Opinion
B295316
08-11-2020
THE PEOPLE, Plaintiff and Respondent, v. PEDRO HECHAVARRIA TELLEZ, Defendant and Appellant.
Janet Gusdorff, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, and Yun K. Lee, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA442143) APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dabney, Judge. Affirmed as modified with directions. Janet Gusdorff, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, and Yun K. Lee, Deputy Attorney General for Plaintiff and Respondent.
INTRODUCTION
Pedro Hechavarria Tellez appeals from a judgment of conviction entered after a jury found him guilty of second degree murder. The trial court sentenced Tellez to a prison term of 15 years to life, plus two years for having served two prior prison terms.
The trial court read jurors CALCRIM No. 358, which instructs how to evaluate pretrial statements by the defendant, and CALCRIM No. 359, which instructs on corpus delicti by telling jurors that they may not convict the defendant based solely on his or her out-of-court statements and that there must be some other evidence the defendant committed a crime. The trial court, however, inadvertently failed to provide the jurors with written copies of these instructions, a mistake Tellez argues requires reversal of his conviction. Tellez also argues recent legislation requires vacating the two one-year enhancements. We affirm Tellez's conviction, but strike, with the People's concession, the two one-year enhancements.
FACTUAL AND PROCEDURAL BACKGROUND
A. Tellez Kills Modesto Santa Clara with a Knife
On December 8, 2015 Tellez was living in a tent in the Skid Row area of Los Angeles. A number of people were there that day to celebrate a festival for the patron saint of Cuba, including Modesto Santa Clara, a drug dealer Tellez knew.
According to Tellez, who testified at trial, he woke up at 10:30 a.m. and noticed Santa Clara sitting across the street. Tellez saw Santa Clara put something wrapped in a dark rag into a hole. Tellez believed the object was a gun because Santa Clara "was very interested in that place and he always put his hand in there." Tellez left to get something to eat and returned to the area around noon. Although Tellez usually avoided Santa Clara, Tellez decided to cross the street that day because of the celebration. As Tellez walked by Santa Clara, he noticed Santa Clara was sitting on a milk crate with a newspaper under his seat. Tellez thought the newspaper concealed a knife.
Tellez testified that, as he stood on a street corner, Santa Clara approached him and said, "Motherfucker, get out of here." Tellez told him to "calm down." Santa Clara left, but returned with a knife. Santa Clara swung the knife at Tellez two or three times, but the knife got stuck in Tellez's jacket pocket and fell to the ground. Tellez and Santa Clara struggled, and Tellez was able to pick up the knife.
Tellez stated that Santa Clara ran toward the hole and tried to put his hand in it, but that Tellez pushed him away. Santa Clara ran away, and Tellez chased him. Tellez caught up with Santa Clara and stabbed him multiple times. Santa Clara fell to the ground.
Several witnesses saw the incident. Bienvenido Torres, who knew Tellez and Santa Clara, saw the two men fighting. Trakeila Hamilton, who was part of a church group feeding homeless people on Skid Row, heard a commotion and saw Tellez standing over Santa Clara with a knife in his hand. Hamilton saw Tellez walk away, take his jacket off, and wrap his jacket around his right hand. Hamilton observed Tellez stop to talk to three individuals, walk into what looked like an alley, emerge from the alley without his shirt, and put on his jacket. Oscar Ruiz, a security guard working in downtown Los Angeles, was patrolling the area on his bicycle when he heard people screaming at him to call the police about a possible robbery. Ruiz investigated and found Santa Clara lying on the ground trying to catch his "last breath."
Hamilton identified Tellez in a six-pack photographic lineup and gave the police a written statement. Because she was unavailable at the time of trial, the prosecutor played a video of Hamilton identifying Tellez and read her statement to the jury.
Santa Clara died before the police and paramedics arrived. A coroner investigator at the scene observed that Santa Clara suffered 11 stab wounds, including to the face, back, left shoulder, and elbow, and that one of the stab wounds exposed Santa Clara's intestines. An autopsy revealed that Santa Clara suffered a total of 17 knife wounds, including to the thorax, abdomen, and back of the head, and that Santa Clara died as a result of multiple stab wounds, four of which were either fatal or potentially fatal. The coroner also observed that Santa Clara had defensive wounds on his hands. Based on Santa Clara's injuries, the coroner opined the knife used to kill Santa Clara was a single-edged knife, six to nine inches long and one inch wide.
B. Videotape Captures the Attack
The police maintained a surveillance camera on a street corner near where the incident occurred. The camera recorded a person removing his jacket and hat. Another camera from a local business recorded a shirtless man walking into a parking lot and putting on a jacket as he walked out.
A camera on a city bus also recorded the altercation between Tellez and Santa Clara. The video showed Tellez, wearing a checkered shirt and a hat, chasing Santa Clara into the street and holding a knife above his head. The video also showed Tellez pushing Santa Clara into a roll-up door and repeatedly stabbing him before stopping, stepping away, coming back, and stabbing him again. Police later recovered the checkered shirt near the crime scene with bloodstains on it, along with a sheath for a knife (although not the knife) and a bloodstained cellphone. The police did not find a gun in the area.
C. Tellez Flees to Albuquerque and Surrenders
After he killed Santa Clara, Tellez took a bus to Albuquerque, New Mexico. He wanted to go somewhere else, but he only had enough money to get to Albuquerque. On December 10, 2015 Tellez called the 911 emergency operator from the bus station in Albuquerque. With the assistance of a Spanish language interpreter, Tellez told the operator: "Look, I killed a man in Los Angeles, and now I am here, I am turning myself in." Tellez also stated that two days ago he killed "a Cuban guy. I knew the guy. He was Cuban." In response to the operator's questions, Tellez identified himself by his name, date of birth, height, weight, and the clothes he was wearing. Albuquerque police arrested Tellez at the bus station.
D. The Jury Convicts Tellez of Second Degree Murder
The People charged Tellez with murder and alleged he had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b), for drug-related convictions. The jury found Tellez not guilty of first degree murder, but guilty of second degree murder. Tellez admitted he had served the two prior prison terms, and the trial court sentenced Tellez to a prison term of 17 years to life. Tellez timely appealed.
Undesignated statutory references are to the Penal Code.
DISCUSSION
Tellez concedes the trial court correctly read CALCRIM Nos. 358 and 359. He argues that the trial court's failure to give the jury written copies of those instructions violated his statutory rights under section 1093, subdivision (f), and that, had the court given the jury those instructions in writing, the jury would have acquitted him or convicted him of voluntary manslaughter rather than murder. We review de novo Tellez's argument the court committed instructional error. (See People v. Mitchell (2019) 7 Cal.5th 561, 579; People v. Medellin (2020) 45 Cal.App.5th 519, 534.)
There is no constitutional right to written jury instructions. (People v. Trinh (2014) 59 Cal.4th 216, 234; People v. Seaton (2001) 26 Cal.4th 598, 674; People v. Ochoa (2001) 26 Cal.4th 398, 447.)
A. The Trial Court's Inadvertent Failure To Give the Jury Written Copies of CALCRIM Nos. 358 and 359 Was Harmless
1. Relevant Proceedings
Discussing jury instructions with counsel, the trial court stated: "Oh, wait a minute. The 911 call. We need to give . . . 358 and 359. I forgot about the 911 call." Later, the trial court, referring to CALCRIM Nos. 358 and 359, stated: "I've added these. We'll deal with those tomorrow morning. I'll email you the final set that has the two additional instructions." The next morning, the prosecutor told the court he did not receive the trial court's email, but he assumed "the court added those additional ones." The court stated, "I did."
The trial court instructed the jury, "I'll give you a copy of the instructions to use in the jury room. The instructions that you receive will be printed, typed, or written by hand." The trial court read the jury instructions, including CALCRIM Nos. 358 and 359. The court instructed the jury pursuant to CALCRIM No. 358 as follows: "You have heard that the defendant made an oral or written statement before the trial. You must decide whether the defendant made any such statements, in whole or in part. If you decide the defendant made such a statement, consider the statement, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give the statement." The court also instructed the jury pursuant to CALCRIM No. 359 as follows: "The defendant may not be convicted of any crime based on his out-of-court statement alone. You may rely on the defendant's out-of-court statement to convict him only if you first conclude that other evidence shows that the charged crime or a lesser included offense was committed. . . . This requirement of other evidence does not apply to proving the identity of the person who committed the crime and the degree of the crime. If other evidence shows that the charged crime or lesser included offense was committed, the identity of the person who committed it and the degree of the crime may be proved by the defendant's statement alone. You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt." Nevertheless, despite the court's prior indication it included CALCRIM Nos. 358 and 359 in the packet of instructions the court intended to give the jury, the court failed to provide the jury with written copies of those instructions.
"The corpus delicti rule requires that the corpus delicti of a crime be proved independently from an accused's extrajudicial admissions." (People v. Jennings (1991) 53 Cal.3d 334, 364; see Munoz v. Superior Court (2020) 45 Cal.App.5th 774, 779 ["'In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant'"].) --------
2. The Trial Court's Error in Failing To Give the Jury Written Copies of CALCRIM Nos. 358 and 359 Was Harmless
Section 1093, subdivision (f), provides in relevant part: "Upon the jury retiring for deliberation, the court shall advise the jury of the availability of a written copy of the jury instructions. The court may, at its discretion, provide the jury with a copy of the written instructions given. However, if the jury requests the court to supply a copy of the written instructions, the court shall supply the jury with a copy." (See People v. Trinh (2014) 59 Cal.4th 216, 235 (Trinh).) As the People concede, because the trial court and counsel intended to give the jury a full set of written jury instructions, but inadvertently failed to include CALCRIM Nos. 358 and 359 in the packet, the trial court violated section 1093 by failing to give the jury written copies of the two instructions, even though the jury did not make a formal request. (Trinh, at p. 235.) The only issue is whether the error was prejudicial.
Where, as here, the court and counsel intended to give the jury a full set of the written instructions the court gave orally, we presume the jury heard and followed the instructions, and we review the violation of section 1093, subdivision (f), under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (Trinh, supra, 59 Cal.4th at p. 235.) Under this standard, we ask whether there is any evidence in the record "of confusion or indications [the] jury failed to understand or apply the instructions read to it . . . that would establish a reasonable probability of a more favorable outcome had the jury received written copies" of the instructions. (Ibid.) The defendant has the burden under Watson to demonstrate he or she would have obtained a more favorable result absent the error. (People v. Gonzalez (2018) 5 Cal.5th 186, 195; People v. Blackburn (2015) 61 Cal.4th 1113, 1132.)
Tellez has not demonstrated that, had the court given the jury written copies of CALCRIM Nos. 358 and 359, the result of the trial would have been more favorable for him. Tellez has not identified any evidence suggesting that the jurors were confused about the instructions the court read to them or that the jury did not properly apply those instructions. (Trinh, supra, 59 Cal.4th at p. 235; see People v. Seaton (2001) 26 Cal.4th 598, 674 [failure to provide written instructions was harmless under Watson where the jury "expressed no inability to understand the instructions"].) Nor, contrary to Tellez's assertion, did the absence of the two written instructions minimize the jury's "reliance on the fleeting oral instructions." The trial court instructed the jury, orally and in writing, to "[p]ay careful attention to all of these instructions and consider them together" and not to conclude any instruction "is more important than any other instruction or idea."
Tellez cites cases holding that, where the oral instructions and written instructions conflict, the written instructions control. (See People v. McLain (1988) 46 Cal.3d 97, 115; People v. Osband (1996) 13 Cal.4th 622, 717; People v. Davis (1995) 10 Cal.4th 463, 542; People v. Crittenden (1994) 9 Cal.4th 83, 137-138; People v. Garceau (1993) 6 Cal.4th 140, 189-190.) But there was no conflict here. The trial court read CALCRIM Nos. 358 and 359 correctly. The court's accidental failure to include the written versions of these instructions meant that the court's correct oral rendition of the instructions was the only one the jurors heard. (See People v. Rojas (2015) 237 Cal.App.4th 1298, 1305 ["the omission of a written instruction does not vitiate its oral counterpart"].)
Finally, Tellez contends the error was not harmless because there was "a 'reasonable chance,' more than a mere abstract possibility, that one, single juror, would have harbored a reasonable doubt about whether [Tellez] was guilty of murder, as opposed to voluntary manslaughter or not-guilty due to self-defense, had he or she received the written reminder (instructions) that the jury could not convict [Tellez] based solely on his statements in the 9-1-1 call." The evidence does not support that contention. The central piece of evidence on the issue of self-defense was not Tellez's statements to the emergency operator in Albuquerque, but the video recorded by the camera on the bus in Los Angeles. That recording showed Tellez chasing Santa Clara into the street holding a knife above his head, pushing him against a door, repeatedly stabbing him, pausing, and stabbing him again. Eyewitness testimony confirmed what the jury saw in that video. In contrast, the 911 recording shed little if any light on Tellez's self-defense theory. In that call Tellez stated that he killed a man (which was not disputed), that he knew the victim (also not disputed), and that he could not explain why. The jury was correctly instructed how to evaluate this evidence and on reasonable and unreasonable self-defense. There is no reasonable probability that, had the court given the jurors CALCRIM Nos. 358 and 359 in writing, after having read those instructions, the jury would have acquitted Tellez or found him guilty of voluntary manslaughter instead of murder.
B. The Two One-Year Prior Prison Term Enhancements Must Be Stricken
On October 8, 2019 the Governor signed Senate Bill No. 136, which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). The new law limited the applicability of the one-year prior prison term enhancement to those defendants who served a prior prison sentence for a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b). Because Tellez's case was not final when the new law became effective, the People concede, and we agree, Tellez's two one-year enhancements must be stricken. (See People v. Petri (2020) 45 Cal.App.5th 82, 94 ["amendment to section 667.5, subdivision (b)," which became effective on January 1, 2020, "applies retroactively to all defendants whose judgments are not yet final as of that date"]; People v. Winn (2020) 44 Cal.App.5th 859, 872 [defendant was "entitled to retroactive benefit of the amended section 667.5" because his conviction was not final]; People v. Jennings (2019) 42 Cal.App.5th 664, 682 ["Senate Bill No. 136's . . . amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final as of its January 1, 2020, effective date"].)
DISPOSITION
Tellez's conviction is affirmed. The two one-year enhancements under section 667.5, subdivision (b), are stricken. The trial court is directed to prepare an amended abstract of judgment and forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
SEGAL, J. We concur:
PERLUSS, P. J.
FEUER, J.