People v. Valdez
| Decision Date | 24 February 2022 |
| Docket Number | C087046 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MOSES VALDEZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
A jury found defendant Moses Valdez guilty of murder in the first degree and found a firearm enhancement true. Defendant killed the victim, his fiancé, in her apartment by shooting her in the head and by strangling her with multiple ligatures. He was sentenced to 100 years to life.
On appeal, defendant asserts the trial court prejudicially erred in: (1) admitting expert and video evidence regarding cell tower coverage areas that was based on scientific techniques not generally accepted by the relevant scientific community under People v. Kelly (1976) 17 Cal.3d 24 (Kelly) and inadmissible under Evidence Code sections 801 and 802;[1] (2) admitting video evidence mapping cell phone activity which constituted inadmissible hearsay and violated his rights under the confrontation clause; (3) admitting (a) testimony concerning defendant's gang affiliation, (b) testimony concerning two witnesses' beliefs that defendant had killed two people in the 1990's, and (c) a text message defendant sent the victim's husband which included a racial slur; (4) failing to control a witness's emotional outbursts; (5) refusing to give defendant's proposed pinpoint instruction on third party culpability; and (6) granting the prosecution's request to amend the information, after the jury had been discharged to change the dates of two prior convictions, thus purportedly depriving him of his right to trial by jury on the prior conviction allegations.
We conclude defendant forfeited his Kelly and sections 801/802 objections because he did not make them in the trial court. Anticipating this conclusion, defendant asserts that trial counsel's failure to make these objections amounts to constitutional ineffective assistance of counsel.
We reject defendant's ineffective assistance of counsel claim. The burden of establishing ineffective assistance is on defendant, and an appeal is a poor vehicle for advancing Kelly and sections 801/802 claims. We reject defendant's attempt to do so by providing a one-sided presentation, citing a number of articles concerning a lack of general acceptance in the scientific community that were not introduced in the trial court. Kelly contemplates expert testimony and submission of published materials and requires a particular showing by the prosecution in the trial court. Consequently, we decline to address defendant's ineffective assistance of counsel claim by ruling on the merits of Kelly and sections 801/802 objections made for the first time on appeal.
And we conclude that, because of the other evidence establishing defendant's whereabouts and complicity, even if counsel's failure to object could be viewed as constitutionally deficient performance, defendant has not shown prejudice. Accordingly, not only are defendant's Kelly and sections 801/802 claims forfeited, but defendant has not carried his burden showing constitutionally ineffective assistance of counsel.
As to defendant's hearsay contention, we conclude that even if the video mapping evidence showing cell phone activity and coverage areas was hearsay, the error was harmless given the other evidence establishing defendant's whereabouts and complicity.
As to defendant's other contentions, we conclude they are forfeited, without merit, and/or defendant was not prejudiced as a result of any errors. We will modify the oral pronouncement of judgment to reflect the imposition of a court operations assessment fee and a criminal conviction assessment fee not orally imposed.
Otherwise we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Jose was married to the victim.[2] They had two children together. However, by November 2014, [3] they did not live together and the victim had moved into a three-bedroom apartment in Elk Grove. Jose believed that the victim was dating someone else.
The victim and Jose shared custody of their two children. The children would go to Jose on Sunday, spend Sunday and Monday night with him, and Jose would take them to school on Monday and Tuesday. Tuesday night, the children would stay with the victim, and they would be with her until they went to school on Friday. Friday nights and weekends would vary.
The victim's daughter was 11 or 12 in November. She testified that, on Saturday, November 1, defendant stopped by the victim's apartment. Defendant returned an apartment key to the victim. Later, the children went to Jose's house and spent the night there.
On Sunday evening, November 2, the victim came to Jose's briefly. She stated that she would return the next day to drop off the kids' P.E. clothes. She left in her vehicle. At some point later on Sunday night, Jose called the victim, but she did not answer or call him back.[4]
On Monday morning, November 3, the victim did not show up with the kids' P.E. clothes. Jose called her, but she did not answer. Jose took the children to school and then went to work. He called the victim from work, but again she did not answer, call back, or text. He picked up the kids after school and they all went back to his house. That night, he continued to call the victim, but she did not answer, call back, or text.
The human resources manager at the victim's place of employment testified the victim generally worked Monday through Friday 7:00 to 4:30. The victim had volunteered to work on Sunday, November 2, and extra hours on Monday, November 3. However, she did not come to work on either day. She also did not call in. Previously, there had not been any occasions when the victim failed to report for work and did not call in.
On Tuesday, November 4, the victim again did not appear at Jose's with the kids' P.E. clothes, and she did not call or text. Jose took the children to school and then went to work. He continued to try to contact the victim. After school, he picked the kids up and they all went back to his house. The victim was supposed to pick up the children that night, but she did not show up. Jose testified that the victim had never failed to pick up the kids.
On Wednesday morning, November 5, Jose took the kids to school and went to work. After school, he again picked up the children. Because he had not seen or heard from the victim since Sunday, Jose decided to go to the victim's apartment.
The victim's daughter was excited to see the victim, so she was the first person to get out of the car. She ran up the stairs with Jose behind her. She then put the key in the lock, turned the key, and opened the door.[5] When she opened the door, she saw the victim lying on the floor motionless. There was blood on the victim's clothes. Jose, arriving at the apartment door just after the victim's daughter, saw the victim on the floor. The victim was naked from the waist down. Her hair was matted with blood and there was blood "all over" her face. Jose told the victim's daughter to go downstairs with her brother. Based on her appearance, Jose concluded that the victim was dead.
As of 2014, defendant was dating and engaged to the victim. Defendant and the victim exchanged a series of acrimonious text messages throughout the day on Sunday November 2 beginning in the early morning hours as follows:
At 3:41 a.m., defendant texted the victim," 'But I guess you got rid of the kids for someone else to fuck you.' "[7] At the same time, he texted her," 'That's why I took your keys!' "
At 3:43 a.m., the victim texted defendant, "An abusive relationship." At 3:44, the victim texted defendant," 'U took my keys! You are so wrong.' "
The victim placed two calls to defendant at 3:45 a.m. At 3:47 a.m., the victim texted defendant, "Answer ur phone or I'll call pats[8] until she gets up."
At 3:46 a.m., the victim texted defendant, "I never cheated on you."
At 4:04 a.m., the victim texted defendant, At 4:05 a.m., defendant texted the victim, "Fuck your eyes."
At 4:06 a.m., the victim texted defendant,
At 4:13 a.m., defendant texted the victim, At the same time, the victim texted defendant," 'Save your bull shit of an excuse.'" Also at the same time, the victim texted, "I did not cheated [sic] on you." At 4:14 a.m., the victim texted defendant, "So you tell yourself that to justify putting my kids roof and food in jeopardy." At the same time, she texted defendant, "That's how much you care." At 4:19 a.m., the victim texted defendant, "I least [sic] I know I don't have to worry about your mind games and abuse." At 4:20 a.m., the victim texted defendant, "You proved you don't love me and u don't care about my kids well-being."
At 4:28, the victim texted defendant, "Thanks for the betrayal and making me feel unsafe." At 4:29 a.m., the victim texted defendant," 'Don't call me 'my love' hypocrite is not another flaw u need to add." At 4:30 a.m., the victim texted defendant,
At 4:51 a.m., defendant texted the victim, "Thank you for saving me from giving you all the money I have, also from me having to go through all these phone numbers." At 4:54 a.m the victim texted defendant, At the same time, defendant texted the...
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