Opinion
B223957
11-10-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO CARLOS MORALES, Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA067599)
APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Affirmed.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Roberto Carlos Morales, appeals the judgment entered following his conviction for first degree murder with a firearm use enhancement (Pen. Code, §§ 187, 12022.53, subd. (d)). He was sentenced to state prison for a term of 50 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
On the night of March 3, 2007, Marcos Gonzalez was standing in front of a friend's house in Inglewood, near the intersection of 67th Street and Marlborough, with Carlos Hernandez and some other people. They were hanging out and drinking. A stranger walked up and told them to follow him. When Gonzalez asked, "Who are you?," the man just said, "Follow me." Gonzalez's group told the man to leave; words were exchanged. When Gonzalez moved toward the man aggressively, he ran off.
Some other strangers then approached, so Gonzalez's group got into a car, drove around the corner and waited. After hearing a gunshot, they returned to their friend's house to make sure everything was okay. Two or three guys walked toward their car. Gonzalez confronted them, a short fight ensued, and the guys ran off.
Gonzalez returned to his group of friends and they all began walking away, except for Hernandez who stayed behind. Someone wearing a black hooded-sweatshirt and holding something in his hand walked past Gonzalez. Then Gonzalez heard gunshots. Hernandez was hit five times and died at the scene.
Officer Greg Held responded to the shooting scene. As he and his partner drove up, they saw someone in a Plymouth minivan parked on 65th Street. The person, who turned out to be defendant Morales, was crouching down in the driver's seat as if he did not want to be seen. When the officers investigated, it appeared Morales was trying to steal the minivan; the plastic around the ignition had been broken and the ignition itself had been damaged. Morales was arrested. Celso Turcios was arrested after officers found him in a different vehicle on 67th Street.
Enrique Rojas and Morales were friends. On the night of the shooting, Rojas had been attending a party near the corner of 67th Street and Marlborough. Morales was also at the party. At one point, Rojas saw Morales leave the party, return, and then leave again with another person. Shortly thereafter, everyone ran out to the street. Rojas saw Morales with a revolver in his right hand, pointing it at someone. Rojas saw four muzzle flashes and heard four quick gunshots. After the shooting stopped, Rojas could see that Morales was still holding the gun. Rojas did not see anyone else with a gun. After the shooting, Rojas got into his car to drive off. Other people got into the car too, but when Morales tried to get in "everybody told him, 'No, go somewhere else' because he had shot and killed that guy." Rojas drove away without Morales. Rojas told Detective Jack Aranda that Celso Turcios had been present that night, but that Turcios "didn't do anything."
After Morales was taken into custody, Officer Held and his partner went to check on a report about suspicious activity in someone's yard on 65th Street. Searching the area, they found a Smith & Wesson .357-magnum revolver on a lawn about 200 feet from where Morales had been arrested. There were six empty bullet casings inside the gun's chamber. In the backyard of a house next door to where the gun was found, Held discovered a toilet with what appeared to be fresh footprints on the tank. Those footprints matched the sole pattern of shoes Turcios had been wearing that night.
When Detective Aranda arrived at the shooting scene that night, Morales was already in the back of a patrol car. Aranda and Detective Kevin Lane transported him to the police station. On the way, Morales asked them to turn on the radio because "it would be the last time that he would be able to listen to it." When Morales saw Turcios at the Inglewood jail, Morales said to him in Spanish: "Don't tell them anything."
A gunshot residue test was performed on both Morales and Turcios. The test on Turcios was negative. The test on Morales's right hand was positive.
Two bullets found at the shooting scene and one recovered from Hernandez's body had been fired from the Smith & Wesson found on the lawn. A gray hooded-sweatshirt was lying in the street, diagonally across the intersection from where Hernandez's body was found.
On the night of the shooting, Gonzalez identified Morales as the gunman at an in-field showup. Gonzalez was acquainted with Morales because they lived in the same neighborhood. A few days later, Detective Aranda met with Gonzalez to see if he could identify the gunman from a six-pack photo array. Gonzalez did not want the police to come to his house, because he was concerned for his family's safety, so they met in the parking lot of a restaurant. Initially, Gonzalez did not identify anyone in the photo array. But, as the detectives were driving away, Gonzalez told them to stop. He got back into their car and identified Morales as the person he had seen holding the gun. Asked if he was sure, Gonzalez said he was 100 percent positive Morales had been the gunman. A few months later, Gonzalez picked Morales out of a live lineup and again identified him as the gunman.
At the preliminary hearing, however, Gonzalez recanted his identification. And then, at trial, he testified he did not see Morales shoot Hernandez and that he wasn't sure who the gunman had been: "[L]ike I've told you, I wasn't sure. My friend got killed. I did not see the shooter. I seen somebody with a hood. It was dark, and I turned around and I heard 'bang, bang.' " Gonzalez testified he identified Morales in the live lineup because Morales was the only person he recognized. He said that after viewing the live lineup, he informed Detective Aranda his identification had been a mistake, but Aranda didn't care.
Gonzalez testified: "I wasn't a hundred percent sure. I was . . . thinking it was him because none of the guys that were in the lineup - I didn't know none of them."
Gonzalez testified: "And I let him know, I think I made a mistake. But to them, whatever you say first goes first and you can't change nothing."
At trial, Aranda denied Gonzalez ever told him he had made a mistake by identifying Morales. Aranda testified that, after Hernandez was killed, he investigated an April 2008 incident during which some people had stood in front of Hernandez's house and opened fire with an AK-47, a nine-millimeter and a shotgun. Also in April 2008, according to Aranda, Gonzalez had been shot at while he was walking down the street.
Gonzalez denied having been the target of a drive-by shooting. Although shots had been fired at the house of a friend (not Hernandez's house), Gonzalez was no longer staying there when that shooting occurred. Gonzalez still lived in the same neighborhood as Morales's family, and he acknowledged having been the subject of a bench warrant after failing to come to court. Nevertheless, Gonzalez insisted he was not afraid of retaliation for truthfully identifying Hernandez's killer.
2. Defense evidence.
Detective Lane interviewed Turcios on the night of Hernandez's murder. Turcios had a darker complexion than Morales. Turcios appeared to have been in a fight because he had abrasions, scratches and blood on his knuckles. Asked to describe Turcios's demeanor when he was informed Hernandez had died, Lane testified Turcios was "[k]ind of nervous and had like a little smirk, little loud [sic]."
On March 17, 2007, Detective Aranda spoke to Stephanie Gregory, a woman who lived at 67th Street and Marlborough. Gregory could see the intersection through the window of her second-floor apartment. She told Aranda that on the night of the shooting she got out of bed and went to the window after hearing loud noises. She saw about 15 Hispanic men arguing. The group dispersed a minute later. As Gregory was going back to bed she heard someone talking, so she returned to the window. She saw a black man take off a gray or white hooded sweatshirt and throw it on the ground. This man then pulled out a handgun, pointed it at someone and fired six or seven times. A red car drove through the intersection and Gregory thought the gunman might have entered this car. She never saw the gunman's face.
At trial, Gregory could not recall having given any of this information to Detective Aranda. That was because she had subsequently suffered a seizure and, as a result, she did not remember anything about the shooting or having spoken to Aranda.
CONTENTION
Morales originally raised a second issue regarding the proper award of presentence custody credits, but he subsequently notified this court the issue had become moot.
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The trial court erred by refusing to instruct the jury on third-party culpability.
DISCUSSION
Morales contends the trial court erred by refusing to instruct the jury on third-party culpability because there was evidence Turcios could have been the gunman. This claim is meritless.
1. Legal principles.
" '[E]vidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352. [Citations.]' [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 996.) "[T]he evidence must consist of direct or circumstantial evidence that links the third person to the crime. It is not enough that another person has the motive or opportunity to commit it." (People v. Abilez (2007) 41 Cal.4th 472, 517; see People v. Lewis (2001) 26 Cal.4th 334, 373 [trial court properly excluded third party culpability evidence as "too speculative to be relevant"].)
"[A] trial court may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation]." (People v. Moon (2005) 37 Cal.4th 1, 30.) We apply a de novo standard of review to a defendant's claim the trial court erred by refusing to give a requested instruction. (People v. Manriquez (2005) 37 Cal.4th 547, 581.) "Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that, we believe, is however predominantly legal. As such, it should be examined without deference." (People v. Waidla (2000) 22 Cal.4th 690, 733)
2. Discussion.
Morales asked the trial court to give the jury the following third-party culpability instruction: "Evidence has been offered that a third party, Celso Turcios, is the perpetrator of the charged offense. It is not required that the defendant prove this fact beyond a reasonable doubt. In order to be entitled to a verdict of acquittal, it is only required that such evidence raise a reasonable doubt in your minds of the defendant's guilt. However, the weight and significance of the evidence of Mr. Turcios's guilt, if any, are for your determination. If after consideration of this and all of the other evidence, you have a reasonable doubt that the defendant committed this offense, you must give the defendant the benefit of the doubt and find him not guilty."
Defense counsel argued the instruction was warranted because there was evidence showing that: Turcios looked like he had been in a fight; his footprints were found close to where the murder weapon was eventually found; he tried to hide from the police; he acted inappropriately when he learned Hernandez had died; he had a darker complexion than Morales and Gregory told Detective Aranda she had seen an African-American man do the shooting.
The trial court refused the instruction, saying: "I think counsel can argue reasonable inferences from the evidence. I don't think it would improper or unethical for [defense counsel] to make the argument to the jury Turcios is the one responsible. [¶] But the evidence is not sufficient to warrant an instruction. There has to be substantial evidence in front of the jury to justify the giving of the jury instruction, and it's insubstantial."
On appeal, Morales argues "[t]he fact that Gregory saw a black man shooting the victim considered in combination with the facts that it was dark at approximately 11:30 p.m. and that Turcios had a darker complexion than appellant, is circumstantial evidence that Turcios was the shooter. The fact that Turcios' footprint was found near the gun was circumstantial evidence that Turcios had the gun. The fact that Turcios had abrasions on his knuckles was circumstantial evidence that Turcios was involved in the fight, and that in itself was circumstantial evidence that Turcios finished the fight by killing the victim. The fact that Turcios was found hiding inside a vehicle . . . two blocks from the shooting, was circumstantial evidence of Turcios' consciousness of guilt . . . ."
We are not persuaded, and we conclude the trial court properly held this evidence did not warrant a third-party culpability instruction. Although the evidence cited by Morales tended to show Turcios might have had a motive and the opportunity to shoot Hernandez, that was insufficient. (See People v. Abilez, supra, 41 Cal.4th at p. 517.) The evidence failed to demonstrate a "link . . . either directly or circumstantially to the actual perpetration of the crime." (People v. Cunningham, supra, 25 Cal.4th at p. 996.) No witness identified Turcios as the gunman. Although his footprint on the toilet tank was close to where the gun was eventually found, there was no evidence whatsoever putting the gun in Turcios's hand. Similarly, it is pure speculation that because Turcios had a darker complexion than Morales, he was the person Gregory saw firing the gun.
In People v. Brady (2010) 50 Cal.4th 547, the trial court excluded evidence of various tips received by a Sheriff's Department hotline soliciting information about the murder of an officer. The defendant argued on appeal the trial court should have admitted some of these tips as third-party culpability evidence. Brady, however, affirmed the trial court's rulings: "As to clue No. 1506, although several eyewitnesses to Officer Ganz's murder described the assailant as an Asian male and the clue referred to an Asian male who had killed two members of a nearby police department and was suspected of committing an armed robbery, no evidence implicated this person in Officer Ganz's murder. Although the man's ethnicity and his possible involvement in an unrelated robbery and killing of other police officers initially might have suggested some involvement in Officer Ganz's murder, defendant presented no evidence actually linking this person to Officer Ganz's murder. [Citation.] [¶] As to clue No. 192, various individuals did tell the police that an associate of La Fond 'resembled' the composite drawing, but none of the eyewitnesses (including, notably, La Fond) identified this third party as Officer Ganz's assailant, and La Fond stated that this third person was not involved with Officer Ganz's murder." (Id. at pp. 558-559, italics added.)
Morales's showing here was no better than the showing in Brady. Although there was some evidence indicating Turcios might have legitimately been considered a suspect in this case, there was no evidence showing he was the person who actually shot Hernandez. Hence, the evidence at trial did not warrant giving a third-party culpability instruction.
Moreover, there are two further reasons for affirming Morales's conviction. First, the requested instruction was unduly argumentative. In People v. Hartsch (2010) 49 Cal.4th 472, a similar instruction was refused as "unduly argumentative, because it told the jury that evidence 'indicat[ed] or tend[ed] to prove that someone other than the defendant committed, or may have had a motive and opportunity to commit, the offense(s) charged.' It is improper for an instruction to indicate an opinion favorable to the defendant regarding the effect of the evidence. [Citation.]" (Id. at p. 504.) Morales's requested instruction was similarly argumentative. It read: "Evidence has been offered that a third party, Celso Turcios, is the perpetrator of the charged offense."
Second, even a properly worded third-party culpability instruction would have been unlikely to help Morales. A trial court's failure to give a proposed pinpoint instruction is harmless unless it is reasonably probable the jury would have arrived at a different verdict had it been given the instruction. (People v. Earp (1999) 20 Cal.4th 826, 887.) In Hartsch our Supreme Court explained why third-party culpability instructions are generally ineffective: "We have noted that similar instructions add little to the standard instruction on reasonable doubt. [Citation.] We have also held that even if such instructions properly pinpoint the theory of third party liability, their omission is not prejudicial because the reasonable doubt instructions give defendants ample opportunity to impress upon the jury that evidence of another party's liability must be considered in weighing whether the prosecution has met its burden of proof." (People v. Hartsch, supra, 49 Cal.4th at p. 504; see also People v. Gutierrez (2009) 45 Cal.4th 789, 825 [although defendant testified his companions were responsible for victim's death, any error in not giving third-party culpability instruction was harmless because "jury was instructed on reasonable doubt and burden of proof, and could have acquitted defendant had it believed defendant's testimony"].)
We find no reason to disturb Morales's conviction.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
KITCHING, J.
ALDRICH, J.