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Name: People v. Mendoza
Case #: S067104
Court: CA Supreme Court
District CalSup
Opinion Date: 07/31/2000
Subsequent History: Rehearing denied 9/13/00

Mendoza and his codefendant, Valle, were charged with murder committed during the course of a robbery, in violation of Penal Code section 189. The defendants were also charged with the robbery, and a special circumstance that the murder was committed during the course of a robbery. The separate juries convicted on the murder and robbery, and found the special circumstances to be true. Neither jury’s verdict specified the degree of murder, though they had been instructed only on first degree felony-murder. Penal Code section 1157 provides that where a defendant is convicted of a crime which is distinguished into degrees, the conviction is deemed to be of the lesser degree. That section was not applicable here. Appellants were not convicted of a crime which is distinguished into degrees, because there are no degrees of felony-murder. Because the jury was correctly instructed on felony-murder, and found the defendant guilty of murder, section 1157 did not apply. A contrary construction would violate principles of statutory interpretation, would place section 1157 in conflict with the applicable principles regarding permissible verdicts where the killing is committed during the commission of a specified felony, and would produce absurd results. J. Mosk, Kennard, and Werdegar each separately dissented, holding that section 1157 applies, and therefore the convictions had to be deemed to be second degree murder. Defense counsel was not ineffective for failing to request instructions on theft, assault, battery, assault with intent to inflict great bodily injury, and unlawfully causing a fire to an inhabited structure as lesser included offenses. There was no evidence to support the lesser offenses, even assuming arguendo that these are lesser-included offenses of the charged offenses. The penalty phase issues were not summarized. The record amply supports the trial court’s ruling that Dr. Sathyavagiswaran was qualified to testify to the nature of the wounds shown in the photograph of appellant, so that the admission of this evidence was not an abuse of discretion. Dr. Sathyavagiswaran’s testimony did not violate appellant’s discovery rights because the scratches on appellant’s neck were noted at the preliminary hearing on the murder charge, and the prosecution’s pretrial disclosure of information to the defense included five photographs of the injuries to defendant’s neck and arms taken the day after his arrest. The trial court did not abuse its discretion in admitting the testimony because it was given months after the wounds had healed. The defense as well as the prosecution had adequate evidence of defendant’s wounds before trial. The court rejected appellant’s claim of error because there was no affirmative showing in the record demonstrating that the trial court weighed the prejudicial effect of admitting the testimony against its probative effect. (Evid. Code, § 352.) The weighing process need not be explicitly evident in the record where the record as a whole shows the court performed its duty. Here, where the trial court excused four prospective jurors after finding that their ability to perform their duties was impaired by their opposition to the death penalty, the court rejected appellant’s claims that trial counsel should have asked “rehabilitating” questions in an attempt to establish that these particular individuals were qualified to serve as jurors. Here although the prospective jurors indicated they would have difficulty imposing the death penalty, their answers were somewhat ambiguous, so that defense counsel may have reasonably concluded that the ability of each prospective juror to follow the law was substantially impaired, and that additional rehabilitative questioning would be futile. Trial counsel may also have concluded that further questioning might provide additional indications of the prospective juror’s unwillingness to impose the death penalty, thus increasing the likelihood of getting a juror favorable to the defense excused. Where the jury was voir dired about the effects of a Geraldo Rivera death penalty show that aired during jury selection, appellant failed to show that trial counsel was ineffective in passing voir dire or in failing to request the same voir dire be conducted of new prospective jurors who were not present during the first voir dire. Similarly appellant has failed to show jury misconduct where there was no evidence that the Rivera show was discussed by the jury. The performance of trial counsel was not deficient in failing to object to certain issues raised by the prosecution during voir dire where the prosecutor’s questions were within the proper scope of voir dire. As defendant has no right to be tried by separate juries or to voir dire one way for the guilt phase and another way for the penalty phase, trial counsel was not ineffective in failing to request separate juries. The court rejected appellant’s claims of ineffective assistance of counsel predicated on failing to object to photographs of the victim which were relevant. Trial counsel was not ineffective in failing to object to various references the prosecutor made in summation Where appellant has made no effort to establish that counsel’s performance was deficient when measured against the standard of a reasonably competent attorney or that counsel’s purported deficient performance prejudiced defendant, the California Supreme Court rejected the claim. The trial court did not deprive appellant of a reasonable opportunity to explain his dissatisfaction with his counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 where appellant insisted that he wished to proceed in pro per independent on those issues. The trial court did not deprive appellant of a reasonable opportunity to explain his dissatisfaction with his counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 where appellant insisted that he wished to proceed in pro per independent of those issues. Appellant met Peralta in 1994 and became friendly with him. In 1996, the FBI used Peralta as a cooperating witness in order to investigate appellant’s brother, who they suspected of drug trafficking. Peralta was instructed to ask appellant if he knew anyone who could obtain cocaine for him. Appellant brought the cocaine to Peralta and sold it to him. Appellant subsequently challenged his sale of cocaine conviction based on entrapment. Here, the Ninth Circuit affirmed the conviction. Peralta did not invoke his friendship as a way to convince appellant to arrange drug deals. Even if the friendship created a feeling of obligation, the jury could have reasonably found that appellant was predisposed to commit the crime. Appellant pleaded guilty to a nonviolent drug offense in 1997, but failed to appear for sentencing. He was arrested in 2002, after the passage of Proposition 36, and received a sentence including time in the county jail. On appeal, he argued that he was entitled to sentencing under Proposition 36, because he was not sentenced until after the effective date of that section. The appellate court disagreed, finding that appellant was not entitled to disposition under Proposition 36 because he was convicted before its effective date. (Disagreeing with In re DeLong (2001) 93 Cal. App. 4th 562.) The trial court correctly denied appellant’s motion for acquittal as to the two burglaries where appellant was found in possession of property stolen in a burglary shortly after the burglary occurred, and there was slight corroborating evidence of appellant’s acts, conduct, or declarations tending to show his guilt. By finding the arson murder special circumstance to be true, the jury necessarily found that appellant intentionally killed his victim while committing arson. Because this murder was committed within the “Carlos” window, that is after the California Supreme Court’s decision in Carlos v. Superior Court (1983) 35 Cal.3d 131, and before its decision in People v. Anderson (1987) 43 Cal.3d 1104, the jury was required to find intent to kill. Here, the Supreme Court found the evidence sufficient to establish that appellant started the fire with the “independent, albeit, concurrent goals” of murdering the victim and destroying the evidence. Robbery victim Saiz was competent to testify to the meaning of “homeboy” as “gang” affiliation and her testimony was directly relevant to the fear element of the offense. The trial court did not abuse its discretion in admitting the evidence as more probative than prejudicial, and it denied deny appellant due process. The court rejected appellant’s claims that the trial court should have added to the standard instruction on the burden of proving identity based solely on eyewitness testimony, CALJIC No. 2.91 (1982 rev.), language to the effect that the jury should consider “the effects on recall of bias or improper cues in police identification procedures.” The standard instructions on witness credibility (CALJIC No. 2.20), discrepancies in testimony (CALJIC No. 2.21), weighing conflicting testimony (CALJIC No. 2.22), sufficiency of testimony of one witness (CALJIC No. 2.27), and reasonable doubt (CALJIC No. 2.90), adequately instructed the jury and enabled the parties to argue to the jury the factors it should consider. As a result, trial counsel was not deficient for failing to request the additional language. The penalty phase issues were not summarized. The court rejected appellant’s attack on the flight instruction, CALJIC 2.52 (1979 rev.), as a violation of his right to due process. The instruction does not create an unconstitutional permissive inference. The second paragraph of CALJIC No. 2.15 (1984 rev.) listed as the types of corroborating evidence the jury may consider”: (1) “the attributes of possession –time, place and manner”; (2) “that the defendant had the opportunity to commit the crime charged”; (3) “the defendant’s conduct”; (4) “his false or contradictory statements, if any”; (5) “other statements he may have made with reference to the property”; (6) “a false account of how he acquired possession of the stolen property”; and (7) “any other evidence which tends to connect the defendant with the crime charged.” While appellant claimed this was error because category (5) was the only one that applied, it is not reasonably probable a result more favorable to the defendant would have been reached in the absence of the error, if any. (People v. Watson (1956) 46 Cal.2d 818, 836.) The standard instructions on sufficiency of circumstantial evidence (CALJIC No. 2.01 (1979 rev.)) and on sufficiency of circumstantial evidence to prove specific intent (CALJIC No. 2.02 (1980 rev.)) tell the jurors that if one interpretation of the circumstantial evidence “appears to you to be reasonable and the other interpretation to be unreasonable, it would be your duty to accept the reasonable interpretation and to reject the unreasonable.” This does not impermissibly shift the burden of proof away from the prosecution, and does not permit conviction on proof less than beyond a reasonable doubt. The trial court did not commit reversible error requiring reversal of the death judgment based on special circumstances because it did not, on its own motion, instruct the jury on (1) theft as a lesser offense necessarily included in the offense of robbery, (2) assault and battery as lesser included offenses of rape, and (3) unlawfully causing a fire to an inhabited structure as a lesser included offense of arson. There was no evidence to support giving the lesser-included offenses, so the special circumstances based on the robbery, rape and arson felonies stand. The trial court correctly denied appellant’s motion for acquittal as to the two burglaries where appellant was found in possession of property stolen in a burglary shortly after the burglary occurred, and there was slight corroborating evidence of appellant’s acts, conduct, or declarations tending to show his guilt. The record here does not support appellant’s claim that counsel’s exercise of the peremptory challenges showed ineffective representation. Of the peremptory challenges to 21 members of the venire, appellant faults trial counsel for passing five of the challenged prospective jurors for cause with little or no questioning while the prosecutor elicited information from those jurors that led defense counsel to peremptorily challenge them. As to three of the challenged jurors, appellant claimed that their responses to questions asked in voir dire “indicated attitudes that would have made them desirable from a defense point of view, and whose peremptory dismissals are without any conceivable tactical basis.” Appellant failed to establish ineffective assistance of counsel in either situation. The prejudice postulated as to the five jurors is speculative, and as to the three jurors non-existent because each of them declared strong support for the death penalty. Appellant’s constitutional rights to due process, to an impartial jury, and to a reliable determination of the sentence in a capital case were not denied by the prosecutor’s use of peremptory challenges to exclude prospective jurors who expressed reservations about the death penalty but were not excusable for cause. This argument was rejected in People v. Turner (1984) 37 Cal.3d 302, 313-315, and the California Supreme Court declined to revisit the issue. The jury was not biased in favor of the prosecution. The trial court properly excluded prospective jurors with conscientious scruples against the death penalty and subjected prospective jurors to adequate voir dire for bias. As appellant has no right to separate juries, his claim of bias in the jury’s evaluation of the truth of uncharged offenses at the penalty phase fails. The trial court did not err in granting two of the prosecutor’s motions to exclude jurors for cause where each of the two jurors stated they would vote for life without possibility of parole every time. The consolidation of the robbery and murder counts did not deny appellant due process of law. The court rejected appellant’s claims that the prosecution’s introduction of evidence at trial of gang membership, the trial court’s failure to instruct the jury on its own motion that evidence of one crime is not to be considered as evidence of other crimes, and the trial court’s jury instruction on the use of eyewitness testimony did not render the trial grossly unfair. The trial court did not abuse its discretion in consolidating the robbery counts and the murder counts. The consolidated offenses were sufficiently “connected together in their commission” to satisfy that requirement of Penal Code section 954. While these offenses were committed at different times and places against different victims, they were nevertheless connected together in their commission by a “common element of substantial importance.” The close time frame within which the consolidated offenses were committed shows a continuing course of criminal conduct. While there was no cross-admissibility, the evidence on all counts was strong and the murder count was sufficiently distinct from the theft counts to make the likelihood of prejudice minimal. Trial counsel made two requests for investigation funds which he failed to file as confidential documents pursuant to Penal Code section 987.9. However, a violation of section 987.9 is not reversible per se, and appellant here has failed to show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the violation. Appellant claimed that if trial counsel had conducted an examination of the arson investigator at the preliminary hearing, it would have disclosed that the flammable liquid used to set the fire at the house of murder victim was placed only on the bed next to the victim’s body, not in other parts of the room. While appellant asserted that this disclosure at the preliminary hearing would have enabled the defense to move to strike the arson-murder special circumstance, appellant failed to “show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.” (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.) Accordingly the court would not consider the claim independent of trial error.