People v. Dunger CA2/8 ( 2021 )

Filed 8/9/21 P. v. Dunger CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B303947
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA145652)
v.
ANDREW JOSEPH DUNGER et
al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura R. Walton, Judge. Affirmed with
corrections.
Caneel C. Fraser, under appointment by the Court of
Appeal, for Defendant and Appellant Andrew Joseph Dunger.
Janet Uson, under appointment by the Court of Appeal, for
Defendant and Appellant Carolina Gethsemane Rojas.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Zee Rodriguez, Supervising Deputy
Attorney General, and Charles J. Sarosy, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
Andrew Joseph Dunger and Carolina Gethsemane Rojas
got an axe and drove from Sacramento to Los Angeles to see a
woman with whom Dunger once had a relationship. Dunger and
Rojas used the axe on the woman and left her for dead. A jury
convicted the two of premeditated attempted murder and
aggravated mayhem. We affirm, except we direct the trial court
to strike an enhancement on the mayhem count. Statutory
references are to the Penal Code.
I
We begin with the facts. The appellants are Dunger and
Rojas. Their victim was Stephanie Corral. We recount what
happened according to each person.
A
Corral was the first witness. She testified she met Dunger
in 2008. Corral married Dunger’s uncle in 2012; this couple
separated in 2015. Corral and her children then moved into
Dunger’s home with his family.
Before moving in, Corral began communicating with
Dunger through video chat and Snapchat. At this time, Corral
was beginning a separation with her husband. Dunger too was
facing family issues. Corral testified, “We leaned on each other
for support because we felt like we didn’t have that.”
At the time, Corral was 23. Dunger was 16.
Dunger and Corral smoked marijuana together. Dunger
sometimes got the marijuana by taking it from where his parents
kept theirs. Other times Corral brought it.
2
Their text messages grew sexual, intimate, and explicit.
Corral told Dunger she was “a stay-at-home mom, and it got
lonely.” Dunger complained his parents were strict and
overbearing.
Corral maintained she never had sexual intercourse with
Dunger—a claim Dunger disputed at trial.
Corral ended the relationship after two months “by telling
him that I couldn’t do it anymore because I felt bad.”
Corral “heard that there was an investigation” and told
police she was sexting Dunger. Corral pleaded guilty to a
misdemeanor for an inappropriate relationship with a minor.
She served 110 days in jail and received three years’ probation. A
three-year protective order barring contact with Dunger took
effect in 2016.
Corral testified she did not communicate with Dunger or
his family for the next 18 or 24 months.
Then in March 2018 Corral got a Snapchat message from
Dunger’s account. The message said he needed to see her for
closure. Corral blocked the account and did not respond.
Four or five days later, she received another Snapchat
message, this time from an account containing Dunger’s first
name. He begged to see her right away; he had “found God” and
needed to talk. Corral worried something was wrong. Although
the restraining order remained in effect, she invited Dunger—
who lived in Sacramento—to her home in Los Angeles.
Corral shared a home with her sister. Dunger wanted to
talk privately somewhere. He did not have identification, so she
agreed to get him a motel room. He gave her money for the room.
Dunger said he would drive down that night, alone, and he
would bring marijuana. He arrived at Corral’s house in a white
3
Dodge Durango after midnight on March 21, 2018. Corral got
into the front passenger seat with her purse and a pink backpack.
She saw the car was “pretty messy,” with clothes and junk
everywhere.
Dunger drove to the Central Inn Motel, which was about 10
minutes away. They arrived around 12:45 a.m.
Corral asked the motel clerk for a smoking room and
learned these rooms were upstairs. Dunger’s response was, “No,
not upstairs. I don’t want to have to run.” Corral got a room
downstairs.
Corral went to the room while Dunger moved the car. She
heard a knock on the door a few minutes later and let Dunger in.
He put his backpack on the little chair in the room.
There was another knock a few minutes later. Corral was
not expecting anyone and had no idea who it could be. As she
went to answer the door, she noticed Dunger was getting pepper
spray out of his backpack. She asked him what it was for.
Dunger smirked.
Corral opened the door to find Rojas, whom Corral did not
know.
Rojas told Corral, “You’re gonna die tonight, bitch.”
Dunger pepper-sprayed Corral in the eyes. Corral tried to
escape but Dunger and Rojas got her back in the room.
Corral cried for help. “I was being loud, so [Rojas] was
trying to cover my mouth, so I bit her finger. . . . I bite her finger
for awhile, and then she tells Andrew to get the axe.”
Dunger got a nine to 10-inch axe from his backpack. The
witnesses referred to it as both an axe and a hatchet. It was an
exhibit at trial.
4
Rojas told Dunger to hit Corral’s head with the axe. Using
the blunt end, he did. Corral let Rojas’s finger go, ran for the
door, and briefly got out of the room.
Rojas and Dunger grabbed her arms and pulled her back.
They chased her around the room and used the axe on her.
Rojas and Dunger took turns swinging the axe. Corral
tried to block the blows. Rojas said something like, “this is for his
brother.”
Using the bladed side, Rojas hit Corral’s head. Corral was
not sure how many times, but it was more than three. Dunger
also hit Corral’s head with the blade. “They took turns.”
“There was a point where she pushed me onto the bed and
put her knees over my hands and put her thumbs into my eyes
and said, ‘You thought you were gonna fuck him, didn’t you?’ ”
Rojas gouged Corral’s eyes “really hard.”
Corral screamed for help.
Dunger and Rojas pinned Corral down. One of them put
the blade against the bottom of Corral’s nose and cut upwards.
“They took the axe and—and cut my nose off, kind of, in a way.”
“It partially took my nose off away from my face, up.” Corral
could not say who pinned and who sliced.
Rojas dragged Corral into the bathroom and sat on her
chest. She choked Corral and said, “Why don’t you just die
already.” Dunger said, “If you survive this, I’m going after your
kids and your husband.”
While Corral was in the bathroom, she heard a knock at
the door. Dunger told the person at the door that they were
“having rough sex.”
Corral played dead. Dunger and Rojas threw “towels or
something” over her and left.
5
Motel clerk Sujal Padhiyar also testified. He heard loud
screaming from Corral’s room and knocked on the door. No one
answered. There was more screaming. Another clerk joined him.
Padhiyar got the motel’s housekeeper so she could open the door.
At some point, the screaming stopped.
Two people left the room. One wore a sheet. The other was
a male. They ran to the white Durango. As they sped off and hit
another car, Padhiyar got their license plate number.
Julie Mercado testified she was the motel housekeeper.
She was cleaning and heard loud screaming and banging. The
screaming was intermittent; then it stopped. Mercado found
Corral on the bathroom floor under sheets and a blanket. Corral
was bleeding badly and could say only her name.
The jury saw security camera footage showing the white
Durango arrive and Corral check in. Dunger then got out of the
Durango and took his backpack into the room. A woman left the
car about a minute later. About seven minutes after Corral
checked in, Padhiyar went to the motel room door to investigate.
Dunger and a person wearing a sheet left the room. Corral,
Rojas, and Dunger were in the room for less than 22 minutes.
Paramedics took Corral to the hospital. She “was bleeding
to death,” so staff put her in the gravest trauma tier.
Emergency medical technician Isaac Rodriguez helped
stabilize Corral that night. Rodriguez testified that, while
waiting for the operating room, Corral asked him whether she
would live. He sensed she thought she was dying. Corral told
him what happened, and Rodriguez typed on his phone. His
notes became an exhibit:
Andrew Dungbar reached out to patient via Snapchat
Tuesday night according to patient. He asked if he could
6
see her the same evening. He asked her to get a room for
him and her and insisted that it be on the 1st floor. She
thought it was an odd request to insist for a room on the 1st
floor. She got a room there anyway. While with him in the
room someone banged on the door. A woman barged in.
That’s when patient was assaulted by ex boyfriend and
exboyfriends current girlfriend with an ax. As they were
assaulting her patient states ex and his girlfriend stated
that they would kill her and her kids if she went to the
police.
Rodriguez also testified Corral said some things that were
not in his notes. She said the male attacker had a restraining
order against her. Rodriguez was about 80 percent sure Corral
said the restraining order was because they had had sex. Corral
also said she did not listen to her gut when he insisted on a first-
floor room.
By 5:30 that evening, detectives found the Durango at
Rojas’s Sacramento house. A detective saw Dunger and Rojas
unloading the Durango and arrested them. The detective found a
bloody axe under a car in Rojas’s driveway. Another detective
found a pillow and a hooded sweatshirt in a trash can. Both were
bloody. The sweatshirt was dripping.
The detectives found blood-stained clothing in the house.
The shower had been used recently.
Police found blood spots in the Durango, as well as a wallet
with Corral’s identification; a purse; shoes with blood; pepper
spray; a roll of duct tape with blood on it; a package of zip ties;
marijuana paraphernalia; and an open case of beer.
Corral and an emergency nurse described Corral’s injuries
to the jury. The jury saw many pictures.
7
Corral’s little finger had been almost completely severed.
Her brain was bleeding, and she had lacerations on her nose,
head, left wrist, and right hand. Doctors put more than 40
staples in her head and stitches in her lip, jawline, forehead, and
hands. Doctors glued and stitched her nose. The nurse testified
Corral’s hand and wrist cuts were defensive wounds.
Corral was in two hospitals for two to three weeks. She
wore two hand casts for months. As of trial, the range on Corral’s
left hand was limited. The pain in her hands made her give up
driving. She needed help for household tasks and to lift objects
like a pot. Her little finger was disfigured. She was facing more
surgeries.
B
Rojas did not testify or call witnesses. The prosecution
presented testimony that, after her arrest and while at the
Sacramento police station, Rojas spontaneously asked a detective
if there was any way to prove she had been to Los Angeles. She
claimed she had not been there.
C
Dunger testified he met Corral when he was nine or 10
years old. She moved into his home near Sacramento when he
was 15 and she was in her 20s.
Corral gave Dunger a cellphone and began a sexting
relationship with him when he was 15. She would send him
naked pictures and sexual messages. They started having sex.
They had sex nearly every day. According to Dunger, “Me and
her would hang out pretty much 24/7. . . . [S]he was, basically,
like my escape from being at home.”
8
Dunger got into trouble a lot. His father and stepmother
would lock him in his room and keep him from his siblings. They
allowed contact with Corral.
Corral gave Dunger marijuana, alcohol, pain pills, and acid.
She would drink and smoke marijuana with Dunger’s younger
siblings too.
Dunger’s parents kicked Corral out when they found his
phone and saw videos and pictures of the two having sex.
Dunger’s relationship with Corral ended around this time. This
was about a month before Corral went to jail. Dunger was 17.
The day she got out of jail, Corral sent Dunger a Snapchat
message asking him to meet her. He did, and they smoked.
Corral asked him about his sex life and offered oral sex. Dunger
declined; he was done with the relationship. He had no further
contact with Corral until March 2018.
In the meantime, Dunger met Rojas and began dating her.
He soon moved into Rojas’s home. They bought, sold, and used a
lot of drugs together.
In March 2018, Dunger and Rojas were looking for acid, but
their source was unavailable. Dunger had Rojas contact Corral
using his Snapchat account; he remembered she had a local
dealer. Dunger assured Corral it was okay to talk to his
girlfriend. Corral said she would reach out to her contact but
then she did not respond for two weeks.
Dunger messaged Corral again, and she told him she had
acid to sell. They planned to meet at Corral’s house in Los
Angeles. She could supply the acid and would try to get Xanax
from a friend.
Dunger had some notion Rojas was a jealous girlfriend but
was not worried about her meeting Corral.
9
Dunger and Rojas left Sacramento later that afternoon and
arrived at Corral’s house after midnight. Corral got in the car,
greeted Dunger, and said “What’s up?” to Rojas, who was lying
down in the backseat.
Dunger drove to a gas station, and Corral bought beer.
Dunger was only 19; he gave Corral the beer money.
They went to the motel to wait for the Xanax dealer.
Dunger denied saying anything about wanting a first-floor room
or not wanting to run.
Corral and Dunger entered the motel room, talked, and
smoked marijuana. Dunger had had beer before leaving for Los
Angeles, had smoked marijuana on the drive down, and drank
more beer on the way to the motel.
After a couple minutes in the motel room, Rojas knocked,
and Corral let her in. Rojas went to the bathroom because she
was feeling sick. When she came out, the three of them sat on
the bed and smoked marijuana while waiting for the Xanax to
arrive.
Corral leaned over and asked Dunger if he would let her
kiss him. Dunger and Corral looked at Rojas, who started
yelling. Dunger described the advent of the violence in these
words: “Then they started—Carolina started yelling. Stephanie
started yelling. They started, like, having an argument. But it
was more like—they were screaming at each other, and then they
started fighting. . . . Yeah, it was physical. I—I don’t know
directly punching or—but they were both putting hands on each
other.”
Dunger watched in shock. He grabbed pepper spray and
“sprayed the shit out of both of them.” It had no effect.
10
Then Rojas pulled out an axe. Dunger did not bring it into
the room. He and Rojas had taken the axe from Rojas’s home for
protection: they had about $1,600 for the drugs and Dunger
feared the dealer might rob them.
Rojas hit Corral with the axe for “like a couple seconds, like
maybe, like, five seconds.” Dunger testified Rojas’s motions were
like tapping a nail into drywall; they were rapid, short hits, not
intense ones.
Corral grabbed the axe while Rojas was holding it. Dunger
wrested it from them both and threw it. No one used the axe
again.
Rojas and Corral wrestled on the floor while Dunger tried
to pull them apart. When Rojas got on top of Corral and
strangled her, Dunger ran over to pull Rojas off.
Dunger heard banging on the door. He opened it and saw
two men. One said he was calling 911.
Dunger saw Corral lying in blood. He was shocked and
scared the police would think there was a robbery.
Dunger left, with Rojas trailing him in a sheet. They drove
back to Sacramento, where police arrested them at Rojas’s house.
Dunger denied threatening to kill Corral. He denied
hitting her or injuring her in any way.
Both the prosecutor and Rojas’s attorney cross-examined
Dunger. The prosecutor began by showing Dunger a picture of
Corral’s injuries:
Q. Placing 18—People’s 18 in the screen in front of you, Mr.
Dunger. Can you see it on your screen?
A. Yes. Yes, I see it.
Q. Using my pen, pointing to some injuries along the jaw
line. Do you see those injuries?
11
A. Yes.
Q. How did they get there?
A. I’m not sure.
Q. Do you see the injuries on her forehead?
A. Yes.
Q. How did they get there?
A. I’m not sure.
Q. Do you see the injuries to the side of her ear?
A. I do.
Q. How did they get there?
A. I’m not sure.
D
The prosecution charged Dunger and Rojas with two
counts: premeditated attempted murder (§§ 664, 187, subd. (a))
and aggravated mayhem (§ 205). For both counts, the
information alleged both defendants personally inflicted great
bodily injury (§ 12022.7, subd. (a)) and personally used a deadly
weapon—an axe (§ 12022, subd. (b)(2)). The trial court later
amended the deadly weapon allegation to refer to section 12022,
subdivision (b)(1).
Trial began on October 28, 2019, and lasted about a week.
The jury convicted both defendants on both counts. The jury also
found true both allegations on the first count and the deadly
weapon allegation on the second count.
The trial court sentenced each defendant to life in prison
plus four years, with a mandatory minimum of seven years. The
sentence for count 1 included three years for the great bodily
injury enhancement and one year for the deadly weapon
enhancement. The court stayed the sentences on count 2 under
section 654.
12
II
We now discuss Dunger’s and Rojas’s appellate arguments.
A
Dunger and Rojas argue the trial court should have allowed
their lawyers to inquire about whether Corral had had a sexual
relationship with Dunger’s younger brother. They claim the
court erroneously prevented them from undermining Corral in a
case that hinged on credibility, thereby violating their
constitutional rights. Rojas additionally claims the evidence was
relevant to her state of mind and a heat of passion defense, which
she admits she did not raise at trial.
The trial court’s ruling was proper. It did not violate
defendants’ constitutional rights.
Before trial, the prosecution moved to exclude mention of a
relationship between Corral and Dunger’s younger brother,
arguing it was irrelevant and would confuse and mislead the
jury. Dunger’s counsel opposed the motion, arguing the evidence
would show moral turpitude and was relevant to Corral’s
veracity. The court deemed the issue irrelevant “right now” but
asked counsel to raise it at trial if and when counsel believed it
became relevant.
Corral mentioned the brother once in her testimony. She
noted Rojas, while attacking, made a comment along the lines of,
“this is for his brother.”
The prosecution renewed its objection after its
examination. Dunger’s attorney proffered Dunger’s younger
brother and Corral had had a sexual relationship “a while ago”
when the brother was 14, which constituted moral turpitude.
The attorney referred to a statement made by the brother but did
not offer it to the trial court. Rojas’s attorney argued the
13
evidence could be relevant to heat of passion or self-defense and
thus to an attempted manslaughter instruction.
The trial court ruled there could be no heat of passion if the
relationship was “a while ago.”
The court asked if there were any charges, investigation, or
arrest relating to the brother. No one knew of any. The court
concluded a mere allegation of child molestation did not amount
to a crime of moral turpitude. The court precluded the defense
from raising the issue with Corral “at this time.” But the court
recognized, “if your clients take the stand and want to say this is
the reason we did it, then that’s another issue.”
Neither defense lawyer returned to the subject.
We uphold a correct ruling on appeal, even if the reason
given is wrong. (People v. Smithey (1999) 20 Cal.4th 936, 972.)
A party may impeach a witness regarding past conduct
involving moral turpitude, even absent a conviction, but trial
courts have wide discretion about whether to admit such
evidence. (People v. Clark (2011) 52 Cal.4th 856, 931–933.) This
discretion does not implicate confrontation rights unless the
defendant shows excluded testimony would have produced a
significantly different impression of the witness’s credibility.
(People v. Pearson (2013) 56 Cal.4th 393, 455–456.) Excluding
impeachment evidence on collateral matters that are only slightly
probative of a witness’s veracity does not infringe a defendant’s
constitutional rights. (People v. Jennings (1991) 53 Cal.3d 334,
372; see also People v. Fudge (1994) 7 Cal.4th 1075, 1103
[excluding defense evidence on a minor or subsidiary point does
not impair an accused’s right to present a defense].)
Assuming Corral had a past relationship with Dunger’s
younger brother and assuming this constituted moral turpitude,
14
the trial court retained discretion to exclude the topic. The issue
was not relevant to the merits of the case. Neither defendant
said or proffered this was the reason for the attack. Dunger’s
attorney conceded the alleged conduct was remote. The court did
not abuse its discretion.
Dunger and Rojas also fail to establish a reasonable
probability this cross-examination would have changed the jury’s
impression of Corral’s credibility. At trial, Dunger attacked
Corral as a person of moral turpitude when he testified she had
had daily sex with him when he was a minor and had supplied
him and his younger siblings with drugs and alcohol when they
all were minors. Corral herself volunteered she went to jail for
having an inappropriate relationship with Dunger, who then was
underaged. Dunger’s counsel mounted the same attack when he
questioned both Corral and emergency medical technician
Rodriguez about Corral’s past relationship with Dunger and
when he showed the jury one of Corral’s sexually explicit
messages to Dunger. Further, apart from the issue regarding
Dunger’s brother, defense counsel had nearly free rein when
cross-examining Corral.
Dunger, for his part, incorrectly maintains his guilt hinged
entirely on Corral’s testimony, and knowing she had had sex with
another underaged person would have tipped the scales in his
favor. This argument overlooks the fact that, apart from Corral’s
testimony, the testimony of independent witnesses, video
surveillance, and the physical evidence supported the
prosecution’s case and undermined Dunger’s testimony. Dunger’s
account was weak because he could not account for the range of
injuries Corral indisputably suffered. His claim that Rojas
surprised him by producing the axe and extensively cutting
15
Corral in five seconds was implausible. His story he and Rojas
brought $1,600 to buy drugs suffered from the lack of
corroborating evidence: apart from the modest motel payment,
there seemed to be no money and no drugs found at the scene or
anywhere else. To objective observers, Dunger’s testimony seems
more like convenient invention than a plausible version of the
truth.
Rojas, for her part, makes an attack on the court’s ruling
that is strange, because her trial strategy was to agree with
Corral’s testimony, not to undermine it. In the contest between
Corral and Dunger, Rojas logically favored Corral, because
Dunger’s version exculpated Dunger by entirely blaming Rojas.
Further, Rojas concedes she did not present a heat of passion
defense at trial. Precluding counsel from cross-examining Corral
about a possible remote sexual relationship with Dunger’s
brother did nothing to hamper Rojas’s presentation of this
defense or to harm her cause.
We reject the claim that the requested inquiry would have
cast Corral’s credibility in a significantly different light. This
objection to the verdict fails.
Because evidence of a past relationship between Corral and
Dunger’s brother could not have changed the trial result, we
further reject Rojas’s contention her trial lawyer was ineffective
for failing to return to this subject after Dunger testified.
B
Defendants next contend the trial court committed
reversible error by failing to instruct the jury on attempted
voluntary manslaughter based on heat of passion or sudden
quarrel. There was no duty to give this instruction in this case,
and any failure to give the instruction was harmless.
16
Trial courts must instruct on lesser included offenses that
are supported by substantial evidence, even absent a defense
request. (People v. Breverman (1998) 19 Cal.4th 142, 162.) We
independently review a trial court’s failure to instruct the jury on
an issue of law. (People v. Millbrook (2014) 222 Cal.App.4th
1122, 1137 (Millbrook).)
When a defendant seeks to kill but acts upon a sudden
quarrel or in the heat of passion, attempted murder becomes
attempted voluntary manslaughter, which is a lesser included
offense. (Millbrook, supra, 222 Cal.App.4th at p. 1137.) Under a
heat of passion or sudden quarrel theory, the defendant must
have attempted to kill while under the influence of extreme
emotion and must have been provoked by conduct that would
cause an ordinary person of average disposition to act rashly and
without due deliberation. (See id. at pp. 1137, 1139, 1140.)
Only Rojas’s lawyer requested a manslaughter instruction.
He did so before the defense case—that is, before there was
evidence to support it. The court ruled there was insufficient
evidence and denied the request. Rojas’s lawyer did not renew
his request after Dunger testified.
We need not determine whether the standard for harmless
error here is from People v. Watson (1956) 46 Cal.2d 818, 836 or
from Chapman v. California (1967) 386 U.S. 18, 24, because any
error here was harmless no matter the standard. Beyond a
reasonable doubt, the asserted error did not contribute to the
verdict. (See People v. Beltran (2013) 56 Cal.4th 935, 956
(Beltran).)
We analyze the matter first as to Dunger and then as to
Rojas.
17
As to Dunger, no evidence suggested he acted in the heat of
passion or because of a sudden quarrel. By Corral’s account, she
did not provoke Dunger on the night of the attack. By Dunger’s
account, he never attacked Corral at all; Rojas was the sole
assailant and Dunger was an innocent bystander. (See People v.
Gutierrez (2003) 112 Cal.App.4th 704, 709; see also People v.
Sinclair (1998) 64 Cal.App.4th 1012, 1016, 1020 [defendant not
entitled to voluntary manslaughter instruction where he denied
shooting the victim and further denied he was armed].) Dunger
and Corral did have a sexual history, but that was from years
before. (See Beltran, supra, 56 Cal.4th at p. 951 [no voluntary
manslaughter once passing time cools passion].) Dunger thus
was not entitled to a heat of passion instruction, and failure to
give it could not have contributed to his convictions, beyond a
reasonable doubt.
As to Rojas, Dunger provided the only evidence Corral
supposedly provoked Rojas that night. But a request for
permission to kiss would not induce a reasonable person “to react
from passion and not from judgment.” (Beltran, supra, 56
Cal.4th at p. 939.) Apart from saying there was “yelling,” Dunger
did not describe any supposedly provocative words Corral
uttered. This account did not support a duty to give a heat of
passion instruction. Neither could there have been prejudice to
Rojas. The evidence of provocation—Corral’s supposed request
for a kiss and the ensuing fight—“was both weak and
contradicted.” (Beltran, supra, 56 Cal.4th at p. 956.) More
generally, Dunger’s account of the violence made no sense, for his
description of Rojas’s “five seconds” with the axe could not
account for the Corral’s extensive injuries, which were
indisputable. When cross-examined about how Corral came to
18
suffer injuries to her jawline, her forehead, and her ear, Dunger
was reduced to repeating, “I’m not sure.” Refusing to instruct the
jury on attempted voluntary manslaughter was harmless.
For the same reason, failing to renew the request for this
instruction after Dunger testified was not ineffective assistance of
counsel requiring reversal. (See Strickland v. Washington (1984)
466 U.S. 668, 687 (Strickland) [defendant must show prejudice to
establish ineffective assistance].)
A further ground is an alternative basis for rejecting
defendants’ argument about the heat of passion instruction. In
addition to finding both defendants guilty of attempted murder,
the jury found true the allegation that their attempt “was
committed willfully, deliberately and with premeditation.” This
finding rules out the possibility of finding the defendants acted
upon a sudden quarrel or in the heat of passion. (See Millbrook,
supra, 222 Cal.App.4th at p. 1138; see also People v. Peau (2015)
236 Cal.App.4th 823, 830–832 [any failure to give heat of passion
instruction was harmless where the jury convicted the defendant
of first degree murder and thereby found the murder was willful,
deliberate, and premeditated].) In proving the premeditation
allegation beyond a reasonable doubt, the prosecution negated a
provocation theory beyond a reasonable doubt.
C
Rojas argues her retained trial counsel was ineffective in
unreasonably presenting a “nondefense” that conceded guilt and
ran contrary to the law while abandoning crucial defenses
supported by the evidence. She claims this strategy shows
counsel failed to investigate and prepare the case adequately.
To establish ineffectiveness, a defendant must show
counsel’s efforts fell below an objective standard of
19
reasonableness and the deficient performance prejudiced the
defendant. (Strickland, supra, 466 U.S. at pp. 687–688.) In
reviewing ineffective assistance claims, we defer to counsel’s
reasonable tactical decisions and presume counsel acted within
the wide range of reasonable professional assistance. (People v.
Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
Claims of ineffective assistance usually are more
appropriately raised in habeas corpus proceedings. (Mai, supra,
57 Cal.4th at p. 1009.) On direct appeal, we reverse a conviction
only if (1) the record shows counsel had no rational tactical
purpose for the challenged act or omission, (2) counsel was asked
for a reason and failed to provide one, or (3) no satisfactory
explanation could exist. (Ibid.)
The background to Rojas’s argument is as follows. Shortly
before trial, her retained attorney told the court he had an
upcoming trial in federal court and was not ready for Rojas’s
trial. Then he reversed field and said he was ready. He said this
case was straightforward and he was willing to stipulate to most
of it; the main issue was Rojas’s inability to have both an intent
to kill and an intent to disfigure permanently.
At the sentencing hearing, counsel explained his trial
strategy: to show his client was willing to accept responsibility
and would be worthy of parole. Counsel noted Rojas had tried to
plead guilty for a sentence of 14 years to life on the attempted
murder count. The prosecution, however, insisted on a package
deal: it refused Rojas’s offer because Dunger would not change
his plea.
Following this strategy, Rojas’s attorney made a brief
opening statement at trial. Among other things, he told the jury
most of what they just heard from the prosecutor was true. And
20
he said the evidence would show an intent to kill but not an
intent to maim.
Rojas’s attorney did not cross-examine most of the
prosecution witnesses. He did cross-examine Corral, and his
questioning bolstered his defense theory. He also extensively
cross-examined Dunger.
Rojas’s attorney maintained his chosen strategy in closing
argument. He argued Corral told the truth, both Rojas and
Dunger tried to kill her, and the prosecution proved intent to kill
beyond a reasonable doubt. Then he argued Rojas could not have
had the intent to disfigure permanently; the facts of this case
showed this was illogical, as the intent to kill was so clear and
the two intents were “diametrically opposed.” He argued the
government overreached in bringing a mayhem count it could not
prove.
Rojas’s counsel’s explanation of his tactical thinking was
not irrational. Under Mai, supra, 57 Cal.4th 986, this means we
leave the ineffective assistance issue to the customary forum of a
habeas corpus proceeding. (See also McCoy v. Louisiana (2018)
__ U.S. __, __ [138 S.Ct. 1500, 1505, 1507–1509] [defendants have
the right to insist counsel refrain from admitting guilt, even
when counsel’s experienced view is confessing guilt offers
defendants the best chance].)
D
Rojas argues we must reverse her conviction because
Dunger disclaimed responsibility and incriminated her, and the
trial court failed to instruct that accomplice testimony requires
corroboration and should be viewed with distrust.
21
The trial court gave no accomplice instructions, perhaps
because the parties went over instructions before Dunger
testified.
Trial courts should give a cautionary instruction when an
accomplice’s testimony incriminates a defendant. (People v.
Guiuan (1998) 18 Cal.4th 558, 569.) However, failure to give
accomplice instructions is not prejudicial where, independent of
the witness’s testimony, corroborating evidence connected the
defendant to the offense. (People v. Snyder (2003) 112
Cal.App.4th 1200, 1221–1222.)
There was no prejudice here. Corral’s testimony and the
video evidence powerfully implicated Rojas in the attack, as did
Rojas’s flight to Sacramento. (See People v. Zapien (1993) 4
Cal.4th 929, 983 [flight implies consciousness of guilt].) Dunger’s
testimony was nearly superfluous.
The trial court instructed the jurors to use their common
sense in judging witness credibility. It likewise instructed them
to consider whether a personal interest influenced any witness’s
testimony and whether other evidence proved or disproved any
fact about which the witness testified. It is common sense that
an accused has a motive to lie and an interest in shifting the
blame to a codefendant. Rojas’s attorney underscored this by
arguing Dunger was a liar.
Because it is not reasonably probable Rojas would have
achieved a more favorable result with an accomplice instruction,
failing to request one was not ineffective assistance of counsel
requiring reversal.
E
Dunger and Rojas identify another instructional error:
they claim the trial court violated their constitutional rights to a
22
unanimous verdict by failing to give a unanimity instruction for
the aggravated mayhem count. They say the prosecution
presented multiple acts as the basis for this count, and the court
should have required the jurors to agree on the specific acts
giving rise to their guilty votes.
We independently review claims of instructional error.
(People v. Hernandez (2013) 217 Cal.App.4th 559, 568
(Hernandez).)
Aggravated mayhem is when a person either (a)
intentionally and permanently disables or disfigures another, or
(b) intentionally deprives another of a limb, organ, or body part,
and shows extreme indifference to the physical or psychological
well-being of the victim. (§ 205.)
In closing argument, the prosecutor told the jury it could
find aggravated mayhem based on either the injury to Corral’s
nose or to her little finger. He argued the defendants jointly tried
to remove Corral’s nose. He acknowledged Corral was acting
defensively in raising her hands but argued the intent to disable
was still there for the finger, as the defendants kept swinging
after blood spilled in order “to take that defensive limb away.”
When the evidence suggests more than one discrete crime
and the prosecution fails to elect among them, the trial court
must require the jury to agree on the same criminal act. (People
v. Russo (2001) 25 Cal.4th 1124, 1132.) This way, the jury does
not amalgamate evidence of multiple offenses, none of which the
prosecution has proved beyond a reasonable doubt, to convict on
the theory the defendant must have done something worthy of
conviction. (Ibid.) A unanimity instruction thwarts the
possibility of jurors convicting based on different conduct.
23
(Hernandez, supra, 217 Cal.App.4th at p. 569.) The trial court’s
duty to instruct exists even absent a defense request. (Ibid.)
A unanimity instruction is not required, however, when the
acts alleged form one course of criminal conduct, or when the
defendant offers essentially the same defense to each act. (People
v. Jennings (2010) 50 Cal.4th 616, 679–680; Hernandez, supra,
217 Cal.App.4th at p. 572.)
This case involves a continuous course of criminal conduct.
It was brief, nonstop, and confined to the area within a small
motel room. No unanimity instruction was necessary. (See
People v. Napoles (2002) 104 Cal.App.4th 108, 115–116 [with the
continuous-course-of-conduct exception, “no unanimity
instruction is required because the multiple acts constitute a
single criminal event”].)
F
Dunger and Rojas contend we must reverse their
convictions due to prosecutorial misconduct during closing and
rebuttal argument. They say the challenged remarks fall into
two categories: arguing facts outside the evidence and using
improper and inflammatory rhetoric to appeal to jurors’ emotions.
With one exception discussed below, defendants failed to assert
timely and specific objections to the challenged remarks. They
have forfeited these arguments on appeal. (See People v. Ramirez
(2019) 40 Cal.App.5th 305, 310.) Defendants alternatively argue
failing to object amounted to ineffective representation
warranting reversal. We reject these arguments.
We begin by summarizing our analysis. Most of the
remarks are unobjectionable; for the remainder, it is not
reasonably probable defendants would have obtained a more
favorable result had trial counsel objected. (See Mai, supra, 57
24
Cal.4th at p. 1009.) Nor was there a danger of jurors
misunderstanding or misapplying the challenged remarks. (See
People v. Seumanu (2015) 61 Cal.4th 1293, 1337 (Seumanu)
[defendant must show a reasonable likelihood the jury
misunderstood or misapplied the challenged comments to prevail
on a claim for prosecutorial misconduct].)
We turn to the prosecutor’s remarks.
Mom strength. Defendants claim the prosecutor committed
misconduct because the prosecution did not produce an expert to
testify how adrenaline affected Corral, yet argued Corral
survived the axe attack due to adrenaline and “mom strength.”
These comments fell within the permissible bounds of
rebuttal to the defense argument. They drew on common
experience. (See People v. Cunningham (2001) 25 Cal.4th 926,
1026 (Cunningham).) The prosecutor was responding to defense
arguments Corral should have suffered a cracked skull if Dunger
really attacked her with an axe. He explained people respond
differently to traumatic events and gave an example of a mother
lifting a car off her child. He argued Corral survived this attack
because she fought back. The evidence supported this account.
The prosecutor’s comments were proper.
Cracked rib. Defendants complain the prosecutor
mentioned Corral had a “tenth cracked rib” from Rojas sitting on
her. They say this comment was improper, as there was no
evidence to support it. (See Cunningham, supra, 25 Cal.4th at p.
1026 [misconduct to refer in argument to matters outside the
record].)
This passing comment was harmless. “In general, we will
not find brief, passing comments by the prosecutor to be
prejudicial.” (People v. Ghobrial (2018) 5 Cal.5th 250, 289.) The
25
prosecutor went on to describe the many injuries Corral suffered
that were supported by the evidence, including pictures and the
testimony of multiple witnesses. Then he summarized: “We have
staples. We have sutures. We have wrists. We have exposed
bone. We have the nose cut off. We have the partially amputated
finger.” The prosecutor’s reference to a broken rib was not
prejudicial.
Corral’s backpack. Defendants argue the prosecutor
erroneously implied police found Corral’s bag in the Durango.
This one comment could not have affected the trial outcome, as
no one disputed the police found Corral’s identification in the car.
Further, during deliberations, the jury asked whether Corral’s
pink backpack was found. The court answered: “There is no
evidence that Stephanie’s pink backpack was found.” The
prosecutor’s comment about the bag was harmless.
Nail marks. Defendants claim it was improper for the
prosecutor to suggest nail marks on Corral’s face proved she told
the truth about Rojas gouging her eyes. The prosecutor made
this comment after Dunger’s lawyer had argued there was no
evidence of eye injury and Corral’s story lacked support. The
prosecutor pointed to an exhibit—a picture of Corral’s injured
face—and invited the jurors to see the marks he saw around her
eyes, which supported Corral’s story.
This invitation was proper. The jurors could see for
themselves if the marks existed and could draw their own
conclusions about what the evidence showed. It is not
misconduct to suggest jurors should examine evidence closely and
to urge inferences from this inspection.
Maim kit. In response to the defense theory that Dunger
and Rojas met with Corral simply to buy drugs, the prosecutor
26
gave the jury a hypothetical of two people going to a grocery store
and buying an axe, duct tape, zip ties, and pepper spray—all of
which were found in or near the Durango the day of the attack.
The prosecutor told the jury, “You are the grocery store clerk.
Does it sound like they’re gonna have a spring break party? No.
That is a kit to maim, to injure and to kill.” Defendants argue
the prosecutor improperly suggested they purchased the items
simultaneously and imputed a level of planning and intent that
was unsupported by the evidence.
These comments fell within the permissible bounds of
rebuttal to the defense argument. Prosecutors have wide latitude
to argue reasonable inferences from the evidence. (Seumanu,
supra, 61 Cal.4th at p. 1331.) Through this hypothetical, this
prosecutor argued a reasonable inference: bringing these
supplies with them showed defendants intended to hurt and to
kill.
Chopped up. Defendants complain the prosecutor roused
the jury’s passions and made the case seem worse than it was by
arguing Corral had been “chopped up” with an axe. This was not
misconduct. It was a fair description and inference from the
evidence. (See Seumanu, supra, 61 Cal.4th at p. 1342.)
Mafia reference. Defendants say it was misconduct for the
prosecutor to invoke mafia imagery. The prosecutor told the jury
about reading a book by a “mafia hit man” who made an
execution personal by foregoing a gun in favor of a special rope to
choke “one of their own.” Then the prosecutor said, “Members of
the jury, if you want to kill someone personally and make them
feel it, what are you gonna use? You will use a sharp axe. You
will take it to their head. You are gonna make sure they feel
every blow, every slice.”
27
The prosecutor did not argue this case involved the mafia
or some other gang.
Prosecutors may use illustrations drawn from common
experience, history, or literature. (Cunningham, supra, 25
Cal.4th at p. 1026.) This illustration was tied to the personal
nature of the attack on Corral, which was entirely at close range.
This was permissible rebuttal argument. (See People v.
McDermott (2002) 28 Cal.4th 946, 1003 [no misconduct where
prosecutor described defendant as “a mutation of a human
being,” a “wolf in sheep’s clothing,” a “traitor,” a person who
“stalked people like animals,” and someone who had “resigned
from the human race” and compared her to a germ, a mad dog,
and a snake].)
Torture. Finally, defendants claim it was improper for the
prosecutor to mention “torture” when arguing it was possible to
have both an intent to kill and an intent to do something less.
Rojas’s lawyer objected that this misstated the law and that
torture was not part of the case. The court responded, “That is
correct, torture is not charged in this case, ladies and gentlemen.”
Counsel properly objected. The court immediately cured any
misimpression the prosecutor may have left.
G
Dunger and Rojas lastly argue the trial court erroneously
imposed a three-year great bodily injury sentencing enhancement
for count 2. The prosecution concedes the error.
Before submitting the case to the jury, the trial court
concluded the great bodily injury enhancement could not apply to
the aggravated mayhem count because the elements of the crime
included such injury. So the court omitted the enhancement for
this count, and the jury never made a related finding.
28
Nevertheless, at the sentencing hearings, the court recognized
and stayed this sentencing enhancement on count 2.
Because the jury neither considered nor found true this
enhancement for this count, the court must strike the
enhancement.
DISPOSITION
The judgment is affirmed. We direct the sentencing court
to modify the judgment and abstract by striking the section
12022.7 sentencing enhancement for count 2. This modification
need not require a hearing or the presence of the defendants. We
direct the court to forward a certified copy of the corrected
abstract of judgment to the Department of Corrections and
Rehabilitation.
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
29