People v. Torrez CA5

Filed 1/17/23 P. v. Torrez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082878
Plaintiff and Respondent,
(Super. Ct. No. BF176040A)
v.
JULIO ANGEL TORREZ, JR., OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. David R.
Lampe, Judge.
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari
Mueller, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
Appellant Julio Angel Torrez, Jr., appeals from the judgment of his conviction of
attempted voluntary manslaughter and related crimes and enhancements arising from an
incident where he stabbed his girlfriend, Natalie A., in the chest. He was sentenced to an
aggregate prison term of 22 years.
On appeal, appellant contends the judgment must be reversed based on claims of
error related to the admission of purported tacit adoptive admissions contained in
recorded telephone calls he made to Natalie from jail after his arrest for the incident.
During the calls, appellant made a number of statements indicating he knew the calls
were being recorded and could not fully express himself because he did not want the
prosecution to use his statements against him. In objecting to the admission of the jail
calls, defense counsel indicated he had advised appellant not to talk about the case.
Relying on these facts, appellant argues the purported adoptive admissions were not
admissible under Evidence Code section 1221. Appellant also argues that the
prosecution’s introduction of the calls violated his due process rights because it invited
the jury to draw an adverse inference from appellant’s post-Miranda1 silence, in violation
of Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) and its progeny. Appellant also contends
his due process rights were violated by the application of the adoptive admissions rule to
the jail calls in general, which appellant contends rendered his trial fundamentally unfair.
In a related issue, appellant contends the court erred by denying his request to
modify CALCRIM No. 357, the pattern adoptive admissions instruction, to instruct the
jury they could consider whether appellant was relying on his Fifth Amendment right to
remain silent in determining whether he made any adoptive admissions.
Appellant argues that if we conclude the asserted errors are individually harmless,
the prejudicial effect of the errors, considered cumulatively, warrants reversal.
Finally, in the event we do not credit his claims regarding the judgment, appellant
contends the matter must be remanded for resentencing in light of recent legislation:
Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518) and Senate Bill
No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567). He also asserts the trial court imposed
an unauthorized sentence by imposing a prior serious felony enhancement (Pen. Code,2
1 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
2 All further undesignated statutory references are to the Penal Code.
2.
§ 667, subd. (a)) for each count rather than once as part of the aggregate sentence in
violation of People v. Sasser (2015) 61 Cal.4th 1 (Sasser), and therefore two of the prior
serious felony enhancements must be stricken, which respondent concedes.
We affirm appellant’s convictions and remand for resentencing in compliance with
all applicable laws, with directions to the trial court that only one prior serious felony
enhancement may be imposed upon remand.
FACTUAL AND PROCEDURAL BACKGROUND
Information
Appellant was charged by information with attempted murder (§§ 664/187,
subd. (a); count 1); assault with a deadly weapon (§ 245, subd. (a)(1); count 2); infliction
of corporal injury on an intimate partner resulting in a traumatic condition (§ 273.5,
subd. (a); count 3); and willful cruelty to a child (§ 273a, subd. (a); count 4). As to
counts 1, 2, and 3, the information alleged appellant inflicted great bodily injury under
circumstances involving domestic violence in the commission of a felony (§ 12022.7,
subd. (e)). As to every count, the information alleged appellant personally used a deadly
or dangerous weapon (§ 12022, subd. (b)(1)). The information further alleged appellant
had suffered a strike prior (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), a prior serious
felony (§ 667, subd. (a)); and three prior prison terms (§ 667.5, subd. (b)).
Facts as Presented at Trial
Prosecution Case
On March 20, 2019, at around 11:00 p.m., Natalie’s neighbors heard a male and
female arguing in her apartment. One of the neighbors heard Natalie yelling for her
children to follow her, and when he looked out his door, he saw Natalie running with her
two children down the stairs away from her apartment, appearing to run away from
someone. A few minutes later, the neighbor saw a man come down the stairs, look
around, take his shirt off, and leave the apartment complex on foot. Later, the neighbor
heard Natalie’s son screaming and went outside. Natalie was laying in the parking lot
3.
and appeared to be unconscious. Another neighbor called 911; the call was played for the
jury, and Natalie’s son could be heard on the call saying that “Julio” stabbed his mother.
Natalie had endured stab wounds to the center portion of her chest, under her right breast,
and her arm.
Law enforcement searched Natalie’s apartment. There, they observed the
mounting hardware for the window curtains had been pulled down and blood on the
hallway wall. They found documents and a California Identification Card with
appellant’s name. They also found a fixed blade knife located in the kitchen.
The next morning, law enforcement made contact with appellant at the
Department of Motor Vehicles. They asked appellant for his identification and name,
and appellant displayed aggressive behavior and refused to follow instructions. Officers
needed to use force to detain and subdue him. Eventually, appellant provided a false
name and date of birth. Appellant was arrested. Photos taken of appellant at the time of
his arrest depict cuts on his hands.
Appellant made several3 telephone calls to Natalie from jail, and recordings of
10 calls were played for the jury. Over the course of the calls, appellant and Natalie
discussed the incident. The first mention of the incident was in the first call played for
the jury, when appellant asked Natalie why he was brought to jail, to which Natalie
responded, “I don’t know [appellant]. You don’t know what you did or what?” In this
call, Natalie went on to make several statements accusing appellant of “almost kill[ing
her],” almost “t[aking her] kids’ only parent,” and “going for the kill.” Appellant told
Natalie she knew “what happened,” but that he did not want to talk about “all of that.”
Natalie replied that she knew “what happened,” that appellant “almost killed” her but that
she was not planning on pressing charges or cooperating with the prosecution.
3 A jail call log was admitted into evidence but was not transmitted to this court as
part of the record on appeal; however, the prosecutor stated in his closing argument that
the call log indicated appellant made over 80 calls to Natalie while in jail.
4.
A major thread throughout all calls that were played involved appellant pleading
with Natalie not to speak with the district attorney and instead to let her family kill him
when he got out of custody, at multiple points telling her he “deserve[d]” it. Throughout
the calls, Natalie maintained she would not cooperate with the prosecution but also
expressed anger at appellant for almost killing her. At one point after Natalie expressed
anger towards appellant, appellant responded, “I stopped. Right?”
At several points throughout the calls, appellant expressed that he did what he did
because he had feared for his life. At one point after expressing he had been fearful, the
following exchange occurred:
“NATALIE []: But fear from what?
“[APPELLANT]: By your brother bein’ there.
“NATALIE []: He had to (unintelligible)…
“[APPELLANT]: By all them ‒ by them people bein’ outside, you
know?
“NATALIE []: What people – what people?
“[APPELLANT]: But ‒ but I don’t ‒ I don’t want to talk about this, you
know what I mean?”
Appellant went on to tell Natalie he would forgive her and hoped she would forgive him
as well. Natalie responded by telling appellant she did not do anything to him and was
nothing but good to him.
At another point in the calls, appellant told Natalie he did not want her to hate him
for “what happened” and again that he would forgive her.
“NATALIE []: You forgive me for what?
“[APPELLANT]: I forgive you for…
“NATALIE []: Yeah that made no sense.
5.
“[APPELLANT]: I felt like my life was in jeopardy and…
“NATALIE []: How? How?
“[APPELLANT]: I don’t want to talk about it.
“NATALIE []: You were on drugs.
“[APPELLANT]: Because, you know…
“NATALIE []: You were on drugs. You were laced the f[***] up.
“[APPELLANT]: Hey.
“NATALIE []: Like, how can you say your life was in danger when
you were cheating on me with Brandy or whatever the
f[***].”
“[APPELLANT]: Hey.”
The parties stipulated to the admission of Natalie’s medical records related to her
treatment for the injuries she sustained. The parties further stipulated that appellant had
been convicted of a domestic violence misdemeanor in 2015 that did not involve Natalie.
Defense Case
The defense played an additional recording of one of appellant’s jail calls to
Natalie. On that call, appellant told Natalie he was going to take his case “all the way”
and that he wanted to be with her when he got out. Natalie assured appellant she would
not do anything “against” appellant. Appellant said he was “angry that I can’t explain
myself and – and direct you how to.” Natalie and appellant discussed him cheating on
her. Appellant told Natalie “they’re gonna try to make me guilty as – as ‒ as – as they
can.” They then had the following exchange:
“NATALIE []: But you know you’re not guilty.
“[APPELLANT]: No matter what…
“NATALIE []: You know you’re not guilty.
6.
“[APPELLANT]: …hey, no matter…
“NATALIE []: You know…
“[APPELLANT]: …what I tell ‘em…
“NATALIE []: You know that…
“[APPELLANT]: No matter what the truth is.
“NATALIE []: You know you’re not guilty. You know that – that…
“[APPELLANT]: No matter what the truth is.
“NATALIE []: …that wasn’t you – you – you – that wasn’t you, like,
you know, like – I don’t…
“[APPELLANT]: All I gotta say is I defended myself. You know what I
mean?
“NATALIE []: Okay then. Then that – that – that’s ‒ you defended
yourself.
“[APPELLANT]: And – and – and – you know what I mean? You have
your brother there.
“NATALIE []: Okay. You defended yourself. You know, like…
“[APPELLANT]: You know what I mean?
“NATALIE []: Yep.”
Appellant asked Natalie if she wanted him to stop talking to her, and she said she
did not think she would be able to be around him comfortably anymore, so if he wanted
to stop calling her, he should. Appellant asked Natalie if she wanted him to go to prison,
to which she responded she did not, not because of him but because of his mom and that
he was someone’s son. She stated she did not wish his mother to suffer. Appellant then
said he was angry and that he wanted “to explain to you what happened. If you don’t
believe me, you don’t believe me.” Appellant made Natalie promise she would talk to
his mother. The following exchange occurred:
7.
“[APPELLANT]: … You’re over here tryin’ to say – you sound
like you’re a good and all that.
“NATALIE []: Like, I’m good about what?
“[APPELLANT]: You don’t remember what happened?
“NATALIE []: No, I don’t. I was drunk. I was drunk. I don’t
know if I did something to trigger you. I don’t
know if I made you mad. I don’t know. You
know? I don’t know. I was drunk. But if I did
do something to trigger you, like, I apologize.
That was never my intention.”
Appellant said he did not want to talk about that because the call was being recorded and
that he loved her but she did not believe him. Natalie told appellant she loved him too.
The defense argued appellant acted in self-defense. Defense counsel posited the
evidence reasonably supported that Natalie was upset with appellant for cheating on her
and attacked him with a knife, as evidenced by the phone calls, as well as the cuts on his
hands, and that appellant stabbed Natalie in reasonable self-defense.
Verdict and Sentence
The jury acquitted appellant of attempted murder as charged in count 1 and found
him guilty of the lesser included offense of attempted voluntary manslaughter
(§§ 664/192, subd. (a)). They found him guilty of counts 2 and 3 as charged. They
acquitted him of willful cruelty to a child as charged in count 4 and found him guilty of
the lesser included offense of misdemeanor child abuse (§ 273a, subd. (b)). As to
counts 1, 2, and 3, they found true the allegations that appellant inflicted great bodily
injury upon Natalie (§ 12022.7, subd. (e)). As to counts 1 and 3, they found true the
allegations that appellant personally used a deadly weapon in the commission of the
offenses (§ 12022, subd. (b)(1)).
In a bifurcated court trial, the court and parties agreed section 667.5,
subdivision (b) no longer applied to appellant’s convictions; accordingly, the court
8.
found the prior prison term allegations unproven. The court found true that appellant had
suffered a strike prior and prior serious felony.
The court sentenced appellant to the upper term of five years six months on
count 1, doubled to 11 years due to the strike prior, plus five years for the great bodily
injury enhancement, plus one year for the deadly weapon enhancement, plus five years
for the prior serious felony enhancement. As to count 4, the court imposed 180 days in
jail to be served concurrently with the sentence imposed on count 1. The court stayed
punishment on counts 2 and 3 pursuant to section 654. 4 Appellant’s aggregate sentence
was a prison term of 22 years.
DISCUSSION
I. Admission of Tacit Adoptive Admissions Contained in the Jail Calls
Appellant argues the trial court erred by admitting the purported tacit adoptive
admissions contained in the recordings of the jail calls. We conclude any error was
harmless beyond a reasonable doubt.
A. Relevant Background
As referenced in the above summaries of the calls, appellant made several
statements indicating he did not want to talk about certain topics and that he could not
fully express himself. At a few points, appellant indicated this was because he knew the
calls were being recorded and that the prosecution could use what he said against him in
court. He stated, “Look, I can’t express myself because, you know what, they could use
all that shit against me in – in court, you know?”; “they’ll want to use these calls as –
4 On counts 2 and 3, the court imposed sentence as follows. As to count 2, the court
imposed the upper term of four years, doubled to eight years due to the strike prior, plus
five years for the great bodily injury enhancement, plus five years for the prior serious
felony enhancement. As to count 3, the court imposed the upper term of five years,
doubled to 10 years due to the strike prior, plus five years for the great bodily injury
enhancement, plus one year for the deadly weapon enhancement, plus five years for the
prior serious felony enhancement.
9.
well, as – You know what I mean?”; and “I can’t tell you how I feel about all that
because I ‒ I ‒ they can use it….”
Also relevant to appellant’s claims on appeal is that law enforcement gave him
Miranda warnings before attempting to question him with regard to this incident.
Appellant’s statement was ultimately excluded because the trial court found he had
invoked his right to an attorney early in the questioning.
Appellant moved in limine to exclude the recordings of the jail calls in their
entirety “based on multiple grounds, including: hearsay, Evidence Code Section 352;
Evidence Code 1054, et.seq.; lack of foundation improper character evidence (Evid. Code
§1101(a)); and that it would violate the defendants right to confrontation,” citing
Crawford v. Washington (2004) 541 U.S. 36. In his written motion, appellant alleged
generally that the statements were not admissible as adoptive admissions.
In open court, during a discussion on the jail calls, the court indicated its position
that many of the statements made in the jail calls were admissible as adoptive admissions,
in that appellant did not respond or responded in a remorseful manner to Natalie’s
statements. Defense counsel noted there were some instances in the calls where Natalie
made statements to which appellant did not respond, and in some instances, responded by
saying, “I can’t talk about it or I can’t say anything on the phone or I’m not going to talk
about this.” Defense counsel contended those instances could not be considered adoptive
admissions as it “is more of a following of an advice of attorney, advice of myself as well
as advice of other attorneys that have come into contact with [appellant], which is you are
not to talk about your case over the phone since they are recorded.”
The prosecutor asserted the proffered jail calls were admissible either as
admissions by a party opponent under Evidence Code section 1220 or admissions that
have been adopted under Evidence Code section 1221. The prosecutor further contended
the jail calls were relevant because appellant talked about facts of the case as to why he
10.
did what he did and was relevant as consciousness of guilt because of appellant’s
attempts to dissuade Natalie from testifying.
The court ruled the jail calls were admissible, noting it was “not ruling on each
specific item that’s proffered by the People. But I think as a general proposition I have as
I indicated on the record reviewed these, listened to them, read the transcripts. I think
that the adoptive admissions are admissible as adoptive admissions with the appropriate
instruction to the jury. It’s for the jury to determine that question and the statements of
the defendant that are evidence of dissuasion is admissible under the concept of
consciousness of guilt.” The court stated it had considered the issue raised by appellant’s
counsel, which it summarized as the “limitation of the People’s use of an adoptive
admission is if the admission by silence or adoption is under circumstances which
indicate that the defendant is invoking a Fifth Amendment right not to speak. It’s also
limited if the defendant is acting upon the advice of counsel in remaining silent.” The
court stated those limitations did not apply because appellant clearly initiated the calls;
thus, it was a voluntary act by him rather than a pretextual call or an action by the police
or prosecution to trick appellant.
The calls were played for the jury as described infra.
B. Appellant’s Contentions
On appeal, appellant makes several claims with regard to the portions of the calls
which could be considered tacit adoptive admissions; that is, moments where Natalie
made statements to which appellant did not directly respond. He asserts that none of the
purported tacit adoptive admissions were admissible but draws our attention to two
specific moments in the calls, that appellant contends were particularly damaging to his
self-defense claim.
The first is the following exchange:
11.
“[APPELLANT]: … But – but I’ll forgive you, you know what I
mean? And I hope you forgive me, too, you
know?
“NATALIE []: I didn’t do anything to you, Julio.
“[APPELLANT]: Huh?
“NATALIE []: I didn’t do nothing to you. I was nothing…
“[APPELLANT]: Well – well…
“NATALIE []: …but good to you.
“[APPELLANT]: …well, don’t come over h- here and don’t talk
to – to the DA ….”
The second is:
“NATALIE []: … Like, how the f[***] you gonna put your life
in danger with somebody who’s giving you a –
a place to lay your head at? And then, like, I’m
by myself, you know, like, with my kids. And
you know that my kids are the most important
thing in my life and then you go and you…
“[APPELLANT]: That’s family.
“NATALIE []: …go and that f[******] – that’s crazy.”
Appellant also points to several moments in the calls where Natalie accused
appellant of almost killing her or “going for the kill,” and appellant does not directly
respond.
1. Evidence Code Section 1221
First, appellant argues the court erred under Evidence Code section 1221, which
codifies the hearsay exception for adoptive admissions, providing that “[e]vidence of a
statement offered against a party is not made inadmissible by the hearsay rule if the
statement is one of which the party, with knowledge of the content thereof, has by words
or other conduct manifested his [or her] adoption or his [or her] belief in its truth.”
12.
The California Supreme Court has explained that “ ‘[i]f a person is accused of
having committed a crime, under circumstances which fairly afford him [or her] an
opportunity to hear, understand, and to reply, and which do not lend themselves to an
inference that he [or she] was relying on the right of silence guaranteed by the Fifth
Amendment to the United States Constitution, and he [or she] fails to speak, or he [or
she] makes an evasive or equivocal reply, both the accusatory statement and the fact of
silence or equivocation may be offered as an implied or adoptive admission of guilt.”
(People v. Cruz (2008) 44 Cal.4th 636, 672, quoting People v. Preston (1973) 9 Cal.3d
308, 313‒314.)
Appellant contends the purported tacit adoptive admissions within the call were
not admissible because substantial evidence did not support the preliminary factual
findings that appellant had a fair opportunity to deny Natalie’s accusations and that he did
not rely on his Fifth Amendment privilege against compelled self-incrimination in failing
to respond. Appellant bases this contention on the statements he made throughout the
calls that he could not fully express himself, defense counsel’s representation that he
advised appellant not to talk about the case over the phone because it was being recorded ,
and the fact that he had previously received Miranda warnings from law enforcement.
2. Alleged Due Process Violations
In addition, appellant contends the admission of the purported tacit adoptive
admissions violated his federal due process rights in two ways. First, he contends the
rule of Doyle, supra, 426 U.S. 610 and its progeny applies to the present case.
In Doyle, the United States Supreme Court held a prosecutor may not seek to
impeach a defendant’s exculpatory story, told for the first time at trial, by cross-
examining the defendant about his failure to have told the story after receiving Miranda
warnings at the time of his arrest; using the defendant’s postarrest silence in this matter
violates due process. (Doyle, supra, 426 U.S. at p. 611.) In People v. Coffman and
Marlow (2004) 34 Cal.4th 1, the California Supreme Court held the Doyle rule also
13.
applied to the prosecutor’s examination of an interrogating detective on the defendant’s
post-Miranda silence in their case-in-chief. (Coffman and Marlow, at p. 118.) Finally, in
People v. Eshelman (1990) 225 Cal.App.3d 1513, the appellate court held that post-
Miranda silence in the presence of a private citizen implicates Doyle “when the evidence
demonstrates that [a] defendant’s silence in [such a circumstance] results primarily from
the conscious exercise of his constitutional rights.” (Eshelman, at p. 1520 [Doyle error
when prosecutor questioned the defendant on why he did not answer a witness’s
questions about why he killed her son, and the defendant answered it was, in part,
because his attorney told him not to talk]; but see People v. Medina (1990) 51 Cal.3d
870, 889‒891 [jury could draw adverse inference from the defendant’s conversation in
jail with his sister where the record did not suggest the defendant believed he was being
monitored or intended his silence to invoke a constitutional right].)
Appellant contends under the circumstances of the present case—appellant being
given Miranda warnings, knowing the calls were being recorded, and indicating he did
not want to speak about certain topics, at a few points indicating this was because he did
not want the prosecution to use his statements against him—the prosecution improperly
used his purported tacit adoptive admissions in violation of his due process rights as
articulated in Doyle and its progeny.
Alternatively, appellant contends that if we conclude the Doyle rule does not apply
to the circumstances of the present case, his federal due process rights were nonetheless
violated. Appellant contends this court should “hold that application of the adoptive
admission rule under the circumstances here is unfair and a deprivation of due process for
three reasons”: (1) that “the premise underlying the tacit admission rule—that an
innocent person will naturally deny all false accusations … —is irrational, and its
application under the facts of this case was fundamentally unfair”; (2) “applying the tacit
admission rule based on the facts of this case would unfairly punish [appellant] for
adhering to the advice of his appointed counsel”; and (3) “the record establishes that a
14.
reasonable person in [appellant’s] position would have believed his silence was
constitutionally protected.”
B. Analysis
Assuming only for the purpose of appellant’s arguments that any of his
contentions have merit, we would not reverse because we conclude any error was clearly
harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)5
We begin our harmlessness analysis by noting that appellant impliedly
acknowledges that uncontested evidence at trial established his identity as the perpetrator.
He does not contend the admission of the purported tacit adoptive admissions affected the
jury’s determination of his identity as the perpetrator. His claim is narrow, only that the
purported tacit adoptive admissions—just a few of which he identifies specifically in his
briefing—prejudiced him because, without their admission, one or more of the jurors may
have credited his self-defense claim, acquitting him of all charges or resulting in a hung
jury.6
While the jury rejected appellant’s self-defense claim as a complete defense to the
charges, they acquitted appellant of attempted murder and convicted him of the lesser
5 Respondent contends many of appellants arguments are forfeited because, as to the
admissibility of the statements under Evidence Code section 1221, appellant did not,
following the court’s general ruling, object to any specific statements in the calls, and
because he did not state his constitutional objections below precisely enough. Appellant
disagrees but, in the event we find forfeiture, argues his counsel provided ineffective
assistance for failing to properly object. We need not resolve the forfeiture or ineffective
assistance of counsel issues given our conclusion all errors appellant raises with regard to
the admission of purported tacit adoptive admissions are harmless beyond a reasonable
doubt.
6 The jury was instructed on the right to self-defense with CALCRIM No. 3470.
The jury was instructed the People had the burden to prove appellant did not act in self-
defense and that appellant acted in self-defense if he (1) reasonably believed he or
someone else was in imminent danger of suffering bodily injury or was in imminent
danger of being touched unlawfully; (2) reasonably believed the immediate use of force
was necessary to defend against that danger; and (3) used no more force than was
reasonably necessary to defend against that danger. (CALCRIM No. 3470.)
15.
included offense of attempted voluntary manslaughter, raising the inference that some or
all of the members of the jury found appellant acted in imperfect self-defense. It is
implausible, based on the totality of the evidence, that the purported tacit adoptive
admissions had any effect on the decision of any members of the jury who relied on the
imperfect self-defense theory to find appellant acted in imperfect rather than perfect self-
defense.7
First, appellant overstates the damaging effect of the purported tacit adoptive
admissions to his self-defense claim, as express admissions in the jail calls undermined
the claim. While appellant did not directly respond to several of Natalie’s statements
regarding the incident (the purported tacit adoptive admissions), he did respond to some
and made other express statements elucidating his self-defense claim.8 On one occasion,
Natalie asked appellant why he was afraid, and he stated it was because her brother was
present and there were “people … outside.” During the call introduced by the defense,
appellant asserts he acted in “self-defense,” and qualifies the statement by saying, “…
you know what I mean? You have your brother there.” Though defense counsel, in his
closing argument, posited that Natalie attacked appellant with the knife, prompting him to
act in self-defense, appellant himself, despite making several attempts throughout the
7 The jury was instructed on two theories of attempted voluntary manslaughter:
heat of passion and imperfect self-defense. (CALCRIM Nos. 603 & 604.) For any
members of the jury who may have concluded appellant acted in the heat of passion, the
exclusion of the statements would have had no effect on their decision to find him guilty
of attempted voluntary manslaughter. To find appellant acted in the heat of passion, the
jury members who relied on this theory would have had to find , among other things, that
appellant was provoked in a manner that would have caused a person of average
disposition to act rashly and without due deliberation. It is clear these jury members did
not credit Natalie’s statements indicating she did not do anything to appellant, which is
the crux of the challenged purported adoptive admissions. We therefore focus the
majority of our discussion on jurors who relied on the imperfect self-defense theory.
8 Though appellant challenged the admission of the entirety of the jail calls below,
on appeal, appellant raises no claim of error regarding the introduction of his express
statements/admissions in the jail calls.
16.
calls to support his assertion he acted in “self-defense,” notably never accused Natalie or
even suggested she was the aggressor. His claim of “self-defense” was clearly based on a
third party being present rather than defending an attack from Natalie.
For any members of the jury who relied on the imperfect self-defense theory, they
would have had to find that appellant believed (1) he was in imminent danger of being
killed or suffering great bodily injury and (2) the immediate use of deadly force was
necessary to defend against the danger and (3) that one or both of those beliefs were
unreasonable. Thus, the verdict clearly demonstrates the jury credited appellant’s
statements that he was in fear for his life and acted in what he perceived as self-defense,
and there was no apparent reason they would not also credit his statements that the reason
for his fear was that some third party was also present, or that appellant believed they
were present. As the jury credited appellant’s account of events, it would have been
implausible for the jury to find appellant’s use of force against Natalie was reasonable in
light of appellant’s fear stemming from a third party rather than from Natalie.9
Moreover, the evidence of perfect self-defense was, in contrast, weak. Appellant
made numerous express statements reasonably interpreted as inculpatory throughout the
calls, including his frequent pressure on Natalie not to cooperate with the prosecution,
despite her many assurances she would not; statements of remorse; and statements
indicating he deserved to be killed by Natalie’s family for what he had done. These
statements weigh against his perfect self-defense claim. Not even the call introduced by
the defense was persuasive as reasonable doubt of appellant’s guilt. Though Natalie told
9 Even if we entertain the possibility that the jury did believe Natalie was the
aggressor, the evidence appellant acted in perfect self-defense was still implausible. The
evidence revealed that Natalie was four feet eight inches weighing 120 pounds and
appellant was five feet eleven inches weighing 200 pounds. Appellant stabbed Natalie
three times—at least once in a vital part of the body—and when considered against
appellant’s relatively minor cuts, the difference between their respective sizes, the
neighbor’s observation that Natalie was running from her apartment, and the alleged
perpetrator emerged minutes later, the finding that appellant’s use of force against Natalie
was unreasonable was overwhelming.
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appellant he was “not guilty,” she further explained her statement by saying “that wasn’t
you,” which, in context, appears more like an expression that appellant was not in his
right mind or was not the type of person who would do what he did, not that he was not
the perpetrator or acting in reasonable self-defense.10 Though the transcript of the call
indicates Natalie told appellant, “Okay then. Then that – that – that’s – you defended
yourself” and “Okay. You defended yourself,” the recordings add more meaning than is
indicated by the cold transcript of the call, as Natalie says these statements in an
exasperated tone seemingly made to placate appellant after she had been arguing with
him for nearly 10 minutes trying to convince him that she would not testify against him.
Finally, Natalie’s comment that she was drunk and did not remember if she did anything
to make appellant mad or “trigger” him does not support an inference she attacked him
with a knife, especially when viewed with the rest of the evidence. Rather, it suggests
she did something to provoke appellant without knowing, supporting an inference that
appellant acted unreasonably by using force.
In sum, the potential prejudicial effect of the purported tacit adoptive admissions
was low in light of appellant’s express statements related to his self-defense claim, the
evidence supporting the jury’s attempted voluntary manslaughter conviction was
overwhelming, and the evidence supporting that appellant acted in perfect self-defense
was weak. For the reasons stated, any error in admitting the purported tacit adoptive
admissions from the jail calls was harmless beyond a reasonable doubt.
II. Denial of Appellant’s Proposed Pinpoint Instruction
A. Relevant Background
The pattern instruction for adoptive admissions, CALCRIM No. 357, provides:
“If you conclude that someone made a statement outside of court that
(accused the defendant of the crime/[or] tended to connect the defendant
10 Natalie’s statement echoes a statement made by appellant in a prior call where he
said in relation to the case, “Please, know that – that that person wasn’t me.”
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with the commission of the crime) and the defendant did not deny it, you
must decide whether each of the following is true:
“1. The statement was made to the defendant or made in (his/her)
presence;
“2. The defendant heard and understood the statement;
“3. The defendant would, under all circumstances, naturally have denied
the statement if (he/she) thought it was not true;
“AND
“4. The defendant could have denied it but did not.
“If you decide that all of these requirements have been met, you may
conclude that the defendant admitted the statement was true.
“If you decide that any of these requirements has not been met, you must
not consider either the statement or the defendant’s response for any
purpose.” (CALCRIM No. 357.)
Appellant requested the court instruct the jury with one of two proposed additions
to the pattern instruction. First, appellant requested the following italicized portion be
added to the penultimate paragraph as follows: “If you decide that all of these
requirements have been met, you may conclude that the defendant admitted the statement
was true, unless you believe that defendant failure to respond was in reliance on his right
of silence guaranteed by the Fifth Amendment of the United States Constitution.” The
second alternate appellant proposed was to replace the penultimate paragraph of the
instruction with the following: “You may consider Julio Torrez belief and reliance on his
right of silence by the Fifth Amendment of the United States Constitution in deciding if
under the circumstances he naturally couldn’t explain or deny the accusation.”
The court denied appellant’s request, reasoning that appellant’s counsel could
argue he was relying on his right to remain silent based on the state of the evidence and
that the court had already instructed the jury on appellant’s Fifth Amendment right with
regard to his testimony. The court further noted that it had addressed the legal issue
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regarding the interplay between the jail calls and the Fifth Amendment right prior to
admitting the evidence and found appellant’s Fifth Amendment privilege against self-
incrimination had not been implicated.
The court instructed the jury with the unmodified text of CALCRIM No. 357.
B. Analysis
Appellant contends the court erred by denying appellant’s request. We disagree.
A pinpoint instruction on a defense theory which relates to the reasonable doubt
standard of proof to particular elements of the crime charged must be given at a
defendant’s request. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 498; People v.
Bolden (2002) 29 Cal.4th 515, 558; People v. Johnson (1992) 3 Cal.4th 1183, 1230.) The
court may properly refuse a pinpoint instruction when it incorrectly states the law; is
argumentative, such as when requested only to highlight particular evidence; duplicative
of other instructions; potentially confusing; or not supported by substantial evidence.
(Mora and Rangel, at p. 499; People v. Moon (2005) 37 Cal.4th 1, 30.) “[W]here
standard instructions fully and adequately advise the jury upon a particular issue, a
pinpoint instruction on that point is properly refused.” (People v. Canizalez (2011)
197 Cal.App.4th 832, 857; see People v. Gutierrez (2002) 28 Cal.4th 1083, 1144 [“[T]he
standard manslaughter instructions given adequately covered the valid points in the
proposed pinpoint manslaughter instructions.”].)
Appellant argues the proper standard of review of his claim is de novo, which
applies when we are faced with the question of whether a jury instruction correctly states
the law. Respondent, in contrast, urges us to apply the abuse of discretion standard. We
agree with respondent that under the circumstances of the present case, the abuse of
discretion standard is the proper standard. Our Supreme Court has recently applied an
abuse of discretion standard in reviewing challenges to the denial of a pinpoint
instruction when the instruction was duplicative. (People v. Mora and Rangel, supra,
5 Cal.5th at p. 497; cf. People v. Brugman (2021) 62 Cal.App.5th 608, 621, fn. 3
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[applying a de novo standard to the defendant’s claim that a pinpoint instruction was
improperly denied where the People did not argue for an abuse of discretion standard and
because one of the issues is whether the proposed pinpoint instruction incorrectly stated
the law].) Appellant does not claim the unmodified CALCRIM No. 357 instruction was
an incorrect statement of law, nor that the reasonable doubt standard was implicated by
the trial court’s failure to make the proposed modification. Rather, he contends, the court
should have granted his request for a modification as applied to his particular case simply
because, as he asserts, it was a correct statement of the law and supported by substantial
evidence.
We conclude the court did not abuse its discretion in declining to give the
proposed instruction. The jury was fully and adequately advised on the issue of adoptive
admissions with the unmodified CALCRIM instruction. Whether appellant was not
answering certain statements made by Natalie because he knew the call was being
recorded and did not want it to be used against him in a trial was one of the many factors
the jury could have considered in determining whether the statements were adoptive
admissions. As appellant points out in his briefing, a defendant might additionally
remain silent “because of fear, anger, or pride.” Thus, appellant’s proposed instructions
were argumentative in that they pointed out only one of the numerous factors the jury
could have reasonably considered. As the trial court pointed out, the jury was instructed
appellant had a right not to testify, and in that sense, the proposed instruction was also
duplicative. (CALCRIM No. 355.) We cannot say that in ruling on appellant’s request,
the court acted “in an arbitrary, capricious or patently absurd manner that resulted in a
manifest miscarriage of justice.” (People v. Williams (2013) 58 Cal.4th 197, 270‒271.)
Thus, we find no error.
III. Cumulative Error
Appellant contends that even if we find the alleged errors individually harmless,
their cumulative effect were prejudicial so as to require reversal. He contends that if we
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credited appellant’s arguments, “the jury would have (a) received some inadmissible tacit
admissions and (b) applied an incomplete instruction to the admissible tacit admissions”
and the errors “altered the jury’s assessment of the evidence and [appellant’s] self-
defense claim.” Because we conclude the admission of any inadmissible tacit adoptive
admissions was harmless beyond a reasonable doubt and the court did not err by
declining to give appellant’s pinpoint instruction, we reject appellant’s cumulative error
claim.
IV. Resentencing in Light of Recent Legislation
Appellant contends the matter must be remanded for resentencing based on the
recent enactment of Assembly Bill 518 and Senate Bill 567. We conclude remand for
resentencing is appropriate.
A. Assembly Bill 518
At the time of appellant’s sentencing, former section 654, subdivision (a) required
that a defendant who committed an act punishable by two or more provisions of law be
punished under the provision that provided for the longest possible term. Assembly Bill
518 amended section 654, subdivision (a) to permit an act or omission punishable under
two or more provisions of law to “be punished under either of such provisions.” (Stats.
2021, ch. 441, § 1, eff. Jan. 1, 2022.) “[S]ection 654 now provides the trial court with
discretion to impose and execute the sentence of either term, which could result in the
trial court imposing and executing the shorter sentence rather than the longer sentence.”
(People v. Mani (2022) 74 Cal.App.5th 343, 379.)
The parties agree, as do we, appellant is entitled to the benefit of Assembly Bill
518. (See People v. Sek (2022) 74 Cal.App.5th 657, 673 [“Assembly Bill No. 518 …
applies retroactively to defendants … whose convictions were not yet final when the law
became effective January 1, 2022.”].) They disagree, however, as to whether remand is
appropriate. We contend it is.
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“ ‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citations.] A court which is unaware of
the scope of its discretionary powers can no more exercise that “informed discretion”
than one whose sentence is or may have been based on misinformation regarding a
material aspect of a defendant's record.’ [Citation.] In such circumstances, we have held
that the appropriate remedy is to remand for resentencing unless the record ‘clearly
indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had
been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391.)
We cannot say the record clearly indicates the trial court would have reached the
same conclusion. Respondent contends it would have based on the fact it found no
circumstances in mitigation and imposed the maximum sentence, relying on several
circumstances in aggravation: “The defendant’s prior convictions as an adult and
sustained [petitions] in juvenile delinquency proceedings are numerous. The defendant
has served prior California Youth Authority commitments and two State prison terms.
The defendant committed violation of Penal Code Section 273.5 in the presence of a
minor. The defendant was on felony probation and State parole when the crime was
committed. The defendant’s prior performance on probation and parole is
unsatisfactory.”
However, while the trial court did not impose the middle term, it did not have the
opportunity to consider, and appellant had no opportunity to argue for, a stay of the
11-year base term in favor of the 8- or 10-year base term for the assault or domestic
violence convictions, respectively, resulting in a slightly shorter aggregate sentence.
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B. Senate Bill 56711
Effective January 1, 2022, Senate Bill 567 amended section 1170, restricting a
trial court’s sentencing discretion, including its ability to impose the upper term for a
conviction. (Stats. 2021, ch. 731, § 1.3.) Pursuant to Senate Bill 567, section 1170 now
precludes a trial court from imposing a sentence exceeding the middle term for any
offense with a sentencing triad, unless “there are circumstances in aggravation of the
crime that justify the imposition of a term of imprisonment exceeding the middle term,
and the facts underlying those circumstances have been stipulated to by the defendant, or
have been found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (§ 1170, subd. (b)(1) & (2).) In other words, Senate Bill 567 provides for a
presumptive middle term absent the presence of circumstances in aggravation, the facts
underlying which have either been stipulated to by the defendant or proven beyond a
reasonable doubt at trial. (§ 1170, subd. (b)(1) & (2); People v. Lopez (2022)
78 Cal.App.5th 459, 464.)
The parties agree, as do we, the amended version of section 1170, subdivision (b)
applies retroactively in this case as an ameliorative change in the law applicable to all
nonfinal convictions on appeal. (See People v. Flores (2022) 73 Cal.App.5th 1032,
1039.)
While respondent argues remand is not necessary under Senate Bill 567, because
we are already remanding for resentencing in light of Assembly Bill 518, we decline to
address this issue, as it is moot. We rest assured the sentencing court will consider all
11 On December 27, 2021, appellant filed a request for judicial notice of a record of
legislative history for Senate Bill 567. On January 14, 2022, this court deferred ruling on
appellant’s request and granted respondent 15 days’ leave to file a response, noting
failure to file one may be deemed agreement appellant’s request be granted. Respondent
did not file a response. As respondent makes no objection and the record appears to be
appropriate for judicial notice, we grant appellant’s request.
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sentencing provisions applicable at the time of resentencing, including section 1170 as
amended by Senate Bill 567.12
V. Prior Serious Felony Enhancements
Appellant contends, and respondent agrees, that two of the three five-year
section 667, subdivision (a) prior serious felony enhancements must be stricken under
Sasser, supra, 61 Cal.4th 1. We agree with the parties.
Our high court in Sasser held that determinate second-strike sentences were
subject to section 1170.1, which draws a distinction between offense-based
enhancements, which apply to every relevant count, and status-based enhancements,
which apply only once. (Sasser, supra, 61 Cal.4th at pp. 15, 17.) Because the five-year
prior serious felony enhancement is a status-based enhancement, it may only be added to
the aggregate sentence rather than each individual count. (Id. at p. 16.) Therefore, upon
remand for resentencing, the trial court may only impose one five-year prior serious
felony enhancement.
DISPOSITION
Appellant’s convictions are affirmed. The matter is remanded for resentencing in
compliance with all applicable laws. The trial court is instructed to impose the prior
serious felony enhancement under section 667, subdivision (a) in compliance with
Sasser.
DE SANTOS, J.
WE CONCUR:
MEEHAN, Acting P. J.
SNAUFFER, J.
12 We express no opinion on how the trial court should exercise any of its sentencing
discretion upon remand.
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