P. v. Quintana

Filed 2/7/07  P. v. Quintana CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

            APPEALS from judgments of the Superior Court of Los Angeles County, Mark C. Kim, Judge.  Modified and, as modified, affirmed with directions.

            Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant Sergio Javier Quintana.

            Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant Fernando Quintana.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

________________

            Sergio Quintana and Fernando Quintana appeal from judgments entered following their convictions by jury of first degree murder (Pen. Code, §§  187, 189; counts 1 & 2), each with a special circumstance allegation that the offense was committed by lying in wait (Pen. Code, §  190.2, subd. (a)(15)), while kidnapping (Pen. Code, §  190.2, subd. (a)(17), and while inflicting torture (Pen. Code, §  190.2, subd. (a)(18)).  The court sentenced each appellant to prison for life without the possibility of parole.

            In this case, we reject Sergio Quintana's claim that the trial court violated his right to confrontation by refusing to strike the testimony of Consuelo Cantu after she purposely failed to answer questions during cross-examination, claiming lack of memory.  Cantu did not refuse to testify or refuse to answer any question, but testified at length at trial, was subjected to lengthy cross-examination and recross-examination on important issues presented by her testimony for the People, and frequently testified during such cross-examinations without professing an inability to recall.  The jury had the opportunity to observe her demeanor and evaluate her credibility.  The right to confrontation required no more.

            We reject Sergio Quintana's claim that the trial court committed Bruton/Aranda error and Crawford error by admitting in evidence Fernando Quintana's three statements to a third party.  The Bruton/Aranda rule did not apply unless the statements incriminated Sergio Quintana.  However, at best, the statements themselves were requests that the third party testify that appellants did not commit the crime; therefore, the statements incriminated no one.  Moreover, even if viewed with another statement by Fernando Quintana that the third party would be stabbed if he did not comply with the requests, there was no evidence that Sergio Quintana made the threat; therefore, the statements incriminated only Fernando Quintana.  Further, the Bruton/Aranda rule does not apply to nonhearsay, and the statements viewed together were nonhearsay evidence of a threat by Fernando Quintana evidencing his consciousness of guilt.  The Crawford rule did not apply because the statements were not testimonial, since Fernando Quintana did not reasonably anticipate that his statements would be used at trial, but that they would motivate the third party independently to deny appellants' involvement.  Moreover, the Crawford rule does not apply to nonhearsay.

We reject Fernando Quintana's claim that the trial court erred by failing to instruct the jury to consider whether Cantu was an accomplice and, if she was, that her statements were to be viewed with caution.  There was no substantial evidence that Cantu was an accomplice.  In any event, the court gave accomplice instructions which the jury could have considered in connection with Cantu.

We reject Sergio Quintana's claim that the trial court's instruction on the torture-murder special circumstance allegation was prejudicially erroneous because it required only that a defendant, as distinguished from Sergio Quintana, harbor intent to torture.  There was overwhelming evidence that Sergio Quintana, as an accomplice, shared Fernando Quintana's intent to torture, and jury instructions required Sergio Quintana to have the requisite mental state; therefore, the alleged instructional error was harmless.

We accept respondent's concession that the trial court erroneously imposed a Penal Code section 1202.45 restitution fine as to each appellant, since that fine is inapplicable where, as here, the court sentenced each appellant to prison for life without the possibility of parole.

FACTUAL SUMMARY

            Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on September 30, 2002, appellants, Mark Pirante,[1] and Vincent Soqui were at the Wilmington home of Consuelo Cantu when Ray Ruvalcaba arrived.  After Ruvalcaba was inside, Fernando Quintana (Fernando) indicated that Fernando was the brother of Roy Quintana.  Roy Quintana previously had been killed. 

            Fernando, using a metal pipe, struck Ruvalcaba on the back of the head.  One of the appellants moved Ruvalcaba to the middle of the living room.  Appellants began accusing Rubalcava of killing their brother Roy.  Fernando repeatedly beat Ruvalcaba with a metal pipe.  Sergio Quintana (Sergio) subsequently, over Ruvalcaba's protests, put a shotgun in Ruvalcaba's mouth.  Appellants kidnapped Ruvalcaba, put him in the back seat of a car, and drove away.  Ruvalcaba's dead and brutally beaten body was discovered in an alley the next day.  A bandana was stuffed in the back of his throat.  Ruvalcaba died of asphyxiation.  We will present additional facts below where pertinent.

CONTENTIONS

            Sergio claims (1) the trial court violated his right to confrontation by refusing to strike Cantu's testimony, (2) the trial court committed Bruton/Aranda error and Crawford error by admitting in evidence Fernando's statements to Soqui, (3) the trial court's instruction on the torture-murder special circumstance allegation violated Sergio's rights to due process and a jury trial, and (4) the trial court erred by imposing a Penal Code section 1202.45 restitution fine.  Fernando claims the trial court erroneously failed to instruct sua sponte that the jury should consider whether Cantu was an accomplice.[2]

DISCUSSION

1.  The Trial Court Properly Refused to Strike Cantu's Testimony.

a.  Pertinent Facts.

            1)  The People's Direct Examination of Cantu.

            Cantu, who was represented by counsel and waived her Fifth Amendment privilege, testified as follows in April 2005.  On September 30, 2002, Cantu lived in Wilmington.  Soqui and his girlfriend lived with Cantu.  Cantu first met Pirante during the afternoon of September 30, 2002, when he came to her house and Soqui introduced Pirante to Cantu.  Soqui asked Cantu to go to the store for him.

            Before Cantu left, appellants entered Cantu's house.  Cantu had never seen appellants before.  Soqui introduced appellants to Cantu.  Fernando was sitting in the living room but Cantu did not know where Sergio was.  However, Cantu was certain she remembered seeing appellants.  No one was in Cantu's home except Soqui, Pirante, appellants, and Cantu.  Cantu positively identified appellants at trial.

            After appellants arrived, Cantu later went to the store.  About 45 minutes to an hour later, she returned home.  Although she had not locked the front door when she left, it was locked when she returned.  Cantu knocked but no one answered.  She went to the back door, saw it was open, and entered.

            No one was in Cantu's home.  Cantu entered the living room and saw that her furniture had been rearranged.  A wicker basket had been moved.  Pictures that had been on the wall were on her desk.  Cantu felt uneasy and quickly exited the back door.

            About five to ten minutes later, Soqui arrived.  Cantu repeatedly asked him what happened and he repeatedly told her not to worry.  Soqui said he would take care of it.  Cantu and Soqui entered the house.  Soqui moved the wicker basket; it was covering a puddle of blood on the carpet.  The puddle was two feet in diameter.  There was blood on Cantu's living room furniture, desk, and entertainment center.  There was also blood on the kitchen floor towards the back door.  Cantu told Soqui that she wanted the mess cleaned up.  Cantu cleaned the backyard while Soqui cleaned the living room.

            Around sunset, Cantu entered the house.  The living room looked as though Soqui had done little to clean it.  Cantu asked Soqui, â€