P. v. Juarez

Filed 9/18/07 P. v. Juarez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. Affirmed.

Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Ronald A. Jakob, Jennifer A. Jadovitz and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant Valerie Juarez (aka Flaca) was convicted of the murder of Azalia Sandoval. (Pen. Code,  187, subd. (a).)^[1]The jury also found true the enhancement allegation that she personally used and intentionally discharged a firearm causing great bodily injury or death. ( 12022.53, subd. (d).) She pled guilty to one count of being a felon in possession of a firearm. ( 12021, subd. (a)(1).) She admitted two prison priors and one prior strike conviction. Defendant was sentenced to a total of six years plus 75 years to life.

On appeal defendant contends the trial court erred in failing to instruct the jury on voluntary manslaughter as a lesser included offense to murder. She further argues that the trial court erroneously allowed into evidence three statements made by defendant allegedly obtained in violation of Miranda.^[2] We affirm the judgment.

II. Facts

Francine Garcia testified that she lived with her brother, Gabriel, on 8th Street in Corona. On the evening of January 17, 2004, Francine was home with her friend Inge, Inges two children and boyfriend, Gabriel, Azalia, and Melissa Felix. Azalia indicated that she was leaving to talk with her babys father, Salvador Salas (aka Pelon), who lived down the street. Pelon had been released from jail one month earlier. She was in a happy mood when she left Francines house. Shortly after Azalia left, Francine and the others, except Gabriel, left the house. As they were leaving, Vance Bareis and Junior Vidrio, two of Gabriels friends, were walking up to the house.

Melissa testified that she arrived at Francines house on the day of the shooting at approximately noon or 1:00 p.m. She was just hanging out there. Azalia had come to the house and left about three times throughout the day. Azalia was in a good mood. Just after Azalia left the last time, Melissa and Francine also left the house. At the time they left, it was getting dark.

Gabriel testified that he lived with his sister, Francine. Azalia was at the house on the day of the shooting. She had brought him a tape. That evening, Azalia left the house first. Francine and Inge then left. As Francine was leaving, Junior and Vance came to the house. Approximately five minutes later, Gabriel and Junior left to get some weed and rolling papers. Vance stayed at the house. It was dark outside. Gabriel and Junior were returning to the house about five or ten minutes after they had left when they saw Vance. There was blood on Vances hand and he appeared to be scared. Vance told them that a girl had been shot and that he was going to leave. Junior went with Vance. Gabriel did not go home; instead, he went to his cousins house.

Junior testified that it was getting dark when he and Vance arrived at Gabriels house. He went there to get some marijuana. He was in the house about four minutes and did not see Azalia. He and Gabriel then left to get some rolling papers. On the way back, he saw Vance running and holding his wounded hand. He started running with Vance.

Benecia Diaz testified that Vance is her nephew. She came across Vance while he was running. He was holding his hand and bleeding. She took him to the emergency room.

Francine testified that when she returned home, after being gone for about an hour, there were no cars in the driveway. She and Melissa got out of the car. She entered her home through the kitchen door. The door was not shut all the way, which was unusual because she always kept the doors locked; she pushed it open. When she entered the kitchen area she saw Azalia laying face down in the living room. Francine panicked and looked for her phone; within two or three minutes she ran outside and started yelling for the neighbor to call 911. There was blood everywhere in the bathroom.

Melissa stated that they had been away from Francines house for about 30 to 45 minutes. When they returned, there was a kid on the porch knocking on the door and asking for Gabriel. After Francine entered the house, the kid stuck around for about a minute and a half to two minutes talking with Melissa. Francine was in the house for about a minute. When she came out she was frantic and told Melissa to go next door and call the police. Francine told her that Azalia was on the floor and had been shot.

Vance did not testify at trial. His preliminary hearing testimony was read to the jury.^[3]He went to Gabriels house to chill with him. He thinks Junior was also there. It was dark outside. Junior and Gabriel left the house. They went to a 7-Eleven store to buy something to eat and get some rolling papers so they could smoke some bud. He stayed behind to watch the house and get the marijuana ready. The door to the house was closed. Azalia knocked on the door and he answered it. Azalia was by herself. She was outside standing on the stairs. He was inside.

Azalia told Vance that she was there to visit Gabriels sister (Francine). After he gave her a lighter, she told him to call someone. He heard a female voice yell, Bitch, thats what you get. He began walking toward the phone in the living room area with his back to Azalia. He then heard what sounded like firecrackers, or gunshots. He and Azalia turned around toward the noise. They faced a lone female with a gun. Her hair was long and dark. Azalia pushed Vance towards the bathroom. By this time, he had been shot. He recalled telling the detectives that the female shooter followed Azalia into the house and that he saw the shooter pointing a big chrome gun at Azalia. At some point, he heard the shooter yell, Fuck you. Fuck you, you hood rat. While he was in the bathroom he noticed that he had been shot. When he left the house Azalia was still alive on the floor. She told him, Run, homie. Run. He ran.

Corona Police Officer Skip Shatford was dispatched to the house at approximately 8:00 p.m. He and Sergeant Rasso were greeted by a female on the porch who indicated there was a person inside who had been shot.

Shatford walked into the living room and saw a Hispanic female laying face down. There was blood on the back of her sweatshirt and jacket, and a gunshot wound to her back. There was blood splattered everywhere in the bathroom.

Dr. Mark Fajardo, a forensic pathologist, testified. Azalia suffered multiple gunshot wounds in the right side of the chest or the right armpit area, the upper part of the right arm, and the back of the neck; with one exception, the gunshot wounds passed through her body.

Dr. Alan Moy is a medical doctor, board certified in emergency medicine. He examined Vance on the evening of the shooting. Vance had a gunshot wound to the middle finger that went through and through. There was a fracture of the middle phalanx.

Brian Cervantes is a law enforcement officer with the City of Corona. He met with Vance on the night of the shooting. After the interview, defendant became a suspect. They immediately began looking for her. Cervantes received information that defendant was somewhere on the East Coast. Denise Melendez told the officer that she was in contact with defendant via telephone. On March 4, 2004, police met with Melendez at her residence. She told them that she had been receiving phone calls from defendant and that defendant was asking Melendez to send her money. A pretext call was conducted with Melendez and defendant. It was recorded and played to the jury.^[4]The conversation included the following:

[DEFENDANT]: You know what, its not your fault, Mija, you know what, I was going to get her sooner or later, she popped [three] of my fucking tires[.] [S]he, I went down the street, she called me a fucking snitch. [] . . . []

[DEFENDANT]: [A]nd that was fucking it. I seen the fucking devil and I fucking went and took care of the devil. [] . . . [] It does not have nothing to do with you, at all, I was, you know what, she was back in fucking Corona, theyre lucky that I didnt fucking kill her right there at the fucking house, and you know what another thing, Pelon doesnt give a fuck that shes, that shes fucking dead. [] . . . [] He doesnt fucking care, he, check this out mija [] . . . [] he gave me permission to fucking kill her when he was locked up. [] . . . [] . . . I asked him for permission to fucking kill her[.] [] . . . [] [A]nd he fucking gave it to me. [] . . . [] Yeah, he told me go ahead and do it[.]

MELENDEZ: [Y]oure your own woman, you handle your own shit for your own reasons, right?

[DEFENDANT]: I had a vengeance with that bitch[.] [] . . . [N]ow she was not in that little boys life, she had him in the street, didnt put him in school, he never seen her, he, you know what, that little boy is going to be better off without that fucking bitch whether anybody likes it or not.

Deputy Sheriff Steven Cuadra was the courtroom bailiff during defendants trial. He testified that while defendant was in custody on this matter and in a holding cell adjacent to the courtroom, she called him over to her. Cuadra asked her who was in the courtroom audience. Defendant identified Vance, sitting in the first two rows of the courtroom, and told Cuadra that Vance was present the night that she was shooting the girl. Later, Cuadra asked defendant why she went to New York; she indicated that she went there to get away from the police so that she would not get arrested. She further told him: Yeah, what I did was wrong. What I did you shouldnt do to people. Wow, what I did was wrong.

III. Analysis

A. The Court Was Not Required to Instruct on Voluntary Manslaughter

Defendant contends that the court erred in failing to instruct the jury on voluntary manslaughter as a lesser included offense to murder. She argues that the jury was prevented from fairly assessing the degree of [defendants] culpability when it refused [defendants] request to instruct the jury on imperfect self-defense and provocation.

In criminal cases, a trial court must instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) This obligation includes instructing on lesser included offenses when there is substantial evidence the defendant has committed the lesser offense and which, if accepted, would absolve the defendant from guilt of the greater offense. (People v. Waidla (2000) 22 Cal.4th 690, 733.) The existence of any evidence, no matter how weak will not justify instructions of a lesser included offense . . . . (People v. Breverman, supra, at p. 162.) Rather, the evidence that the defendant is guilty only of the lesser offense must be substantial enough to merit consideration by the jury. [Citations.] Substantial evidence in this context is evidence from which a jury composed of reasonable [persons] could . . . conclude[] that the lesser offense, but not the greater was committed. [Citations.] (Ibid.) Here, there is absolutely no evidence upon which the jury could conclude that the defendant was guilty of the lesser offense, but not the greater.

Murder is the unlawful killing of a human being with malice aforethought. [Citation.] A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of . . . voluntary manslaughter. [Citation.] . . . But a defendant who intentionally and unlawfully kills lacks malice . . . in limited, explicitly defined circumstances: either when the defendant acts in a sudden quarrel or heat of passion [citation], or when the defendant kills in unreasonable self-defensethe unreasonable but good faith belief in having to act in self-defense. [Citation.] [Citation.] Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide [citation], voluntary manslaughter of these two forms is considered a lesser necessarily included offense of intentional murder [citation]. (People v. Breverman, supra, 19 Cal.4th at pp. 153-154.)

The subjective elements of self-defense and imperfect self-defense are identical. Under each theory, the appellant must actually believe in the need to defend himself against imminent peril to life or great bodily injury. To require instruction on either theory, there must be evidence from which the jury could find that appellant actually had such a belief. (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262-1263.)

The essence of the sudden quarrel/heat of passion voluntary manslaughter is that the killer is so provoked by acts of the victim that he strikes out in the heat of passion, an emotion that obliterates reason that would prevail in the mind of a reasonable person. That circumstance negates malice aforethought, and reduces the crime from second degree murder, which otherwise would be its classification. (People v. Johnston (2003) 113 Cal.App.4th 1299, 1311.)

The present record is absolutely void of any evidence that would support a conclusion that defendant acted in a heat of passion or with an unreasonable but good faith belief in having to act in self-defense. Defendant called no witnesses. The only evidence alluded to by defendant in support of her argument is the admission in her phone call with Melendez: You know what, its not your fault, Mija, you know what, I was going to get her sooner or later, she popped [three] of my fucking tires[.] [S]he, I went down the street, she called me a fucking snitch. The slashing of defendants tires and being called a snitch under the circumstances presented here do not give rise to any issue of self-defense. Additionally, one cannot reasonably find that this conduct would give rise to a heat of passion sufficient to mitigate a homicide.^[5] There is no evidence that the slashing of tires or the name calling had occurred near in time to the shooting. Indeed, the taped phone conversation of defendant belies the close proximity of these events. In the phone conversation, defendant indicates that Pelon gave her permission to kill the victim when he was in prison, and that the victim did not care enough about her son to have him in school. Pelon had been released about one month before the shooting.

In sum, there is nothing in the record to support a theory of either unreasonable self-defense or heat of passion. Therefore, there was no duty to instruct as to voluntary manslaughter.

B. The Court Did Not Err in Admitting Into Evidence Defendants Initial Statement to Cuadra. To the Extent the Last Two Statements Were Obtained in Violation of Miranda, Their Admission Into Evidence Was Harmless

Defendant next contends the court erred in failing to suppress defendants admissions to Cuadra. She argues that the statements were inadmissible under Miranda.

1. Background

An Evidence Code section 402 hearing was held on the admissibility of defendants statements to Cuadra. Cuadra testified that he was working as a sworn law enforcement officer in department 51 during defendants trial. Defendant had been brought up to the holding cell adjacent to the courtroom. There is a window in the holding cell. Defendant called him over to the window and told him that she was going to be good today and that she was so loud last time because she had not taken her medication. He testified that there were usually a lot of observers in the courtroom watching the trial; and because he was new to the courtroom, he was nervous about what someone might say or do, and so he wanted to know what relation any of the observers had to defendant. To that end, he asked her who was out in the audience and if anyone was related to her. She asked Cuadra if he knew who Vance was, and he said he did not. She identified Vance and then stated that he was there the night that she was shooting the girl. He testified that at this point he did not want to get into Miranda, so he just let her make spontaneous statements and he wrote them down.

Later, Cuadra asked defendant why she had been in New York. He explained that he thought maybe it was a childhood trip or something. She proceeded to tell him that she went to New York because she was trying to evade arrest, but that it didnt work.

Cuadra then walked away and wrote down what she said. He then just, kind of, wandered back over to her. She then told him yeah, . . . what I did, you shouldnt do to people. What I did was wrong. He wrote down her exact words in his report. He testified that he wrote it down more or less[, b]ecause at the time I didnt even know how far I should goif I needed to write a report or things of that nature. I was just writing it all down so I remembered so when I went down to speak with the sergeant to let him know what information she had told me, what I should do with it. And when he proceeded to tell me to file a report, give it to the [district attorney] and see where she wanted to proceed from there, then thats what I did.

2. Analysis

No person . . . shall be compelled in any criminal case to be a witness against himself. (U.S. Const., 5th Amend.) [W]hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege . . . . (Miranda, supra, 384 U.S. at pp. 478-479.) These procedural safeguards include a police advisement that the individual has the right to remain silent; that anything he says may be used against him in a court of law; that he has the right to an attorney; and that if he cannot afford an attorney, one will be appointed to him free of charge. (Id. at p. 479.) [T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. (Id. at p. 444.)

In reviewing a ruling on the admissibility of a statement we are faced with a mixed fact-law question. Questions of fact are reviewed under the deferential, clearly erroneous standard. (People v. Mickey (1991) 54 Cal.3d 612, 649.) A trial courts factual resolution is clearly erroneous when the appellate court is left with the definite and firm conviction that a mistake has been committed . . . . (People v. Louis (1986) 42 Cal.3d 969, 986.) If supported by substantial evidence, we accept the trial courts factual findings, [b]ut we determine independently, based on the undisputed facts and those properly found by the trial court, whether the challenged statements were legally obtained. (People v. Mayfield (1997) 14 Cal.4th 668, 733.)

In applying Miranda . . . one normally begins by asking whether custodial interrogation has taken place. The phrase custodial interrogation is crucial. The adjective [custodial] encompasses any situation in which a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [Citation.] Absent custodial interrogation, Miranda simply does not come into play. [Citation.] The test for whether an individual is in custody is objective . . . : [was] there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. [Citations.] (People v. Ochoa (1998) 19 Cal.4th 353, 401.)

Interrogation consists of express questioning, or words or actions on the part of the police that are reasonably likely to elicit an incriminating response from the suspect. [Citations.] The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response. [Citations.] (People v. Cunningham (2001) 25 Cal.4th 926, 993.) It focuses primarily upon the perceptions of the suspect, rather than the intent of the police. (Rhode Island v. Innis (1980) 446 U.S. 291, 301 [100 S.Ct. 1682, 64 L.Ed.2d 297].)

While we do not encourage similar conduct by a courtroom deputy, the court did not err in allowing defendants initial statement into evidence. Defendant was in custody. However, defendants initial statement that Vance was in the house when she shot the victim was clearly voluntary. Cuadros question was not likely to call for an incriminating response from the perspective of either himself or the defendant. He was merely asking her who was in the courtroom. The statement calls only for the names of people and their relationship to the defendant. Her statement that she shot the victim appears to come from out of the blue.

Defendants statements as to why she was in New York and that what she did was wrong, present more difficult issues. It is unclear from our record what facts Cuadro knew when he asked defendant why she went to New York. Additionally, after writing down her initial incriminating responses, Cuadro intentionally reinstituted contact, after which defendant said that what she did was wrong.

Even if the last two statements are viewed as the product of custodial interrogation, their admission into evidence did not prejudice defendant. Without regard to the last two statements, the evidence submitted at trial demonstrably showed that defendant committed the murder. Vances preliminary hearing testimony directly implicated defendant. This testimony was further corroborated by defendants admissions in her phone conversation with Melendez. Lastly, there is defendants voluntary statement to Cuadra, in which she admitted shooting Azalia. In light of this evidence and based upon our review of the entire record, we are convinced beyond a reasonable doubt that the admission into evidence of defendants last two statements to Cuadra did not contribute to the verdict. (See Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].)

IV. Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Miller

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2]Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda).

^[3] As related herein, Vances testimony appears relatively straightforward; his preliminary hearing testimony was anything but. He did not identify defendant as the shooter, and did not in any straightforward manner acknowledge or indicate that he ever identified defendant to the police as the shooter. During the police interview his acknowledgment of defendant as the shooter was done by nods of the head to questions posed by the police. At the time of his statement to the police, which is the crux of his preliminary hearing testimony, he was in custody for the murder of Azalia.

^[4] Exhibit 70 is the transcript of the telephone call between Melendez and defendant.

^[5] At an Evidence Code section 402 hearing held outside the presence of the jury, defendant submitted the testimony of Alma Guerrero. She testified that she knew Azalia. She had met defendant in the system. About two or three days before Azalia was killed, Azalia showed her a gun in an intimidating manner. The gun was tucked into her sweatpants. Azalia sold drugs. The witness would buy drugs from her in an alley between Valencia and Grand. In response to this testimony, the trial court ruled that the witness could testify, but that the testimony would not affect his decision not to give an instruction on the lesser included offense of voluntary manslaughter. With that indication, the defense did not call Guerrero to testify. We agree with the trial court. There is nothing in this proffered evidence to indicate that defendant knew that the victim carried a gun, or that the gun had ever been exhibited to the defendant. Without further evidence, Guerreros testimony was simply not relevant to any ultimate fact. It was within the confines of this hearing, and the ruling thereon, that the trial court made several unfortunate comments suggesting that the defendants version of events was untruthful. The comments were made outside the presence of the jury. Additionally, based on our review of the evidence and the testimony of Guerrero, the trial courts rulings were legally proper. Thus, the trial courts brief comment relative to the credibility of defendants case is inconsequential.