P. v. Reyes

Filed 3/22/07 P. v. Reyes CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, John L. Davidson, Judge. Affirmed.

A jury convicted Andres Reyes of second degree murder and found true the allegation that he intentionally and personally discharged a semiautomatic handgun that caused the death of Daniela Lopez. (Pen. Code,^[1] 187, subd. (a), count one; 12022.53, subds. (b) & (d), enhancement.) The trial court sentenced him to 40 years in prison as follows: 15 years to life for count one, and a consecutive term of 25 years for the 12022.53, subd. (d) enhancement.

Reyes contends the trial court erred by denying his motion for a mistrial; the prosecutor committed prejudicial misconduct; and, alternatively, he received ineffective assistance of counsel. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

On the morning of March 26, 2004, Reyes fatally shot his girlfriend, Daniela, in the head while they were in the bedroom of Reyes's mother. Isabel Montiel, who was in the adjacent bedroom, heard a loud thump followed by Reyes's scream. Montiel found Daniela with a pillow over her face, and Reyes told her that Daniela had hit herself. Montiel removed the pillow and, when Daniela did not respond, moved Daniela's face. Montiel had been an emergency nurse in Mexico, and realized Daniela's injury was serious. Daniela was not conscious, but she still had a pulse; therefore, Montiel tried to give her mouth-to-mouth respiration, and told Reyes to call the paramedics. Reyes did not help Montiel attend to Daniela, whose pulse failed before the paramedics arrived. Montiel asked Reyes where the weapon was, and he said Daniela had hidden it.

Reyes went to an adjacent apartment where Jaime Solorzano lived. Reyes was crying and told Solorzano that Daniela had shot herself. Reyes asked for a pair of pants and a ride. Reyes changed into pants Solorzano gave him, but the police arrived. Reyes commented to Solorzano that he could not leave and was afraid to go to jail. The police apprehended Reyes at Solorzano's apartment.

Sandi Oplinger, a detective with the San Diego Police Department, testified that after Reyes was taken into custody that morning, he led the police to the Colt .45-caliber semiautomatic handgun (the handgun) which he had wrapped in a T-shirt and hidden underneath a tree and the magazine, which he had tossed into high grass several feet away. Inside Reyes's apartment, the police found a spent shell casing, an unexpended cartridge, and a pair of knit gloves. Reyes's blood tested positive for methamphetamines, amphetamines and cannabinoids.

John Durina, a criminalist from the San Diego Police Department, tested the handgun and confirmed Daniela was shot with it from an estimated distance of 21 to 30 inches. The gloves tested positive for particles of gunshot residue. Joe Berner, a forensic specialist, testified he found no fingerprints on the handgun, cartridge case, cartridges or magazine.

Dr. Robert Whitmore performed the autopsy of Daniela and concluded her death was a homicide. He discarded the notion she died from "a contact gunshot wound, where the end of the barrel or the muzzle touches the skin." Rather, he estimated she was shot from four or five feet away, because no gunshot residual soot was found on her body.

Daniela's mother, Silvia Rubio, testified at trial that she disapproved of Daniela's relationship with Reyes, and sent Daniela to live with relatives in Mexico from September, 2003 until January, 2004. When Daniela returned, she resumed her relationship with Reyes and lived with him at his mother's apartment. In February, 2004, Rubio told Reyes that Daniela could no longer live with him because she was too young and Reyes was not working. Over Rubio's objection, Daniela and Reyes restarted their relationship around March 12, 2004. The day before Daniela died, Rubio scolded her because of her relationship with Reyes.

Massiel Lopez, Daniela's sister, testified that the night before Daniela died she said she would break up with Andres because their mother would never accept him. Two days before Daniela died she told Massiel about the following incident: "[Daniela] was sitting on the couch in [Reyes's] living room and that he . . . had a gun and pointed it at her forehead."

Defense counsel made an in limine motion that the witnesses not refer to a previous time Reyes had spent in custody. The court granted the motion; accordingly, the witnesses were instructed to testify simply that Reyes "left and then he came back." However, Reyes's mother testified differently during direct examination. Consequently, the following exchange took place outside of the presence of the jury:

[Prosecutor:] "Your honor, as per the court's instructions, when I talked to this witness outside, I instructed her not to mention that her son was in jail. I instructed her to only say that he was gone from the house, that he was gone, and now she's up there lying and saying he was staying at a friend's house.

"I certainly didn't tell her to say that. I just told her to say he was gone, because I'm trying to protect the defendant the way the court instructed me to. However, I I don't believe that she should be allowed to get up there and make up a story.

"The court: I concur.

"[Defense attorney]: I I'm wondering if she's confused. Maybe she thinks she's supposed to make up a story if she's not to say he's in jail to account for the time." After further discussion, the court agreed that the witness probably was confused, and instructed the prosecutor to clarify with the witness the time frame the prosecution was referring to, and if the witness insisted Reyes was living with a friend during the time he had actually been in custody, the court would allow the prosecutor to impeach the witness.

On redirect examination, the prosecutor asked Reyes's mother, "Did Daniela tell you that after the defendant got out of custody, he was angry at her? When he came back from from being gone, was he angry at her?" (Emphasis added.) The prosecutor ended the redirect after asking a few follow-up questions. The defense attorney requested a sidebar meeting. The judge stated, "We'll take it up at our break." The prosecution called two more witnesses. Afterwards, the court took a recess, during which the defense moved for a mistrial and argued, "The primary concern, in my mind, is counsel's I'm sure inadvertent use of the word 'custody' in referencing where Mr. Reyes may have been." The court denied the motion, ruling,

"It was clear to me and in watching [the prosecutor] when she asked those questions it was clearly inadvertent. She realized, 'oh my god. I made a mistake here,' and quickly got back to the question that everybody had been asking, that he had been gone. So I find it to be harmless in the sense of the entire case.

"I did not want to stop or give any undue emphasis in front of the jury, and that's why I said we would defer this until later, so that no emphasis would be given to it and we would minimize any prejudice to Mr. Reyes. At this point, I don't think there's been any emphasis given to it.

"Of course, I'll strike it out of the record. If you wish me to tell the jury, which I assume you don't

"[Defense attorney] No.

"The Court: I'll be happy to. But at this point, it I'm going to note your objection and motion for the record and overrule it based on those facts and circumstances.

"I know [the prosecutor] did not do that intentionally. I'm aware of that, as well, and I want you all to know that I'm making my record here.

"[Prosecutor:] I understand.

"Defense attorney: Thank you very much for considering that."

Reyes did not testify at trial and the defense did not argue that Daniela committed suicide; rather, its theory was that days before Daniela's death Reyes had playfully aimed an empty gun at her; however, during the next incident, the loaded gun was stupidly and negligently fired, causing her death. Defense attorney urged the jury to return a verdict of involuntary manslaughter.

DISCUSSION

I.

Reyes contends the court erroneously denied his motion for a mistrial based on the prosecutor's misconduct of asking Reyes's mother on direct examination regarding Reyes's time in "custody."

"[W]e review a ruling on a motion for mistrial for an abuse of discretion, and such a motion should be granted only when a party's chances of receiving a fair trial have been irreparably damaged." (People v. Ayala (2000) 23 Cal.4th 225, 283.) "It is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order. [Citation.] It is also misconduct for a prosecutor to make remarks in opening statements or closing arguments that refer to evidence determined to be inadmissible in a previous ruling of the trial court. Because we consider the effect of the prosecutor's action on the defendant, a determination of bad faith or wrongful intent by the prosecutor is not required for a finding of prosecutorial misconduct. [Citation.] A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.] Also, a claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury." (People v. Crew (2003) 31 Cal.4th 822, 839.)

"[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Ayala,supra, 23 Cal.4th at p. 284.) " ' " 'A prosecutor's . . . intemperate behavior

violates the federal Constitution when it comprises a pattern of conduct "so egregious

that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct 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. Hill (1998) 17 Cal.4th 800, 819.)

The trial court did not abuse its discretion in denying the motion for mistrial because immediately after the prosecutor mentioned the word "custody," she corrected herself and rephrased the question to state Reyes "came back from from being gone." The trial court delayed defense counsel's request for a sidebar precisely to avoid calling attention to the prosecutor's misstatement. Moreover, the court, which was in the best position to assess how the jury would construe the brief reference to Reyes's time in custody, determined that it did not result in incurable prejudice. Also, the evidence of Reyes's guilt was overwhelming. Thus, it is not reasonably probable that, but for the asserted misconduct, he would have received a more favorable verdict. (People v. Davis (1996) 42 Cal.App.4th 806, 820, fn. 13.) Finally, the jury was instructed with CALJIC No. 1.02 that statements and questions made by attorneys during the trial are not evidence, and jurors are not to assume to be true any insinuation suggested by questions asked of witnesses. Any harm flowing from the alleged misconduct was thereby cured. (People v. Szeto (1981) 29 Cal.3d 20, 34.)

Reyes also contends certain statements and references to photographs of the victim made by the prosecutor during closing argument constituted prejudicial misconduct in violation of his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Specifically, he contends the prosecutor erred in stating: Daniela's mother's tearful testimony " 'broke [the prosecutor's own] heart' and that decedent's mother was right in knowing that 'this guy was bad;" and, Reyes told people at the crime scene, "Look what this idiot did to herself." Reyes separately contends there was no trial evidence Reyes referred to Daniela as an "idiot.^[2]" Error is also assigned because the prosecutor in closing argument referred to a photograph taken of Daniela two weeks before her death and another one taken after her death.

"[D]efense counsel did not object when the comments were made. Further, the record before us fails to disclose a basis for applying any exception to the general rule requiring both an objection and a request for a curative instruction. [Citation.] Accordingly, insofar as defendant's claim of prosecutorial misconduct relates to comments that were not objected to, the claim is barred." (People v. Carter (2005) 36 Cal.4th 1114, 1204.)

We disagree with Reyes's claim that the prosecutor's brief references to Daniela's photos that were already admitted into evidence, and her comments regarding Rubio's testimony, inflamed the jury. These comments came within the wide latitude the prosecutor is allowed to argue vigorously the state of the evidence. (People v. Hill, supra, 17 Cal.4th at p. 819.) Here, "A momentary appeal to victim sympathy could have [had] little effect." (People v. Arias (1996) 13 Cal.4th 92, 161.) The prosecutor's statements that Reyes called Daniela an "idiot," although it was evidence outside the record, "[did] not evidence a pattern of misconduct warranting reversal." (People v. Frye (1998) 18 Cal.4th 894, 979.) Moreover, the jury was instructed regarding the difference between murder and manslaughter in the language of CALJIC Nos. 8.50^[3]and 8.51^[4]in seriatim. Under these and other instructions given, the jury's verdict shows it believed Reyes acted with malice; that is, in total disregard of the danger his use of the handgun posed to Daniela's life.

Even if the claims of misconduct regarding the statements made in closing argument had been preserved on appeal, we would not reverse Reyes's convictions because the prosecutor's conduct did not render the trial fundamentally unfair, and the prosecutor did not use deceptive or reprehensible methods to attempt to persuade the court or the jury. Also, it is not reasonably probable Reyes would have received a more favorable verdict absent the claimed instances of misconduct. (People v. Watson (1956) 46 Cal.2d 818, 836.) The forensic expert testified that Daniela's death was a homicide. Overwhelming evidence supported the jury's finding of guilt: Reyes initially claimed Daniela committed suicide, but at trial changed his theory to negligent firing of the handgun. The jury reasonably could have concluded he used gloves to avoid leaving his fingerprints on the handgun. After the shooting, he went to a neighbor's house to change clothes and get a ride away from the scene because of his stated concern he would go to jail for the crime. He told his neighbor the arrival of the police meant he could not leave as he had planned. He also evinced consciousness of guilt by hiding the handgun and magazine.

II.

Thomas contends his trial counsel was ineffective because he did not object to the various statements in the prosecutor's closing argument. "An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540.)

The familiar two-prong test for claims of ineffective assistance of counsel, outlined in Strickland v. Washington (1984) 466 U.S. 668, 686-687, requires a defendant to demonstrate the attorney's deficient performance and resulting prejudice because there is a reasonable probability that, but for counsel's conduct, the defendant would have received a more favorable outcome. If the second prong of prejudice is not established, the reviewing court should reject the claim without analyzing the first prong. (People v. Kipp (1998) 18 Cal.4th 349, 366-367.) "In order to prevail on [an ineffective assistance of counsel] claim, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission." (People v. Williams (1997) 16 Cal.4th 153, 215.) In any event, the convictions will not be reversed absent the reviewing court's determination that "on the whole record the harm resulted in a miscarriage of justice." (People v. Bell (1989) 49 Cal.3d 502, 535.)

Here, there is no showing of prejudice. As we discussed previously, overwhelming evidence supported the jury's verdict. It is not reasonably probable that the outcome of Reyes's trial would have been more favorable absent the claimed misconduct in the closing argument.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

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

^[2] The People acknowledge that during trial Montiel did not testify Reyes used the word, "idiot;" instead, the People claim "the prosecutor confused Montiel's trial testimony with her account to police as documented in the police report cited by the probation department." The police report included this comment, "When Ms. Montiel opened the bedroom door, she found the defendant still screaming and jumping up and down. The victim was sitting on the bed with her head to the side. The defendant yelled, 'Look at this idiot. She shot herself.' "

^[3] CALJIC No. 8.50 states: "The distinction between murder and manslaughter is that murder requires malice while manslaughter does not. When the act causing the death, though unlawful, is done in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation, the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent. To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel."

^[4] CALJIC No. 8.51 states: "There are many acts which are lawful but nevertheless endanger human life. If a person causes another's death by doing an act or engaging in conduct in a criminally negligent manner, without realizing the risk involved, he is guilty of involuntary manslaughter. If, on the other hand, the person realized the risk and acted in total disregard of the danger to life involved, malice is implied, and the crime is murder."