Filed 9/27/17 P. v. Reyes CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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In 2015, defendant Alfredo Reyes Reyes was convicted by jury of the 1982 murders of two 13-year-old girls, R. and N. (Pen. Code, § 187.[1]) The jury concluded each murder was of the first degree (§ 189) and was committed under the special circumstances of multiple murder (§ 190.2, subd. (a)(3)), felony-murder rape (id., subd. (a)(17)(C)), and felony-murder lewd conduct (id., subd. (a)(17)(E)). The trial court sentenced defendant to state prison to serve a term of life without the possibility of parole and imposed other orders.

On appeal, defendant contends: (1) the trial court prejudicially erred and violated his federal constitutional rights by instructing the jury it need not unanimously agree as to which theory of murder applied in this case; and (2) the abstract of judgment must be corrected to conform to the oral pronouncement of judgment.

We reject defendant’s claim of instructional error. As we explain, the jury was properly instructed regarding the unanimity requirement. Defendant’s second assertion of error is conceded by the Attorney General. We agree the abstract of judgment must be corrected. However, the judgment must also be modified to impose a mandatory $80 court security fee and a mandatory $60 criminal conviction assessment. As so modified, we shall affirm the judgment and order the necessary corrections to the abstract of judgment.

FACTS

In January 1982, defendant lived with family members in an apartment complex in Stockton. Anthony[2] lived in the same complex with his wife and her three teenage daughters. Defendant and Anthony, each in his early twenties, often went out drinking together and spent time “riding around” in defendant’s brown Firebird.

The Night of The Murders

On the night of January 24, defendant and Anthony pulled up to a drive-in hamburger restaurant on Charter Way. N. and R., who were 13 years old, were outside the restaurant with N.’s sister, who was a year younger. Anthony asked R. if they wanted to drive around in the Firebird. They declined. The girls then talked to a friend who also pulled up to the restaurant and went with him to a park a short distance away. While at the park, N.’s sister saw the Firebird parked across the street. Sometime later, the girls returned to the restaurant. Defendant and Anthony followed, pulling up to an adjacent liquor store, where Anthony bought a 12-pack of Budweiser. At some point, the girls came over and talked to them, but then left with another young man, Carlos, whom N. had been seeing romantically. He drove them to a party, where he and N. had sex.

The girls stayed at the party until almost midnight, when N.’s sister said she wanted to go home. Carlos, accompanied by two of his friends, drove the girls to N.’s house. On the way, they passed the liquor store and saw the Firebird pull out of the parking lot. Defendant and Anthony pulled up to Carlos’s car at a stoplight, at which point the girls waved and said something to them. After the light changed, the Firebird made a turn and Carlos continued on towards N.’s house. At the house, as N.’s sister was heading inside, N. told her to tell their mother she was going to stay the night at R.’s house. N. and R. then got back into Carlos’s car. This was the last time N.’s sister saw them alive. Carlos then dropped N. and R. off at the hamburger restaurant and returned to the party with his friends. The Firebird was again parked in front of the liquor store. Carlos and one of his friends saw N. and R. walking toward the store as they drove away.

Discovery of the Bodies

The following morning, the bodies of N. and R. were discovered face down in an irrigation canal about nine miles from the liquor store. A steep, muddy embankment separated the access road from where R.’s body was found. Several deep footprints led down to the body. N.’s body was about 75 yards away. There were also footprints leading from the access road down to her body. None of the footprints appeared to have been made by either girl. Nor were their shoes covered in mud. Several empty Budweiser cans were also found at the crime scene.

R.’s throat had been cut. N.’s cause of death was less obvious to the detectives who responded to the crime scene. The location of the bodies and the condition of their clothing indicated to detectives the girls had also been sexually assaulted. N.’s pants were down around her hips, the zipper was partially down, her blouse was open, and she was not wearing a bra. R.’s blouse was inside out and backwards, she was not wearing underwear, and one foot was missing its sock and shoe.

Subsequent autopsies confirmed R. died of several lacerations to the front of her neck, none of which cut a major artery; she drowned in her own blood. R. also had extensive injuries to her external genitalia indicative of “aggressive penile penetration.” Multiple abrasions to her head, torso, and extremities indicated she fought for her life during the attack. N. died quite differently. She was manually strangled, but was not yet dead when placed in the canal; she drowned in the water. Her body had a minimal number of abrasions. And while her genitalia lacked the external injuries suffered by R., she did have internal bruising on her vaginal wall indicating “somewhat aggressive penetration that obviously would be painful.” Based on the different injuries and manners of death, the forensic pathologist who reviewed the autopsies performed at the time concluded, “more likely than not there were two assailants.”

Conduct of Defendant and Anthony after the Murders

Between 4:00 and 5:00 a.m. on January 25, four or five hours after N. and R. were seen walking towards defendant’s Firebird in the liquor store parking lot, Anthony arrived at his apartment and pounded on the front door. When his wife opened the door, Anthony quickly went into the bathroom, locked the door behind him, and ran the shower for 10-15 minutes with the light off. When he finally let his wife inside the bathroom, he was undressing and appeared to be shaken. Anthony’s pants and shoes were in the shower and there was mud going down the drain.

When Anthony went into the bedroom and lay down on the bed, his wife asked where he had been. Anthony did not answer. He seemed nervous, so she asked what was wrong. Anthony responded: “I killed somebody.” When she responded in disbelief, Anthony said: “Oh, I’m just playing.” The next day, Anthony put the clothes he had left in the shower into a bag and said he was going to put them in the incinerator. Later in the day, two neighbors came over to the apartment and informed them about the murders. Anthony’s stepdaughters knew N. and R. and began crying upon hearing the news. Anthony did not say anything during the conversation. When his wife later brought up the subject, Anthony told her to “be quiet” and “quit talking about it.” He also questioned her decision to go to the funeral. Rather than attend the funeral himself, Anthony stayed at the apartment that day, keeping the curtains closed and not letting anyone inside.

One week after the murders, Anthony took a bus to El Paso, telling his wife he needed to visit his sick mother. He stayed there for about three months. While he was there, he repeatedly called his wife and asked if anyone was looking for him.

Turning to defendant’s conduct, sometime in late January or early February, defendant asked his brother-in-law, F., for a ride to Los Angeles. F., who like defendant had come to the United States from Durango, Mexico, agreed to provide the ride. He assumed defendant found a job in Los Angeles. During the drive, defendant told him he needed to leave Stockton because he got into some trouble with a friend and feared for his life. Defendant did not elaborate and F. did not ask for further details. When they got to Los Angeles, F. overheard defendant telling another family member, E., that Anthony killed two men in Stockton, used the Firebird during the murders, and then threatened defendant with a knife, saying he would kill defendant if he said anything. Shortly after arriving in Los Angeles, defendant returned to Mexico. F. drove back to Stockton with E., who picked up the Firebird and drove it back to Los Angeles.

Police Investigation

Over the course of the next year, various anonymous tips generated from publicity on the Crime Stoppers television show led police to identify defendant as a suspect in the murders. They also received the name “Tony” as a potential second suspect, but could not do much with only a first name.

In August 1983, a detective went to Los Angeles and spoke to one of defendant’s family members, who said he was either in Durango, Mexico or the State of Washington. He then learned from Border Patrol authorities defendant had been arrested in Merced for illegal entry and obtained his photograph and fingerprints. That October, detectives were able to obtain the Firebird from another of defendant’s family members. A pair of female underwear consistent with R.’s size was found under the front passenger seat, but could not be identified as having belonged to her. The Firebird’s tire tread was also similar to tracks left at the crime scene, but the tracks were not detailed enough to allow for a conclusive match. The following month, one of the detectives showed defendant’s photograph to N.’s sister, who said she saw him with Anthony the night of the murders. This was the first the detective had heard Anthony’s name, but it matched the “Tony” in the previous tip. Anthony, having returned from Texas in the meantime, was arrested on an outstanding warrant and interrogated. He admitted having sex with N. the night of the murder.

Efforts to locate defendant over the course of the next five years failed. Certain family members knew where he was at various points in time thereafter, but they did not inform law enforcement. It was not until 2010 that the Federal Bureau of Investigation received information defendant was living in Tijuana under an assumed name. At the request of the United States government, Mexico issued an arrest warrant. Defendant was arrested and extradited to the United States in 2011.

Defendant’s DNA was obtained following his extradition and compared to that contained in sperm found on vaginal swabs taken from N. and R. after the murders. R.’s vaginal swab contained sperm from a single source. The DNA of that sperm matched defendant’s DNA. N.’s vaginal swab contained sperm from multiple sources. Defendant’s DNA could not be excluded as a possible match. The criminalist who performed the DNA analysis was not provided with Anthony’s DNA to determine whether it matched or could be excluded as a match. However, as mentioned, Anthony admitted having sex with N. the night she was murdered.[3]

Defendant’s Testimony

Defendant testified in his own defense. We need not recite his testimony in any detail. For our purposes, it will suffice to note he admitted driving around with Anthony the night of the murders, talking to three girls in the liquor store parking lot, encountering them again at the stop light, and then returning to the parking lot around midnight to wait for the girls to come back. When N. and R. did so, N. got into the front seat with defendant and R. got into the back with Anthony. Defendant thought the girls were between 16 and 18 years old. Anthony directed defendant to a field by the irrigation canal. When they arrived, Anthony took R. somewhere behind the car. Defendant and N. stayed in the car and talked, kissed, and touched each other. Sometime later, Anthony returned, slammed the trunk of the car, and said they were switching girls. Defendant then took R. a short distance from the car, where they had sex. When they returned to the car, defendant knocked on the window and Anthony and N. got out.

At this point, according to defendant’s testimony, Anthony grabbed R. by the arm and walked behind the car with her, leaving defendant and N. standing next to the car. When Anthony returned alone 15-20 minutes later, defendant asked where R. was. Anthony said: “She’s dead.” He then grabbed N. by the arm and walked off with her, this time in front of the car. Defendant walked in the same direction a short time later. While he could not see Anthony or N., he heard muffled choking sounds. Defendant started to walk down the embankment, but stopped when Anthony said: “Get back.” As defendant returned to the car, he heard a splash. He also heard Anthony saying to him: “Get back before I kill you too.” At that point, defendant ran the rest of the way to the car, started it up, and Anthony got into the passenger side. Defendant then drove them back into Stockton. During the drive, Anthony threatened to kill defendant and his family if he told anyone what happened.

DISCUSSION

I

Instructions Regarding Juror Unanimity

Defendant contends the trial court prejudicially erred and violated his federal constitutional rights by instructing the jury it need not unanimously agree as to which theory of murder applied in this case. We disagree.

A.

The Challenged Instructions

Before setting forth the challenged instructions, we provide a summary of relevant instructions defendant does not challenge. After being instructed that a person is guilty of committing a crime if he or she was the direct perpetrator of that crime or aided and abetted in its commission, the jury was instructed that defendant was charged with two counts of murder based on two theories, i.e., (1) an unlawful killing committed with malice aforethought, and (2) felony murder committed during the commission of forcible rape or lewd conduct with a child under 14 years of age. Then, after correctly defining malice aforethought, the trial court also correctly defined the two theories of first degree murder pursued by the prosecution, i.e., (1) express malice murder committed with premeditation and deliberation, and (2) felony murder committed during the commission of forcible rape or lewd conduct with a child under 14 years of age.

The jury was then instructed second degree murder was the unlawful killing of a human being with malice, but without premeditation and deliberation. Regarding this lesser included offense, the jury was properly instructed: “If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime of first degree murder and you unanimously so find, you may nevertheless convict him of the lesser crime of second degree murder provided you are unanimously satisfied beyond a reasonable doubt that he is guilty of that crime. [¶] Thus, you are to determine whether the defendant is guilty or not guilty of the crime of first degree murder or the lesser crime of second degree murder. In doing so, you have discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it. You may find it productive to consider and reach a tentative conclusion before reaching any final verdict. [¶] However, the court cannot accept a guilty verdict on the lesser crime of second degree murder unless you have unanimously found the defendant not guilty of first degree murder.” (Italics added.) The jury was then informed how to fill out the verdict forms, reminded it was required to determine and state in the verdict whether the murder was of the first or second degree, and appropriately instructed: “If any juror is convinced beyond a reasonable doubt that the crime of murder has been committed by [the] defendant, but has a reasonable doubt whether the murder was of the first or of the second degree, that juror must give defendant the benefit of that doubt and find that the murder is of the second degree.”

Now the challenged instructions. The jury was instructed with CALJIC No. 8.74 as follows: “Before you may return a verdict in this case, you must agree unanimously not only as to whether the defendant is guilty or not guilty, but also, if you should find him guilty of an unlawful killing, you must agree unanimously as to whether he is guilty of murder of the first degree or murder of the second degree. [¶] However, you are not required to agree unanimously on the theory of guilt.” (Italics added.) Then, the trial court provided the following special instruction: “It is not necessary that all jurors agree in the determination that there was a deliberate and premeditated design to take the lives of [R. and N.] or in the conclusion that the defendant was at the time engaged in the commission of the forcible rape alleged and/or the lewd or lascivious act alleged; it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant committed the crime of first degree murder as the offense is defined in these instructions. [¶] More specifically, the jury need not decide unanimously whether the defendant was guilty as an aider and abettor or as the direct perpetrator of first degree murder as long as each juror is convinced beyond a reasonable doubt that the defendant is guilty of murder in the first degree as the offense is defined in these instructions. [¶] Additionally, the jury need not decide unanimously whether the defendant was guilty as an aider and abettor or as the direct perpetrator of second degree murder as long as each juror is convinced beyond a reasonable doubt that the defendant is guilty of second degree murder as the offense is defined in these instructions.” (Italics added.)

B.

Analysis

Defendant argues these instructions were erroneous and prejudicial because he “was being prosecuted under different theories of murder, one of which led to a conviction of second-degree murder and two of which led to a conviction of first-degree murder,” and therefore, “the jury did have to be unanimous on the theory of murder, as the theory directly led to the degree of murder.” Not so.

First, we note there were actually four theories of first degree murder posited by the prosecution: (1) defendant was the direct perpetrator of the unlawful killings of R. and N. with malice and with premeditation and deliberation; (2) defendant aided and abetted such a murder perpetrated by Anthony; (3) defendant was the direct perpetrator of either forcible rape or lewd conduct with a child under 14 years of age committed against R. and N., who died during the commission of one or both of these crimes; and (4) defendant aided and abetted one or both of these underlying crimes perpetrated by Anthony against R. and N., who died during the commission thereof. Similarly, there were two theories of second degree murder: (1) defendant was the direct perpetrator of the unlawful killings of R. and N. with malice but without premeditation or deliberation, and (2) defendant aided and abetted such a murder perpetrated by Anthony.

Read together, the instructions properly informed the jury that it did not need to unanimously agree as to which theory supported a guilty verdict for first degree murder, or as to which theory supported a guilty verdict for second degree murder, but it did have to “agree unanimously . . . as to whether [defendant] is guilty of murder of the first degree or murder of the second degree.” This is all the unanimity that was required. (See People v. Sattiewhite (2014) 59 Cal.4th 446, 479 [“Premeditated murder and felony murder are not distinct crimes; rather, they are alternative theories of liability, and jurors need not unanimously agree on a particular theory of liability in order to reach a unanimous verdict”]; see also People v. Jenkins (2000) 22 Cal.4th 900, 1024-1025 [“‘It is settled that as long as each juror is convinced beyond a reasonable doubt that [the] defendant is guilty of murder as that offense is defined by statute, it need not decide unanimously by which theory he [or she] is guilty. [Citations.] More specifically, the jury need not decide unanimously whether [the] defendant was guilty as the aider and abettor or as the direct perpetrator. . . . Not only is there no unanimity requirement as to the theory of guilt, the individual jurors themselves need not choose among the theories, so long as each is convinced of guilt’”].)

Nor are we persuaded by defendant’s reliance on People v. Sanchez (2013) 221 Cal.App.4th 1012, a case in which the different theories of liability for murder supported “different degrees of murder” and the trial court provided the jury with a response to a jury question that “undermined the notion of unanimity as to degree.” (Id. at p. 1025.) As the court explained: “There is no way to determine, on the record presented, whether the jury followed the instruction during deliberations stating unanimity was not required, or the earlier instruction pursuant to CALCRIM No. 640, which set forth a different approach to the verdict forms on both degrees of murder.” (Ibid.) Here, none of the instructions undermined the specific instruction that the jury was required to agree unanimously as to the degree of murder. All the challenged instructions did was make clear the jury did not have to unanimously agree as to which theory supported first degree murder or which theory supported second degree murder. In other words, read together, we conclude the jury would have understood the instructions to indicate that as long as the jurors unanimously agreed the prosecution proved these were first degree murders, they did not need to agree as to whether they were premeditated murders or felony murders, or whether defendant was the direct perpetrator or an aider and abettor; and if the jury unanimously agreed the prosecution had not proved first degree murder, they could find defendant guilty of second degree murder if they unanimously agreed that crime had been proved, but again did not need to unanimously agree as to whether defendant was the direct perpetrator or an aider and abettor of such a murder.

We conclude the challenged instructions were properly given.

II

Modification of the Judgment and Correction of the Abstract of Judgment

We do agree with defendant the abstract of judgment must be corrected to conform to the oral pronouncement thereof. Modifications to the judgment itself must also be made.

Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.)

Here, as defendant points out in his appellate briefing, the abstract of judgment lists under, “Other orders” the following: “$1,000.00 SURCHARGE. * COURT SECURITY FEE AND CONVICTION ASSESSMENT NOT ORDERED.” The asterisk before the latter sentence refers to an asterisk placed in section 9., “FINANCIAL OBLIGATIONS,” lines d. and e., as follows: “Court Security Fee: $* per [section] 1465.8” and “Criminal Conviction Assessment: $* per [Government Code section] 70373.” Thus, while defendant assumes “$1,000 SURCHARGE” is meant to signify this amount is purported to be the court security fee and points out such a fee is limited to $80 in this case, the asterisk dividing the sentences indicates the latter sentence is simply an explanation as to why there is no amount listed under lines d. and e. of section 9. The $1,000 surcharge is apparently something else, although there is no statutory basis listed clarifying what it is supposed to be. Regardless, as the Attorney General concedes, the trial court imposed no such surcharge in the oral pronouncement of judgment. It must therefore be stricken from the abstract of judgment.

However, because imposition of the court security fee under section 1465.8 and criminal conviction assessment under Government Code section 70373 is mandatory, we must modify the judgment to impose an $80 court security fee (i.e., $40 per conviction) and $60 criminal conviction assessment (i.e., $30 per conviction). (See, e.g., People v. Talibdeen (2002) 27 Cal.4th 1151, 1157 [Court of Appeal properly imposed mandatory penalties the trial court failed to impose].)[4]

Defendant also correctly points out, and the Attorney General also concedes, that while the trial court awarded 1,664 days of presentence custody credit, the abstract of judgment incorrectly lists that award as 1,164 days of such credit. This error too must be corrected.

Under our inherent authority to correct such clerical errors (People v. Rowland (1988) 206 Cal.App.3d 119, 123; People v. Anthony (1986) 185 Cal.App.3d 1114, 1125-1126), we shall order the correction of the abstract of judgment to conform to the trial court’s oral pronouncement of judgment.

DISPOSITION

The judgment is modified to include an $80 court security fee pursuant to Penal Code section 1465.8 and a $60 criminal conviction assessment pursuant to Government Code section 70373. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting imposition of the foregoing $80 court security fee and $60 criminal conviction assessment. The amended abstract of judgment shall also correct the previous abstract by striking the $1,000 surcharge listed under “Other orders” and reflecting an award of 1,664 days of presentence custody credit. The trial court is further directed to forward a certified copy of the amended and corrected abstract of judgment to the Department of Corrections and Rehabilitation.

/s/

HOCH, J.

We concur:

/s/

ROBIE, Acting P. J.

/s/

DUARTE, J.