People v. Duarte CA2/4 ( 2021 )

Filed 5/10/21 P. v. Duarte CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B300955
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA102044
v.
FERNANDO DUARTE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Judith Levey Meyer, Judge. Affirmed.
Waldemar D. Halka, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Attorney General, Scott A. Taryle and Colleen M. Tiedemann,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant and appellant Fernando Duarte
of first degree murder. The trial court sentenced him to 50 years
to life in state prison. On appeal, Duarte raises seven arguments:
(1) the trial court prejudicially erred by not instructing the jury
on imperfect self-defense voluntary manslaughter as a lesser
included offense; (2) reversal is required because the jury
instructions on self-defense and sudden quarrel/heat of passion
voluntary manslaughter were incomplete; (3) the court erred by
not instructing the jury it could consider the evidence of his
mental defect in relation to whether he harbored the mental
states of premeditation and deliberation; (4) the court erred in
failing to instruct the jury that mental impairment evidence
could be considered when assessing Duarte’s credibility and
consciousness of guilt; (5) the court erred by not mentioning
premeditation and deliberation in CALCRIM No. 252; (6) the
court erred in finding the victim’s statements to his relatives
were admissible under the dying declaration exception to the
hearsay rule; and (7) reversal is required because the six alleged
errors were cumulatively prejudicial. We affirm.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an
information charging Duarte with murder (Pen. Code,1 § 187,
subd. (a); count one) and fleeing a pursuing peace officer’s motor
vehicle while driving recklessly (Veh. Code, § 2800.2; count two).
1 All further undesignated statutory references are to the
Penal Code.
2
The information further alleged Duarte personally and
intentionally discharged a firearm in the commission of the
murder. (§ 12022.53, subd. (d).)
At Duarte’s first trial, a jury convicted him of recklessly
fleeing the police, but the court declared a mistrial on the murder
charge after the jury was unable to reach a unanimous verdict.
At Duarte’s second trial, the jury found him guilty of murder and
found true the firearm allegation. The court sentenced Duarte to
25 years to life for the murder conviction, and an additional 25
years to life for the firearm enhancement, for a total term of 50
years to life in state prison. The court imposed a concurrent 16-
month low term for the Vehicle Code violation. Duarte timely
appealed.
FACTUAL BACKGROUND
I. Prosecution case
In June 2015 Duarte and his wife, J.S., were separated and
lived apart due to marital problems. J.S. lived with her parents
and Duarte with his sister. At the time, Duarte drove a red
Mustang. J.S. spent the evening of June 13, 2015, with Duarte at
his sister’s house. While there, J.S. received text messages from
the victim, Marco Puga, who wanted to see her that evening.2 J.S.
initially told Puga no, but then changed her mind and left
Duarte’s sister’s house at around 10:00 or 11:00 p.m.
J.S. drove to San Pedro and met Puga at a Rite Aid so he
could buy beer. J.S. and Puga then spent the night together
2 Unbeknownst to Duarte, J.S. and Puga had been having a
relationship for several months.
3
driving around in J.S.’s SUV. Between 7:00 a.m. and 8:00 a.m.
the next morning (June 14, 2015), Duarte received a telephone
call from J.S.’s mother, who said J.S. had been out all night and
not come home.
Around 8:00 a.m., J.S. dropped off Puga at a blue or black
Mercedes parked near the intersection of 20th Street and Meyler
Street in San Pedro. As Puga loaded some items from J.S.’s SUV
into the trunk of the Mercedes, J.S. spotted Duarte’s red Mustang
driving in their direction. Fearing a confrontation, J.S. told Puga,
“This is what I was trying to avoid.” As she drove away, she saw
Duarte park his Mustang near an alley, exit the car, and walk
toward Puga. Puga was standing at the back of the Mercedes
with its trunk open.
At about 8:00 a.m., residents in the area heard gunshots.
M.O., who was watching television, heard three gunshots. When
she opened her front door to investigate, she observed a man
firing a small silver handgun. M.O. then looked out of her kitchen
window and saw the gunman chase another man around a
parked silver car while firing the handgun at him. The man
holding the gun was cursing. M.O. did not see the other man
attack the gunman in any way. As the man with the gun walked
towards a red convertible with a black top, he slipped the gun
into his pocket. M.O. wrote down the license plate number as the
gunman drove off in the red convertible.
M.O.’s neighbor, J.R., also peered out of his window after
hearing three gunshots. From a distance of about 20 feet, J.R.
saw a younger man (Puga) crouched down on the curbside, by the
passenger door of a parked silver Mercedes. An older man
(Duarte) was on the street side of the car with a gun in his hand.
4
Duarte’s arm was up and he was trying to shoot over the car’s
roof at Puga. Duarte fired the gun at least three times.
According to J.R., the younger man had nothing in his
hands. As Duarte moved from the front to the back of the car, the
younger man moved in the opposite direction, using the car to
shield himself from the gunfire. J.R. heard the younger man yell,
“She’s my homegirl. She’s my homegirl.” According to J.R.,
Duarte continued shooting at the younger man until his gun was
out of bullets, then he got in his Mustang and drove away. J.R.
never saw the victim holding a gun, knife, or any other weapon.
The younger man got into the Mercedes and sped away from the
scene. The next day, J.R. identified Duarte from a photographic
lineup as the shooter. He again identified Duarte as the shooter
at trial.
Shortly after 8:00 a.m., Puga arrived outside his relatives’
house a couple of blocks from the scene of the shooting. Puga’s
relatives were awakened by his screaming, “I got shot! I got shot!”
While lying on his uncle’s car, Puga told the relatives he got shot
in the neck, was unable to breathe, and was not going to make it.
Although the relatives initially did not see any injuries or blood
on Puga, he eventually started to bleed from his mouth. When
one of his cousins asked Puga who shot him, Puga answered,
“Jackie’s man.” When asked why the man shot him, Puga said,
“He didn’t want to fight, and he just shot me.” Puga screamed he
was going to die. Puga’s relatives called 911, and paramedics
transported him to the hospital where he died from two gunshot
wounds, one to the left chest and one through the left back.3
3 Toxicology tests established Puga had a blood alcohol
content of 0.14 percent, a methamphetamine blood level of 1.3
5
About 10 minutes after J.S. drove away from Puga, she
received a phone call from Duarte, but she did not answer.
Duarte left a voice mail message, saying “I’m about it, mother
[expletive]. I’m about it.”
The police located Duarte’s red Mustang in the parking lot
of the Bestall Inn in Lomita. When Duarte left the hotel in the
Mustang, LAPD officers attempted to stop the car and take
Duarte into custody. Duarte fled and a high-speed pursuit
ensued. It ended in the parking lot of the LAPD Harbor Station,
where Duarte was taken into police custody.4
II. Defense case
Duarte testified in his defense as follows. According to
Duarte, Puga was a member of the Rancho San Pedro Street
microgram per milliliter, and an amphetamine blood level of 0.13
microgram per milliliter.
4 In his first trial, Duarte was convicted of fleeing a pursuing
peace officer’s vehicle while driving recklessly (Veh. Code,
§ 2800.2; count two). The evidence introduced during the first
trial showed that in the afternoon on June 14, 2015, LAPD
Officer Robert Bechto, who was driving a marked patrol vehicle,
pulled up behind the Mustang driven by Duarte and activated
the emergency lights and sirens to stop the Mustang and take
Duarte into custody. Duarte failed to yield and fled in his car
with the officer pursuing in his patrol vehicle. During the
pursuit, Duarte violated numerous sections of the Vehicle Code
by driving on the wrong side of the road, failing to yield when
entering a highway, making a right turn from an improper lane
position, driving through a red light, failing to stop at a stop sign,
and driving at unsafe speeds sometimes exceeding 100 m.p.h.
6
gang. Puga told Duarte about his gang membership on three
occasions. Puga told Duarte, “Just remember this is my
neighborhood. You know where you stand. You know where
you’re at.” On one occasion Puga wanted to fight Duarte in an
alley. He put his hand in his pocket, which made Duarte think he
was carrying something. Because of this, Duarte did not want to
fight Puga. Puga also “mad-dog[ged]” Duarte and gave him dirty
looks. Puga challenged Duarte to a fight on two occasions.
Whenever Duarte asked Puga why he was spending time with
J.S., Puga said they were friends and that J.S. was his
“homegirl.” This made Duarte feel sad and hurt.
On June 13, 2015, Duarte saw a hickey on J.S.’s neck and
asked her about it. J.S. said she had burned herself with a
curling iron, and Duarte believed her. While at the beach with
Duarte’s family, Duarte told J.S. he wanted them to spend the
night at a hotel. J.S. said she was too tired, and that they could
spend the next day together. They all drove home, and Duarte
spent the night at his sister’s house in Wilmington.
The following morning, Duarte received a telephone call
from J.S.’s mother at around 7:00 a.m. or 8:00 a.m. She told
Duarte that J.S. had not returned home the previous night and
asked when she left his sister’s house. This made Duarte sad and
he went to go look for her. At the time, he had a “red-orange”
Mustang. There was a loaded gun in the glove compartment,
which had been there for a few days. Duarte tried to call J.S.
three or four times but she did not answer.
Duarte drove to J.S.’s parents’ house. J.S.’s car was not
there, so he drove around the block. He saw J.S.’s car on 20th and
Meyler. He parked and took the gun out of the glove
compartment. He put the gun in his pocket as he got out and
7
began walking to her car. Duarte brought the gun because it was
early, he was looking for his wife, and her car was next to a park.
As he got close to the car, it drove away. Duarte saw Puga on the
sidewalk walking toward him. Puga “was in fast pace and was
arguing.” Puga walked near the trunk of a grey Mercedes and
said something like “You’re going to know what I’m about right
now. You’re going to find out.” Puga reached into the trunk,
grabbed a shotgun, racked it, and told Duarte this “was the end
for [him].” Duarte grabbed his gun from his pocket and pointed it
at Puga to scare him. The gun’s safety was on. Duarte tried to
talk to Puga but “he wasn’t having it.” The men were about 20
feet apart. Puga asked Duarte how he felt about him making J.S.
his lover. At that point Duarte took the safety off his gun and
fired a shot in the air. Duarte was on the driver’s side of the car
and Puga was on the passenger’s side. Puga was pointing the
shotgun at Duarte and then came “straight forward towards
[Duarte] . . . like full paced, like, running towards [him].” Duarte
fired a second shot. His intent was to scare Puga and he did not
mean to hit him. Puga continued to advance toward Duarte, so
Duarte fired a third shot. Both men then returned to their cars
and left. Duarte did not see any blood on Puga. He did not think
any of the shots hit Puga.
Duarte drove to his sister’s house. He called J.S. and told
her what happened. He then went to a swap meet. Duarte
eventually went to the Bestall Motel in Lomita because he was
tired. He was involved in a police chase that ended at the Harbor
Police Station.
On cross-examination, Duarte testified he always kept his
gun loaded. Duarte admitted he initially told Detective Coffee he
did not see J.S. or Puga on June 14, 2015. He also told Detective
8
Coffee he did not own a gun. Duarte admitted he never told police
the version of events he testified to on direct examination.
Dr. Jody Ward, a forensic psychologist, testified Duarte’s
IQ test revealed he was mildly developmentally disabled. Dr.
Ward testified that in light of his intellectual deficits, Duarte
would have difficulty controlling his behavior in complex
situations in which he was overwhelmed.
DISCUSSION
I. Duarte’s argument that the trial court erred by
not instructing the jury on the lesser included
offense of imperfect self-defense voluntary
manslaughter
Duarte first contends the trial court prejudicially erred by
refusing the defense request for a jury instruction on imperfect
self-defense voluntary manslaughter. The Attorney General
argues the court properly declined to give the instruction because
there was no evidence Duarte acted under an actual but
unreasonable belief that he was in imminent danger of great
bodily injury or death. The Attorney General also contends that
even assuming the trial court erred, the error was harmless. We
agree with the Attorney General.
A. Background
When discussing which jury instructions would be given,
the court addressed CALCRIM No. 571, the instruction on
9
voluntary manslaughter based on imperfect self-defense.5 In
discussing this instruction, the court stated: “I don’t get how this
could be imperfect self-defense. When a guy is pointing a shotgun
at you, you have an absolute right to shoot back, and – and it’s –
there’s not an unreasonable belief to think that it wasn’t [sic]
loaded.” The court further stated, “Anybody who points a gun,
you have the right to shoot back. So it seems to me that this is
not an imperfect self-defense case in any way.” The court noted
that an imperfect self-defense instruction would have been
appropriate if Duarte had testified he thought a shotgun was in
the trunk, “but once he testifies he . . . saw a shotgun pointed at
him, I don’t see how imperfect falls into play.” The court noted
defense counsel’s objection for the record and excluded CALCRIM
No. 571.6
5 CALCRIM No. 571 states: [¶] “The defendant acted in
[imperfect self-defense] if: [¶] 1. The defendant actually believed
that [he] was in imminent danger of being killed or suffering
great bodily injury; [¶] AND [¶] 2. The defendant actually
believed that the immediate use of force was necessary to defend
against the danger; [¶] BUT [¶] 3. At least one of those beliefs
was unreasonable.”
6 It appears even Duarte’s attorney expressed doubts about
whether the instruction was warranted. When asked whether she
was requesting the instruction, she stated: “Well, in a perfect
world, I would love this to be given, and in a perfect world, the
testimony would not have been a surprise to us at the last
minute. So I will submit.”
10
B. Applicable law
“An instance of imperfect self-defense occurs when a
defendant acts in the actual but unreasonable belief that he or
she is in imminent danger of great bodily injury or death.
[Citation.]” (People v. Simon (2016) 1 Cal. 5th 98, 132 (Simon).)
“Imperfect self-defense differs from complete self-defense, which
requires not only an honest but also a reasonable belief of the
need to defend oneself. [Citation.]” (Ibid.) “It is well established
that imperfect self-defense is not an affirmative defense.
[Citation.]” (Ibid.) “It is instead a shorthand way of describing
one form of voluntary manslaughter. [Citation.]” (Ibid.) “Because
imperfect self-defense reduces an intentional, unlawful killing
from murder to voluntary manslaughter by negating the element
of malice, this form of voluntary manslaughter is considered a
lesser and necessarily included offense of murder. [Citation.]”
(Ibid.)
“A trial court has a sua sponte duty to instruct the jury on
a lesser included uncharged offense if there is substantial
evidence that would absolve the defendant from guilt of the
greater, but not the lesser, offense. [Citation.]” (Simon, supra, 1
Cal.5th at p. 132.) “‘Substantial evidence’ . . . is “‘evidence from
which a jury composed of reasonable persons could conclude[ ]”’
the lesser offense, but not the greater, was committed.
[Citations.]” (People v. Breverman (1998) 19 Cal. 4th 142, 162
(Breverman).) “[J]ust because a trial court instructs a jury on
perfect self-defense, this does not necessarily mean it has a sua
sponte duty to instruct on imperfect self-defense.” (People v.
Rodriguez (1997) 53 Cal. App. 4th 1250, 1254-1255, italics
omitted.) Where “the defendant’s version of events, if believed,
11
establishes actual self-defense, while the prosecution’s version, if
believed, negates both actual and imperfect self-defense, the
court is not required to give the [imperfect self-defense]
instruction. [Citation.]” (People v. Szadziewicz (2008) 161
Cal. App. 4th 823, 834 (Szadziewicz), disapproved on another
ground in People v. Dalton (2019) 7 Cal. 5th 166, 214.)
C. Analysis
Duarte argues the trial court erred by not instructing on
imperfect self-defense voluntary manslaughter because
substantial evidence supported a finding that he committed the
lesser crime but not the greater crime. (See Breverman, supra, 19
Cal.4th at p. 162.) We are not persuaded. The prosecution’s
position at trial was Puga was unarmed and Duarte murdered
him. The defense’s position, supported by Duarte’s testimony,
was that Duarte killed Puga in complete self-defense when Puga
reached into his Mercedes, grabbed a shotgun, racked it, and
stated this “was the end for [Duarte]” as he pointed the shotgun
at him. Although Duarte’s testimony supported an instruction on
reasonable self-defense, it did not support an instruction on
unreasonable self-defense. The trial court’s decision not to give
the instruction was therefore legally correct. (See Szadziewicz,
supra, 161 Cal.App.4th at p. 834.)
Because we conclude the trial court did not err in its
decision to omit the unreasonable self-defense voluntary
manslaughter instruction, we need not address prejudice. We do
note, however, that because substantial evidence did not support
a conclusion that Duarte engaged in unreasonable self-defense
(the evidence showed Duarte committed either murder or
12
engaged in reasonable self-defense), it follows logically that the
failure to give an instruction on the theory would have been
harmless under both Chapman v. California (1967) 386 U.S. 18,
24 [87 S. Ct. 824, 17 L. Ed. 2d 705] (Chapman) and People v.
Watson (1956) 46 Cal. 2d 818, 836 (Watson).
II. Duarte’s argument that the jury instructions on
self-defense and sudden quarrel/heat of passion
voluntary manslaughter were incomplete and
misleading
Duarte next contends the instructions were prejudicially
incomplete and misleading because they did not include language
concerning “the right to defend against assault with hands or
fists and the right to use a deadly weapon in response to such
crimes,” did not include the definitions of assault and battery,
and did not instruct the jury that “actual danger is not necessary
to justify self-defense.” The Attorney General argues Duarte
forfeited this argument by failing to object in the trial court, and
even assuming the argument has not been forfeited, the trial
court did not err and there was no prejudice. As discussed below,
we reach the merits of Duarte’s argument, but conclude the trial
court did not err and there was no prejudice.
We first address forfeiture. Duarte acknowledges he did not
object in the trial court on the grounds now raised on appeal.
Although he did not object, Duarte contends his argument is
cognizable on appeal because the omission affected his
substantial rights. (See § 1259.)7 “‘Ascertaining whether claimed
7 Section 1259 states in full: “Upon an appeal taken by the
defendant, the appellate court may, without exception having
13
instructional error affected the substantial rights of the
defendant necessarily requires an examination of the merits of
the claim—at least to the extent of ascertaining whether the
asserted error would result in prejudice if error it was.’
[Citation.]” (People v. Ramos (2008) 163 Cal. App. 4th 1082, 1087.)
We therefore address the merits of the argument, as the question
of forfeiture turns on whether the purported error was
prejudicial. We also reach the merits of the argument in the
interest of judicial economy, in order to forestall a petition for
writ of habeas corpus raising an ineffective assistance of counsel
claim. (See People v. Lewis (1990) 50 Cal. 3d 262, 282 (Lewis).)
Turning to the merits of Duarte’s argument, we conclude
the trial court did not err. “‘A trial court has a duty to instruct
the jury “sua sponte on general principles which are closely and
openly connected with the facts before the court.” [Citation.]’”
(People v. Gutierrez (2009) 45 Cal. 4th 789, 824.) Here, there was
no evidence Puga attempted to assault or batter Duarte with his
fists. As discussed above, the prosecution evidence showed
Duarte approached Puga and shot him, whereas Duarte testified
he shot in self-defense after Puga pointed a shotgun at him.
Assault and battery instructions had no connection to the facts
before the court and were not warranted.
been taken in the trial court, review any question of law involved
in any ruling, order, instruction, or thing whatsoever said or done
at the trial or prior to or after judgment, which thing was said or
done after objection made in and considered by the lower court,
and which affected the substantial rights of the defendant. The
appellate court may also review any instruction given, refused or
modified, even though no objection was made thereto in the lower
court, if the substantial rights of the defendant were affected
thereby.”
14
We likewise reject Duarte’s claim that “the trial court
should have instructed the jury that actual danger is not
necessary to justify self-defense.” The court instructed the jury
using CALCRIM No. 505 (“Justifiable Homicide: Self Defense or
Defense of Another”), which states, in pertinent part: “If the
defendant’s beliefs were reasonable, the danger does not need to
have actually existed.”
Because the record contains no evidence Puga attempted to
assault or batter Duarte with his fists, the trial court’s failure to
instruct on these concepts was harmless under both Chapman,
supra, 386 U.S. at p. 24, and Watson, supra, 46 Cal.2d at p. 836.
These instructions would have been irrelevant to the jury’s
considerations.8
III. Duarte’s argument regarding the mental defect
instruction9
Duarte next contends the trial court prejudicially erred by
not instructing the jury it could consider the evidence of his
8 Similarly, because the court did instruct the jury that
actual danger is not necessary to justify self-defense, there was
no prejudicial failure to articulate this concept to the jury as
Duarte contends.
9 Arguments III through V all allege instructional error.
Although Duarte did not object in the trial court on any of the
grounds raised in these arguments, we reach the merits of each
in the interest of judicial economy to forestall a petition for writ
of habeas corpus raising ineffective assistance of counsel. (See
Lewis, supra, 50 Cal.3d at p. 282.) As a result, we omit any
discussion concerning forfeiture.
15
mental defect in relation to whether he harbored the mental
states of premeditation and deliberation.10 Even assuming the
trial court erred in this regard, we find the purported error
harmless under any prejudice standard. The jury was instructed
on mental defect as a way to not find malice aforethought. It is
clear from the jury’s verdict that it concluded the mental defect
evidence was not credible enough to negate malice aforethought.
There is no reason, based on the record presented, to think the
jury would have found the mental defect evidence credible
enough to negate premeditation or deliberation when it made the
opposite finding on the element of malice aforethought. This is
particularly true in light of the strong evidence showing
premeditation and deliberation, which included prosecution
witness testimony that Duarte shot Puga several times while he
was unarmed.
IV. Duarte’s argument concerning the failure to
instruct the jury that mental defect evidence
could be considered when assessing Duarte’s
credibility
Duarte next argues the court prejudicially erred by not
stating in the CALCRIM No. 3428 instruction that the mental
impairment evidence could be considered when assessing
10 The trial court instructed the jury on mental impairment as
a defense to specific intent or mental state using CALCRIM No.
3428. The court instructed the jury it could consider the evidence
of his mental defect in relation only to whether he harbored the
mental state of malice aforethought. The instruction did not state
the jury could consider mental defect evidence in relation to
whether Duarte premediated or deliberated.
16
Duarte’s credibility and consciousness of guilt. We reject this
contention. Duarte points to no testimony by Dr. Ward
suggesting his mental defect might in any way impact his
credibility or consciousness of guilt. Rather, the thrust of Dr.
Ward’s testimony was that Duarte’s IQ test placed him in the
mildly developmentally disabled range, and that in light of these
intellectual deficits, he might have difficulty controlling his
behavior in complex and overwhelming situations.11 Because Dr.
Ward did not testify Duarte’s mental impairment might impact
his credibility or consciousness of guilt, the trial court did not err
by failing to instruct the jury that the mental defect evidence was
relevant to the jury’s assessment of these issues. (See People v.
Larsen (2012) 205 Cal. App. 4th 810, 823 [“‘[A] trial judge must
only give those instructions which are supported by substantial
evidence[.]’ . . . . [Citation.]”].) Additionally, because the
instruction Duarte claims should have been given was not
supported by substantial evidence, any purported error was
harmless under both Watson, supra, 46 Cal.2d at p. 836, and
Chapman, supra, 386 U.S. at p. 24.
V. Duarte’s argument regarding the instruction on
the union of act and wrongful intent
We likewise reject Duarte’s argument that the trial court
prejudicially erred by not mentioning premeditation and
11 Dr. Ward also testified Duarte sees reality as a normal
person would and is emotionally mature.
17
deliberation in CALCRIM No. 252.12 The instruction the court
provided explained that count one required “proof of the union, or
joint operation, of an act and a wrongful intent[,]” and “the act
and the specific intent or mental state required are explained
later in the instructions for those crimes.” The other instructions
properly informed the jury of the applicable mental states for
each crime, including premeditation and deliberation. In
considering these instructions as a whole, we conclude the trial
court properly instructed the jury. (See People v. Guerra (2006)
37 Cal. 4th 1067, 1148-1149 disapproved on other grounds in
People v. Rundle (2008) 43 Cal. 4th 76, 151 [“In assessing whether
the jury instructions given were erroneous, the reviewing court [ ]
‘“‘must consider the instructions as a whole . . . [and] assume that
the jurors are intelligent persons and capable of understanding
and correlating all jury instructions which are given.’ [Citation.]”’
[Citations.]”].) Even assuming the trial court erred, we conclude
12 The court instructed the jury as follows using CALCRIM
No. 252: [¶] “The crime and allegation charged in Count 1
requires proof of the union, or joint operation, of act and wrongful
intent. [¶] The following crime[s] require [ ] a specific intent or
mental state: murder or manslaughter. For you to find a person
guilty of [these] crimes, that person must not only intentionally
commit the prohibited act, but must do so with a specific intent or
mental state. The act and the specific intent or mental state
required are explained in the instruction for that crime. [¶] The
following allegation requires general criminal intent: the gun
allegation. [T]hat person must not only commit the prohibited
act, but must do so with wrongful intent. A person acts with
wrongful intent when he intentionally does a prohibited act;
however, it is not required that he intend to break the law. The
act required is explained in the instruction for that allegation.”
(Italics added.)
18
the purported error was harmless. Duarte has not sustained his
burden of showing it was reasonably probable he would have
received a more favorable outcome if CALCRIM No. 252 had
explicitly mentioned premeditation and deliberation rather than
referring the jury to the instructions detailing the legal principles
relevant to homicide. (See Watson, supra, 46 Cal.2d at p. 836.)
We would find the purported error harmless under Chapman,
supra, 386 U.S. at p. 24, as well.
VI. Duarte’s evidentiary argument
Duarte next contends the trial court prejudicially erred by
allowing Puga’s cousin to testify Puga’s dying words were that
Duarte shot him and did not want to fight him, statements the
trial court held admissible under the dying declaration exception
to the hearsay rule.13 We conclude the trial court did not abuse
its discretion. (See People v. Mayo (2006) 140 Cal. App. 4th 535,
553 [abuse of discretion standard of review applies].)
“‘To be admissible in evidence as dying declarations, the
statements of the decedent must have been made at a time when
he had abandoned all hope of life so that he believed that death
inevitably must follow. This sense of impending death may be
shown in any satisfactory mode, by the express language of the
declarant, or be inspired from his evident danger, or the opinions
of medical or other attendants stated to him, or from his conduct,
13 Evidence Code section 1242 states: “Evidence of a
statement made by a dying person respecting the cause and
circumstances of his death is not made inadmissible by the
hearsay rule if the statement was made upon his personal
knowledge and under a sense of immediately impending death.”
19
or other circumstances in the case, all of which are resorted to in
order to ascertain the state of the declarant’s mind.’” (People v.
Tahl (1967) 65 Cal. 2d 719, 725.)
The evidence here demonstrated Puga knew he was dying.
After arriving at his cousin’s house, he said he had been shot in
the neck, could not breathe, and was going to die. Simply put,
Puga’s statements to his cousin were dying declarations.
Even assuming the trial court erred by allowing the
statements, Duarte has not sustained his burden of showing it
was reasonably probable he would have received a more favorable
outcome had the statements been excluded. (See Watson, supra,
46 Cal.2d at p. 836.) Although it is true Puga’s statement to his
cousin that Duarte did not want to fight bolstered the
prosecution’s position that Duarte shot Puga as he was unarmed,
J.R., who witnessed the shooting, testified Puga was unarmed
when Duarte shot him. In other words, the prosecution evidence
on this point would have remained strong even if Puga’s
statements had been excluded.
VII. Duarte’s cumulative error argument
Duarte lastly argues that even if the errors discussed in
Arguments I through VI are deemed harmless individually, their
cumulative effect prejudiced his right to a fair trial. We disagree
and conclude Duarte received a fair trial. (See People v. Price
(1991) 1 Cal. 4th 324, 465 [defendant does not suffer substantial
prejudice when few or no errors occurred and all alleged errors
were individually deemed harmless].)
20
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
21