People v. Maldonado CA1/3

Filed 4/4/14 P. v. Maldonado CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A132029
v.
KEVIN MALDONADO, (San Mateo County
Super. Ct. No. SC070139A)
Defendant and Appellant.
Defendant Kevin Maldonado appeals from a judgment entered after a jury found
him guilty of first degree murder of Israel Polvo (Pen. Code, § 187, subd. (a)1), with a
related firearm use sentence enhancement (§ 12022.53, subd. (d)), and attempted
deliberate and premeditated murder of Ulises Jaimes (§§ 664, 187, subd. (a), 189), with a
related firearm use sentence enhancement (§ 12022.53, subd. (c)). The court sentenced
defendant to an aggregate term of 50 years to life in state prison, consisting of
consecutive terms of 25 years to life on the murder count and the related firearm use
sentence enhancement, and concurrent terms of 7 years to life on the attempted murder
conviction and 20 years to life for the related firearm use sentence enhancement.2
1
All further unspecified statutory references are to the Penal Code.
2
Before trial defendant pleaded no contest to possession of a firearm by a felon
(former § 12021, subd. (a)(1)). The court imposed but stayed a term of two years,
pursuant to section 654. The court also dismissed sentence enhancement allegations that
defendant was on probation when he committed the charged offenses.
1
On appeal defendant advances several arguments challenging his convictions. We
conclude that none of his contentions, either singly or together, requires reversal.
Accordingly, we affirm the judgment.
FACTS
A. Prosecution’s Case
On or about August 22, 2009, defendant and Jaimes got into a verbal argument,
which lead to a fist fight. Defendant threw the first punch. Jaimes clearly got the better
of the fight and beat defendant up. Defendant’s injuries included a black eye and a
bloodied lip. Jaimes hurt his knuckles and received stitches to close the wound on his
knuckles. During the next two weeks, defendant and Jaimes saw each other on an almost
daily basis. They exchanged threats with each man expressing anger and requesting a
rematch.
On the afternoon of September 6, 2009, Jaimes and Mark Rodriguez were riding
in Jaimes’ car. Jaimes saw a man on the street motioning to him to pull over. Jaimes
pulled his car over but did not get out of the car. The man, later identified as “Scarface,”
asked if Jaimes was the person that had beaten defendant.3 Jaimes replied, “Yeah.”
Scarface then said he was going to shoot Jaimes or Jaimes was going to get shot. Jaimes
threw a beer bottle at the man and “took off.” Jaimes took the threat seriously, and went
to look for defendant “[b]ecause [he] felt threatened” although he did not associate the
threat or think the threat had anything to do with defendant. When asked why he was
then mad at defendant, Jaimes said, “I guess I felt, I was buzzed, so I was, you know, I
don’t know.” Jaimes had been drinking beer and smoking marijuana. 4
3
Both Jaimes and Rodriguez testified that a photograph of the man that was
identified as Scarface by the police was not the man who made the threat.
4
Rodriguez recalled the events somewhat differently. Rodriguez testified that
Scarface did not ask if Jaimes was the person who had beaten defendant. Scarface just
asked if Jaimes was Jaimes. When Jaimes say, “yeah, why?,” Scarface said “you need to
be easy because you’re going to get clapped.” Rodriguez understood Scarface’s statement
to mean that Jaimes was going to get shot. Jaimes replied, “By who, by you?”
Rodriguez did not recall Scarface’s reply. Jaimes then threw a beer bottle at Scarface.
2
Later at about 6 p.m., Jaimes’ friend Polvo called and asked Jaimes to pick him up
and take him (Polvo) to drop off some marijuana. Jaimes did not tell Polvo about the
fight he had with defendant, nor did he tell Polvo he wanted to fight defendant. Jaimes
did not ask Polvo for a weapon or “some kind of protection.” At trial Jaimes and
Rodriguez testified that neither of them nor Polvo were armed with a weapon. As the
three men rode around, Jaimes and Polvo had a discussion about the man who had
threatened Jaimes earlier that evening. Polvo wanted to look for the man who had
threatened Jaimes. However, when Jaimes drove past defendant’s home, Jaimes decided
to stop and challenge defendant to a fight. 5
Jaimes drove by defendant’s home, made a U-turn, and drove back toward
defendant’s house arriving at 8:40 p.m. and 18 seconds. 6 Jaimes saw defendant come out
of his house. Jaimes stopped his car in the middle of the road on the wrong side of the
street in front of defendant’s house. Defendant’s girlfriend Elizabeth Puga’s car was
parked on the street near defendant’s house, but Jaimes never saw Puga either sitting in
the car or in the street. Jaimes got out of his car followed by Polvo. Rodriguez remained
in the car. Jaimes and Polvo stood in the street about four feet apart from each other but
several feet from defendant who was standing on the sidewalk near his driveway. Jaimes
stood with “both of his hands clenched in front by his sides” and no higher than his waist.
He said to defendant, “What’s up? What you trying to do?” Polvo stood with his hands
up either even with his shoulders or maybe a bit higher and more in an open palm
5
Rodriguez recalled the events somewhat differently. Rodriguez testified that after
the incident with Scarface, Jaimes was mad and called Polvo on the telephone.
Rodriguez did not remember Jaimes’ exact words, but the gist of the conversation had
“something do with Kevin,” that Jaimes “needed help to beat him up or something,” or
that Jaimes wanted to confront defendant because of the threat that Jaimes was going to
get “clapped.” Once Polvo was in the car, Jaimes said that if defendant was outside
“we’re going to bail out on him.” Rodriguez understood that to mean that “they were
going to jump out and try to beat [defendant] up.”
6
The position of certain vehicles and persons and the sound of gunshots was
recorded in part by a surveillance camera on private property near defendant’s house and
city ShotSpotter sensors that had been placed outside defendant’s house.
3
manner. He said, “What’s going on?” Defendant from his position on the sidewalk did
not respond to Jaimes. Instead, defendant pulled out a gun and fired three shots in the
direction of the victims from several feet away.7 The shots were fired at 8:40 p.m.: The
first shot at 8:40 and 37.1 seconds, the next shot at 8:40 and 38.2 seconds, and the third
shot at 8:40 and 38.6 seconds. All three shots were fired within one and a half seconds.
Defendant’s first shot fatally struck Polvo in his chest near his left armpit area. When
Jaimes saw Polvo get shot, Jaimes “ducked and . . . just ran” away. Defendant’s next two
shots pierced the back of the shirts Jaimes was wearing, but Jaimes was not struck. After
firing the three shots, defendant fled the scene in Puga’s car at 8:41 p.m.8 Responding to
a 911 call, the police found three cartridges for a .380 semiautomatic weapon but did not
find either the expended bullets or a weapon.
The prosecution also proffered evidence of defendant’s recorded jail telephone
calls, during which defendant and Puga discussed various topics including how to get rid
of “the 38s,” and that defendant wanted Puga to give the bullets to a man known as
Scarface. Defendant did not say anything about shooting Polvo in self-defense or to
protect himself during these conversations. The police searched Scarface’s home but
they did not locate any evidence connected to the homicide or firearms of any kind.
Defendant was interviewed by San Mateo police detectives on two occasions. Defendant
denied he was present at the shooting or that he even knew Jaimes. Defendant provided
two conflicting alibis regarding his whereabouts on the evening of the shooting.
7
Jaimes testified that neither he nor Polvo rushed up the driveway toward defendant
or attempted to attack defendant’s girlfriend.
8
Rodriguez recalled the events somewhat differently. Rodriguez testified that after
Jaimes stopped his car, both Jaimes and Polvo “bail[ed] out” and just ran towards
defendant. Rodriguez thought to himself that he was going to need to break them up and
he looked to see if any cars were behind them. Before he could do anything else, “in less
than five seconds” Rodriguez heard two or three gunshots; he did not know who got hit
or what happened because it happened so fast. Rodriguez got out of the car and saw
Polvo lying on the ground. Rodriguez attempted to help Polvo and then Rodriguez called
911.
4
Although the police suggested to defendant that the incident could have been self-
defense, defendant never indicated he acted in self-defense.
B. Defense Case
Defendant did not testify at trial. He presented his theory that he acted in self-
defense and in defense of others through the testimony of Puga. She testified that on the
night of the shooting, defendant was inside his house and she was sitting in her car
outside of his house when Jaimes showed up. Jaimes drove by, made a u-turn, and then
drove back and parked in front of defendant’s house. Puga saw defendant walk out of his
house and down the driveway toward the sidewalk. Within seconds, Jaimes and Polvo
got out of the car “really fast” and “rushed” toward defendant. All three men engaged in
a struggle “more on the sidewalk right in front of [defendant’s] house.” Jaimes and Polvo
were “swinging” their arms and “throwing punches.” Defendant, who was about three
inches taller than both men, was moving his arms as if he was trying to protect himself.
None of the men had anything in their hands. Jaimes and Polvo did not threaten
defendant and defendant did not say anything to the men. Within five seconds of the
beginning of the struggle, Puga got out of her car and tried but could not get between
defendant and the two men. She used one hand to shove Polvo on his right shoulder but
he did not react. Puga ran back to her car to retrieve the steering wheel lock to use as a
weapon. Puga was inside her car reaching for the lock when she heard three gunshots.
She saw Polvo with both his hands in his belly and slumped over. Puga turned on the car
and defendant got in and told her to drive to his friend Scarface’s house. Puga dropped
defendant off outside Scarface’s house and then she drove home. During the drive to
Scarface’s house, Puga asked defendant if he shot someone and he said yes; they did not
discuss further details of the shooting. Puga testified that defendant never told her he got
rid of the gun. However, she conceded that she had testified at the grand jury that
defendant told her he gave the gun to Scarface. Puga further recalled that while
defendant was in jail he told her “to give the 38s [bullets] to Scarface.” Puga did not act
on defendant’s request because she did not have the ammunition.
5
C. Jury Instructions and Verdict
The trial court instructed the jury, in pertinent part, on homicide (CALCRIM
No. 500), justifiable homicide based on the theory of self-defense or defense of another
(CALCRIM No. 505), first and second degree murder with malice aforethought
(CALCRIM Nos. 520 and 521), the defense of provocation (CALCRIM No. 522),
voluntary manslaughter based on the theories of heat of passion and imperfect self-
defense (CALCRIM Nos. 570 and 571), attempted murder and the related allegation of
deliberation and premeditation (CALCRIM Nos. 600 and 601), and attempted voluntary
manslaughter based on the theories of heat of passion and imperfect self-defense
(CALCRIM Nos. 603 and 604). The jury found defendant acted with deliberation and
premeditation when he fired his gun at Polvo and Jaimes and rejected the defense theories
of provocation or self-defense or defense of others.
DISCUSSION
I. Sufficiency of Evidence of First Degree Murder Conviction
Defendant challenges his first degree murder conviction on the ground there was
no substantial evidence to support the jury’s finding that he acted with deliberation and
premeditation when he killed Polvo. “In assessing the sufficiency of the evidence, we
review the entire record in the light most favorable to the judgment to determine whether
it discloses evidence that is reasonable, credible, and of solid value such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Bolin
(1998) 18 Cal.4th 297, 331 (Bolin).) “If the circumstances reasonably justify the jury’s
findings, the reviewing court may not reverse the judgment merely because it believes
that the circumstances might also support a contrary finding.” (People v. Ceja (1993) 4
Cal.4th 1134, 1139, fn. omitted.)
In support of his argument that there was a lack of evidence of premeditation and
deliberation, defendant relies on People v. Anderson (1968) 70 Cal.2d 15, 26-27, in
which our Supreme Court identified “three basic categories” of evidence “to sustain a
finding of premeditation and deliberation:” “ ‘planning’ ” activity, “ ‘motive,’ ” and
“manner of killing.” (Id. at pp. 26-27.) “Drawing on these three categories of evidence,
6
Anderson provided one framework for reviewing the sufficiency of the evidence
supporting findings of premeditation and deliberation. In so doing, Anderson’s goal ‘was
to aid reviewing courts in assessing whether the evidence is supportive of an inference
that the killing was the result of preexisting reflection and weighing of considerations
rather than mere unconsidered or rash impulse.’ ” (People v. Solomon (2010) 49 Cal.4th
792, 812.) Nevertheless, our Supreme Court has “repeatedly pointed out” and
“reaffirm[ed]” that “ ‘[t]he Anderson guidelines are descriptive, not normative.
[Citation.]’ [Citation.] They are not all required [citation], nor are they exclusive in
describing the evidence that will support a finding of premeditation and deliberation.”
(People v. Gonzalez (2012) 54 Cal.4th 643, 663.)
In the context of first degree murder, “ ‘premeditated’ means ‘considered
beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result
of careful thought and weighing of considerations for and against the proposed course of
action.’ ” (People v. Mayfield (1997) 14 Cal.4th 668, 767 (Mayfield).) “[D]irect
evidence of a deliberate and premeditated purpose to kill is not required. The necessary
elements of deliberation and premeditation may be inferred from proof of such facts and
circumstances in the case as will furnish a reasonable foundation for such an inference,
and where the evidence is not in law insufficient, the matter is exclusively within the
province of the jury for determination.” (People v. Isby (1947) 30 Cal.2d 879, 888.) Nor
does the process of premeditation and deliberation require any extended period of time.
“ ‘The true test is not the duration of time as much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculated judgment may
be arrived at quickly. . . .’ ” (Mayfield, supra, p. 767.)
On this record we can easily conclude the record supports the jury’s findings that
the shooting of Polvo occurred after a deliberated, premeditated decision to kill. Jaimes
had previously beaten defendant in a fist fight and in the two weeks preceding the
shooting the men’s animosity continued unabated. Defendant’s decision to arm himself
with a loaded firearm in advance of any confrontation with Jaimes supports an inference
of planning activity. (See People v. Lee (2011) 51 Cal.4th 620, 636 [“defendant brought
7
a loaded handgun with him on the night [the victim] was killed, indicating ‘he had
considered the possibility of a violent encounter’ ”]; People v. Wright (1985) 39 Cal.3d
576, 593, fn. 5 [“[o]f course, use of a deadly weapon is not always evidence of a plan to
kill[]’ . . . , but obtaining such a weapon in advance of a killing is one fact that has been
held to support an inference of planning activity”].) The jury could have also reasonably
found that the victims’ conduct in suddenly confronting defendant was with the intent to
engage in a fist fight and was not legally sufficient to provoke a reaction of gunfire by
defendant. Moreover, the jury could reasonably infer from the testimonial and forensic
evidence that defendant had sufficient time to fire a warning shot or otherwise attempt to
defuse the situation. Instead, without a word, defendant fired a shot at a vital area on
Polvo’s body. After the shooting, defendant did not come to Polvo’s aid, but fled the
scene and hid the weapon used in the shooting. This evidence allowed the jury to
reasonably infer that defendant’s act of shooting Polvo was not the result of a rash
impulse, but rather a deliberate and premeditated act that occurred after an opportunity
for reflection. (See People v. Koontz (2002) 27 Cal.4th 1041, 1082 [defendant’s firing of
his gun at a victim’s vital area at close range supported a finding of premeditation and
deliberation]; People v. Clark (1967) 252 Cal.App.2d 524, 529 [defendant’s obvious
attempt to conceal the murder weapon and failure to secure medical attention for victim
supported a finding of premeditation and deliberation].) By his arguments defendant
“simply asks this court to reweigh the facts.” (Bolin, supra, 18 Cal.4th at p. 333.) The
cases cited by defendant do not compel a different conclusion on this record.
II. Admission of Defendant’s Other Crimes
A. Relevant Facts
During pretrial proceedings the prosecutor asked the court to rule on the
admissibility of defendant’s prior criminal conduct (sustained juvenile petition for
robbery and an adult conviction for assault). The evidence was proffered to establish that
on previous occasions defendant had acted as an aggressor thereby negating his claims of
provocation, self-defense, and imperfect self-defense. (Evid. Code, § 1101, subd. (b).)
In support of the request, the prosecutor relied on a California Supreme Court decision
8
which held that “[t]he least degree of similarity (between the uncharged act and the
charged offense) is required in order to prove intent,” and that the reoccurrence of
unlawful conduct tends increasingly with each instance to negate “accident or
inadvertence or self-defense or good faith or other innocent mental state, and tends to
establish (provisionally, at least, though not certainly) the presence of the normal, i.e.,
criminal, intent accompanying such an act . . . .’ ” (People v. Ewoldt (1994) 7 Cal.4th
380, 402 (Ewoldt), italics added; see 2 Wigmore, Evidence (Chadbourn rev. 1979) § 302,
p. 241.) The court ruled, over defendant’s objection, that the prosecution would be
allowed to present evidence of defendant’s prior criminal offenses of robbery and assault
pursuant to Evidence Code section 1101, subdivision (b), for the limited purpose to prove
defendant’s intent and to disprove his anticipated claim of self-defense and defense of
others, as requested by the prosecutor.
B. Analysis
Defendant argues the court erred in allowing into evidence his prior criminal
offenses of assault and robbery. However, we need not address his contention. On this
record we conclude that any asserted error was harmless because it is not reasonably
probable that a result more favorable to defendant would have been reached absent
admission of the evidence. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Contrary to defendant’s contentions, any potential for prejudice by admission of
the challenged evidence was decreased by the circumstances that the evidence of
dissimilar other crimes was “no stronger and no more inflammatory than the [evidence]
concerning the charged offenses.” (Ewoldt, supra, 7 Cal.4th at p. 405; see People v.
Collie (1981) 30 Cal.3d 43, 64 [“[e]vidence of past offenses may not improperly affect
the jury’s deliberations if the . . . charged offense is dissimilar . . . .”].)9 Indeed, given the
9
During the trial the prosecutor presented evidence of defendant’s prior criminal
conduct through the testimony of three witnesses. The juvenile robbery incident
concerned a purse snatching that was elevated to a robbery, when defendant used force to
grab a purse from a female victim, causing her to fall to the ground. The parties
stipulated that defendant had suffered a sustained juvenile petition for robbery. The adult
assault incident occurred while defendant was incarcerated in the local jail. A female
9
circumstances, “it [is] unlikely that the jury disbelieved . . . [the evidence] regarding the
charged offenses but nevertheless convicted defendant on the strength of [the evidence]
. . . regarding the [prior criminal] offenses, or that the jury’s passions were inflamed by
the evidence of defendant’s [prior criminal] offenses.” (Ewoldt, supra, 7 Cal.4th at
p. 405.) Moreover, both the prosecutor’s closing statements10 and the court’s
instructions11 informed the jury that the other-crimes evidence was not sufficient to prove
deputy sheriff had admonished defendant to stop making certain hand gestures as he
appeared to be communicating with another inmate in violation of jail rules. When the
officer went to confront defendant in his cell, defendant started to flail his arms at the
officer. As the officer grabbed at him, defendant fell toward the officer, a fight began,
and defendant took several swings at the upper torso of the officer’s body. The officer
was able to get defendant under control with the assistance of other officers. The officer
was not badly hurt in the fight and she did not seek medical care.
Before the assault victim testified, defense counsel expressed his concern that the
witness might testimony about “gang signs being thrown” during the incident. The trial
prosecutor confirmed that he had agreed that no mention of gangs would be made before
the jury. Instead, the assault victim would simply testify that defendant had committed
“some sort of violation of a jail rule without getting into specifically what it was.” The
trial court concurred with counsel that “it would not be appropriate to introduce the
concept of gang evidence within the confines of [Evidence Code section] 1101. That
would be prejudicial under [Evidence Code section] 352 to the defendant.” The assault
victim testified consistent with the court’s ruling and did not refer to the hand gestures as
gang signs. Consequently, we find nothing in the record that supports defendant’s
argument that the assault victim’s testimony about defendant’s hand gestures allowed the
jury to prejudicially infer that defendant was a gang member.
10
In closing argument the prosecutor mentioned defendant’s prior criminal conduct,
stating the jury “can only use that evidence for a very limited purpose” to evaluate
whether defendant had without provocation attacked people on prior occasions; the jury
could not use the evidence “just to consider” that defendant was “a bad guy, he took a
purse from someone, he fights with deputies and, thus, we should convict the guy;” and
the other crimes evidence showed “the defendant is perfectly capable of attacking people
without any need for provocation whatsoever. It undercuts the argument of both self-
defense and provocation.”
11
The court specifically advised the jurors that they should first consider whether
defendant had committed the uncharged criminal offenses, and then if the jury so
concluded the offenses had been committed, the evidence could only be considered “for
the limited purpose” of deciding whether on prior occasions defendant had attacked
others without provocation and for no other purpose; the jury was to consider the
10
defendant’s guilt of the charged offenses and the jurors were required to consider “all of
the other evidence before convicting defendant” of the charged offenses. (People v.
Reliford (2003) 29 Cal.4th 1007, 1015 (Reliford).) The jury was also instructed as to the
elements of murder in the first degree, attempted murder, that a conviction required proof
beyond a reasonable doubt, and that for each offense a guilty verdict required proof of a
union or joint operation of act and the requisite intent (CALCRIM Nos. 220, 251, 520,
521, 601). “No reasonable juror would believe those requirements could be satisfied
solely by proof of” defendant’s commission of the other crimes evidence. (Reliford,
supra, at pp. 1013-1014.) 12
similarity or lack of similarity between the prior criminal conduct and the charged
offenses; the jury was not to conclude from the prior crimes evidence that defendant had
a bad character or was disposed to commit crimes; and the prior crimes evidence was
only one factor and not sufficient by itself to prove defendant committed the charged
offenses beyond a reasonable doubt.
12
Defendant argues that reversal is required because the prosecution cannot show
that the improper introduction of the other-crimes evidence was harmless beyond a
reasonable doubt, citing to Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
However, our Supreme Court has held the Watson test is “applicable to alleged errors in
the admission of other-crimes evidence.” (People v. Thomas (2011) 52 Cal.4th 336, 356,
fn. 20, citing to People v. Malone (1988) 47 Cal.3d 1, 22 [Supreme Court rejects
defendant’s argument that admitting other-crimes evidence should be reviewed under the
reasonable doubt standard in Chapman].) In all events, even if we applied the Chapman
standard, on this record we would conclude that any asserted error in the admission of the
other-crimes evidence was harmless beyond a reasonable doubt. At trial defendant did
not deny he fired a gun at both victims. The only substantive issue was whether
defendant was sufficiently provoked and acted in self-defense or defense of others.
“[F]or either perfect or imperfect self-defense, the fear must be of imminent harm. ‘Fear
of future harm-no matter how great the fear and no matter how great the likelihood of the
harm-will not suffice. The defendant's fear must be of imminent danger to life or great
bodily injury.’ [Citation.]” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082,
fn. omitted.) In this case there was substantial testimonial and forensic evidence
demonstrating that the victims approached defendant intent on a fist fight and from
several feet away defendant responded by firing his gun three times, the first shot fatally
striking Polvo in the chest area and the second two shots piercing Jaimes’ clothing as he
fled the scene. Because defendant’s guilt was established even absent the other-crimes
evidence, any error in admitting the challenged evidence does not warrant reversal under
any standard of review.
11
III. Admission of Threat Evidence
A. Relevant Facts
During the pretrial proceedings, defendant filed a motion in limine to preclude the
prosecutor from introducing evidence (through the testimony of Jaimes and Rodriguez)
that Scarface informed Jaimes that Jaimes was going to be shot. Defendant asserted that
the proposed testimony should not be admitted as it was “hearsay,” “unreliable,”
“vague,” and “not trustworthy.” The court held an Evidence Code section 402 hearing
during which only Jaimes was called to testify regarding the threat allegedly made by
Scarface. 13 Jaimes testified that Scarface asked him if he was the “guy that had fought
Kevin.” When Jaimes confirmed he was the guy, Scarface said Jaimes should “watch
[his] back because we was going to get shot up.” Scarface did not say defendant or
anyone associated with defendant was going to shoot Jaimes. Nor did Jaimes ever see
Scarface with defendant and know that Scarface was associated with defendant. After
hearing Scarface’s threat, Jaimes was angry and wanted to confront defendant because
defendant was telling “so many people” about their earlier fight.14
The trial court granted the prosecutor’s request to allow Jaimes to testify as to the
threat made by Scarface. In so ruling, the court explained the evidence was not hearsay
but admissible to explain Jaimes’ state of mind and his subsequent conduct after hearing
the threat. As to defendant’s assertion that Jaimes’ use of alcohol and marijuana on the
day of the incident rendered the threat testimony unreliable, the court ruled that evidence
of Jaimes’ intoxication could be used to impeach his credibility. The court also rejected
defendant’s Evidence Code section 352 argument that the threat evidence should be
13
Defendant did not request that Rodriguez testify at the Evidence Code section 402
hearing or ask that the court tentatively rule on the admissibility of Rodriguez’s
testimony. Nor did defendant object during trial to Rodriguez’s testimony regarding
Scarface’s statements.
14
During the trial Jaimes did not repeat his hearing testimony that he wanted to
confront defendant because defendant was telling people about their earlier fight. Jaimes
testified only that the threat made him mad and he wanted to confront defendant because
he (Jaimes) was buzzed or for some unknown reason.
12
excluded as unduly prejudicial because “the foundation is vague at best,” and Jaimes’
testimony was not credible or reliable. The court found that there was “enough
foundation to allow the testimony. There [was] enough linkage between the statement
made to Mr. Jaimes and then his subsequent actions.”15
B. Analysis
Having considered defendant’s challenge to the admission of the threat evidence
on the grounds it was not relevant and unduly prejudicial, we conclude his contentions do
not require reversal.16
As to the matter of relevancy, the trial court admitted the threat evidence for the
limited purpose of explaining Jaimes’ reason for going to defendant’s home on the night
of the shooting. Specifically, the threat evidence, “is an example of ‘ “one important
category of nonhearsay evidence—evidence of a declarant’s statement that is offered to
prove that the statement imparted certain information to the hearer and that the hearer,
believing such information to be true, acted in conformity with that belief. The statement
is not hearsay, since it is the hearer’s reaction to the statement that is the relevant fact
sought to be proved, not the truth of the matter asserted in the statement.” ’ ” (People v.
Livingston (2012) 53 Cal.4th 1145, 1162; see People v. Samuels (2005) 36 Cal.4th 96,
122 [court properly admitted out-of-court statement to explain witness’s subsequent
actions].)
15
Although the court indicated it would give a limiting instruction as to how the
jurors were to evaluate the threat evidence, there is no evidence that defense counsel
asked the court to give such an instruction and none was given. “[I]n the absence of a
request by the defense,” the court was under no sua sponte duty to give the jury a limiting
instruction. (People. v. Riccardi (2012) 54 Cal.4th 758, 825; see People v. Alvarez
(1996) 14 Cal.4th 155, 214-216 [accord]; see Evid. Code, § 355 [trial court, “upon
request,” shall instruct the jury about evidence admitted for a limited purpose].)
16
Defendant also argues the threat evidence should have been excluded because it
was likely to confuse the issues. Because defendant did not seek to exclude the evidence
on that basis, he has forfeited the issue on appeal. In all events, given the nature of the
threat evidence as presented through the trial testimony of Jaimes and Rodriguez, we
conclude there was no danger of jury confusion.
13
We also conclude the trial court reasonably found that admission of the threat
evidence would not be unduly prejudicial. Defendant complains that the jury was
allowed to hear evidence “that someone was planning to shoot Mr. Jaimes. In turn, the
jury was allowed to make the inference that the shooting of Mr. Polvo and Mr. Jaimes
was something that had already been planned for and anticipated.” However, “ ‘ “[t]he
‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely
tends to evoke an emotional bias against the defendant as an individual and which has
very little effect on the issues.” ’ ” (People v. Miller (2000) 81 Cal.App.4th 1427, 1449.)
As noted, the prosecutor proffered the threat evidence to explain Jaimes’ presence at
defendant’s home. The fact that the trial testimony of Jaimes and Rodriguez did not
connect defendant to Scarface made the threat evidence less prejudicial as it would not
tend to evoke an emotional bias against defendant.
Even without the threat evidence, as we explained in our earlier discussions, the
jury had before it substantial testimonial and forensic evidence demonstrating defendant’s
guilt. Thus, it is not reasonably probable that a result more favorable to defendant would
have been reached absent admission of the threat evidence. (Watson, supra, 46 Cal.2d at
p. 836.)
IV. Admission of Evidence of Puga’s Conviction As An Accessory
A. Relevant Facts
After the shooting Puga was charged with being an accessory after the fact to
murder and attempted murder. She pleaded guilty to the two charges and she was
promised a maximum sentence of 16 months in prison if she testified truthfully at
defendant’s trial. The plea agreement also provided that if Puga testified truthfully at
defendant’s trial, the prosecution would dismiss the charge of accessory after the fact to
attempted murder and recommend a county jail sentence.
During pretrial proceedings defendant moved in limine to exclude reference to
Puga’s plea agreement. The court denied the motion, explaining: Puga’s “plea bargain[ ]
is relevant . . . to the jury to determine whether she’s telling the truth about what she
observed and what her role was. I’m going to ask that the references to the 32 [accessory
14
charge] be limited to the 32 and not refer to 32/187 [accessory to murder] so that [the]
jury doesn’t draw some inappropriate conclusion that somehow her conviction is making
more credible the claims against or allegations against [defendant]. [¶] And please remind
me that we will come up with a jury instruction, a limiting jury instruction that the
material regarding her plea bargain is only being allowed for the limited purpose of
evaluating her credibility.”
The prosecutor decided not to call Puga as a witness. Instead, Puga was called as
a witness by defendant. During his direct examination of Puga, defense counsel elicited
testimony regarding Puga’s plea agreement. Counsel sought to have Puga identify the
executed plea agreement, however she testified it was just a paper that her lawyer told her
to sign and she did not realize she would be pleading guilty to two charges. Puga
acknowledged that as part of the plea agreement she understood she was required to
testify truthfully, that she had told the truth during her grand jury testimony and that she
was telling the truth at trial. The prosecutor extensively questioned Puga about the events
of the evening of the shooting, her testimony before the grand jury, and her conversations
with defendant after the shooting, but he did not question Puga about her plea agreement.
Nor did the prosecution mention Puga’s plea agreement in his closing argument. In his
summation arguments, defense counsel urged the jury to credit Puga’s testimony because
“based on the plea agreement that she made . . . she was obligated to tell the truth in this
courtroom” and “[h]er sentence will depend on it.” Defense counsel also explained to the
jury how they were to evaluate Puga’s status as an accessory: “Now, the judge will
instruct you on that aspect that an accessory to the commission of a felony may be
prosecuted, tried and punished without regard to the status of the alleged principal in the
case. [¶] What this means is that you can’t take the fact that Ms. Puga plead as an
accessory to mean that she’s saying that she knows her boyfriend is guilty of any kind of
crime at all. Just because she plead guilty doesn’t mean it. You can infer that she made
this deal. There are any number of reasons she made, might have made a deal like this. I
mean, she was pregnant. She may have . . . felt threatened by the district attorney or
threatened by the police, so she plead. Her calculation as to her situation or her own guilt
15
or innocence is far different than my client’s . She was not acting in self-defense either.
She was reacting to the situation that happened afterward.”
The court instructed the jury that “[a]n accessory to the commission of a felony
may be prosecuted, tried, and punished, without regard to the alleged status of the alleged
principal in the case.” The court also advised the jury: “During the trial certain evidence
was admitted for a limited purpose. You may consider that evidence only for that
purpose and for no other. [¶] If you find that a witness has been convicted of a felony,
you may consider that fact only in evaluating the credibility of the witness’s testimony.
The fact of a conviction does not necessarily destroy or impair a witness’s credibility. It
is up to you to decide the weight of that fact and whether that fact makes the witness less
believable. [¶] If you find that a witness has committed a crime or other misconduct, you
may consider that fact in evaluating the credibility of the witness’s testimony. The fact
that a witness may have committed a crime or other misconduct does not necessarily
destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact
and whether that fact makes the witness less believable.”
B. Analysis
Defendant argues the court erred when it failed to exclude evidence of Puga’s
conviction as an accessory because it was irrelevant to her credibility and unduly
prejudicial. We disagree.
Contrary to defendant’s contention and irrespective of whether the prosecution or
the defense initiated the inquiry, evidence of Puga’s conviction as an accessory was
“relevant to [her] credibility.” (United States v. Halbert (9th Cir. 1981) 640 F.2d 1000,
1004.) Indeed, our Supreme Court has mandated “full disclosure to the jury of any [plea]
agreement bearing on [a] witness’s credibility, including the consequences to the witness
of failure to testify truthfully.” (People v. Fauber (1992) 2 Cal.4th 792, 823; see Evid.
Code, § 785 [“[t]he credibility of a witness may be attacked or supported by any party,
including the party calling him”].) Puga, who was called by the defense, was the only
witness who testified the victims had actually engaged defendant in a physical attack
immediately before defendant fired his gun. Thus, her credibility was a live and relevant
16
issue before the jury. (See People v. Pearson (2012) 53 Cal.4th 306, 323 [where there
was evidence of conflicting narratives, in testimony and prior statements, of what
defendant personally did to the victim, it was “a live issue” for jury whether defendant
acted with the intent to kill or reckless indifference].)
Nor do we see any merit to defendant’s assertion that reversal is required because
the admission of the evidence of Puga’s conviction was unduly prejudicial in violation of
Evidence Code section 352. As we understand defendant’s argument, he contends the
admission of Puga’s conviction as an accessory improperly allowed the jury to logically
conclude that defendant must be guilty of some unspecified crime or the charged
offenses. However, we reject defendant’s claim of error because he ignores the
circumstances in which the challenged evidence was presented to the jury. Despite
having gained a favorable ruling allowing the admission of Puga’s prior conviction, the
prosecutor made a tactical decision not to call Puga as a witness. Instead, defendant
called Puga as his witness and questioned her about her plea agreement. The admission
of Puga’s plea agreement allowed defense counsel to argue in closing that the jury should
believe Puga because she was required to testify truthfully in compliance with her plea
agreement. (See People v. Bonilla (2007) 41 Cal.4th 313, 337-338.) We presume the
jurors followed the court’s instructions advising them that the challenged evidence was to
be considered only for the limited purpose specified (Puga’s believability as a witness)
and for no other purpose and that defendant’s culpability was not dependent on the fact
that Puga had been convicted as an accessory. (People v. Gonzales (2011) 51 Cal.4th
894, 940 [“jurors are presumed to be intelligent and capable of understanding and
applying the court’s instructions”].) Consequently, we find no support in the record for
defendant’s argument that the admission of Puga’s conviction as an accessory created
“undue prejudice . . . in the minds of the jury against [defendant] in violation of
California Evidence Code [s]ection 352.”
17
V. Trial Court’s Discharge of a Juror During Deliberations
A. Relevant Facts
After the jury had reached a tentative verdict but before the verdict was announced
in open court, the trial court informed counsel that Juror No. 7 had been in contact with
the bailiff during the trial. The court explained the circumstances of the contact: “[E]arly
on in the trial, Juror No. 7 . . . contacted my bailiff about participating in an opera . . . .
When my bailiff told me about this I said to him that if he wanted to participate in [a]n
opera or play he could do that when the trial was over, that’s his business, not mine, but
that he was to have no contact with the juror about this play until after the trial was done.
And I made that order because obviously I didn’t want to create an appearance of
impropriety or unfairness in any way. [¶] Now I come to hear today, . . . which is January
19th, apparently the juror . . . brought these cards which are advisements for the opera,
and handed them to the other jurors, which is fine, there’s nothing wrong with that, but in
so doing I guess on their way out to lunch indicated that my bailiff was going to be in the
play. . . . [¶] So I talked to my bailiff about this in more detail and I’ve come to learn that
. . . [my bailiff] has been talking to the director of the play . . . and there was discussion
apparently of financial remuneration as well in the neighborhood of $10,000 for
participation in this. [¶] Now, my bailiff has assured me multiple times that he has not
talked to [Juror No. 7] about this, but obviously he has talked to the director and I believe
my bailiff told me that there were five separate e-mails that went back and forth between
my bailiff and the director.”
The court and counsel first questioned the bailiff and then Juror No. 7 regarding
their contacts during the trial. Both the bailiff and Juror No. 7 confirmed their contacts
with each other as previously explained by the court. Before deliberations, the
communications between the juror and the bailiff concerned the possibility that the bailiff
would be given a role in an opera in which the juror also had a role. After their initial
contact, the bailiff and the juror had no further communications concerning the matter
until after the jurors had concluded their deliberations. Before announcing their verdicts
in open court, the jurors went to lunch. When the jurors returned from lunch, Juror No. 7
18
was the last one to enter the jury room and he was holding cards advertising the opera.
According to the bailiff, Juror No. 7 said to the bailiff that the juror had not told the other
jurors of the bailiff’s possible participation in the opera, but the bailiff was going to be in
the opera. At the time Juror No. 7 spoke to the bailiff the juror was standing close to
other jurors and the bailiff was sure the other jurors could have heard Juror No. 7’s
comment. Juror No. 7 testified that no other jurors were around at the time the juror
made the comment to the bailiff that he was going to be in the opera.
Before ruling on the matter, the court asked both defense counsel and prosecutor
their “take on the issue.” Both counsel agreed that the court should discharge Juror No. 7
and seat the alternate juror. The court prefaced its ruling by commenting that it was “a
very difficult call” as to whether to excuse the juror but ultimately concluded there was
an “appearance of unfairness.” “[T]he appearance problem is this: The bailiff, even
though he’s a neutral court attaché is also a law enforcement officer, so having contact
with each other is not, from an appearance point of view, not appropriate. And, you
know, the substance of it beyond that, I’m not sure I agree that that’s a big problem, but
the appearance of it is what concerns me the most . . . and I don’t want this appearance to
be, if the jury verdict was, and I have no idea what the verdict is obviously, it hasn’t been
delivered yet, all I know is that there is a verdict . . . . But if it was something like a first-
degree murder or something, then, you know, the appearance of that becomes very, very
significant.” Consequently, the court agreed with counsel that “in excess of caution the
fair and right thing to do is to excuse [Juror No. 7] and substitute the alternate and have
the jurors come back tomorrow . . . so that I can instruct them that they have to start their
deliberations all over again from the beginning.” Because the jury had reached a verdict
but not yet reported it, the court again asked defense counsel to confirm that it was his
request to discharge Juror No. 7 and substitute the alternate juror, and counsel replied,
“Yes.” When the court asked defense counsel if his decision was “tactical,” counsel
asserted his main concern was ensuring defendant received a fair trial and the request to
discharge and substitute jurors was made “having fully considered all the tactics involved
19
in this.” Defense counsel had spoken to defendant, who concurred in his counsel’s
decision and expressly so informed the court on the record.
Before the newly configured jury was instructed as to its duties, defense counsel
asked the court to instruct the jurors “to remove all of their work product” and “the charts
that they may have made” before beginning new deliberations. The trial court denied the
request for several reasons: there was no evidence the jury had made any charts during
deliberations, there was no need to interfere with the deliberative process in the absence
of a problem, and the newly configured jury would be instructed using the language in
CALCRIM No. 3575 that deliberations were to start all over again and include the new
juror in that deliberative process. “[T]o help implement” the instructions, the court
directed the removal of the verdict forms that had been previously signed by the original
jurors.
In response to the court’s ruling, defense counsel asked the court to hold a hearing
as to whether the remaining original jurors had actually created any charts or work
product during their deliberations. Alternatively, defense counsel urged the court to
instruct the jury that they were to disregard the charts and any work product that had been
created by the remaining original jurors. The court denied defendant’s requests, finding
that the law did not require it “to go that far;” and that asking the jurors whether they
created any documents “gets right into what their thinking is in their work product” and
“crosses over the line into interfering with their deliberative process.”
Before deliberations continued with the newly configured jury, the court gave the
following instructions: “One of your fellow jurors has been excused and an alternate
juror has been selected to join the jury. Do not consider this substitution for any purpose.
The alternate juror must participate fully in the deliberations that lead to any verdict. The
People and the defendant have the right to a verdict reached only after full participation
of the jurors whose votes determine that verdict. This right will only be assured if you
begin your deliberations again from the beginning. Therefore, you must set aside and
disregard all past deliberations and begin your deliberations all over again. Each of you
must disregard the earlier deliberations and decide this case as if those earlier
20
deliberations had not taken place. [¶] And we’ll then ask you to please return to the jury
room and start your deliberations from the beginning. My bailiff will come into the jury
room to remove the previously written verdict forms. Those forms will be placed in a
sealed envelope by the clerk and you’ll be given brand new verdict forms to start over.”
B. Analysis
Defendant argues the trial court erred when it failed to declare a mistrial after it
was discovered that Juror No. 7 had unauthorized contact with the bailiff. He also
contends the court’s refusal to order materials such as notes, charts, documents and other
writings and work product be removed from the jury room effectively prevented the
deliberations from beginning anew as required by law. We conclude defendant’s
arguments are unavailing.
There is no dispute that the court acted well within its discretion in conducting an
inquiry to determine if Juror No. 7 should be discharged because of his unauthorized
contact with the bailiff. (People v. Farnam (2002) 28 Cal.4th 107, 141.) Defendant’s
argument that the court should have conducted a further inquiry to determine if the
remaining original jurors had been tainted by Juror No. 7’s conduct is not properly before
us. (People v. Holloway (2004) 33 Cal.4th 96, 124.) At the time the court considered the
issue of Juror No. 7’s conduct, it did not indicate any unwillingness to question the
remaining original jurors and defense counsel made no such request at that time.
“Having failed to suggest any additional examination was required, thereby preventing
the trial court from considering any arguments for conducting further examination,
defendant ‘is not privileged to make the argument now for the first time on appeal.’ ”
(Id. at pp. 126-127.) Similarly, we are not persuaded by defendant’s argument that his
consent to the court’s ruling (discharge and substitution of jurors) “is of no import” or
“no relevance.” The record shows that the court did not make its decision to discharge
Juror No. 7 and substitute an alternate juror until after it had asked both defense counsel
and the prosecutor to comment on the appropriate remedy for Juror No. 7’s conduct. The
fact that the court gave defense counsel and defendant an opportunity to reconfirm their
21
position does not support an argument that defendant and his counsel had no opportunity
to request a mistrial.
In all events, we reject defendant’s argument that the court should have sua sponte
declared a mistrial. As explained by our Supreme Court, a mistrial is not required “when
a juror is dismissed for good cause after deliberations have begun. To declare a mistrial
would surely present the opportunity to satisfy the essential requirement that a verdict be
unanimously reached by 12 fully participating jurors in a subsequent retrial, but the right
to trial by jury does not require a declaration of a mistrial when a properly qualified
alternate juror is available and that juror fully participates in all of the deliberations which
lead to a verdict.” (People v. Collins (1976) 17 Cal.3d 687, 693 (Collins).) So “that each
of the 12 jurors reaching the verdict fully participate in the deliberations just as each had
observed and heard all proceedings in the case,” the Collins court required that the trial
court shall “instruct the jury to set aside and disregard all past deliberations and begin
deliberating anew. The jury should be further advised that one of its members has been
discharged and replaced with an alternate juror as provided by law; that the law grants to
the People and to the defendant the right to a verdict reached only after full participation
of the 12 jurors who ultimately return a verdict; that this right may only be assured if the
jury begins deliberations again from the beginning; and that each remaining original juror
must set aside and disregard the earlier deliberations as if they had not been had.” (Id. at
p. 694.) In this case the trial court instructed the jury in accordance with Collins.
Lastly, we see no support in the record for defendant’s argument that the jury was
effectively prevented from beginning deliberations anew because the court did not order
the removal of “materials such as notes, charts, documents and other writings and work
product” that may have been created during the deliberations with discharged Juror
No. 7. Before accepting the verdicts of the newly configured jury, the court acted well
within its discretion in refusing defendant’s request for a hearing as to the existence of
any documents or work product that the remaining original jurors may have created
during their deliberations with discharged Juror No. 7. (People v. Engelman (2002) 28
Cal.4th 436, 443 [“[t]he very act of questioning deliberating jurors about the content of
22
their deliberations could affect those deliberations”].) Once the newly configured jury
returned its verdicts and before the jurors were released, defendant could have preserved
the record by asking the court to secure any material that may have been created during
the deliberations with discharged Juror No. 7 and question the jurors about any use of
such material during their deliberations. After the release of the jurors, defendant moved
for a new trial but he does not explain why he did not seek relief based on this claim of
error.17 Consequently, we conclude a reversal is not required as defendant has failed to
provide an adequate record demonstrating prejudicial error as a consequence of the
court’s challenged rulings. (See People v. Dykes (2009) 46 Cal.4th 731, 808, fn. 22
[“[t]he circumstance that defendant raised some juror misconduct claims in his motion for
new trial does not serve to preserve other bases for his claim on appeal”].)
DISPOSITION
The judgment is affirmed.
_________________________
Jenkins, J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
17
After trial, defendant sought a new trial based on juror misconduct, which was
supported by a declaration of his investigator who spoke with three jurors including the
alternate juror who replaced discharged Juror No. 7. However, he did not complain that
the newly configured jury could not or did not begin their deliberations anew because of
the presence in the jury room of material created during deliberations with discharged
Juror No. 7.
23