California Court of Appeal Jun 18, 2014 No. E056554Unpublished
Filed 6/18/14 P. v. Gonzalez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056554
v. (Super.Ct.No. FVA901232)
HORACIO GONZALEZ, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Arthur Harrison,
Judge. Affirmed.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Kathryn
Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found defendant and appellant Horacio Gonzalez, Jr., guilty of one count
of murder in the first degree (Pen. Code, §187, subd. (a)),1 with the additional allegation
of the use of a deadly weapon (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)).
Defendant was sentenced to 25 years to life for the murder, with a consecutive one-year
disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.)
The subjective provocation upon which defendant relies arose “from depression
so severe that it bordered on paranoid delusions affecting his decision-making
capabilities.” He argues in briefing that the victim’s activities scared him for the
welfare of his children, so he sought to “convince her through intimidation to allow him
to see his children or run the risk he would use the information in family law court.”
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Because he testified that he never intended to kill, he asserts that he acted without
“making any calculated judgment or weighing considerations.” Further, Dr. Kania, his
psychologist, testified that defendant suffered from chronic depression with
schizophrenic reactions and paranoid features. However, the diagnosis came from the
doctor’s evaluation of him in 2011, which he could “date back” to 2009 based upon
records of other doctors that he reviewed. Dr. Kania’s diagnosis was depression with
“strong suggestions as to the possibility of psychotic thinking, even at that time and
indication of similar thinking as he told me about what he recalled happening in July of
2009.” Defendant acknowledges that there was no actual provocation by the victim, but
states that it was defendant’s “delusional belief based upon the GPS log[] evidence that
[the victim] was not taking proper care of their children and he feared for their welfare,
so much so that he went to the hair salon intend[ing] to confront her and use the log[]
evidence in an attempt to see his children.”
The fact that counsel did not request a further pinpoint instruction on subjective
provocation did not render his representation deficient. “‘[I]n appropriate
circumstances’ a trial court may be required to give a requested jury instruction that
pinpoints a defense theory of the case . . . [b]ut a trial court need not give a pinpoint
instruction if it is argumentative [citation], merely duplicates other instructions
[citation], or is not supported by substantial evidence [citation].” (People v. Bolden
(2002) 29 Cal.4th 515, 558.) A pinpoint instruction on subjective provocation is
required to be given only if it is requested and if there is evidence to support the theory.
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(People v. Rogers (2006) 39 Cal.4th 826, 878) Here, the instruction lacked sufficient
supporting evidence.
Defendant asserts he was motivated by fear for his children’s welfare. For the
purpose of this claim, he presumably admits this fear was objectively unreasonable and
that his depression clouded his thinking so that he believed his fears were warranted.
Even granting defendant’s claim to have suffered from delusions at the time of the
killing—which rests on the extremely tenuous footing of psychological testimony based
upon a MMPI test administered 30 months after the killing, self-reporting of past
symptoms, and extrapolation from more contemporaneous medical reports—a necessary
connection is missing.
Nothing about the supposed subjective provocation would lead defendant to
murder. At most, defendant has explained why he might have thought he must violate
his restraining order to attempt to blackmail the victim to let him see their children more
often. There is no provocation to murder. Defendant has not argued that he killed his
children’s mother in order to protect them from her bad parenting. The victim did
nothing to provoke defendant when he arrived at the salon. All of the alleged
provocations occurred beforehand, as did defendant’s planning and deliberation.
Defendant has denied jealousy or possessiveness as motivations for the murder.
Although defendant states he was provoked to confront the victim over her neglect of
their children, his action, upon sight of the victim, was to murder her. Defendant
unreasonably believed the victim was a bad mother and therefore wanted greater
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custody of his children. Murder was not a consequent response. The evidence does not
support giving a further pinpoint instruction.
Furthermore, the pinpoint instruction would have duplicated the instructions that
were given. The trial court instructed the jury that “[a] decision to kill made rashly,
impulsively, or without careful consideration is not deliberate and premeditated. On the
other hand, a cold, calculated decision to kill can be reached quickly.” This instruction
adequately covered the defense theory, and a duplicative pinpoint instruction need not
be given. Most significantly, there was compelling evidence of premeditation and
deliberation. Overwhelming evidence shows that defendant did not form the intent to
kill “as a direct response to” provocation and did not kill “immediately.” (People v.
Wickersham, supra, 32 Cal.3d at p. 329.) We are convinced beyond a reasonable doubt
that an instruction more explicitly applying a subjective standard would not have
influenced the jury’s verdict.
2. ADMISSION OF GPS TRACKING RECORDS
Defendant asserts his counsel rendered him inadequate assistance because
counsel failed to make an offer of proof that the GPS tracking records were relevant
evidence to defendant’s state of mind. Because the records were not relevant to any
issue at trial, we find that the offer of proof would have been a futile gesture and
defendant therefore suffered no possible prejudice.
A trial court has broad discretion in determining the relevance of evidence but
lacks discretion to admit irrelevant evidence. (People v. Riggs (2008) 44 Cal.4th 248,
289.) Here, the trial court received oral argument on the admission of the tracking logs,
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took a break in the proceedings to review them, found them inadmissible and stated its
reasons: all on the record. Defendant told the court the tracking logs provided
information as to when the tracked vehicle arrived at specific addresses, but the court
noted that many entries consisted of specific addresses and an “mph” entry, indicating
the car was moving. The reliability of the logs was further undercut by the fact that they
do not record who was driving the vehicle, so their relevance to the victim’s activities is
suspect. Defendant’s briefing does not respond to the trial court’s concerns. Instead,
defendant maintains the logs would have provided evidence of defendant’s delusional
state of mind—despite their flaws.
This court has reviewed the proposed evidence and finds it was not an abuse of
discretion to exclude them. Defendant’s obsessiveness was already before the jurors:
they knew he hired a private detective to follow the victim and that he surreptitiously
attached a GPS tracker to her car, which reported her location to him every three
minutes. The only additional information the records themselves would provide come
from comments inserted by defendant into the tracking records. The narratives added to
some entries disparaged the victim and accused her of promiscuity, drug use, and
prostitution. The records are duplicative in places. As the facts of defendant’s
monitoring of the victim were already before the jury, the only additional value of the
logs would be allowing defendant to voice his accusations against the victim. That does
not justify their admission, and they were properly excluded.
Despite the adverse ruling, no offer of proof was required of counsel. The trial
judge excluded the logs and explained his reasoning on the record. Defendant asserts
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that the failure to make a formal offer of proof was deficient performance. This
overestimates the significance of an offer of proof. “An offer of proof should give the
trial court an opportunity to change or clarify its ruling and in the event of appeal would
provide the reviewing court with the means of determining error and assessing
prejudice. [Citation.]” (People v. Schmies (1996) 44 Cal.App.4th 38, 53.) The trial
court considered the arguments before it and even took a break in the proceedings for
further review and consideration following the initial argument. In addition, defense
counsel then objected to the ruling and registered a continuing objection. There was no
need to further highlight counsel’s disagreement with the ruling. The trial court was
well informed of counsel’s arguments and no change or clarification would be
forthcoming.
The record would not have been improved by an offer of proof. “The offer of
proof exists for the benefit of the appellate court. The offer of proof serves to inform
the appellate court of the nature of the evidence that the trial court refused to receive in
evidence . . . . The function of an offer of proof is to lay an adequate record for
appellate review . . . .” (1 Wigmore on Evidence, § 20a (Tillers Rev.1983), p. 858.)
The proposed evidence was marked for retention and is before us. The trial court set
out its reasoning in the trial transcript, and we have reviewed and accepted it. In
everything but name, defense counsel made an offer of proof and he has preserved the
issue for us in full. We see no possible prejudice from counsel’s failure to make an
offer of proof, and find no deficient performance.
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C. JURY DEADLOCK
The jury received the case on May 17, 2012. On May 22 the jury sent a note
indicating they could not reach a decision. The trial judge delivered a further
instruction derived from People v. Moore (2002) 96 Cal.app.4th 1105 (Moore).3
Defendant argues that the Moore instruction used in response to the jury’s note coerced
the verdict. Finding no impropriety in the decision to give the instruction and no defect
in the instruction, we affirm.
Section 1140 provides, in pertinent part, that “the jury cannot be discharged after
the cause is submitted to them until they have agreed upon their verdict . . . unless by
consent of both parties [or] at the expiration of such time as the court may deem proper,
it satisfactorily appears that there is no reasonable probability that the jury can agree.”
“The determination, pursuant to section 1140, whether there is a ‘“reasonable
probability”’ of agreement, rests within the sound discretion of the trial court.
[Citation.]” (People v. Proctor (1992) 4 Cal.4th 499, 539, citing People v. Miller
(1990) 50 Cal.3d 954, 994; People v. Breaux (1991) 1 Cal.4th 281, 319.) “Although the
court must take care to exercise its power without coercing the jury into abdicating its
independent judgment in favor of considerations of compromise and expediency
[citation], the court may direct further deliberations upon its reasonable conclusion that
3 The Moore instruction is given to a deadlocked jury to spur further deliberations by reminding them to be open to changing their minds in order to reach a verdict, if one can be reached without violating their individual judgment. The instruction also suggests methods of refreshing deliberation, such as role-playing jurors holding opposite views. (Moore, supra, 96 Cal.App.4th at pp. 1118-1119.)
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such direction would be perceived ‘“as a means of enabling the jurors to enhance their
understanding of the case rather than as mere pressure to reach a verdict . . . .”
[Citation.]’ [Citation.]” (Proctor, at p. 539.)
Defendant first argues that the trial court gave the instruction without questioning
the jury to ascertain whether there was a “reasonable probability” they could reach a
verdict. There is no such requirement. A jury may not be dismissed unless the court
finds there is no reasonable probability of a verdict. The trial court has discretion
whether to allow deliberation to continue and need not inquire of the jury.
Defendant next asserts that the Moore charge improperly suggests that the jury
must reach a verdict and that it pressured holdout jurors to defer to the majority.
Defendant acknowledges the Moore instruction has been recognized as a proper charge
to a jury reporting difficulties. (People v. Whaley (2007) 152 Cal.App.4th 968, 983;
People v. Hinton (2004) 121 Cal App.4th 655, 661; Parker v. Small (9th Cir. 2011) 665
F.3d 1143, 1148.) He urges this court to follow the reasoning of Justice McAdams’s
concurrence in Whaley, which found the “‘reverse role playing’” suggestion troubling
and the overall instruction to create an expectation of a verdict. (Whaley, at p. 985)
However, even Justice McAdams agreed that the effect was insufficient to reach a level
requiring reversal. Here, on facts less troubling than the 11-1 split known to the trial
judge in Whaley, we decline to find the instruction coercive.
D. CUMULATIVE ERRORS
Defendant contends the cumulative effect of defense counsel’s errors requires
reversal of his conviction and sentence even if none of the errors is sufficient
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individually. We conclude that any errors or assumed errors were nonprejudicial,
whether reviewed separately or cumulatively.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
KING Acting P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's first-degree murder conviction, finding sufficient evidence of premeditation and deliberation based on the defendant's planning, motive, and the nature of the attack. The court also rejected the defendant's claims regarding ineffective assistance of counsel, trial court error in jury instructions, and cumulative prejudice.
Issues
Whether there was sufficient evidence to support a finding of premeditation for first-degree murder.
Whether counsel rendered deficient representation by failing to request a pinpoint instruction on provocation and failing to make an offer of proof regarding GPS logs.
Whether the trial court improperly pressured a deadlocked jury to reach a verdict.
Whether the cumulative prejudicial effect of trial errors requires reversal.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The record shows such activity.”
“Finding none of these contentions persuasive, we affirm the judgment.”
“The circumstances of the present incident are clearly susceptible to a reasonable inference that defendant’s conduct was the result of preexisting reflection as opposed to a rash unconsidered impulse.”