People v. Cortez

• Decision Date: 09 May 2016
• Docket Number: No. S211915.,S211915.
• Citation: 63 Cal.4th 101,201 Cal.Rptr.3d 846,369 P.3d 521
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Norma Lilian CORTEZ et al., Defendants and Appellants.

63 Cal.4th 101

369 P.3d 521

201 Cal.Rptr.3d 846

The PEOPLE, Plaintiff and Respondent,

v.Norma Lilian CORTEZ et al., Defendants and Appellants.

No. S211915.

Supreme Court of California

May 9, 2016.

Robert E. Boyce and Benjamin B. Kington, San Diego, under appointments by the Supreme Court, for Defendant and Appellant Norma Lillian Cortez.

Eric R. Larson, San Diego, under appointment by the Supreme Court, for Defendant and Appellant Rodrigo Alonso Bernal.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Michael C. Keller, Steven D. Matthews and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN

, J.

While riding in a car driven by defendant Norma Lilian Cortez, Rodrigo Bernal fired five or six shots at 19–year–old Emanuel Z. and 16–year–old Miguel Guzman, killing the latter. In a joint trial, a jury convicted defendant and Bernal of premeditated murder and attempted premeditated murder. The Court of Appeal unanimously affirmed Bernal's convictions. However, in a divided opinion, it reversed defendant's convictions based on the following: (1) the giving of CALCRIM No. 361

, which instructed jurors that, in evaluating the evidence against a testifying defendant, they could consider the defendant's failure to explain or deny that evidence if the defendant could reasonably be expected to have done so based on what the defendant knew; (2) the admission of Bernal's out-of-court statement that he and defendant went to shoot some gang members; and (3) the prosecution's comments about the reasonable doubt standard during closing argument. We granted review to consider these issues. Finding no trial errors, we reverse the Court of Appeal's judgment.

I. FACTUAL BACKGROUND

On September 3, 2008, Miguel and Emanuel, who were childhood friends, were living in a Los Angeles neighborhood near the intersection of 5th and Bonnie Brae Streets. There was 18th Street gang graffiti in the area, and gang members frequented the neighborhood. Miguel and Emanuel, however, were not gang members. As they were crossing 5th Street near the corner of Bonnie Brae Street, Emanuel heard a female ask, " ‘Where you guys from?’ " Emanuel saw a female driving a car with a male in the front passenger seat and another male in the back. The driver's window was down. Miguel and Emanuel kept walking and did not respond.

Emanuel heard the same female voice say, " ‘Let them have it,’ " and saw the car stop. The male in the front passenger seat exited the car, pulled a dark-colored gun from his waist area, and began firing at Miguel and Emanuel. Emanuel ran when he saw the gun. Miguel, appearing startled, raised his hands. The man shot five or six times, killing Miguel. Miguel did not have a gun, and no one returned fire.

Emanuel ran into a nearby building and looked out from its balcony. He saw Miguel on the pavement below, receiving help from paramedics. He tried to leave, but police would not let anyone exit the building. He did not immediately speak with police because he was "shocked" and afraid to talk to them. About a week later, as he was visiting Miguel's family at Miguel's house, he unexpectedly encountered detectives and spoke with them. Viewing a six-pack photo array, he identified three women as resembling defendant. He identified Bernal as the shooter from a six-pack photo array, and later identified him again at the preliminary hearing. He did not identify Bernal at trial.

On the day of the shooting, David R., who also lived in the neighborhood, heard the sound of brakes slamming and saw a light beige car stop suddenly. Defendant was driving the car, Bernal was in the front passenger seat, and another passenger—perhaps a child—was in the back. Defendant and Bernal were yelling at Miguel. Because they were yelling over each other, David R. could not understand what they were saying. Miguel may have responded, " ‘18th Street,’ " but he continued walking. Bernal exited the car, pulled a gun from his waist area, and started shooting. Miguel raised his hands and looked scared. After the last shot, the beige car moved a few feet forward and then stopped when Bernal said, " ‘Hold on, ... hold on.’ " Bernal entered the car and said, "Let's go, let's go." The car proceeded south on Bonnie Brae Street. After calling 911 and giving the operator a partial license plate number, David R. noticed Miguel lying on 5th Street, not moving or breathing. Police spoke to David R. on the day of the shooting during their canvass of the neighborhood.

Marvin B., who also lived in the neighborhood, was in his apartment when he heard a gunshot. From his window, he saw Bernal standing beside a parked car and shooting. He heard more shots and saw Bernal chase someone across the street. He heard more shots after Bernal left his line of sight. Marvin B. walked outside and saw defendant's car turning right from 6th Street onto Alvarado Street. He saw the female driver's face. He spoke with police at the scene shortly after the shooting and described defendant. He identified her that same day during a field show-up.

At 4:15 p.m., responding officers found Miguel bleeding from his mouth and not breathing. Because the shooting had occurred in 18th Street gang territory, they went to the nearby territory of the rival Rockwood gang. There, they saw a car matching the description—including license plate number—of the car reportedly involved in the shooting, double-parked in the middle of the street with its hazard lights flashing. They found defendant in the driver's seat and arrested her. On the car's passenger side, they found a live round of ammunition that matched the caliber and brand of several found at the scene of the shooting.

On September 3, 2008, during a recorded police interview the jury later heard at trial, defendant initially gave the following account: On the day of the shooting, Bernal asked for a ride to pick up some money. They stopped and picked up Bernal's friend, who was "very young" and dressed in "gangster attire." Bernal was in the front passenger seat and his friend was in the back. Bernal told defendant to " ‘just drive around.’ " He then instructed her, first to stop at 3rd and Bonnie Brae Streets so he and his friend could exit, and then to continue driving. He said he and his friend would catch up with her. As defendant drove, she heard gunshots from two blocks away at 5th and Bonnie Brae Streets. Bernal and his friend then reentered defendant's car. Defendant did not know what had happened and she did not ask about the shots. She drove to where police later found and arrested her, which was where Bernal and his friend had exited the car and instructed her to wait. She had known Bernal about a year, and they were friends. She knew he associated with the Rockwood gang, but did not believe he was a gang member. She believed he "always carrie[d]" a gun.

Later in the interview, defendant admitted that her initial statement was untrue, and she gave the following, different account: Before the shooting, she heard Bernal yelling, " ‘Where you from?’ " to two young men she believed to be gang members. The young men responded, " ‘18th Street.’ " Bernal yelled, " ‘Rockwood.’ " Defendant told Bernal to " ‘[l]et it go.’ " Instead, he jumped out of the car, and defendant then heard shots. The backseat passenger did not exit the car. Defendant continued driving, but did not get far because of traffic. Bernal ran and jumped back into the car. Defendant started to "cuss[ ] him out." He said nothing to her except, " ‘drive.’ " Defendant kept driving, and was scared. Bernal told her to stop, and he then exited. He told her to drive down the block and wait for him. She did so, stopping and activating her emergency lights.

Detective John Motto investigated the shooting. He testified that six bullet casings and one expended bullet were found at the scene, all nine-millimeter but different brands. He also testified that officers commonly find at a single crime scene bullet casings from multiple manufacturers that have been discharged from a single gun.

On September 4, 2008, in a taped interview with police that was played for the jury, Bernal's nephew, Oscar Tejeda, told police that Bernal had come to his apartment and said that he "and this woman ... went to—we went shooting some 18s," that they "went ... in her car," and that she "was the one driving" and "he was the one shooting." Tejeda also told police he thought the woman Bernal had identified lived in his (Tejeda's) apartment building. At first, Tejeda said he could not remember the woman's name. Asked whether her name was "Stephanie," "Sylvia," "Nancy," "Mickey," "Martha," or " Norma," he said, "Norma. I think it's Norma." He then confirmed that Bernal had "said her name." The police then asked, "So he told you the girl he went and did the shooting with is Norma?" Tejeda replied, "Yeah. She was driving in her car." He also identified defendant from a six-pack photo array and told police that Bernal was a member of the Rockwood gang, that Bernal's gang moniker was "Scooby," and that defendant socialized with Bernal and other Rockwood gang members.

At trial, Tejeda gave an entirely different account, testifying as follows: Police came to his house with their guns drawn and handcuffed him and his sister. Some hours later, they asked him for a gun and said they would arrest him for aiding a murder suspect if he did not give them one. He replied that he did not know what they were talking about. He was scared. They took him to the station. There, he lied about what Bernal had said and felt pressured by police to do so. In fact, Bernal had said nothing about a shooting. Tejeda nevertheless also testified that the detective who had interviewed him had been friendly and polite. Finally, he testified that he had seen defendant and Bernal socializing with Rockwood gang members and that Bernal was a Rockwood gang member.

Gang expert ...