People v. Marquez CA2/8 ( 2024 )

Filed 2/6/24 P. v. Marquez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B321529
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA080805-01)
v.
WILLIAM ALEXANDER
MARQUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Honorable Lisa M. Strassner, Judge. Affirmed.
Robert H. Derham, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
After William Marquez’s car was rear ended by another
car, Marquez drove away at very high speed, went through a red
light, and hit another car, killing the two occupants. A jury
convicted him of two counts of murder (Pen. Code,1 § 187), two
counts of vehicular manslaughter (§ 192, subd. (c)(1)), felony hit-
and-run driving resulting in death (Veh. Code, § 20001,
subd. (b)(2)) and misdemeanor hit-and-run driving resulting in
property damage (Veh. Code, § 20002, subd. (a)). The trial court
sentenced appellant to consecutive terms of 15 years to life for
the two murder convictions.
Appellant appeals from the judgment of conviction,
contending the trial court erred in instructing the jury with
CALJIC No. 2.62, which tells the jury when adverse inferences
may be drawn from a testifying defendant’s failure to deny or
explain adverse evidence. He also contends the trial court abused
its discretion in imposing consecutive sentences for the two
murder convictions. We affirm the judgment of conviction.
BACKGROUND
About 10:00 p.m. on January 30, 2021, Brendan
Word-Gonzales (Word) was driving his Toyota Celica on Avenue
P in Palmdale when he noticed a black Chrysler 200 driving
erratically. Word’s friend Tony Lopez, who was driving another
car, also noticed the Chrysler’s driving; Lopez stated the car was
being driven “aggressively” and cutting in and out of lanes.
Lopez was able to see the driver’s face and identified the driver as
appellant. The Chrysler was registered to appellant.
1 Undesignated statutory references are to the Penal Code.
2
At some point, the driver of the Chrysler cut in front of
Word’s car and slammed on the brakes. Word honked. The
second time the Chrysler braked abruptly, Word’s car hit the
Chrysler in the rear. Word’s car could not be driven after the
collision. The Chrysler drove away, a lot faster than normal.
Lopez saw the collision and followed the Chrysler to try to
get its license plate number. The Chrysler turned onto 10th
Street and Lopez followed. The Chrysler’s data recorder showed
it was traveling 80 to 85 miles per hour seconds before the car
reached Avenue O-8. Lopez saw the Chrysler drive though a red
light at Avenue O-8 and hit a Honda Civic which had entered the
intersection from Avenue O-8. As Lopez got closer to the
intersection, he saw someone running away, but he was too far
away to identify the person.
Andreea Fernandez was waiting in her car to make a left
turn from Avenue O-8 onto 10th Street. She had a red arrow but
the through traffic on Avenue O-8 had a green light. She saw the
Chrysler enter the intersection and hit the Honda. She stopped
behind the Chrysler and called 911. She saw a man standing by
the driver’s side door of the Chrysler. The man was wearing a
COVID face mask, and she could not identify him. She asked
him if it was his car, and he replied that it was. He asked to use
her phone, but she refused because she was speaking with 911
operators. At some point, she noticed the man had left.
The two men in the Honda died of their injuries at the
scene of the crash.
Los Angeles County Deputy Sheriff James Conley
responded to the scene of the collision. He observed several
empty cans and bottles of beer in the Chrysler. He also
discovered a beer can that was cold to the touch and more than
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half full. DNA from blood drops on one of the deployed airbags in
the Chrysler was later determined to match appellant’s DNA.
Sheriff’s deputies went to appellant’s home. His sister-in-
law, Maria Monroy, told the deputies appellant was not home.
The deputies asked Monroy to call appellant. Appellant’s mother
called appellant, with the speaker on. A male voice answered
and Monroy asked, “Are you okay?” The voice replied, “I fucked
up. I was involved in an accident.” Appellant’s mother turned off
the speaker and began speaking to appellant in Spanish. The
deputies heard the word “policia” and then the call ended. The
deputies called the number back, but it went to voicemail.
Deputies looked for appellant over the next few days
without success. Appellant turned himself in on February 5,
2021, one week after the accident.
Appellant testified in his own defense at trial. He
described three violent incidents in his life which made him
anxious in crowds, easily startled, hypervigilant of danger, and
insecure.2
Appellant stated that on the day of the collision, a black car
and a silver car were harassing him as he drove down Avenue P.
They drove side-by-side so that he could not pass them. They
repeatedly slowed down and sped up. The black car drove away
2 This first occurred when he was 20 years old and someone
in a car fired at him while he was walking down a street. The
second occurred several years before the collision when a
girlfriend’s former boyfriend stabbed him multiple times with a
large kitchen knife. Appellant spent almost a month in the
hospital as a result. The third occurred about a year before the
collision when appellant was struck by a car while crossing the
street.
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at a traffic light, and appellant was able to pass the silver car.
That car then began to tailgate him. When appellant slowed
down to turn at 10th Street, the silver car hit the rear of
appellant’s car. The black car had reappeared and appellant did
not feel safe stopping, so he drove down 10th Street intending to
pull into a parking lot.
The black car followed him closely. Appellant stopped at a
red light and saw the black car right behind him. Appellant was
afraid and drove through the red light (without hitting anyone).
The black car followed and appellant sped up. The black car sped
up too. It followed appellant very closely; the car’s very bright
headlights blinded him. Appellant saw green lights ahead of him
and did not see a red light. He did not intend to run a red light.
When he saw the other car in the intersection, he braked hard
and swerved.
After the collision, he was in shock. He was afraid of the
man in the black car and so he ran. He went to a friend’s shop
and spent the night there. At some point, he learned that two
people had died in the collision. He began contacting lawyers.
He found a lawyer who arranged his surrender to the police.
Appellant denied drinking the night of the crash. He said
the beer bottles and cans belonged to his brother, Julio Marquez.
Julio Marquez testified he left some beer cans in appellant’s car
on the night of the collision. Marquez brought the beer cans into
the car when appellant gave him a ride to a party. On the way to
the party, they stopped and Marquez bought bottles of beer.
Marquez testified appellant did not drink in the car or at the
party when he dropped off Marquez.
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DISCUSSION
A. Any Error in Giving CALJIC No. 2.62 Was Harmless.
Although not requested to do so by either of the parties, the
trial court instructed the jury with CALJIC No. 2.62, which
explains when adverse inferences may be drawn from a
defendant’s testimony. The trial court did not state what
evidence supported the instruction and neither party objected.
Appellant contends the court erred prejudicially in giving the
instruction. The People contend there was evidence to support
this instruction and any error was harmless. We agree it was
error to give the instruction but find the error harmless.
CALJIC No. 2.62, as given, read as follows: “In this case
defendant has testified to certain matters. [¶] If you find that the
defendant failed to explain or deny any evidence against him
introduced by the prosecution which he can reasonably be
expected to deny or explain because of facts within his
knowledge, you may take that failure into consideration as
tending to indicate the truth of this evidence and as indicating
that among the inferences that may reasonably be drawn
therefrom those unfavorable to the defendant are the more
probable. [¶] The failure of a defendant to deny or explain
evidence against him does not, by itself, warrant an inference of
guilt, nor does it relieve the prosecution of its burden of proving
every essential element of the crime and the guilt of the
defendant beyond a reasonable doubt. [¶] If a defendant does not
have the knowledge that he would need to deny or to explain
evidence against him, it would be unreasonable to draw an
inference unfavorable to him because of his failure to deny or
explain this evidence.”
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The People contend appellant failed to explain why he ran
from the scene of the second crash and did not go home for five
days. We do not agree.
Appellant did explain why he fled from the scene of the
crash: he was in shock and was afraid the man in the black car
was still pursuing him. This is an explanation. (See People v.
Kondor (1988) 200 Cal.App.3d 52, 57 [CALJIC No. 262
unwarranted even if defendant’s explanation seems improbable].)
The People do not explain why appellant’s failure to return
home for several days after the collision was relevant. (See
People v. Lamer (2003) 110 Cal.App.4th 1463, 1469 (Lamer)
[CALJIC No. 2.62 applies when defendant fails “ ‘to explain or
deny any fact of evidence that was within the scope of relevant
cross-examination.’ ”].) Appellant did testify clearly that he did
not go home the day after the accident because he was contacting
lawyers. This is an explanation for that day. As to subsequent
days, the prosecutor’s questions show that his theory of relevancy
was that appellant was staying away from home to avoid the
police. When the prosecutor directly asked, “So, you’re staying
away from home because you know the police are going to be
there?” Appellant responded, “No. I just didn’t want to go home.”
The “No” is clearly a denial. While a denial may be more
believable if accompanied by an explanation, CALJIC No. 2.62
requires either a denial or an explanation, not both.
Because there was no evidence which appellant failed to
deny or explain, the trial court erred in giving CALJIC No. 2.62.
Although appellant criticizes CALJIC No. 2.62 on a number of
legal grounds, the California Supreme Court has concluded “that
CALJIC No. 2.62 suffers no constitutional or other infirmity.”
(People v. Saddler (1979) 24 Cal.3d 671, 681 (Saddler)
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[considering instruction substantially similar to the one given in
this case].) Thus, we apply the harmless error standard adopted
in People v. Watson (1956) 46 Cal.2d 818 (Watson). (Saddler, at
p. 683; Lamer, supra, 110 Cal.App.4th at p. 1471.) Under that
standard, a reviewing court asks whether it is “reasonably
probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” (Watson,
at p. 836.)
We note appellant has cited no cases finding reversible
error for giving CALJIC No. 2.62. As the Fourth District Court of
Appeal noted in Lamer, although “courts have frequently found
giving CALJIC No. 2.62 to constitute error, we have not found a
single case in which an appellate court found the error to be
reversible under the Watson standard. On the contrary, courts
have routinely found that the improper giving of CALJIC
No. 2.62 constitutes harmless error. [Citations.]” (Lamer, supra,
110 Cal.App.4th at p. 1472.)
There are several good reasons for this. “ ‘CALJIC No. 2.62
does not direct the jury to draw an adverse inference. It applies
only if the jury finds that the defendant failed to explain or deny
evidence. It contains other portions favorable to the defense
(suggesting when it would be unreasonable to draw the inference;
and cautioning that the failure to deny or explain evidence does
not create a presumption of guilt, or by itself warrant an
inference of guilt, nor relieve the prosecution of the burden of
proving every essential element of the crime beyond a reasonable
doubt).’ In addition, courts have noted that the fact that juries
are instructed, pursuant to CALJIC No. 17.31, to ‘disregard any
instruction which applies to a state of facts which you determine
does not exist,’ also mitigates any prejudicial effect related to the
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improper giving of CALJIC No. 2.62. (Saddler, supra, 24 Cal.3d
at p. 684.)” (Lamer, supra, 110 Cal.App.4th at p. 1472.)
We see no reasonable probability of a more favorable
outcome in this case either. Appellant contends that this was a
close case because the jury asked for a readback of appellant’s
testimony and the definition of implied malice, and it deliberated
for three days. Appellant acknowledges the facts concerning the
fatal collision were undisputed, but contends a case may be close
when the facts are undisputed but the inferences to be drawn
from that evidence may conflict. Appellant appears to claim that
the competing inferences here are whether he acted with implied
malice or criminal negligence.
We do not agree that the length of the deliberations
indicates a close case. The jury deliberated for about 5.5 hours
total.3 This is not a lengthy deliberation for a trial lasting six
days and involving over 10 witnesses. (See People v. Walker
(1995) 31 Cal.App.4th 432, 438, People v. Houston (2005)
130 Cal.App.4th 279, 301.) The fact that the jury requests
readback of testimony does not necessarily establish the case was
close. (See People v. Mateo (2016) 243 Cal.App.4th 1063, 1075.)
We also do not see how the request for a definition of “implied
malice” and “malice aforethought” shows this was a close case.
Implied malice was defined in the instruction on second degree
murder, but the more general instruction defining murder used
the term “malice aforethought” but did not define it. Thus, the
jury’s question is almost certainly related to this instructional
gap, not the state of the evidence.
3 The jury deliberated for about 1.5 hours on the first day of
deliberation, almost three hours on the second day and about an
hour on the third and final day.
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Appellant does not discuss the strength of the actual
evidence at all. We find the prosecution’s case to be very strong.
It was undisputed that appellant drove at 80 to 85 miles per hour
through a red light, hit the Honda Civic, and then fled the scene.
Lopez, who was driving behind appellant, saw the red light.
Video of the scene showed that no one was chasing appellant as
he fled. In contrast, appellant’s claim that he mistakenly focused
on a closer green light and that he believed Lopez was chasing
him at the scene of the second collision was unsupported by
physical evidence.
In his reply brief, appellant contends the instruction
singles out the defendant’s testimony for special scrutiny and
allows that jury to conclude “his testimony was untruthful if he
failed to explain or deny ‘any evidence against him.’ ” Our
Supreme Court has rejected the claim that the instruction
improperly singles out the defendant’s testimony for scrutiny.
(Saddler, supra, 24 Cal.3d at pp. 680–681.) Further, this is not a
reasonable reading of the instruction, which is much more
limited in scope and does not discuss a defendant’s credibility at
all.
Appellant next contends that the instruction required him
to explain why he saw a green light, not a red light at the
intersection where the fatal collision occurred, and “if he could
not, then the jury could find he was lying.”
The prosecution offered evidence the light was red for the
direction in which appellant was driving and appellant drove
through the red light into the intersection. The instruction would
permit the jury to find this evidence true if appellant did not
either deny the light was red or explain why he drove through the
intersection against a red light. Appellant chose to explain: he
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testified that he did not notice the red light, but instead was
focused on a green light at the intersection before Avenue O-8,
which he described as close to the Avenue O-8 intersection. We
see nothing in the instruction which required more from
appellant.
Appellant complains the instruction did not require the
People to explain why appellant did not see a green light. This
complaint is misplaced, as the California Supreme Court has
explained. (Saddler, supra, 24 Cal.3d at pp. 680–681 [instruction
is consistent with Evidence Code section 413 which applies to
testifying parties, and “[s]ince the only testifying ‘party’ in a
criminal case is the defendant, the code section can have
reference only to him”].) Further, appellant’s claim that the
People did not have to explain why appellant did not see a green
light is just an indirect way of saying that the People did not
have to prove that appellant saw the red light. CALJIC No. 2.62
explicitly states that it does not relieve the People of their burden
of proving every essential element of the charged crimes and the
defendant’s guilt beyond a reasonable doubt. How the People
tried to meet that burden in light of appellant’s green light claim
was a matter of judgment and tactics.
B. The Trial Court Did Not Abuse Its Discretion in Imposing
Consecutive Sentences.
Appellant acknowledges the trial court sentenced him
consecutively for the count 1 and 2 murder convictions based at
least in part on the fact that there were two victims, a proper
basis for imposing consecutive terms. However, appellant
contends the trial court abused its discretion because its decision
was also based in part on appellant’s lack of remorse during trial
Appellant argues the record does not support the trial court’s
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recall of appellant’s testimony or show that appellant had an
opportunity to express remorse during trial and failed to do so.
We agree with the People that the trial court’s comments
make it clear the court selected consecutive terms solely because
there were two victims. The trial court’s comments about
remorse were made as part of comments directed to the victims’
families. The trial court then signaled a clear change of topic,
telling the prosecutor and defense counsel that the court had the
parties’ sentencing memoranda and that there was one issue in
the case: whether to sentence counts 1 and 2 concurrently or
consecutively. The court then stated: “The court does not . . .
think that one life is more important or less important than the
other. There were two individuals. Two young individuals that
had their lives in front of them and [the court] will not treat them
the same in terms of sentencing. [¶] So it is this court’s intention
to sentence [appellant] consecutively.”
Assuming for the sake of argument that the trial court also
relied on appellant’s lack of remorse, we would see no reasonable
probability of a more favorable outcome if the trial court
reconsidered its decision in light of an accurate record of
appellant’s testimony. The court stated: “[Appellant] took the
stand in his own defense and he was asked a question, a very
specific question about how did you feel the moment you
impacted the victims’ vehicle approximately 85 miles per hour?
How did you feel? What was your first thought, was the question
that was posed to him. What was your first thought? And that
was really the moment [appellant] had the opportunity to say
something remorseful. [¶] I should have—in retrospect I was
afraid, but I should have gone to go check on those two kids or
those two people in the car, but he didn’t. And he was asked that
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question twice by [the prosecutor], and on both occasions he said
my first thought was to get a lawyer. [¶] It shows a complete and
utter lack of remorse to this court based upon the trial testimony
at your trial.”
We agree with appellant that the trial court did not recall
appellant’s testimony with 100 percent accuracy, but the trial
court’s comments do capture the essence of appellant’s testimony,
which was that his first thought on learning that two people had
died in the collision was that he needed to get a lawyer. This is a
self-centered response. Even if appellant had been permitted to
answer defense counsel’s next question about how he felt,4 and
even if he had expressed some form of remorse, that would not
change the fact that his first thought was not regret that his
actions had resulted in two deaths, but that he needed to protect
himself from any consequences of his actions. Remorse would
thereafter ring hollow.
4 As appellant notes, the trial court sustained an objection to
defense counsel’s question asking “How did you feel when you
came to learn that the other two people in the other car had
passed away?”
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.
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