a total of 352 days.
The trial court erroneously found that defendant was not
entitled to custody credits, apparently relying on the statute that
bars those convicted of murder from accruing worktime or
conduct credits. (Pen. Code, § 2933.2, subd. (a).) Defendant was
entitled to credit for all actual days of presentence confinement.
(Pen. Code, § 2900.5, subd. (a) [“In all felony and misdemeanor
convictions, either by plea or by verdict, when the defendant has
been in custody, including, but not limited to, any time spent in a
jail, . . . all days of custody of the defendant . . . shall be credited
upon his or her term of imprisonment . . . .”].)
Although trial counsel did not object at trial, defendant did
not forfeit the issue. “The failure to award an adequate amount
of credits is a jurisdictional error which may be raised at any
time.” (People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8; see
People v. Taylor (2004) 119 Cal.App.4th 628, 647.) Therefore, the
judgment must be modified to award defendant 352 days of
presentence actual custody credit.
DISPOSITION
The judgment is modified to add 352 days of presentence
custody credit. The trial court is directed to prepare an amended
abstract of judgment reflecting the modification regarding
43
presentence custody credit, and to forward a copy of the amended
abstract to the Department of Corrections and Rehabilitation. As
so modified, the judgment is affirmed.
________________________, J.
CHAVEZ
We concur:
________________________, Acting P. J.
ASHMANN-GERST
________________________, J.
HOFFSTADT
44