P. v. Herrera
Filed 10/2/13 P. v. Herrera CA2/3
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opinion has not been certified for publication or ordered published for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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
DARRELL RICHARD HERRERA,
Defendant and Appellant.
B233358
(Los Angeles
County
Super. Ct.
No. KA091871)
APPEAL
from a judgment of the Superior Court
of
County,
Charles Horan, Judge.
Affirmed.
Laurie
Buchan Serafino, 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 David
F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant, Darrell
Richard Herrera, appeals his conviction for making an
serious felony conviction findings (Pen. Code, §§ 664, 422, 667,
subds. (a)-(i)).
name="_ftnref1" title="">[1] He was sentenced to
to life.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual
rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
At the time of the incident,
defendant Herrera and his wife Tina had been married for more than
25 years, although they had been separated for six years. They had four children, ages 25, 20, 17 and
13. Herrera worked as a handyman and a
gardener. He carried his gardening tools
around in his car, including a machete, a hatchet and a knife.
Tina testified that on September 8, 2010, Herrera came
to her house to visit the children. Tina
did not want him there and they argued on the front porch. She told him to leave, but he refused. During the argument, Herrera placed a knife
and a hatchet at his feet and said to Tina, “Do you want me to whack you?†When Tina said she was going to call the
police, Herrera said he would wait for them to arrive. Tina went into the house and called the
police.
Two police officers arrived,
arrested Herrera and took possession of the knife and hatchet. Tina told Deputy Henry Saenz that Herrera
“said he was going to whack her, and she took whack as kill.†Tina said Herrera had previously gone to
prison for trying to kill her with a machete.
Deputy George Perez testified Tina had “fear in her eyes†and said “she
was afraid because . . . she had prior instances with her husband
where he had threatened her . . . with violence.†Perez testified Tina said Herrera had
“threatened to whack her,†which she took to mean “kill.â€
In
her own trial testimony, however, Tina denied thinking Herrera intended to kill
her when he talked about whacking her:
“I don’t take his threats personal because I know he wouldn’t ever do
that.†If she told the officers Herrera
was threatening her life, or that he had threatened to kill her with a machete
in the past, she only said this so they would take her seriously and make
Herrera leave: “I was never threatened
by the knife and the hatchet. I was not
scared. I just told the police that
because I wanted him . . . away from my house. . . . So I have to tell them he’s threatening to
kill me in order to get him put in jail.â€
Tina acknowledged she was an extremely reluctant witness and had only
come to court after the prosecutor said she could be arrested for ignoring a
subpoena.
The jury acquitted Herrera of having
made a criminal threat (§ 422), convicting him instead of the lesser
included offense of having attempted to make a criminal threat
(§ 664/422).
CONTENTIONS
1.
The statute prohibiting criminal threats (§ 422) violated the First
Amendment as applied to Herrera’s conduct.
2.
The trial court committed instructional error.
3.
The trial court did not properly respond to a jury question during
deliberations.
4.
The trial court improperly admitted evidence of Herrera’s past domestic
violence.
5.
The witness statements used to prove Herrera’s past domestic violence
should have been excluded as hearsay.
6.
The prosecutor committed misconduct during
7.
The trial court erred by refusing to vacate one or more of Herrera’s
Three Strikes priors.
8.
Herrera’s sentence constituted cruel and unusual punishment.
DISCUSSION
1. Herrera’s
conviction was not barred by the First Amendment.
Herrera
contends his conviction for making an attempted criminal threat violated the
First Amendment because he did not utter the kind of threat proscribed by
section 422. This claim is
meritless.
a. Legal
principles.
“As this court explained in
. . . : ‘[T]he state may
penalize threats, even those consisting of pure speech, provided the relevant
statute singles out for punishment threats falling outside the scope of First
Amendment protection. [Citations.] In this context, the goal of the First
Amendment is to protect expression that engages in some fashion in public
dialogue, that is “ ‘communication in which the participants seek to
persuade, or are persuaded; communication which is about changing or
maintaining beliefs, or taking or refusing to take action on the basis of one’s
beliefs. . . .’ â€
[Citations.] As speech strays
further from the values of persuasion, dialogue and free exchange of ideas, and
moves toward willful threats to perform illegal acts, the state has greater
latitude to regulate expression.
[Citation.] . . . [¶] A
threat is an “ ‘expression of an intent to inflict evil, injury, or damage
on another.’ †[Citation.] When a
reasonable person would foresee that the context and import of the words will
cause the listener to believe he or she will be subjected to physical violence,
the threat falls outside First Amendment protection.’ (Italics added.) [¶] In
light of these principles, it is clear that the type of threat satisfying the
criminal threat provisions of section 422 . . . constitutes speech
that falls outside the protection of the First Amendment. [Citations.]â€
(People v.
26 Cal.4th 221, 233.)
“In order to prove a violation of
section 422, the prosecution must establish all of the following: (1) that the defendant ‘willfully
threaten[ed] to commit a crime which will result in death or great bodily injury
to another person,’ (2) that the defendant made the threat ‘with the
specific intent that the statement . . . is to be taken as a threat,
even if there is no intent of actually carrying it out,’ (3) that the
threat – which may be ‘made verbally, in writing, or by means of an electronic
communication device’ – was ‘on its face and under the circumstances in which
it [was] made, . . . so
unequivocal, unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of execution of the
threat,’ (4) that the threat actually caused the person threatened ‘to be
in sustained fear for his or her own safety or for his or her immediate
family’s safety,’ and (5) that the threatened person’s fear
was ‘reasonabl[e]’ under the circumstances. [Citation.]â€
(People v. Toledo, supra, 26 Cal.4th
at pp. 227-228.)
“[A] defendant can be found to have
committed the crime of attempted criminal
threat only if he or she acts with the specific intent to make the very kind
of threat – that is, a threat that ‘on its face and in the circumstances in
which it is made is so unequivocal, unconditional, immediate and specific as to
the person threatened as to convey a gravity of purpose and imminent prospect
of execution’ – to which section 422 applies.
If a defendant acts with such a purpose, but is thwarted from completing
the crime by some fortuity or unanticipated event, imposing criminal liability
upon the defendant for attempted criminal threat in no way will undermine the
legislative purpose of prohibiting threats of the specific nature and severity
of those identified in section 422.†(
p. 232, italics added.)
“[A] reviewing court should make an
independent examination of the record in a section 422 case when a defendant
raises a plausible First Amendment defense to ensure that a speaker’s free
speech rights have not been infringed by a trier of fact’s determination that
the communication at issue constitutes a criminal threat. [Citation.]â€
(In re George T. (2004)
33 Cal.4th 620, 632.) “Independent
review is not the equivalent of de novo review ‘in which a reviewing court
makes an original appraisal of all the evidence to decide whether or not it
believes’ the outcome should have been different. [Citation.]
Because the trier of fact is in a superior position to observe the
demeanor of witnesses, credibility determinations are not subject to
independent review, nor are findings of fact that are not relevant to the First
Amendment issue. [Citations.] As noted above, under the substantial
evidence standard, the question is whether any rational trier of fact could
find the legal elements satisfied beyond a reasonable doubt, whereas under
independent review, an appellate court exercises its
the facts satisfy the rule of law.
Accordingly, we will defer to the juvenile court’s credibility
determinations, but will ‘ “ ‘make an independent examination of the
whole record’ †’ [citation], including a review of the
constitutionally relevant facts ‘ “de novo, independently of any
previous determinations by the [juvenile court]†’ [citations] to
determine whether minor’s poem was a criminal threat entitled to no
First Amendment protection.†(
b. Discussion
Herrera contends his statement to
Tina, “Do you want me to whack you?,â€
“was neither so unequivocal, unconditional, immediate, nor specific enough
to fall within the definition of unprotected speech as defined by
[section 422].†He argues: “In popular culture references like ‘The
Godfather’ and ‘The Sopranos,’ ‘whack’ might mean ‘to kill.’ But in every day speech, it much more
commonly means ‘to hit.’ Even if
Mr. Herrera meant the question literally, that he was planning to hit
[Tina], the word ‘whack’ is too ambiguous to determine whether it rises to the
level of threatening ‘great bodily injury.’ †At trial, the prosecution sought to resolve
the ambiguity in Herrera’s use of the word “whack†by contextualizing his
statement within two frames of reference:
the argument on the porch and his history of domestic violence.
The evidence showed Herrera’s
statement had been made in connection with placing his knife and hatchet on the
porch. Herrera tries to diminish the
significance of the knife and hatchet by arguing these were the regular
gardening tools he always carried with him.
He also argues Tina’s trial testimony did not prove he “suggestively
placed the knife and the hatchet [on the porch] at the same time he made the
alleged threat. In fact, [Tina] disputed
that there was such a connection . . . .â€
But Herrera is ignoring the fact
Tina’s trial testimony was impeached by her preliminary hearing testimony. At trial she testified this way:
“Q.
By [the prosecutor]: Did you tell
the police that when the defendant threatened to whack you, he placed that
knife and that hatchet on the ground right in front of him?
“A.
No.
“Q.
When you testified under oath at preliminary hearing, did you describe
the defendant placing some items on the ground at the time that he threatened
to whack you?
“A.
No.â€
The prosecutor then read into the
record Tina’s testimony from the preliminary hearing:
“Q.
Okay. When the defendant threatened
to whack you, did you see just either prior to that or immediately after that
him place some items that could be used as weapons on the ground?
“A.
Yes.
“Q.
What items did you see him place on the ground prior to him threatening
to whack you?
“A. A machete.
No. A knife and a hatchet.â€
Moreover, the jury heard evidence
showing the Herrera marriage had been marked by frequent arguments during which
the defendant sometimes used violence against Tina. There was evidence Herrera had violated
dragged her around the house, and once punched her in the arm. There was evidence Darlene, one of their
adult children, saw Herrera hit Tina more than once. In addition to this evidence of past physical
violence, both Tina and Darlene had witnessed Herrera make death threats
against Tina.
During a previous judicial
proceeding, Darlene testified about an incident in which Herrera told her he
was going to kill Tina: “[O]n this one
[phone] call I was really shaken up because . . . he was explaining
to me that whatever happened, not to blame him.
It wasn’t his fault. It was my
mom’s fault. You know, he said that he
was going to kill her. And
. . . that’s something – I just really couldn’t handle up to that
point and I had went to my pastor’s wife.
I told her . . . explained what the conversation was about and
that I was really, really scared for my mother’s life. And she told me to go to the police. And I told her we had already done that. Every time he would come to the house, my mom
would call the police. He would get
away, and they said they really couldn’t do anything until they caught him.†A few days after this phone incident, Herrera
visited Tina’s house at 2:00 a.m. while she was out but Darlene was
home. Herrera went around the house
looking through Tina’s things while carrying a machete, and he announced to
Darlene that he was going to kill Tina.
There was also evidence Herrera had
left death threats on Tina’s cell phone.
The following colloquy from Tina’s testimony at a former judicial
proceeding was admitted:
“Q. What was he saying to you when he called you on the phone? [¶]
A. ‘Til death do us part. Did you tell your kids good-bye? Are you ready to die?’ That’s what he was telling me.†Tina testified these statements made her
afraid.
Hence, the evidence at trial
provided clarifying contexts for the otherwise arguably ambiguous question, “Do
you want me to whack you?†This evidence
amply demonstrated Herrera’s statement was not protected by the First
Amendment, but was rather “a threat ‘to commit a crime which will result in
death or great bodily injury to another person . . . which, on its
face and under the circumstances in which it is made, is so unequivocal,
unconditional, immediate, and specific as to convey to the person threatened, a
gravity of purpose and an immediate prospect of execution of the
threat.’ †(People v. Toledo, supra, 26 Cal.4th at p. 233; see, e.g.,
298 [applying independent review, Court of Appeal held that, although minor’s
statement to teacher (“Yell at me again and see what happensâ€) was facially
ambiguous, when viewed in context statement was true threat unprotected by
First Amendment].)
We conclude, based on our
independent review of the record, that the core constitutional fact of a true
threat was amply established and Herrera’s conduct was not protected by the
First Amendment. Hence, we reject Herrera’s
claim his conviction for attempting to make a criminal threat was
unconstitutional.
2.
Jury instruction on attempted
criminal threat did not prejudice Herrera.
Herrera contends his conviction must
be reversed because the trial court failed to correctly instruct the jury
on the crime of attempting to make a criminal threat. This claim is meritless.
In People v. Toledo, supra, 26 Cal.4th 221, our Supreme Court
suggested a number of circumstances in which a defendant could be found liable
only for attempting to make a
criminal threat. “A variety of potential
circumstances fall within the reach of the offense of attempted criminal
threat. For example, if a defendant
takes all steps necessary to perpetrate the completed crime of criminal threat
by means of a written threat, but the crime is not completed only because the
written threat is intercepted before delivery to the threatened person, the
defendant properly may be found guilty of attempted criminal threat. Similarly, if a defendant, with the requisite
intent, orally makes a sufficient threat directly to the threatened person, but
for some reason the threatened person does not understand the threat, an
attempted criminal threat also would occur.
Further, if a defendant, again acting with the requisite intent, makes a
sufficient threat that is received and understood by the threatened person,
but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for
his or her safety even though, under the circumstances, that person reasonably
could have been placed in such fear, the defendant properly may be found to
have committed the offense of attempted criminal threat. In each of these situations, only a fortuity,
not intended by the defendant, has prevented the defendant from perpetrating
the completed offense of criminal threat itself.†(Id.
at p. 231.)
“[These] examples . . .
demonstrate that in most instances the crime of attempted criminal threat will
involve circumstances in which the defendant in fact has engaged in
conviction for criminal threat, but where the crime of criminal threat has not
been completed only because of some fortuity outside the defendant’s control or
anticipation (for example, because the threat is intercepted or not understood,
or because the victim for some reason does not actually suffer the sustained
fear that he or she reasonably could have sustained under the
circumstances). In each of these
situations, a defendant who is convicted of attempted criminal threat will be
held criminally responsible only for speech that clearly is not
constitutionally protected, and thus it is evident that in these instances a
conviction of attempted criminal threat will pose no constitutional problems.†(People
v. Toledo, supra, 26 Cal.4th at pp. 233-234.) This kind of situation occurred in
concluded that, although defendant’s death threat had been “made with the
requisite intent and was the type of threat that satisfied the provisions of
section 422 and reasonably could have caused [the victim] to be in sustained
fear for her own safety . . . the jury might have entertained a
reasonable doubt . . . as to whether the threat actually caused [the victim] to be in such fear.†(Id.
at p. 235.)
In People v. Jackson (2009) 178 Cal.App.4th 590, the defendant was
unacquainted with the victims, who had served an eviction notice on their
tenant and then visited the property to collect the key. They found defendant, a friend of the tenant’s,
sleeping on the floor in a back bedroom and the victims told him to leave. Defendant responded by saying, “ ‘ “I’m going
to get an AK-47 and blow all your heads off.†’ †(Id. at p. 594.) The jury
acquitted defendant of having made criminal threats, but convicted him of
attempted criminal threats. On appeal,
he argued “the trial court erred in failing to instruct the jury, sua sponte,
that, in order to find him guilty of attempted criminal threat, it must find
that ‘it would have been reasonable for a person to have suffered sustained
fear as a result of the threat under the circumstances of this
case.’ †(Id. at p. 595.)
The Attorney General argued the crime of attempted criminal threat
does not include a reasonableness element.
Jackson disagreed: “[A]s Toledo
described it, a conviction for attempted criminal threat requires a
finding that the defendant specifically intended to engage in the
proscribed conduct – to make the type of threat prohibited by section
422 – in order to bring about the proscribed consequence – fear that would
be reasonable in the circumstances.
Indeed, Toledo’s description
of an attempted criminal threat encompasses all the elements of the substantive
crime except the subjective response of the victim. [Citation.]â€
(Id. at pp. 597-598, fn.
omitted.)
Jackson
went on to hold the trial court had prejudicially misinstructed the jury on the
elements of attempted criminal threat:
“In finding defendant not guilty of the completed crime but guilty of
attempt, the jury must have found that defendant made the ‘blow-your-head-off’
statements and that he intended them to be taken as threats but that one or
both of the last two elements of the completed crime was missing, namely that
[the victims] did not suffer sustained fear or that their fear was
unreasonable under the circumstances.
The instruction allowed the jury to find defendant guilty of attempted
criminal threats under either of these factual scenarios. And the evidence would support either
scenario. The jury might not have
believed [the victims] when they stated they actually feared for their
lives. Or, the jury might have
concluded, since [the victims] were safely inside the house with a telephone to
call the police while defendant sat out front, or since defendant’s threats
were so outlandish, that defendant’s statements could not reasonably have
caused the victims to suffer sustained fear.
The latter scenario is legally insufficient to support conviction of an
attempted criminal threat and the former scenario is sufficient only upon finding
that a reasonable person could have suffered fear in those circumstances,
something the jury was not asked to decide.
Since there is nothing in the record upon which to find that the verdict
was actually based on a valid ground, we must reverse. [Citation.]â€
(People v. Jackson, supra, 178
Cal.App.4th at p. 600.)
Herrera
argues that, like the defendant in Jackson,
he was prejudiced by the trial court’s instructions because “even if the jury
determined that [Tina] was in sustained fear, it was not asked to determine
whether that fear was reasonable.†We
are not persuaded. Unlike the jury in
partial and misleading attempted criminal threat instruction which told them to
reference only a portion of the criminal threat elements when considering the
attempt charge.
title="">[5] Herrera’s jury was merely given the criminal
threat elements, along with a generic definition of attempt which said: “An attempt to commit a crime consists of two
elements, namely, a specific intent to commit the crime, and a direct but
ineffectual act done toward its commission.â€
In any event, even assuming for
purposes of argument the instructions here were incomplete under
conviction because the error was harmless.
That is because, in the circumstances of this case, it is clear that
Tina reasonably could have been afraid of Herrera’s threat. Unlike the outlandish threat in
an assault rifle and blow the landlords’ heads off, Herrera’s threat was quite
plausible given his history of domestic abuse and the presence of the knife and
hatchet on the porch. There is no
question a reasonable person hearing Herrera’s statement in these circumstances
could have experienced sustained fear.
(See People v. Catlin
(2001) 26 Cal.4th 81, 154 [even if instruction had omitted element of
special circumstance charge, under the evidence presented any error would be
harmless beyond reasonable doubt]; People
v. Flood (1998) 18 Cal.4th 470, 502-503 [omitted offense element is tested
for Chapman
error].)
3.
Trial court did not respond
incorrectly to jury question during deliberations.
Herrera contends the trial court
erred by giving an incorrect response to a jury question during deliberations. This claim is meritless.
The
jury had been given CALJIC No. 6.00 defining “attempt.†The first two lines of that instruction
read: “An attempt to commit a crime
consists of two elements, namely, a specific intent to commit the crime, and a direct
but ineffectual act done toward its commission.†During deliberations, the jury sent out a
note asking: “The jury
instruction 6.00 (attempt defined), line 2, does the word act also
include statement? Restated, can a
statement constitute an act?†After
conferring with counsel, the trial court told the jury the answer to their
question was “yes.†Herrera now contends
this answer was incorrect.
As
the Attorney General points out, Herrera waived this issue when defense counsel
agreed the trial court’s response was proper.
(See People v. Castaneda (2011)
51 Cal.4th 1292, 1352 [defendant waived claim by agreeing with trial
court’s choice of appropriate response to jury question]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 [“Inasmuch as
defendant both suggested and consented to the responses given by the court, the
claim of error has been waived.â€].)
Even had this issue been preserved,
however, we would not find any error.
Herrera asserts “the court’s response . . . suggested that any
statement could be an ‘act’ under the attempt definition. On the contrary, a statement can be an ‘act’
under the crime of attempted criminal threats, but only if it is the type of
threat prohibited in the statute, and if the specific intent to make that type
is also present. Because of the
deficiencies in the jury instructions, the jury was not required to make those
findings.†But the jurors had been
instructed on all the elements of a section 422 criminal threat offense,
and their question merely asked whether a “statement†constitutes an “act†for
purposes of the offense of attempted criminal threat. Plainly it does.
The trial court’s answer was
correct.
4.
Prior domestic violence evidence
properly admitted under Evidence Code sections 1101 and 1109.
Herrera contends the trial court
erred by admitting evidence about acts of domestic violence he committed prior
to the charged incident. This claim is
meritless.
a. Background.
The trial court said it was
admitting evidence of Herrera’s past domestic abuse of Tina because the People
were required to prove she had been “in sustained fear, and that the defendant
intended her to be such. It appears to
me that the testimony proffered is relevant not only as propensity evidence
. . . under [Evidence Code section] 1109, but also as [Evidence
Code section] 1101 evidence bearing upon those issues.†The trial court explained: “The battle lines seem fairly well-drawn
here. I guess that’s one of the issues,
is she just making this up? In other
words, is her claim to the police a fabrication just because she doesn’t want
to be around the defendant for whatever reason, or is, in fact, her call to the
police one that was placed due to her fear of injury? That can be answered not necessarily only by
reference to the facts back on September 8th, but . . . by
taking a bit broader look at the relationship between the two, which apparently
has resulted in . . . various courts issuing over the years orders to
the defendant to stay away from her.†“I
think, without question, the jury is entitled to hear that so they can assess,
was she really afraid? Or as the defense
says, no, she wasn’t afraid at all; she just wanted him out of there for
whatever reasons. These are classic jury
issues.â€
The trial court also determined the
evidence was more probative than prejudicial:
“The prejudice would be to the truth were we left with an incident, an
isolated incident on September 8th with no explanation as to why she might
take some of his threats a bit seriously.
[¶] ‘Whack’ can certainly mean
lots of things. ‘Whack’ can mean whack
with the hand. Or ‘whack’ can mean I
will kill you. So I think the incidents
. . . certainly would bear upon their fact-finding
. . . .â€
b. Legal
principles.
Evidence Code section 1101, subdivision
(b), allows evidence of a person’s uncharged misconduct “when relevant to
prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake
or accident . . .) other than his or her disposition to commit
such an act.†(Italics added.)
“Subdivision (a)
of [Evidence Code] section 1101 prohibits admission of evidence of a
person’s character, including evidence of character in the form of specific
instances of uncharged misconduct, to prove the conduct of that person on a
specified occasion. Subdivision (b)
of section 1101 clarifies, however, that this rule does not prohibit
admission of evidence of uncharged misconduct when such evidence is relevant to
establish some fact other than the person’s character or disposition.†(People
v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. omitted.) Hence, “[a]lthough evidence of prior offenses
may not be introduced solely to prove
criminal disposition or propensity such evidence may properly be admitted
whenever it tends logically, naturally, and by reasonable inference to
establish any fact material for the People or to overcome any material matter
sought to be proved by the defense.†(
4 Cal.3d 328, 331-332, italics added.)
Entirely apart from Evidence Code
section 1101’s provisions, outright propensity evidence is admissible in
domestic violence cases under Evidence Code section 1109, which generally
provides that “in a criminal action in which the defendant is accused of an
offense involving domestic violence, evidence of the defendant’s commission of
other domestic violence is not made inadmissible by Section 1101 if the
evidence is not inadmissible pursuant to Section 352.†“ ‘[T]he California Legislature has
determined the policy considerations favoring the exclusion of evidence of
uncharged domestic violence offenses are outweighed in criminal domestic
violence cases by the policy considerations favoring the admission of such
evidence.’ [Citation.] Section 1109, in effect, ‘permits the
admission of defendant’s other acts of domestic violence for the purpose of
showing a propensity to commit such crimes.
[Citation.]’ [Citations.] ‘[I]t is apparent that the Legislature
considered the difficulties of proof unique to the prosecution of these crimes
when compared with other crimes where propensity evidence may be probative but
has been historically prohibited.’
[Citation.] [¶] The admission of prior acts as
charged and uncharged acts.
[Citations.] Moreover, evidence
of a prior act may be introduced as propensity evidence even if the defendant
was acquitted of criminal charges based upon that act. [Citation.]â€
(People v. Brown (2011) 192
Cal.App.4th 1222, 1232-1233.)
“ ‘The propensity inference is particularly appropriate in the
area of domestic violence because on-going violence and abuse is the norm in
domestic violence cases.’ †(
77 Cal.App.4th 410, 419.)
A trial court’s decision to admit
evidence under either of these statutes is reviewed for abuse of
discretion. (People v. Whisenhunt (2008) 44 Cal.4th 174, 203 [Evidence Code
section 1101]; People v. Brown,
supra, 192 Cal.App.4th at p. 1233 [Evidence Code section 1109].)
c. Discussion.
Herrera
asserts the fact that he and Tina “had been in disputes in the past did not
make it more likely that [he] possessed the specific intent to threaten [Tina]
in this case, nor did it make it more likely that she was in sustained fear in
this case.†This is incorrect. (See, e.g., People v. Ogle (2010) 185 Cal.App.4th 1138, 1143 [in prosecution
for making threatening phone calls in violation of section 422, “evidence
of [prior] stalking . . . was indisputably admissible under [Evidence
Code] section 1101, subdivision (b) for the non-propensity purpose of proving
appellant’s intent and the sustained nature of his victim’s fearâ€];
159, 172-173 [where defendant charged with stalking and making terrorist threat
against former wife, Evidence Code section 1101 evidence of past domestic
abuse was “highly relevant and probative†regarding defendant’s intent to cause
fear, his capability for violence and victim’s reasonable fear defendant would
carry out threats]; People v. Garrett
(1994) 30 Cal.App.4th 962, 966 [evidence defendant had beaten victim
numerous times during marriage was properly admitted under Evidence Code
section 1101 because section 422 “incorporates a mental element on
the part of not only the defendant but the victim as wellâ€].) In addition, Herrera’s “other acts of
domestic violence were unquestionably admissible to prove propensity under
[Evidence Code] section 1109.†(
at p. 1145; see People v. James (2010)
191 Cal.App.4th 478, 482-483 [“Domestic violence is defined in Penal Code
section 13700. ‘ “Domestic
violence†means abuse committed against [a qualified individual.]’ (Pen. Code, § 13700,
subd. (b).) ‘ “Abuse†means
intentionally or recklessly causing or attempting to cause bodily injury, or
placing another person in reasonable apprehension of imminent serious bodily
injury to himself or herself, or another.’
(Pen. Code, § 13700, subd. (a).)â€].)
Herrera
argues this evidence should have been excluded because the prior incidents were
too dissimilar to the charged offense.
On the contrary, the prior incidents were appropriately similar because
they involved occasions on which Herrera both physically assaulted Tina and
threatened to kill her. As such, the
evidence provided the jury a relevant context in which to decide the meaning of
“Do you want to get whacked?†and whether Tina could have reasonably been
frightened by this statement. Moreover,
the evidence was relevant to the jury’s evaluation of Tina’s trial testimony in
which she disavowed prior statements describing Herrera’s conduct, particularly
her assertion she was not afraid of Herrera but she lied to the police so they
would remove him from her property.
Herrera complains his violation of the 1997 and 2000 restraining orders
was too remote to be admissible:
However, “[n]o specific time limits have been established for
determining when an uncharged offense is so remote as to be inadmissible.†(People
v. Branch (2001) 91 Cal.App.4th 274, 284.)
Similar time periods have been approved in other cases. (See People
v. Ing (1967) 65 Cal.2d 603, 612, disapproved on other grounds in
89 [15 years before charged offenses]; People
v. Branch, supra, at pp. 284-285 [more than 30 years];
1389, 1395 [18-25 years].)
Herrera argues: “Without all of
the prior bad acts evidence, this case essentially comes down to whether the
jury believed [Tina’s] testimony at trial that she had lied to the police to
get Mr. Herrera off of her property, or whether it believed her during her
report to the police that she was afraid for her life.†We agree, and that’s exactly why Evidence
Code sections 1101 and 1109 came into play:
they aided the jury in deciding which scenario was true.
We conclude the trial court did not abuse its discretion by admitting
this evidence.
5. The evidence describing prior domestic violence was not inadmissible
hearsay.
Herrera contends that even if the evidence of his prior domestic violence
could have been admissible under Evidence Code sections 1101 and 1109, it
should have been excluded on hearsay grounds.
This claim is meritless because the evidence was properly admitted under
the prior inconsistent statement exception to the hearsay rule.
a. Legal
principles.
“A statement by a witness that is inconsistent with his or her
establish the truth of the matter asserted in the statement under the
conditions set forth in Evidence Code sections 1235[
is that the statement in fact be inconsistent
with the witness’s trial testimony.
[Citation.] Normally, the
testimony of a witness that he or she does not remember an event is not
inconsistent with that witness’s prior statement describing the event. [Citation.]
However, courts do not apply this rule mechanically. ‘Inconsistency in effect, rather than
contradiction in express terms, is the test for admitting a witness’ prior
statement [citation], and the same principle governs the case of the forgetful
witness.’ [Citation.] When a witness’s claim of lack of memory
amounts to deliberate evasion, inconsistency is implied. [Citation.]
As long as there is a reasonable basis in the record for concluding that
the witness’s ‘I don’t remember’ statements are evasive and untruthful,
admission of his or her prior statements is proper.†(People
v. Johnson (1992) 3 Cal.4th 1183, 1219-1220.)
Although “there is no inconsistency
and therefore no impeachment value in statements the witness claims to have
forgotten†(People
(1969) 71 Cal.2d 194, 209), “[f]airly stated, Sam stands for no more than the proposition that ‘prior statements are
not admissible to impeach a witness whose answers to questions are
variety.’ †(Clifton v.
e.g., People v. Burciago (1978) 81
Cal.App.3d 151, 165-166 [where witness’ testimony was combination of claimed
memory loss, several express denials and many refusals to answer, it
constituted an implicit denial warranting admission of prior inconsistent
statements].)
“The determination [that
forgetfulness has been feigned] is for the trial court, which we affirm if
there is a reasonable basis in the record for its conclusion.†(People v.
Gunder (2007) 151 Cal.App.4th 412, 418.)
b. Discussion.
contends the trial court erred by admitting Tina’s prior statements without
making a preliminary determination they were inconsistent with her trial
testimony. But the record shows a
preliminary determination was made.
While discussing this issue with counsel, the trial court noted the
standard jury instruction, CALJIC No. 2.13, advised that “if the jury
determines that a witness’s claimed lack of memory is feigned, then any
statement on the point is admissible as original evidence for the truth of the
matter asserted. It’s up to the jury.†Immediately after this comment, however, the
trial court indicated it had already made its own preliminary determination
that admission of Tina’s prior
inconsistent statements was warranted.
Herrera
argues there was no reasonable basis for concluding Tina and Darlene were
feigning forgetfulness. The record amply
refutes this assertion. Tina and Darlene
made it abundantly clear they had no wish to be testifying against
Herrera. Time and time again, when asked
about the details of past events, they gave some testimony, sometimes said they
could not recall anything, and sometimes said their former testimony given at
various judicial proceedings had been untrue.
There was “a reasonable basis in the record for [the trial court’s]
conclusion†the prior testimony and statements of both Tina and Darlene were
admissible for the truth of the matter asserted. (See People
v. Gunder, supra, 151 Cal.App.4th at p. 418.)
Herrera complains the jury was not
clearly instructed it needed to find “[Tina’s] memory loss was feigned
for their truth.†We disagree. The jury was instructed as follows: “Evidence that at some other time a witness
made statements that are inconsistent . . . with his or her testimony
in this trial may be considered by you not only for the purpose of testing the
credibility of the witness, but also as evidence of the truth of the facts as
stated by the witness on that former occasion.
[¶] If you disbelieve a witness’s
testimony that he or she no longer remembers a certain event, that testimony is
inconsistent with a prior statement or statements by him or her describing that
event.†This instruction adequately
directed the jury on how to proceed.
The evidence introduced to establish
Herrera’s past acts of domestic violence was not inadmissible hearsay.
6.
There was no prosecutorial
misconduct during closing argument.
Herrera contends the prosecutor
committed misconduct during closing argument by arguing facts not in
evidence. This claim is meritless.
a. Legal
principles.
“Under
California law, a prosecutor commits reversible misconduct if he or she makes
use of ‘deceptive or reprehensible methods’ when attempting to persuade either
the trial court or the jury, and it is reasonably probable that without such
misconduct, an outcome more favorable to the defendant would have
resulted. [Citation.] Under the federal Constitution, conduct by a
prosecutor that does not result in the denial of the defendant’s specific constitutional
rights – such as a comment upon the defendant’s invocation of the right to
remain silent – but is otherwise worthy of condemnation, is not a
constitutional violation unless the challenged action ‘ “so infected the
trial with unfairness as to make the resulting conviction a denial of due
process.†’ [Citations.]†(People
v. Riggs (2008) 44 Cal.4th 248, 298.)
“ ‘ “[T]he
prosecution has broad discretion to state its views as to what the evidence
shows and what inferences may be drawn therefrom.†’ [Citation.]â€
(People v. Welch (1999) 20
Cal.4th 701, 752.) “To prevail on a
claim of prosecutorial misconduct based on remarks to the jury, the defendant
must show a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner. [Citations.]
In conducting this inquiry, we ‘do not lightly infer’ that the jury drew
the most damaging rather than the least damaging meaning from the prosecutor’s
statements.†(People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on
another ground in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22.)
“[C]onduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it
involves ‘ “the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.†’ †(People
v. Espinoza (1992) 3 Cal.4th 806, 820.)
“A
prosecutor engages in misconduct by misstating facts or referring to facts not
in evidence, but he or she enjoys wide latitude in commenting on the evidence,
including urging the jury to make reasonable inferences and deductions
therefrom. [Citation.]†(People
v. Coffman and Marlow (2004) 34
Cal.4th 1, 95.)
b. Discussion.
Herrera contends the prosecutor
committed misconduct during closing argument in the following instances. We are not persuaded by any of these claims.
(1) Tina’s
fear.
Herrera
complains the prosecutor argued it was clear Tina was in fear, because after
the argument on the porch she immediately ran into the house to call the
police, but this contradicted her testimony that Herrera’s statement was not
what motivated her to call the police.
Herrera points out Tina testified she called the police before, not
after, he said “Do you want me to whack you?â€
This testimony, however, was arguably inconsistent with Tina’s
description of events at the preliminary hearing:
“Q.
Okay. And when you called the
cops, did you call the cops regarding the incident related to your husband
yelling at you threatening to whack you?
“A.
Yes.
“Q.
When the defendant yelled at you and threatened to whack you, were you
afraid?
“A.
Yes.â€
Tina’s trial testimony was also
generally inconsistent with the officers’ testimony that upon their arrival she
reported Herrera had threatened to kill her and said she was afraid. In particular, Officer Perez testified Tina
said Herrera had arrived at her house with a hatchet and a knife, which he
“placed at his feet,†just prior to threatening her.
Even during Tina’s cross-examination
at trial by defense counsel, she backed off her initial assertion she had
called the police before Herrera threatened to whack her:
“Q.
By [defense counsel]: The two of
you were arguing. You tell him to
leave. And then exactly at what point
does he say, ‘Do you want me to whack you?’
“A.
I don’t remember.
“Q.
. . . [Y]ou don’t remember what you had said right before
that?
“A.
No.
“Q.
Just other than just telling him to leave?
“A.
Yeah.
“Q.
Okay. Then you told him, I’m
going to call the cops?
“A.
Yes.â€
There
was no misconduct here; the prosecutor was arguing a fair interpretation of the
evidence.
(2) The
1997 restraining order.
prosecutor argued to the jury that Tina had “obtained a restraining order
against [Herrera] initially back in ‘97 when she attempted to extricate herself
from this relationship, and she did so with good reason, because she had seen
his violence against her.†Herrera
asserts this misstated the evidence because “[t]here was no testimony at trial
about the circumstances, purpose, or details of any restraining order.â€
But Tina did testify about Herrera’s
violation of an early restraining order.
She was merely unsure when, precisely, it had been granted:
“Q.
Have you ever filed for and/or obtained a restraining order against the
defendant?
“A.
Yes, I have.
“Q.
When was the first time, ma’am?
“A.
I don’t remember.
“Q.
Do you recall it being sometime back in 1997?
“A.
I don’t remember. ’97, I don’t
remember.
“Q.
At some point after filing for and obtaining a restraining order against
the defendant, do you recall there being some incidents of violence where the
defendant has hit you or used some kind of physical force against you?
“A.
Yes.
“Q.
On one occasion or more than one occasion?
“A.
More than one.â€
When the prosecutor later told the
jury people do not obtain restraining orders unless they are afraid of someone,
she was merely arguing fair inferences from the evidence.
(3) References
to Herrera’s prison time.
Herrera
complains the prosecutor made veiled references to the fact he had been to
prison a couple of times. Herrera is
ignoring the fact there was evidence Herrera had gone to prison for conduct
related to domestic abuse.
Officer Saenz testified Tina told
him Herrera had gone to prison for trying to kill her with a machete. There was Tina’s own testimony about Herrera
being incarcerated in 2005:
“Q.
Now, after you testified in the May 25th, 2005, hearing, did your
husband go to jail?
“A.
We’ve been separated since then.
I don’t know.
“The Court: You don’t know?
“The witness: He did go to jail, but I don’t know when and
when he got out, because I haven’t seen him in years.â€
There was also the following
colloquy about an earlier incarceration:
“Q.
. . . [A]fter that
incident in ‘98 that we were just talking about, didn’t the defendant go to
prison sometime shortly after that incident?
“A.
I don’t remember. Probably. I don’t know.â€
In light of this testimony, the
prosecutor’s veiled references to Herrera having been “gone for a couple of
years†and returning home “after several years of absence†did not
constitute misconduct.
(4) Stalker
behavior.
Herrera
complains the prosecutor “characterized Mr. Herrera as a ‘stalker,’ though
Mr. Herrera was not and never has been charged with that crime.†But there was certainly evidence showing
Herrera had engaged in stalker-like behavior.
He walked through Tina’s home one night at 2:00 a.m., when she was
gone, carrying a machete, looking through her things, and telling Darlene he
was going to kill her mother. There was
evidence Tina complained to the police because Herrera had been driving up and
down her street in violation of a restraining order. There was evidence Herrera left death threats
on Tina’s cell phone. Saying Herrera had
engaged in stalker-like conduct did not constitute prosecutorial misconduct.
(5) Meaning
of “whack.â€
Herrera complains that, after
defense counsel characterized the word “whack†as ambiguous during closing
argument, the prosecutor responded:
“[T]he defense is not even disputing that he threatened to whack her,
because the defense argument is, ‘What does that mean? What does that mean?’ †“The defense suggests that she lied about
this incident. Well, if she lied about
the incident, why is the defense conceding that he threatened to whack her by
arguing, well, What does wack mean?
. . . [W]e know she didn’t lie about it because there’s a
concession that he threatened to whack her.â€
However, the prosecutor was not
misrepresenting the defense. Defense
counsel had argued the elements of section 422 could not be proved because
the word “whack†was ambiguous:
“[Section 422 requires] a threat, one, to kill, or two, to cause
great bodily injury. Now, the word that
we’re going with here is whack. Not
only, I’m going to whack you, but, You want me to whack you? First of all, is that a threat to kill or
cause great bodily injury? What does
whack mean and what does it mean to him?
Is he Tony Soprano? Is he a
member of the New Jersey mob? I haven’t
heard any evidence of that. Who even
talks like that? Who says ‘whack’? Like, I’m going to get her whacked, or I’m
going to whack her? People don’t talk
like that.â€
The prosecutor’s suggested inference
might have been illogical, because admitting Herrera said “whack†is not the same
as admitting he threatened to kill Tina, but it did not constitute misconduct.
(6) Number
of children at home.
Herrera
complains the prosecutor incorrectly asserted only one of Herrera’s children,
his daughter Sarah, was at home on September 8, 2010, whereas the evidence
showed his son, J.J., was also at home.
We cannot see how this insignificant factual error amounted to
misconduct.
In sum, we conclude there was no
prosecutorial misconduct.
7. No
error in refusing to dismiss Three Strikes priors.
Herrera
contends the trial court abused its discretion by refusing to dismiss, under
the authority of People
Court (Romero) (1996)
13 Cal.4th 497, either one or both of the prior serious felony
conviction findings used to impose his Three Strikes sentence. This claim is meritless.
a. Legal
principles.
The factors to be considered in
ruling on a Romero motion were set forth in People v. Williams
(1998) 17 Cal.4th 148, 161: “[I]n ruling whether to strike or vacate a prior
serious and/or violent felony conviction allegation or finding under the Three
Strikes law . . . ‘in furtherance of justice’ pursuant to Penal Code
section 1385(a), or in reviewing such a ruling, the court in question must
consider whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or more serious
and/or violent felonies.â€
“[A] trial court’s refusal or
failure to dismiss or strike a prior conviction allegation under
section 1385 is subject to review for abuse of discretion.†(People v. Carmony (2004) 33 Cal.4th
367, 375.) “In reviewing for abuse of
discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party
attacking the sentence to clearly show that the sentencing decision was
irrational or arbitrary.
[Citation.] In the absence of
such a showing, the trial court is presumed to have acted to achieve the
legitimate sentencing objectives, and its discretionary determination to impose
a particular sentence will not be set aside on review.†’ [Citations.]
Second, a ‘ “decision will not be reversed merely because
reasonable people might disagree. ‘An
appellate tribunal is neither authorized nor warranted in substituting its
judgment for the judgment of the trial judge.’ †’ [Citations.]
Taken together, these precepts establish that a trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.â€
(Id. at pp. 376-377.)
b. Discussion.
The trial court concluded Herrera is precisely the kind of “revolving
door†criminal at which the Three Strikes law was aimed. At sentencing, the court noted it had been
handed Herrera’s 20-page rap sheet by the prosecutor. Reciting from the document, the trial court
noted that, starting as a juvenile and continuing throughout his life, Herrera
had committed and recommitted a dizzying array of offenses, including: car theft; burglary; robbery, burglary and
assault with a deadly weapon; robbery with use of a weapon; a weapons charge
and assault on a custodial officer while in prison; assault on an officer;
additional assault convictions; burglary; assault by means of force likely to
produce great bodily injury; burglary; evading the police; evading the police
again; violating a domestic restraining order; violating a restraining order
again; evading police and violating another restraining order.
The trial court grew tired before reaching the end of Herrera’s criminal
history: “It just goes on and on with
similar offenses. Additional domestic
violence arrests resulting in violations of his various paroles. And then again more misdemeanors of all
sorts. Damaging power lines. False imprisonment. Driving with revoked licenses, etc. I don’t think I will even finish the rap
sheet. I have left the last five or six
pages off. [¶] The point being, while you’re right, his
strikes are pretty old, the problem is he has at no point led what one would
consider an even close to blameless life.â€
The trial court concluded Herrera was “the type [of] person the law was
written for. The type of person who
notwithstanding numerous prison commitments, doesn’t get it. He comes back and reoffends. Not only reoffends, but with the same
victim.â€
We agree with the Attorney General that the record shows “the trial court
here unquestionably understood the scope of its discretion, considered all
relevant factors, and did not abuse its discretion in concluding that appellant
fell within the spirit of the Three Strikes law.†“[T]he overwhelming majority of California
appellate courts have reversed the dismissal of, or affirmed the refusal to
dismiss, a strike of those defendants with a long and continuous criminal
career. [Citations.]†(People v. Strong (2001)
87 Cal.App.4th 328, 338.)
Advanced age is not necessarily
a mitigating factor. (See
at p. 332 [“middle age, considered alone, cannot take a defendant outside
the spirit of the law; otherwise, the very factor that takes a defendant within
the spirit of the law – a lengthy criminal career with at least one serious or
violent felony – would have the inevitable consequence – age – that would
purportedly take him outside itâ€].)
And neither is the remoteness of Herrera’s strike priors. (See People
v. Gaston (1999) 74 Cal.App.4th
310, 321 [“the remoteness in time of the [17-year-old] strike prior
| Description | Defendant and appellant, Darrell Richard Herrera, appeals his conviction for making an attempted criminal threat, with prior serious felony conviction findings (Pen. Code, §§ 664, 422, 667, subds. (a)-(i)).[1] He was sentenced to state prison for a term of 35 years to life. The judgment is affirmed. |
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