People v. Diaz

• Decision Date: 06 April 2015
• Docket Number: No. S205145.,S205145.
• Citation: 60 Cal.4th 1176,185 Cal.Rptr.3d 431,345 P.3d 62
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dora DIAZ, Defendant and Appellant.
• Court: California Supreme Court

60 Cal.4th 1176

345 P.3d 62

185 Cal.Rptr.3d 431

The PEOPLE, Plaintiff and Respondent

v.Dora DIAZ, Defendant and Appellant.

No. S205145.

Supreme Court of California

April 6, 2015.

Dallas Sacher, Santa Clara, under appointments by the Supreme Court, and Syda Kosofsky, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan, Jeffrey M. Laurence, Stan Helfman, Christopher J. Wei, Luke Fadem and Masha A. Dabiza, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

CANTIL–SAKAUYE, C.J.

We granted review to resolve a conflict in the Courts of Appeal regarding whether a trial court has the duty to instruct a jury to consider a criminal defendant's out-of-court statements with caution when the statements at issue form the basis of a prosecution for making criminal threats. We also asked the parties to brief whether we should continue to require courts to instruct that a defendant's out-of-court statements must be viewed with caution even in the absence of a request.

We hold that the cautionary instruction is applicable when the statements at issue are criminal threats. However, the trial court is no longer required to give the instruction sua sponte. In the present case, the failure to give the instruction, even if error, was harmless.

I. Facts and Procedure

Defendant Dora Diaz was charged and convicted of one count of willful, deliberate, and premeditated attempted murder (Pen.Code, §§ 187, 189, 664, subd. (a) )¹ and three counts of threatening to commit a crime resulting in death or great bodily injury (§ 422). The jury found defendant guilty on all four counts and the trial court sentenced her to a prison term of life, with the possibility of parole after seven years, for the attempted murder and a consecutive three-year four-month prison term for the three criminal threats.

The criminal threats charges stemmed from statements defendant made during and after the attempted murder of Eduardo Morales. On September 5, 2009, Eduardo lived in a two-room apartment in San Jose with his mother, Marta Rosales, his sister-in-law, Indira Pineda, and three other family members. Defendant had recently ended a relationship with Eduardo. Between 1:00 a.m. and 1:30 a.m., Eduardo was asleep in the apartment's living room when he awoke to knocking on the window and door. He peeked out the window and saw defendant and two women he did not recognize yelling at him to come out. While putting on his shoes to go outside, he heard one of the apartment's windows break. He opened the door and asked the women why they were doing this to him. The three women grabbed Eduardo by his hair, which was long, and dragged him into the driveway. Marta called 911 to report that her son was being assaulted.

The three women began hitting and kicking Eduardo in his face and chest. Eduardo was knocked to the ground and covered himself. During the attack, the women were calling him names and one yelled, “Puro catorce, ” which an expert later testified constituted a declaration that the Norteño street gang was responsible for the attack.

Defendant then stepped back, snapped her fingers twice, and whistled. Three men, including one who looked like defendant's 16–year–old son, emerged and joined in the beating. One of the men had a knife with a four- or five-inch blade; he began stabbing Eduardo.

Marta came out of the apartment and pleaded with the assailants to cease the attack on her son. Eduardo called out to tell her that he had been stabbed. Possibly alerted by the sound of sirens, some of the assailants retreated to a dark-colored Lincoln Town Car. Defendant remained and lifted Eduardo's shirt so she could view his wounds. When looking at the wounds, defendant laughed. Defendant then argued with Marta and Eduardo's sister-in-law, Indira, who also had come out of the house. Defendant and Indira grabbed at each other and exchanged words. Eventually, defendant ran off.

The three counts of criminal threats correspond with statements allegedly made by defendant to Eduardo, Marta, and Indira during the attack. Each testified concerning the statements. Eduardo testified that when defendant lifted his shirt to view his wounds, she told him “that if [he] did not die this time, that [he] surely would the next time and that she was going to finish off [his] whole family.” He further testified that he saw defendant arguing with Indira and calling her names, but he could not recall whether defendant had said anything else to Indira.

Marta testified that defendant told Eduardo, “If you don't die from this one, you'll die next time around.” She further testified that defendant threatened her, saying “you're going to pay for this” and that defendant “would kill every member of [Marta's] family one by one.” She recalled defendant also telling Indira, “you're going to pay for this.” Marta's husband, Alvaro Hernandez, testified that defendant told his wife that she was going to kill everyone.

Indira testified that while the women were dragging Eduardo out by his hair, defendant “was telling him, ‘I'm going to kill you.” Later, she said, defendant told Eduardo that “if he didn't die from this one, he would die from the next one.” Indira further testified, “she did say that she could possibly kill all of us ... Marta, Eduardo, and whoever else lived there.” Indira testified that defendant told her specifically, “You're going to pay for this ... I'm going to kill you.”

Prior to jury deliberations, the trial court provided standard instructions on the elements of the crimes, the presumption of innocence, the burden of proof, the treatment of circumstantial evidence, and credibility considerations when assessing witness testimony. Defendant did not request, nor did the court provide on its own motion, CALCRIM No. 358, which instructs the jury to “[c]onsider with caution” any unrecorded statement made by the defendant tending to show his or her guilt.²

On appeal, defendant argued that omission of this instruction was reversible error. The Court of Appeal affirmed defendant's conviction, holding that any error in omitting the instruction was harmless in light of the other instructions the jury received and the evidence in the case. The Court of Appeal expressly disagreed with People v. Zichko (2004) 118 Cal.App.4th 1055, 13 Cal.Rptr.3d 509 (Zichko ). In Zichko, a defendant who had been convicted of making criminal threats argued that the trial court had erred in failing to give CALJIC No. 2.71, which, like CALCRIM No. 358, advises jurors that “[e]vidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.” Zichko held that the cautionary instruction is not to be given in a criminal threats case, in which the statement constitutes the criminal act itself.³ (Zichko, supra, at p. 1058, 13 Cal.Rptr.3d 509.) It reasoned that the cautionary instruction should be given only when the statement reflects an “admission.” Zichko concluded that in a criminal threats case, where the statements constitute the criminal act itself, they do not constitute admissions because the truth of the threats is immaterial. (Id., at p. 1060, 13 Cal.Rptr.3d 509.) It also concluded that the cautionary instruction is “inconsistent with the reasonable doubt standard of proof.” (Ibid. ) Zichko reasoned that giving the cautionary instruction in a criminal threats case may lead a jury to believe it could find a defendant guilty “even if it did not conclude beyond a reasonable doubt that the statements were made, as long as the jury exercised ‘caution’ in making its determination.” (Ibid. ) The Court of Appeal in the present case concluded that Zichko “ seems to have created a false dichotomy between a statement that constitutes a crime and a statement that is evidence of a crime.”

II. Analysis

A. Applicability of the Cautionary Instruction to Criminal Threats

As we explain below, case law recognizes that the purpose of the instruction—to aid the jury in evaluating whether the defendant actually made the statement—is served regardless of whether the statement constitutes all or part of the criminal act and whether it is admitted for its truth. Contrary to the reasoning of Zichko, we see no conflict between the cautionary instruction and the requirement of proof beyond a reasonable doubt.

In 1872, the Legislature codified as part of the Code of Civil Procedure certain instructions regarding the effect of evidence, to be given to the jury “on all proper occasions.” (Code Civ. Proc., former § 2061.) These included instructions “that the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of a party with caution.” (Code Civ. Proc., former § 2061, subd. 4; see People v. Ford (1964) 60 Cal.2d 772, 799, 36 Cal.Rptr. 620, 388 P.2d 892.) Code of Civil Procedure former section 2061 was not limited to criminal cases, and the statutory requirement has long been reflected in the pattern jury instructions applicable to both civil and criminal cases.⁴

The Legislature repealed Code of Civil Procedure, former section 2061 in 1965 when it adopted the Evidence Code. (Stats. 1965, ch. 299, § 127, p. 1366, operative Jan. 1, 1967.) The Law Revision Commission explained that because “the section is but a partial codification of the common law, the repeal should have no effect on the giving of the instructions contained in the section or on the giving of any other cautionary instructions that are permitted or required to be given by decisional law.” (Recommendation Proposing an Evidence Code (Jan. 1965) 7 Cal. Law Revision Com. Rep. (1965) com. on repeal foll. Code Civ. Proc., § 2061, p. 358.) Subsequently we held, citing the Law Revision Commission's report, that the repeal had no effect on the court's obligation to give the instructions contained in the former statute. (People...