The People v. Borg
| Decision Date | 10 May 2023 |
| Docket Number | D079870 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. TYLER CATLIN BORG, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No RIF1805408 Charles J. Koosed, Judge. Affirmed.
Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa A. Mandel and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
Tyler Catlin Borg appeals the judgment sentencing him to prison after a jury found him guilty of first degree murder with a lying-in-wait special circumstance and a firearm enhancement. He asserts claims of insufficient evidence, instructional error, prosecutorial misconduct, ineffective assistance of counsel, and cumulative prejudice. We affirm.
Tyler suspected his wife Caroline of infidelity and in May of 2018 put a tracking device on their car without telling her. In December of that year, Caroline sent a text message to Justin Kiernan, a former boyfriend, and arranged to meet him. Caroline drove to Justin's workplace on December 18 and met him in the parking lot. Tyler sent a text message asking Caroline where she was. She responded she was at a shopping mall, but that did not match the information provided by the tracking device. Later that day, Tyler told Caroline about the tracking device and that he knew she had been at a residential address, but she denied going to anybody's house.
Over the next few days, Tyler continued to press Caroline about her whereabouts on December 18, but she did not reveal she had met Justin. During those days, Caroline exchanged sexually explicit text messages and pictures with Justin and discussed how they might circumvent the tracking device and meet without Tyler knowing.
On December 21, Tyler sent Caroline text messages stating: Caroline responded, "Ok."
On December 22 at approximately 12:30 p.m., Tyler took Caroline's cell phone to examine her text messages and social media accounts. He was able to recover 90 days' worth of text messages between Caroline and Justin that she had deleted. There were hundreds of messages about sex. For example, one message "said something about him deep throating her until she would choke and then pulling out and coming in her butt." Caroline eventually "broke down" and told Tyler she had met Justin on December 18. Tyler became very angry because he did not like Justin and thought Justin could take Caroline away from him.
Later on December 22, Caroline decided to drive to her parents' house and went to the car, but when she got there she realized the keys were not in her purse. She returned to the apartment and found Tyler holding the keys. Tyler said he "could kill two birds with one stone" by driving Caroline to her parents' house and by getting Justin to go there so that Tyler could confront him. Pretending to be Caroline, Tyler used her cell phone to send Justin the following message: Justin responded and agreed to meet at Caroline's parents' house.
Before departing for Caroline's parents' house, Tyler searched for a baseball bat. He told Caroline he wanted to "[h]urt Justin real bad" and make him "quadriplegic," so that she could take care of him for the rest of her life if she wanted to do so. Tyler also said, "If I kill him, I kill him." He retrieved a handgun from a safe, loaded it, and then put it in the car along with a baseball bat, a gallon of bleach, a container of Clorox' wipes, a towel, and a change of clothes (sweatpants and a shirt). Tyler told Caroline the wipes were to clean the blood off the bat. He took the sweatpants because his pants were loose and the sweatpants had a drawstring, and he could change into them so that his pants would not fall down were he to "run up on this guy or sneak on him."
During the drive to Caroline's parents' house, which lasted 20 to 30 minutes, Justin sent Caroline a text message that he would meet her and would tell his girlfriend he was Christmas shopping. Tyler, still pretending to be Caroline, pulled over and responded, Tyler did not want to give Caroline her phone back "until [he] figure[d] out what's goin' on with [Justin] because she's gonna tip him off."
Tyler and Caroline arrived at her parents' house between 6:00 and 7:00 p.m. on December 22. Caroline and her mother went into a bedroom to discuss Caroline's marital problems. Tyler and Caroline's father stayed in the living room and dining room. Tyler told Caroline's father that she was seeing another man and that he was using her cell phone to lure the other man into a meeting. Tyler also told Caroline's father he had a gun and could end up killing the other man. Through a window, Tyler saw Justin driving up and down the street.
At 7:40 p.m., Justin sent Caroline a text message: Tyler sent a text message asking, "You here?" to which Justin answered, "Here." Caroline's father tried to persuade Tyler not to confront Justin, and they prayed together that the matter would be resolved without any further injury. Tyler then exited the house.
Tyler retrieved gloves he kept in his car and put them on because he was "about to hit somebody." He also retrieved the baseball bat and the handgun and tucked the latter into his waistband. Tyler stood next to some bushes and watched Justin drive his car back and forth. When Justin parked his car, Tyler approached from the rear to surprise him. Tyler opened the driver's side door, and Justin gave him a startled look. Tyler then struck Justin's left arm with the bat. Justin uttered an obscenity, reached for something from the visor of the car, and put a leg outside the car. Tyler ran away; and when he looked back, he saw Justin standing outside the car and thought he was holding something. Tyler pulled out his handgun and cocked it. Justin got back into his car and closed the door. Tyler then fired nine shots at Justin's car. Two of them struck Justin, one in the back and the other in the head. The shot to the head was instantly fatal. After killing Justin, Tyler got into his car and drove away.
Tyler was arrested at his sister's house the following day. The People charged him with first degree murder. (Pen. Code, § 187, subd. (a); subsequent undesignated section references are to this code.) The People alleged as a special circumstance that Tyler intentionally killed Justin by means of lying in wait (§ 190.2, subd. (a)(15)), and alleged as an enhancement that in committing the murder Tyler personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). He pled not guilty to the murder charge and denied the special circumstance and enhancement allegations.
During questioning of prospective jurors, the prosecutor asked whether they would feel a crime victim was "less deserving of the protections of the law" were they to "hear[ ] evidence that the victim engaged in conduct that they didn't agree with." One juror responded affirmatively. The prosecutor then more specifically asked the prospective jurors whether evidence of a victim's "infidelity" would make them feel the victim was less deserving of the protections of the law or "it maybe should be lesser of a crime." Several jurors responded that infidelity would not cause them to feel that way. Defense counsel did not object to this line of questioning.
The trial court interrupted voir dire to speak to counsel in chambers. The court cautioned the prosecutor that he "need[ed] to be careful" because infidelity can justify a conviction of voluntary manslaughter "if the circumstances are there." The court stated it was important the prosecutor not ask jurors questions that could "precondition [them] to believe that infidelity is not important." The prosecutor said, "Okay" and "I'll move on."
Shortly after the conference in chambers, the prosecutor discussed with prospective jurors the burden of proof and the reasonable doubt standard. The prosecutor stated the court would tell the jurors he did not "have to prove the defendant's guilt beyond any possible doubt, just beyond a reasonable doubt," and asked whether they understood the distinction. The jurors collectively answered "Yes." To test their understanding, the prosecutor asked whether any juror thought it possible that the prosecutor was a professional basketball player before he became a lawyer. Some prospective jurors responded it was possible, but it was not reasonable based on the prosecutor's age and height and other grounds. The prosecutor told the jurors they had used common sense to distinguish what is possible from what is reasonable. He then told the prospective jurors he had the burden of proof and the defendant was presumed innocent until the prosecutor proved he was guilty beyond a reasonable doubt. The prosecutor asked the jurors whether they could return a guilty verdict if he proved defendant's guilt beyond a reasonable doubt, and they answered...
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