P. v. Rojas

Filed 6/22/07 P. v. Rojas CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Irma Castillo, 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, Assistant Attorney General, Rhonda Cartwright‑Ladendorf and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Introduction

Defendant Rodolfo Cazares Rojas was convicted of attempted murder; the jury found he acted willfully, deliberately, and with premeditation. On appeal, defendant argues the trial court erred by instructing the jury that flight after the commission of a crime may show a consciousness of guilt. Defendant contends that such an instruction was prejudicial since the only issue at trial was his level of culpability, not his identity. That argument has been rejected by the California Supreme Court on a number of occasions.

Defendant also argues he received ineffective assistance of counsel, because his trial counsel did not request an instruction that provocation may reduce an attempted murder from first degree to second degree. We conclude defendants trial counsel was not ineffective, because there was no evidence of provocation whether objective or subjective to justify the giving of such an instruction.

Finally, defendant argues the trial court erred by refusing to give him any conduct credits. The Attorney General concedes, and we agree, that defendant was entitled to conduct credits totaling 15 percent of his presentence custody credits.

We affirm the judgment, and direct the trial court to correct the abstract of judgment to reflect defendants entitlement to conduct credits.

Statement of Facts and Procedural History

The Prosecutions Case

Defendant and Guadalupe Cortes lived together as man and wife for 14 years, and had three children together. Defendant and Cortes rented a room in their home to Ipolito Varelas. About one year after he moved in, Varelas began a sexual relationship with Cortes. When defendant asked Cortes whether she was having an affair with Varelas, she denied it. Eventually, Varelas moved out, but continued his relationship with Cortes.

Defendant recorded a phone conversation between Cortes and her sister, in which the sister jokingly suggested Cortes put insect poison in defendants food.

In February 2003, defendant and Cortes had a fight, during which defendant physically attacked Cortes. Defendant moved out of the home. He pleaded guilty to misdemeanor assault, and a restraining order issued prohibiting him from coming within 100 yards of Cortes or her home. Defendant complied with the restraining order.

Cortes came by defendants new home a few times, demanding money, threatening him, and physically attacking him. Defendant also received phone calls from Varelas, advising defendant he had a gun and was going to take him out or kill him. Defendant was afraid. Varelas threatened defendant in person on two occasions.

Defendant reported these threats to the Anaheim Police Department, which took a report, but told him the police could not do anything until Varelas physically attacked him. Defendant also went to a family law attorney to obtain a restraining order, but did not pursue the matter.

On December 14, 2003, Varelas, Cortes, and two of Cortess children went out to dinner. Around 9:30 p.m., they left the restaurant and walked to their car. After Varelas was in the car, he put on his seat belt, and bent over to look for Cortess cell phone, which she had dropped. Defendant then pulled open the drivers side door, bent into the car, and began stabbing Varelas. Defendant said, this is how I wanted to catch you, motherfuckers. Defendant stopped attacking Varelas, walked to his own car, and drove off.

Varelas had been stabbed twice on his left arm, twice on his right arm, once on his right shoulder, and once on his left knee. All of the wounds required stitches.

Defendants Testimony

Defendant testified that on December 14, 2003, he went to a favorite restaurant for dinner, and while walking through the parking lot, he heard Varelas say, Im glad I found you here. I heard that you have been wanting to talk to me. After walking a few more steps, defendant turned and walked toward Varelas, in the hope of talking and clearing things up. Varelas was already in his car, along with Cortes and her children. Defendant had a folding knife in his pocket.

Defendant tapped on Varelass car window. Varelas looked at defendant, turned to Cortes, and said something to Cortes that defendant could not hear, after which they smiled. Defendant said, hey, Polo, I need to talk to you. He stepped back as Varelas opened the car door. As he was getting out of the car, Varelas said, now you are going to die, motherfucker. Defendant saw Varelas reach toward his waistband with his right hand, and believed Varelas was reaching for a weapon. Defendant pulled his own knife from his pocket, and grabbed Varelass arm. Defendant stabbed Varelas because he believed Varelas had a weapon, and Varelas had previously threatened to kill him. Defendant bent over into the car while stabbing Varelas, then pushed Varelas back into the car.

Defendant drove home after the stabbing. He was afraid Varelas or the police might come to get him, so he left home about three hours later. Defendant rented a hotel room in Long Beach, where he stayed until going to Mexico in late January 2004.

Procedural History

Defendant was charged with attempted murder (Pen. Code,  664, 187, subd. (a)) and aggravated assault (id.,  245, subd. (a)(1)). The information alleged the attempted murder was committed willfully, deliberately, and with premeditation. (Id.,  664, subd. (a).) The information also alleged defendant inflicted great bodily injury on Varelas. (Id.,  12022.7, subd. (a), 1192.7, 667.5.) A jury convicted defendant of attempted murder, and found true that he acted willfully, deliberately, and with premeditation, and that he inflicted great bodily injury on Varelas. The trial court sentenced defendant to life in prison for the attempted murder, plus a consecutive three‑year determinate sentence for the great bodily injury enhancement. The court awarded defendant 1,113 actual presentence credits, but no conduct credits. Defendant timely appealed.

Discussion

I.

Flight Instruction

The jury was instructed with Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 372 as follows: If the defendant fled immediately after the crime was committed or after it was mentioned that the police were being called, that conduct may show that he was aware of his guilt. If you conclude that the 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.

Defendant argues that because he admitted stabbing Varelas, and the real issue at trial was his intent in doing so, defendants flight was irrelevant. The California Supreme Court, however, has held it is not error to instruct a jury with a flight instruction when an accused concedes the issue of identity and merely contests his mental state at the time of the crime. (People v. Moon (2005) 37 Cal.4th 1, 28; see also People v. Smithey (1999) 20 Cal.4th 936, 983.)[1]

Defendant cites People v. Anderson (1968) 70 Cal.2d 15 for the proposition that evidence of consciousness of guilt is irrelevant to determine the degree of a defendants guilt. In that case, the Supreme Court reduced a first degree murder conviction to second degree murder because a finding of premeditation and deliberation cannot be sustained in the absence of any evidence of (1) defendants actions prior to the killing, (2) a motive or reason from which the jury could reasonably infer that defendant intended to kill [the victim], or (3) a manner of killing from which the jury could reasonably infer that the wounds were deliberately calculated to result in death. As in People v. Granados [1957] 49 Cal.2d 490, and People v. Craig [1957] 49 Cal.2d 313, the evidence suffices only to support a verdict of second degree murder. (Id. at pp. 33‑34.) The court concluded the evidence the defendant tried to clean up the blood in the house and gave differing stories to the victims brother and mother to explain the presence of blood at the crime scene is highly probative of whether defendant committed the crime, but it does not bear upon the state of the defendants mind at the time of the commission of the crime. (Id. at p. 33.)

In addition to being instructed on two different theories of first degree murder, the jury in that case was also instructed on second degree murder, voluntary manslaughter, and involuntary manslaughter. (People v. Anderson, supra, 70 Cal.2d at p. 22.) The Supreme Court noted, the alleged errors are prejudicial only on the question whether defendant was guilty of first or second degree murder. (Ibid., fn. 2.) By implication, the evidence of the defendants consciousness of guilt was admissible to determine whether the defendant was guilty of second degree murder, voluntary manslaughter, or involuntary manslaughter. By the same reasoning, evidence of defendants flight to show consciousness of guilt was admissible in this case, and the instruction was therefore proper. Additionally, because People v. Moon, supra, 37 Cal.4th 1, People v. Smithey, supra, 20 Cal.4th 936, and the cases cited therein, specifically deal with the issue of flight to show a consciousness of guilt, while People v. Anderson, supra, 70 Cal.2d 15 addresses the broader question of evidence of consciousness of guilt, the former cases are controlling here.

II.

Ineffective Assistance of Counsel

Defendant argues his trial counsel provided ineffective assistance of counsel by failing to request an instruction on the effect of provocation on the degree of attempted murder.[2]

The trial court had no sua sponte duty to give such an instruction. (People v. Middleton (1997) 52 Cal.App.4th 19, 31‑33.) The instruction should have been given on request by one of the parties, but only if the evidence would have supported it. (People v. Stanley (2006) 39 Cal.4th 913, 946.)

The Attorney General argues any error was harmless because if the jury had found legally adequate provocation, it would have convicted defendant of attempted voluntary manslaughter, rather than attempted murder. But provocation that is insufficient to reduce murder to manslaughter may still be sufficient to reduce first degree murder to second degree murder. (People v. Thomas (1945) 25 Cal.2d 880, 903.)

The question is not, as the parties present it, whether there was sufficient evidence of provocation under an objective versus a subjective test. If it were, defendant would have the better of the argument. An objective, reasonable person standard of provocation applies when determining whether the provocation reduces the crime of murder to manslaughter. (People v. Steele (2002) 27 Cal.4th 1230, 1253.) Whether the provocation prevented the defendant from deliberating, however, requires a determination of the defendants subjective state. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295.)

Rather, the question we face is whether there was any evidence of provocation, and we find none. In raising the issue on appeal, defendant argues the jury might have concluded defendants extreme jealousy about the relationship between Varelas and Cortes prevented him from deliberating over the stabbing.[3] Defendant testified consistently that he stabbed Varelas because he believed, based on previous threats and his actions that evening, Varelas was going to attack him. Defendant also testified he approached Varelas because he thought that night would be a good time to discuss things. Defendants own testimony did not support the conclusion he acted in the heat of passion. Defendant testified he no longer cared about the betrayal by Varelas and Cortes, as follows.

Q. You werent upset or angry about the fact that he was boyfriend and girlfriend with your wife?

A. No, I had already resigned myself. I no longer cared. It didnt matter to me.

Defendants theory of the case at trial was that he acted in self-defense in response to Varelass threat. The trial court would have been justified in refusing to instruct the jury with CALCRIM No. 522. (People v. Rich (1988) 45 Cal.3d 1036, 1113 [trial court did not err in failing to instruct sua sponte with CALJIC No. 8.73 where there was no evidence of provocation, and where the defendants theory was he was suffering from diminished capacity, not that he was sane but provoked into acting].)

Therefore, defendants trial counsel did not provide ineffective assistance in failing to request the instruction.[4]

III.

Conduct Credits

At sentencing, the trial court found defendant had 1,113 days of actual presentence credits, but was not entitled to any conduct credits because defendant had received a life sentence. In concluding defendant was not entitled to any conduct credits, the trial court erred.[5] Penal Code section 2933.1, subdivision (c), limits defendants conduct credits to 15 percent of his presentence custody credits, due to his conviction for attempted murder. The Attorney General concedes, and we agree, that the abstract of judgment must be amended to reflect defendants presentence conduct credits.

Disposition

The judgment is affirmed. We direct the trial court to amend the abstract of judgment to reflect that defendant is entitled to 167 days of local conduct credits, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

OLEARY, J.

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[1] Although these cases interpret CALJIC No. 2.52, the reasoning is equally applicable to CALCRIM No. 372, which considers the same issue and applies the same analysis. CALJIC No. 2.52 reads as follows: The [flight] [attempted flight] [escape] [attempted escape] [from custody] of a person [immediately] after the commission of a crime, or after [he] [she] is accused of a crime, is not sufficient in itself to establish [his] [her] guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.

[2] Defendant suggests his trial counsel should have requested a modified version of CALJIC No. 8.73, which reads as follows: If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation.

Because the trial court instructed the jury with the newer CALCRIM instructions, the instruction we should actually be considering is a modified version of CALCRIM No. 522, which reads in relevant part as follows: Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide. [] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.]

[3] Defendants opening brief on appeal reads, in relevant part, as follows: Counsel asked the court to instruct on heat of passion after the prosecutors rebuttal emphasized extreme jealousy as a motive for the attack on Varelas. . . . Counsel also should have asked the court to instruct on provocation and the element of premeditation and deliberation. Evidence of extreme jealousy was far more relevant to premeditation and deliberation than to the line which divides murder from manslaughter.

[4] Defendant also argues the cumulative prejudice caused by the instruction on consciousness of guilt by flight, and the failure to instruct on provocation relative to deliberation and premeditation requires reversal. Because we have concluded there was no error, we further conclude there was no cumulative error.

[5] Certain statutes absolutely preclude an award of presentence conduct credits, but none of them is applicable in this case. (See, e.g., Pen. Code,  664, subd. (f), 2933.2, 2933.5.)