People v. Ortiz CA2/7

Filed 5/12/14 P. v. Ortiz CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B245429
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA357941)
v.
CARLOS ORTIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B.
Rappe, Judge. Affirmed as modified.
Carla Castillo, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________
Carlos Ortiz appeals from the judgment entered after his conviction by a jury of
first degree murder, attempted willful, deliberate and premeditated murder and shooting
from a motor vehicle with true findings on related criminal street gang and firearm-use
enhancement allegations. He contends the true finding on the gang enhancement
allegation was not supported by substantial evidence and the court prejudicially erred
when instructing the jury and by excluding prior consistent statements made by his
girlfriend in support of his self-defense theory. Except for the correction of minor errors
regarding sentencing and imposition of the court security fee, we affirm
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Ortiz was charged by information with the murder of Christopher Herrera (Pen.
Code, § 187, subd. (a)),1 the attempted willful, deliberate and premeditated murder of
Jessica Solano (§§ 664, 187, subd. (a)) and discharging a firearm from a motor vehicle
(former § 12034, subd. (c), now § 26100, subd. (c)). It was specially alleged as to each
count the crimes had been committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)) and Ortiz had personally used and intentionally discharged a firearm
causing great bodily injury or death in committing the offenses (§ 12022.53, subds. (b)
& (d)). Ortiz pleaded not guilty and denied the special allegations.
2. The Trial
a. The People’s evidence
In March 2007 Ortiz, a member of the Aztlan gang, was shot near the border
between Aztlan territory and that of a rival gang, the Normandie clique of the Mara
Salvatrucha 13 (M.S. 13) gang. Ortiz told a Los Angeles police officer the shooter had
M.S. 13 tattoos on his face and neck. Ortiz had previously seen the shooter near the
intersection of Irolo Street and 8th Street, an area the officer identified as the stronghold
of the Normandie M.S. 13 clique. Two years later, in April 2009, an officer frisked Ortiz
and felt an object near his waist during a stop of a group of Aztlan gang members in the
1
Statutory references are to the Penal Code unless otherwise indicated.
2
parking lot of a fast food restaurant. Ortiz angrily told the officer he wore a colostomy
bag as a result of being shot by an M.S. 13 gang member. He admitted he was an Aztlan
member with the moniker “Demon” and explained the Aztlan members had gathered to
discuss problems they were having with the “Monkey Shits,” a derogatory term for
2
M.S. 13.
On the evening of May 22, 2009 Ortiz, his pregnant girlfriend (who was his wife
by the time of trial) Lisette Velasquez, his uncle Oscar Rodriguez and Rodriguez’s
girlfriend Kenya Hernandez, who all lived together, went to a club to drink and dance.
On the way they stopped at Velasquez’s mother’s apartment on Normandie Avenue near
8th Street (one block east of Irolo Street) so Velasquez could get some money.
According to Rodriguez and Hernandez, whose testimony was generally
consistent, just before 3:00 a.m. the following morning Hernandez was driving the four
home in a white Chevrolet Blazer when Ortiz asked if they could drive through a
neighborhood to see if any of his friends were still out. Ortiz then directed Hernandez to
the intersection of Irolo Street and 8th Street. After they circled the block several times
and did not see anyone, Ortiz told Hernandez to drive around the block one more time.3
As they turned down Normandie Avenue, Ortiz, who was sitting in the back seats with
Rodriquez, asked Hernandez to roll down his window because the switch was not
working. Hernandez did as requested and began to speed up, but Ortiz told her to stop.
Within seconds of the vehicle stopping, Ortiz fired the gun twice through the window and
then told Hernandez to drive away. Hernandez heard a woman scream and saw a man
backing up and touching his chest. After the group arrived home, Ortiz borrowed
Hernandez’s cell phone so he could warn his “homeys” to stay inside because someone
was probably going to attempt to retaliate for the shooting.
2
Ortiz had a tattoo of “Aztlan” on his neck and “AZT” on the skin between his left-
hand index finger and thumb.
3
A video recording from a surveillance camera at 745 South Normandie Street
showed a white Blazer passing by three times.
3
4
Velasquez’s account of the shooting differed. She testified she had asked if they
could stop at her mother’s apartment on the way home to get quarters for her laundry.
Once in the area, they drove around the block looking for parking or for someone to open
the door to the apartment building, even though she was worried it was dangerous
because they were in M.S. territory. Velasquez instructed Hernandez to stop the car on
Normandie Avenue when she thought she saw her mother’s neighbor walking toward the
building. A few seconds later a bald man, who looked like a gang member, and a
woman, who may have made a gang sign, ran toward their vehicle. The man screamed
something and appeared to reach into his pants for a gun. Velasquez ducked, screamed
and heard gun shots—one far away and two close. Although Velasquez testified she did
not see Ortiz shoot anyone, she had told detectives when interviewed after her arrest on
June 18, 2009 that Ortiz shot the two victims in self-defense. She also said she told Ortiz
to take the gun he had used out of the house because children were in the home. The
interview was played for the jury. Velasquez testified at trial she only said Ortiz was the
shooter because she was scared and was forced to make the statement by Los Angeles
Police Detective Herman Frettlohr, the primary investigator, who had told her she would
have her baby in jail and her other child would be placed in foster care if she did not
cooperate.
Solano testified she and Herrera, her boyfriend and an M.S. 13 gang member
known as “Chino,” had been drinking in an apartment on Normandie Avenue between
7th Street and 8th Street during the early morning of May 23, 2009. Soon after they
walked out of the apartment building and Herrera had finished speaking with Dora
Lopez, an adjacent building’s manager, Solano saw a white van drive by slowly. About
two minutes later the vehicle drove by again. As Solano and Herrera were walking in the
direction of the vehicle to cross the street, one of the passengers in the back shot Herrera
4
Hernandez testified Velasquez had told her she was a member of Aztlan.
Velasquez denied ever being a gang member and claimed Ortiz had stopped
“gangbanging” about six months before she got pregnant.
4
and Solano, killing him and wounding her in the chest and neck. Solano, a reluctant
witness, testified no one yelled anything before the shots were fired.
Los Angeles Police Officer Joseph Cirrito testified at trial as a gang expert.
Cirrito was assigned to the Olympic Division gang enforcement detail in May 2009 and
was responsible for monitoring the activity of Aztlan and other area gangs. Cirrito
generally described gang culture, including how the commission of crime benefits a gang
and increases the status of the gang member committing the crime. He explained a gang
member shot by a rival gang member would be expected to retaliate. He also testified
about Aztlan specifically—the gang’s territorial boundaries, number of members
(approximately 125), clothing, tattoos and rivalries. With respect to crimes committed by
Aztlan as one of its primary activities, the following exchange took place:
“Q. And what are the primary activities of the Aztlan gang?
“A. When I was working that particular area some of the crimes that they were
doing at that time were gun possessions, possession of a gun, felon with a gun.
[¶] . . . [¶]
“Q. I’m going to have to stop you there because I’m asking specifically about
their primary activities, not what they do on the side. It’s their primary activities.
“[Defense counsel]: Objection. Lack of foundation.
“The Court: Overruled.
[¶] . . . [¶]
“Q. Well, you had prefaced your answer with, well, some of the crimes that they
commit but what I’m asking is the primary activities of the Aztlan gang.
“A. That would be extortion, the extortion getting money from the local food
trucks or vegetable trucks, vendors, stolen vehicles, carjackings, gun possessions, assault
with deadly weapons or robberies.”
Officer Cirrito further testified he had contact in January 2009 with Ortiz and three
other men. Ortiz and two of the men admitted they were Aztlan gang members. One of
them, Ray Ochoa, had been convicted of possession of a firearm by a felon in July 2007.
5
Given a hypothetical based on the facts surrounding the shooting, Cirrito opined it was
committed for the benefit of Aztlan. He further opined it was dangerous for a gang
member to be seen in the heart of a rival gang’s territory.
b. The defense’s evidence
Ortiz, who did not testify on his own behalf, presented the testimony of witnesses
to support his theory of self-defense. Dora Lopez testified she had an argument with
Herrera in front of the building around 3:00 a.m. and he had threatened her. Just after
Lopez went back inside her apartment building, she heard four to six gunshots and
Herrera shout, “Mara Salvatrucha.”
Jose Islas, who admitted he was a member of the Normandie clique of M.S. 13,
denied he was present at the time of the shooting and that he was subsequently
interviewed by detectives. A recording of the interview was played for the jury: Islas
said he had been drinking with Solano and Herrera at the home on Normandie. He was
outside, very drunk, when he saw a light colored minivan with three men in it and heard
three to four gunshots. The vehicle sped away after the driver, a bald man, “burned the
wheels like he stepped on it.” Isla had also heard someone calling, “‘Chino, come here.’”
Although it is unclear from the interview, it appears Herrera was angry and yelling at
5
someone and may have been “hitting [the] car up.”
Alex Alonso, a gang researcher at the University of Southern California since
1993, testified gang members frequently travel through rival areas simply “to function
and deal with regular life” such as going to the market, gas station or a friend’s or family
member’s house. He opined it was unlikely a gang member would take a family member
or pregnant woman on a gang shooting and it would be unusual for a gang member to
wait two and one-half years to retaliate.
5
The defense’s gang expert testified “hitting up” means a gang member
aggressively asks another gang member where he or she is from, trying to create a
conflict.
6
3. The Verdict and Sentencing
The jury found Ortiz guilty of all the crimes charged and found true the special
allegations Ortiz had personally used and intentionally discharged a firearm causing great
bodily injury or death and the crimes had been committed to benefit a criminal street
gang. The court sentenced Ortiz to 75 years to life in state prison consisting of 25 years
to life for murder, plus a consecutive sentence of 25 years to life for the firearm
enhancement, plus a consecutive sentence of life for attempted premeditated murder, plus
25 years to life for the firearm enhancement. The sentence for shooting from a vehicle
6
was stayed pursuant to section 654.
DISCUSSION
1. Substantial Evidence Supports the Jury’s True Findings on the Criminal Street
Gang Enhancements
To assess a claim of insufficient evidence in a criminal case, “we review the whole
record to determine whether any rational trier of fact could have found the essential
elements of the crime or special circumstances beyond a reasonable doubt. [Citation.]
6
The stayed sentence on count 3 included a 10-year criminal street gang
enhancement pursuant to section 186.22, subdivision (b)(1)(C). Although not included in
the minute order or abstract of judgment, at the sentencing hearing the trial court
explained, because of the gang enhancements, there was a 15-year minimum parole
eligibility date for the indeterminate life terms imposed on counts 1 and 2. (See § 186.22,
subd. (b)(5).) Given the 75-year-to-life aggregate indeterminate life term imposed, those
gang enhancements have little practical effect. (See People v. Lopez (2005) 34 Cal.4th
1002, 1009.) Nonetheless, we modify the judgment and direct correction of the abstract
of judgment to indicate the minimum parole eligibility dates on counts 1 and 2.
A further correction of the judgment and abstract of judgment is also necessary
with respect to the court security fees. As the People observe, the court imposed $40
court security fees on counts 1 and 2 ($80 total), but not on count 3, shooting from a
motor vehicle. That was error even though the punishment for that offense had been
stayed pursuant to section 654. (See People v. Crittle (2007) 154 Cal.App.4th 368, 370
[§ 654 “does not apply to a court security fee because that fee is not punishment”; even
though trial court stayed punishment for robbery conviction, it was required to impose a
court security fee based on that conviction]; see also People v. Schoeb (2005) 132
Cal.App.4th 861, 865 [§ 1465.8 “unambiguously requires a fee to be imposed for each of
defendant’s convictions”].)
7
The record must disclose substantial evidence to support the verdict—i.e., 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. [Citation.] In applying this test, we
review the evidence in the light most favorable to the prosecution and presume in support
of the judgment the existence of every fact the jury could reasonably have deduced from
the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither credibility
issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357; accord, People v. Manibusan
(2013) 58 Cal.4th 40, 87.)
Section 186.22, subdivision (b), establishes alternative or additional penalties for
felons whose crimes were committed “for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members.” As used in this statute—the Criminal
Street Terrorism Enforcement and Prevention Act of 1988 or STEP Act— “‘criminal
street gang’ means any ongoing organization, association, or group of three or more
persons, whether formal or informal, having as one of its primary activities the
commission of one or more of the criminal acts enumerated [in portions of
section 186.22, subdivision (e) ], having a common name or common identifying sign or
symbol, and whose members individually or collectively engage in or have engaged in a
pattern of criminal gang activity.” (§ 186.22, subd. (f).) “The phrase ‘primary activities,’
as used in the gang statute, implies that the commission of one or more of the statutorily
enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations.” (People v.
Sengpadychith (2001) 26 Cal.4th 316, 323.) That definition “necessarily exclude[s] the
8
occasional commission of those crimes by the group’s members. . . .” (Ibid.) “Past
offenses, as well as the circumstances of the charged crime,” are relevant to this question
and may be considered by the jury on the issue of the group’s primary activities. (People
v. Duran (2002) 97 Cal.App.4th 1448, 1465.)
Ortiz argues Officer Cirrito’s testimony identifying the crimes Aztlan had engaged
in as a primary activity was similar to expert testimony found insufficient to establish that
element of the enhancement in In re Alexander L. (2007) 149 Cal.App.4th 605. When
asked about the primary activities of the gang in that case, Orange County Deputy Sheriff
Craig Lang, who worked in the gang enforcement unit, replied, “‘I know they’ve
committed quite a few assaults with a deadly weapon, several assaults. I know they’ve
been involved in murders. [¶] I know they’ve been involved with auto thefts,
auto/vehicle burglaries, felony graffiti, narcotic violations.’” (Id. at p. 611.) That was
Lange’s entire testimony on the issue. “No specifics were elicited as to the circumstances
of these crimes, or where, when or how Lang had obtained the information.” (Id. at
pp. 611-612.) In holding Lang’s “conclusory testimony cannot be considered substantial
evidence as to the nature of the gang’s primary activities,” the court found his testimony
lacked an adequate foundation: “We cannot know whether the basis of Lang’s testimony
on this point was reliable, because information establishing reliability was never elicited
from him at trial. It is impossible to tell whether his claimed knowledge of the gang’s
activities might have been based on highly reliable sources, such as court records of
convictions, or entirely unreliable hearsay.” (Id. at p. 612.)
Officer Cirrito’s testimony, although also lacking information as to the
circumstances of the crimes, does not suffer from the same absence of foundation.
Cirrito testified he monitored Aztlan and other gangs when he was assigned to the
Olympic Division gang enforcement detail and, as part of that assignment, talked to
community and gang members, wrote down the gang’s history and tracked rivalries and
alliances. Cirrito described “establish[ing] a relationship” with the gang members to
build trust in order to learn information. With respect to Aztlan, he described gang
9
members’ clothing and tattoos and the pride they took in their Aztec culture as well as
identified the crimes they committed as a primary activity. Unlike the brief and
conclusory testimony at issue in In re Alexander L., supra, 149 Cal.App.4th 605 from a
gang expert who failed to establish he had any such personal contact with gang members,
Cirrito’s testimony constituted substantial evidence of the gang’s primary activities. (See
People v. Gardeley (1996) 14 Cal.4th 605, 620 [gang expert’s opinion based on
conversations with gang members and on his “personal investigations of hundreds of
crimes committed by gang members” was sufficient to establish primary activities
element of gang enhancement]; People v. Sengpadychith, supra, 26 Cal.4th at p. 324; see
also People v. Duran, supra, 97 Cal.App.4th at p. 1465 [officer’s testimony based on his
“personal experience in the field gathering gang intelligence, contacting gang members
and investigating gang-related crimes” sufficient to prove a gang’s primary activities].)
Ortiz’s argument Cirrito only had personal knowledge Aztlan members had committed
gun-possession crimes, not the broader list of crimes he identified after the prosecutor
interrupted Cirrito to focus him on the question, is predicated on an unduly cribbed
interpretation of the testimony. The foundation Cirrito laid was sufficient to establish he
had personal knowledge of all the crimes he enumerated, not simply the gun-possession
crimes.
2. Ortiz Has Forfeited His Argument the Trial Court Abused Its Discretion in
Excluding Statements Velasquez Made When She Was Waiting with Ortiz in an
Interrogation Room
During cross-examination of Detective Frettlohr, Ortiz’s counsel sought to ask
him about surreptitiously recorded statements Velasquez had made after she was placed
in an interrogation room with Ortiz. The People objected on hearsay and relevance
grounds. Defense counsel explained the detective’s testimony about Velasquez’s
unguarded comments to Ortiz demonstrated her credibility because she said the same
things to Ortiz as she had to detectives. The court stated it was not familiar with the issue
and admonished counsel for not providing it with transcripts or information in advance of
raising it: “See, I mean, again, there are going to be issues. You guys should give this
10
stuff to me in advance so I can look it over. To take me by ambush repeatedly like this is
really unfair. If you want reasoned rulings—” Defense counsel immediately responded,
“I’ll move on, Your Honor.” However, the court continued, “No, I’m just giving you
some advice, I mean, if this is significant. But as I understand what you are telling me,
she is with him, you know. I don’t see that survives [Evidence Code] section 352. I
mean, the probative value is very very slight. It’s cumulative. And the problem with that
is that it is extremely prejudicial, because it gets into the whole issue of the defendant and
what he said or didn’t say. And I don’t know how you can put that into context. I
haven’t read the transcripts. So I would have to really go through to make some kind of
analysis.”
Ortiz argues the trial court abused its discretion in excluding the evidence because
all evidence bearing on witness credibility is relevant; it was not cumulative because it
was being introduced for that purpose, not for its content; and it would not be prejudicial
to Ortiz because it could be limited to what Velasquez said, not what Ortiz may have
7
said. Ortiz, however, has forfeited his argument: After the court made what plainly was
7
Ortiz observes the trial court’s comments addressed only the question of relevance
and prejudice, not the prosecutor’s hearsay objection. As we discuss in the text, because
Ortiz’s counsel elected to move on, rather than press the point, he deprived the court of
the opportunity to adequately consider both the nature of the testimony proffered and the
validity of the objections asserted. Had the court done so, it is likely the hearsay
objection would have been sustained. Under Evidence Code section 1235 evidence of a
statement previously made by a witness that is consistent with the witness’s testimony at
trial is inadmissible hearsay unless offered in compliance with Evidence Code section
791. That latter section permits the admission of a prior consistent statement of a witness
only if (a) the witness’s credibility has been attacked by introduction of a prior
inconsistent statement and the prior consistent statement was made before the alleged
inconsistent statement, or (b) an express or implied charge has been made that the
witness’s testimony is fabricated or influenced by bias and the prior consistent statement
was made before the bias or motive for fabrication allegedly arose. Neither ground
existed here. No prior inconsistent statement by Velasquez had been used to attack her
credibility. Although the prosecutor emphatically argued her testimony was fabricated
and the product of bias, her motive for lying—she was Ortiz’s girlfriend and pregnant
with his child—existed well before the recorded exchange between Velasquez and Ortiz
took place.
11
only a tentative ruling (see People v. Ennis (2010) 190 Cal.App.4th 721, 736 [distinction
between tentative and final ruling “turns on whether the court has finished its
consideration of the issue”], and expressed its inability to properly consider the issue
without first reviewing the transcript of the conversation between Velasquez and Ortiz,
Ortiz’s counsel decided to “move on.” It was incumbent on counsel to press the matter
further if Ortiz wanted to preserve it for appeal. (See People v. Morris (1991) 53 Cal.3d
152, 195, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824,
830, fn. 1 [defendant forfeited claimed evidentiary error; “[T]he trial court never made a
ruling on Brooks’s testimony. Defendant was obligated to press for such a ruling . . . .
He failed to do so, thus depriving the trial court of the opportunity to correct potential
error.”]; cf. People v. Holloway (2004) 33 Cal.4th 96, 133 [“A tentative pretrial
evidentiary ruling, made without fully knowing what the trial evidence would show, will
not preserve the issue for appeal if the appellant could have, but did not, renew the
objection or offer of proof and press for a final ruling in the changed context of the trial
evidence itself. [Citations.] “‘“‘Where the court rejects evidence temporarily or
withholds a decision as to its admissibility, the party desiring to introduce the evidence
should renew his offer, or call the court’s attention to the fact that a definite decision is
desired.’”’”]; see generally Evid. Code, § 354.) Rather than do so, defense counsel,
likely concerned about contributing to the court’s feeling of having been ambushed again,
withdrew the proffered evidence. Had counsel pressed the point and permitted the court
the opportunity to review the transcript and thoughtfully consider the admissibility of
Velasquez’s statements, the issue would have been preserved on appeal.
3. The Trial Court Did Not Commit Prejudicial Instructional Error
a. Governing law
A trial court in a criminal case has a duty to instruct on general principles of law
applicable to the case (People v. Blair (2005) 36 Cal.4th 686, 745), that is, “‘“‘those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.’”’” (People v. Valdez (2004)
12
32 Cal.4th 73, 115.) However, “[i]t is error to give an instruction which, while correctly
stating a principle of law, has no application to the facts of the case.” (People v. Guiton
(1993) 4 Cal.4th 1116, 1129.) We review the instructions de novo. (People v. Posey
(2004) 32 Cal.4th 193, 218.) “In assessing a claim of instructional error, ‘we must view a
challenged portion “in the context of the instructions as a whole and the trial record” to
determine “‘whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way’ that violates the Constitution.”’” (People v. Jablonski
(2006) 37 Cal.4th 774, 831; see Guiton, at p. 1130 [error in giving instruction that has no
application to facts reviewed under harmless error standard in People v. Watson (1956)
46 Cal.2d 818].)
b. Contrived self-defense (CALCRIM No. 3472)
After instructing the jury on self-defense the trial court further instructed, pursuant
to CALCRIM No. 3472, “A person does not have the right to self-defense if he provokes
a fight or quarrel with the intent to create an excuse to use force.” Relying in part on
People v. Olguin (1994) 31 Cal.App.4th 1355 (Olguin), Ortiz contends the instruction is
only proper if the defendant engaged in or threatened to commit violence and, because he
was merely driving on city streets, argues the evidence did not justify the instruction in
this case. He also argues the instruction was prejudicial because it undermined the
“strong evidence” he only shot Herrera in self-defense or, at least, with a subjective belief
8
in the need to defend himself.
8
The Attorney General argues Ortiz forfeited this argument because he failed to
object to the instruction. It is true defense counsel did not expressly object to CALCRIM
No. 3472 during the discussion of jury instructions. Nonetheless, the record clearly
shows counsel disagreed with the court that driving through a rival gang’s territory
without more was a provocative act when the court explained it expected the People to
argue Ortiz tried to provoke the need to shoot in purported self-defense. Nothing more
was needed to preserve Ortiz’s argument on appeal. (See People v. Simon (2001) 25
Cal.4th 1082, 1103 [purpose of forfeiture doctrine “‘“‘is to encourage a defendant to
bring errors to the attention of the trial court, so that they may be corrected or avoided
and a fair trial had’”’”].)
13
In People v. Olguin, supra, 31 Cal.App.4th 1355, the two defendants, Cesar
Olguin and Francisco Mora, attempted to learn from several young men, including John
Ramirez, who had crossed out their gang graffiti. This was followed by mutual shouting
of geographical gang names, clenching of fists and Mora punching Ramirez. When
Ramirez stood up and walked with several of his friends toward Mora, Olguin pulled a
gun from his waistband and shot Ramirez in the chest, killing him. Olguin testified he
only took the gun out because he thought the people moving toward him were armed and
also claimed the gun discharged accidentally when Ramirez grabbed it.
Olguin and Mora were both charged with murder. With the series of self-defense
instructions the court instructed, pursuant to CALJIC No. 5.55, the predecessor to
CALCRIM No. 3472, “The right of self-defense is not available to a person who seeks a
quarrel with the intent to create a real or apparent necessity of exercising self-defense.”
(People v. Olguin, supra, 31 Cal.App.4th at p. 1381 & fn. 10.) Although agreeing with
Mora “the instruction had no antecedent in the facts of this case” (id. at p. 1381), the
appellate court did not hold the instruction was appropriate only when the defendant had
engaged in acts of violence or threats of violence. Indeed, the Olguin court provided no
guidance whatsoever as to when the instruction is proper, suggesting only “‘[a] trial
judge’s superior ability to evaluate the evidence renders it highly inappropriate for an
appellate court to lightly question his determination to submit an issue to the jury.’”
(Ibid.)
In any event, as this court has repeatedly reminded the Attorney General, we
review any claim of instructional error that affects a defendant’s substantial rights
whether or not trial counsel objected. (§ 1259 [“[t]he appellate court may also review
any instruction given . . . even though no objection was made thereto in the lower court,
if the substantial rights of the defendant were affected thereby”]; People v. Hudson
(2006) 38 Cal.4th 1002, 1011-1012; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.)
Of course, we can only determine if the defendant’s substantial rights were affected by
deciding if the instruction as given was flawed, and, if so, whether the error was
prejudicial. That is, if Ortiz’s claim has merit, it has not been forfeited. Thus, we
necessarily review the merits of his contention there was instructional error.
14
Similarly, the language of CALCRIM No. 3472, which uses the word “provoke”
without qualification, does not support Ortiz’s argument provocation must include
violence or the express or implied threat of violence to vitiate the right to self-defense.
Provoke means “to arouse to a feeling or action[;] . . . to incite to anger.” (Webster’s
10th Collegiate Dict. (1995) p. 940.) What may provoke a person exists on a spectrum
and necessarily takes into consideration context. (See People v. Ward (2005) 36 Cal.4th
186, 215 [“provocation . . . is the defendant’s emotional reaction to the conduct of
another, which emotion may negate a requisite mental state”].) For example, words,
without violence or a threat of violence, may be sufficient provocation to reduce murder
to manslaughter. (See People v. Valentine (1946) 28 Cal.2d 121, 140-143 [words alone
sufficient]; People v. Beltran (2013) 56 Cal.4th 935, 941 [voluntary manslaughter
instruction predicated on victim hurling insults and telling defendant she aborted their
child because she knew he would leave her one day]; People v. Manriquez (2005) 37
Cal.4th 547 583-584 [“provocative conduct by the victim may be physical or verbal, but
the conduct must be sufficiently provocative that it would cause an ordinary person of
average disposition to act rashly or without due deliberation and reflection”].)
We need not decide whether in the context of gang culture, which fetishizes
respect, simply driving through a neighborhood may indeed be provocation that would
incite a rival gang member to fight. Even if the evidentiary basis for giving CALCRIM
No. 3472 in this case was insufficient, it was, as the Olguin court also found, harmless
error. (People v. Olguin, supra, 31 Cal.App.4th at p. 1381.) The jury was instructed to
consider CALCRIM No. 3472 in conjunction with all other instructions and told that
“[s]ome of these instructions may not apply.” The jury is presumed to disregard an
instruction if it finds the evidence does not support its application. (See People v.
Frandsen (2011) 196 Cal.App.4th 266, 278 [“appellants[’] assertion that no substantial
evidence supported the [contrived self-defense] instruction does not warrant our finding
reversible error because the jury is presumed to disregard an instruction if the jury finds
the evidence does not support its application”]; People v. Adcox (1988) 47 Cal.3d 207,
15
253 [absent a contrary indication in the record, we assume the jury followed the
instructions given by the court].)
c. Flight and concealment of evidence (CALCRIM Nos. 371 and 372)
The court also instructed the jury it could consider evidence of flight and
concealment of evidence as proof of Ortiz’s guilt. CALCRIM No. 371 provided, “If the
defendant tried to hide evidence that conduct may show that he was aware of his guilt. If
you conclude that the defendant made such an attempt, it is up to you to decide its
meaning and importance. However, evidence of such an attempt cannot prove guilt by
itself.” CALCRIM No. 372 stated, “If the defendant fled immediately after the crime
was committed, that conduct may show that he was aware of his guilt. If you conclude
that defendant fled, it is up to you to decide the meaning and importance of that conduct.
However, evidence that the defendant fled cannot prove guilt by itself.”
Ortiz argues it was error to give these instructions because Velasquez’s statements
to detectives that Ortiz had removed the gun from the house at her insistence did not
support a nonspeculative inference he hid any evidence and leaving the scene after
Herrera was shot was a matter of survival, not a reflection on his consciousness of guilt.
Although not strong, the evidence supporting these instructions was minimally sufficient.
Moreover, any error in giving the instructions was harmless because it is not reasonably
probable Ortiz would have obtained a more favorable result had they not been given. In
addition to the general instruction that not all instructions were applicable, CALCRIM
No. 371 itself admonished the jury to consider the weight and significance of the
evidence only if it first found the defendant did in fact attempt to hide evidence.
CALCRIM No. 372 similarly instructed the jury with respect to flight and further stated,
“evidence that the defendant fled cannot prove guilt by itself.”
16
DISPOSITION
The judgment is modified to reflect a minimum parole eligibility date of 15 years
on each of counts 1 and 2 and to impose an additional $40 fee under section 1465.8,
subdivision (a)(1). As modified, the judgment is affirmed. The superior court is to
prepare a corrected abstract of judgment and forward it to the Department of Corrections
and Rehabilitation.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
17