People v. Cortes

• Decision Date: 11 January 2011
• Docket Number: No. H032799.,H032799.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Leopoldo Alejandro CORTES, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

192 Cal.App.4th 873 121 Cal.Rptr.3d 605 11 Cal. Daily Op. Serv. 1977 2011 Daily Journal D.A.R. 2349 The PEOPLE, Plaintiff and Respondent, v. Leopoldo Alejandro CORTES, Defendant and Appellant. No. H032799. Court of Appeal, Sixth District, California. Jan. 11, 2011.

**608 Steven Schorr, San Diego, under appointment by the Court of Appeal, for Appellant.

Edmund G. Brown, Jr., Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, David M. Baskind, Deputy Attorney General, for Respondent.

McADAMS, J.

*876 A jury convicted defendant Cortes of murder in the first degree and found true the allegation that he used a deadly and dangerous weapon, a knife, in the commission of the murder. (Pen.Code, § 187, 12022, subd. (b)(1).) ¹ He was sentenced to prison for 25 years to life, *877 consecutive to one year for the weapon enhancement. On appeal, he contends that the trial court erred prejudicially by unduly restricting the testimony of his psychiatric expert. We agree with this contention and will reverse the judgment on that basis.

Defendant also contends that the trial court erred by ordering him shackled during trial without a hearing, and without the requisite showing of manifest need. The People concede the court erred by failing to hold a hearing, and we accept that concession. Accordingly, we will direct the court to hold such a hearing, if the issue of shackling arises on retrial. Finally, defendant argues that the trial court erred by admitting evidence of his prior assaults, and that the prosecutor committed misconduct by injecting gang evidence into the trial despite an in limine ruling excluding such evidence. We reject those contentions.

STATEMENT OF FACTS

Introduction

On January 27, 2006, Aptos High School student Justine French threw a party while her parents were out of town. News of the party spread by word of mouth. By the time the party was over, an estimated 150 people had attended. One person was dead.

Defendant stabbed Chris Carr 13 times during an altercation probably lasting less than two minutes. After the fight was over, defendant fled with his friends. The police found defendant at home and took him to the police station, where he was interrogated. During the interrogation, defendant lied about a number of things, but eventually admitted stabbing Carr. He said he did not know how many times he stabbed Carr.

Events Leading Up to the Fight

In addition to friends of Justine's, the party was attended by Justine's 21-year-old brothers, Tyler and Casey, and their friends and roommates: Cristin Murphy, Chris Carr, Forest Gleitsman, Tyler Scofield, Greg Gomez and Barry Baker. Casey had been drinking "pretty steadily" over the course of the night. Tyler brought a keg of beer and throughout the night, guests brought their own alcohol. Chris Carr was drunk.

By midnight, Justine realized that there were a lot of people in her house she did not know, and she decided it was time for "all the random people to get out of my house and just have a fun night ... with my friends." Since her *878 brother Tyler was asleep, Justine and her friends, her brother Casey, and his friend Chris Carr, began telling people to leave.

Defendant and his friends Mike Hernandez, Taurean Jacobs, Dillon Ramey, and **609 Eric Pridemore ² had arrived at the party late, around 11 p.m. They socialized in the garage with a few people they knew. They went upstairs, and, according to Cristin Murphy, "clumped together next to the refrigerator." She found them intimidating.

Justine and Cristin asked them to leave. Cristin was polite about it. They ignored Cristin and refused to leave. Cristin left the kitchen to find Chris Carr. Greg Gomez ³ introduced himself to defendant and shook his hand, and then asked him to leave, but defendant reacted defensively, saying "I am Alex Cortes from the west side." Forest Gleitsman heard Gomez tell someone in defendant's group, "You need to get the fuck out of here." Casey stepped into the conversation and also introduced himself, asking defendant if he knew someone Casey knew from the west side. Gomez recalled that Cristin defused the situation by telling him that defendant was "so-and-so's boyfriend." ⁴ The group did not leave after Gomez spoke with them and Gomez left to smoke a cigarette in the backyard.

According to the witnesses, at some point, Chris Carr also joined the people telling defendant and his friends to leave. Most of the witnesses indicated that the fight in which Carr was stabbed occurred at that time.

However, Michael Gates testified that he saw defendant standing face to face with Chris Carr in the kitchen and "they were ready to get in a fight right there." He called to defendant, grabbed him by the hand and led him through the garage and into the backyard where he tried to get defendant to sit down. Defendant "was really worked up about Chris ... upset." Defendant was saying that he would handle that guy. Gates said, "It's like not even worth it.... He's just drunk." Gates invited defendant to sit down and "[p]ack a chew." Defendant replied, "I'm already packing," and raised his shirt to show Gates the top of a knife handle. Gates repeated that it was not worth it, and that Carr was drunk. Ten or 15 seconds later, they "heard a fight break out inside." Defendant said, "I got to go," and ran through the garage and up the stairs to the kitchen. Gates also ran upstairs, taking a different route. Defendant confirmed much of Gates' testimony in his own.

*879 The Fight

None of the percipient witnesses actually saw the stabbing, though some saw the knife. And none of the prosecution witnesses saw a confrontation between Chris Carr and Mike Hernandez, though the defense witnesses testified that the confrontation between Carr and Hernandez precipitated the fight between Carr and defendant.

When Gates entered the kitchen, there was a big crowd pushing and shoving. He did not see defendant, but Carr was being forced backwards and ended up on the ground, near the kitchen island. Defendant was standing over Carr, with one foot on each side of him. Gates did not see defendant with the knife, and did not see stabbing motions, or any blood. Then everyone vanished, and Carr stood up covered in blood before falling to the floor.

According to Cristin, when defendant's group ignored her request to leave, she left to find Chris Carr and asked him to **610 help her get the group to leave. He confronted defendant's group, arguing with someone who said he was from Watsonville,⁵ and also with Taurean. He told the group "to get the fuck out." In the process, Carr accidentally sprayed spittle in defendant's face. Defendant charged Carr immediately. They broke a potted plant and went into the wall. The last thing she saw was defendant pushing Carr's back into the wall. She immediately ran out of the kitchen and into the master bedroom to wake Tyler. When she got back to the kitchen with Tyler, Carr was laying face down next to the refrigerator.

James Brownfield, who described himself as "moderately drunk," first became aware of a commotion before he saw defendant and Carr standing and facing each other. He did not see what started the fight, but initially there were other people in it, as well as defendant and Carr. Brownfield saw defendant come towards Carr, and as he reached around, Brownfield could see a knife somewhere on defendant's waist, for a 10th of a second. Then he saw defendant and Carr with their arms wrapped around each other. He saw defendant reach up with both hands, and saw Carr do the same thing. That was the last part he really remembered, because after that defendant was not there anymore and Carr was on the ground. The whole encounter was "real quick"—"seconds." However, he admitted he told the police he saw defendant pull the knife and stab Carr.

Brianna Brownfield "didn't really see how the fight started." She heard a crash, saw people running over to stop a fight and then saw Carr "fall to the floor." She estimated that 10 to 15 seconds had elapsed from the crash to Carr *880 falling. The last thing she saw before people blocked her view was Carr telling defendant and a Hispanic friend that they needed to leave.

Casey French also testified that when Carr yelled at defendant and his group of friends to leave, spit came out, and defendant "made the official physical attack." He punched or shoved Carr in the upper chest. They "kind of fell" into the corner and wrestled, but Casey "couldn't really see what was going on" because of the crowd of people around them. The next thing he knew, Carr "popped up," stumbled into the kitchen and fell down. His friend Forest, an EMT, grabbed Carr and said, "Oh my God, he's been stabbed." Casey did not see Carr threaten, push or strike anybody before defendant attacked.

Erin Cabral was the designated driver for his friends that night and drank no more than one beer. He knew defendant from playing Pop Warner football when he was 13. When defendant arrived, Erin greeted him. He saw Carr "arguing with somebody"; then defendant came "out of the side," possibly from the garage, and he and Carr started fighting. He thought defendant hit Carr, and they "went down" but he "couldn't see anything else from there" because his "visibility was blocked by everybody." He did not see who Carr was arguing with before defendant hit Carr. He did not see what happened before Carr started arguing with someone. He did not see Carr punch or push anybody. He did not see defendant use a knife. The next thing he saw was that both men stood up, Carr was "woozy" and then he went down. Erin saw blood on Carr's shirt and yelled for someone to call 911 because Carr had been stabbed.

Taylor Florence did not drink anything that night. She knew defendant from Aptos High. She saw him when he arrived **611 with his friends and greeted him with a hug. She saw an argument between Carr's friends and defendant's friends. S...