Filed 11/12/15 P. v. Zamora CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068693

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. RIF1200091)

PETER DIAZ ZAMORA III,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Richard T.

Fields, Judge. Affirmed, with directions.



         Joanna McKim, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Annie Featherman Fraser and

Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found Peter Diaz Zamora III (Zamora) guilty of second degree murder

(Pen. Code, § 187, subd. (a)),1 with a further finding that Zamora personally used a

deadly and dangerous weapon (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)). The trial

court sentenced Zamora to a prison term of 16 years to life.

       Zamora contends (1) the trial court prejudicially abused its discretion in sustaining

an evidentiary objection to a question about whether Zamora appeared to be in his "right

mind" during the murder; (2) the prosecutor committed misconduct by incorrectly stating

the law during closing argument; and (3) a clerical error in the March 21, 2014 minute

order recording the verdict should be corrected to state that a true finding was made only

as to one sentencing enhancement. Except for the third point, which the Attorney

General concedes has merit, we reject Zamora's appellate arguments. Accordingly, we

direct the trial court to correct the March 21, 2014 minute order to properly reflect that a

true finding was made only on a single sentencing enhancement, namely that Zamora

personally used a deadly and dangerous weapon (§§ 12022, subd. (b)(1), 1192.7,

subd. (c)(23)), and in all other respects we affirm the judgment.




1      Unless otherwise indicated, all further statutory references are to the Penal Code.

                                              2
                                               I

                    FACTUAL AND PROCEDURAL BACKGROUND

         Zamora, his three younger brothers (Samuel, Isaac and Nathaniel), and their

mother, Desiree, attended a family gathering on the evening of January 27, 2012.2 The

gathering was held in the two-bedroom apartment where Samuel and Desiree lived with

their roommate Jason Willis. Willis was present in the apartment during the gathering,

along with Zamora's girlfriend, S., and Samuel's and Nathaniel's girlfriends. In addition

to the adults, Zamora and S. brought along two children: their one-year old son P. IV

(Baby), and S.'s eight-year old son A.J. By all accounts, there was a substantial amount

of alcohol consumed during the evening by several of the family members, including

Zamora, and witnesses reported that Willis was also drinking heavily and appeared very

drunk.

         It was decided that Zamora, S. and the children would stay overnight in the

apartment, with the specific arrangement that the children and Desiree would sleep in

Willis's bedroom, Zamora and S. would sleep in Desiree's bedroom, and Willis would

sleep on a couch in the living room.

         At some point in the evening, the children were put to sleep in Willis's room,

while the adults stayed up. Later in the evening, Desiree went into the bedroom where




2     For sake of clarity, we will refer to Zamora's family members by their first name,
and we intend no disrespect by doing so.

                                              3
the children were sleeping to check on them and started screaming, as she saw Willis

sleeping on the bed, naked from the waist down, next to Baby P., who was fully clothed.

       Nathaniel went to the bedroom and started punching Willis, as he yelled

something like "What are you doing with the baby?" Zamora heard the screaming and

ran to the bedroom where he joined Nathaniel in punching Willis in the ribs and legs.

Isaac and Samuel also entered the room and joined in the assault to a lesser extent, with

Samuel admitting to having pushed Willis during the incident, and Isaac admitting to

having punched and kicked Willis several times.

       Zamora was enraged during the incident and continued to punch Willis numerous

times before deciding to go to the kitchen to get a knife. Zamora returned to the

bedroom, where Willis was now on the floor, still being beaten by Nathaniel, and stabbed

Willis four times: in the chest, the back and the upper arm. One of the stab wounds

perforated Willis's heart.

       As the level of violence escalated, Samuel and Isaac tried to stop Zamora and

Nathaniel from continuing the assault. While being held back by Isaac, Zamora was

forced to drop the knife, but managed to break free and stomped on Willis's head several

times. Willis never fought back during the incident, although as the assault progressed he

responded by curling up in a fetal position and trying to shield his face from the blows

with his hands.

       Zamora finally stopped assaulting Willis when Isaac confronted him and

suggested that he think about what he was doing and check on Baby P.. Zamora punched

a wall, left the room, and then fled the apartment along with S., the children, Samuel and

                                             4
Samuel's girlfriend. A family member suggested that Baby be taken to the hospital.

Baby's Peter exam at the hospital was normal and showed no sign of trauma.

       Willis was taken by ambulance to the hospital at approximately 1:00 a.m. and died

later that morning. Willis was badly beaten in the assault, with the fatal injury being the

stab wound that pierced his heart.

       At the request of the police, Zamora spoke with detectives the next day and

admitted to what he had done. During the interview, Zamora stated that he beat and

stabbed Willis in the manner we have described above, and admitted several times during

the interview that he wanted to kill Willis as he was stabbing him. As Zamora explained

his motive for the assault, "I just saw him naked and . . . knowing my son was in that bed

I -- I flipped."

       Zamora was charged with first degree murder (§ 187, subd. (a)) with the further

allegation that he personally used a deadly and dangerous weapon (§§ 12022,

subd. (b)(1), 1192.7, subd. (c)(23)). At trial, the central issue was whether Zamora was

guilty of first degree murder, as charged by the People, or of one of the lesser included

offenses of second degree murder or voluntary manslaughter, as defense counsel argued.

The jury was unable to reach a verdict on first degree murder, and the parties agreed to

allow the jury to decide the lesser included offenses. The jury convicted Zamora of

second degree murder, with a true finding on the deadly weapon enhancement. Zamora

was sentenced to a prison term of 16 years to life.




                                             5
                                               II

                                        DISCUSSION

A.     The Trial Court Did Not Prejudicially Err in Sustaining the Prosecutor's
       Objection to a Question About Zamora's State of Mind

       During the cross-examination of Isaac, defense counsel asked if Zamora "even

appear[ed] to be in his right mind" while assaulting Willis. The prosecutor objected that

the question "calls for a conclusion that he is not qualified to give, and it calls for

speculation." The trial court sustained the objection, explaining that "he may tell us his

observations and what he heard." Zamora contends that the trial court prejudicially erred

in sustaining the objection.

       "A trial court's ruling on the admission or exclusion of evidence is reviewed for

abuse of discretion." (People v. DeHoyos (2013) 57 Cal.4th 79, 131 (DeHoyos).)

"Where, as here, a discretionary power is statutorily vested in the trial court, its exercise

of that discretion 'must not be disturbed on appeal except on a showing that the court

exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted

in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124

(Rodrigues).)

       As Isaac was a layperson, not an expert witness, Evidence Code section 800

applies, which states that "[i]f a witness is not testifying as an expert, his testimony in the

form of an opinion is limited to such an opinion as is permitted by law, including but not

limited to an opinion that is: (a) Rationally based on the perception of the witness; and




                                               6
(b) Helpful to a clear understanding of his testimony." Under this provision, "[a] lay

witness generally may not give an opinion about another person's state of mind, but may

testify about objective behavior and describe behavior as being consistent with a state of

mind." (DeHoyos, supra, 57 Cal.4th at p. 130.)

       Here, the question posed by defense counsel to Isaac directly inquired about

Zamora's state of mind, instead of any objective behavior, by asking whether Zamora

"appear[ed] to be in his right mind." As the trial court properly pointed out, Isaac could

respond to questions that called for him to describe Zamora's behavior, from which a

state of mind could be inferred, but Isaac was not qualified to opine directly on Zamora's

state of mind.

       Zamora argues that the trial court should not have sustained the objection because

layperson testimony about a person's demeanor is properly admissible. Zamora cites

People v. Weaver (2012) 53 Cal.4th 1056, 1086, in which the trial court properly

admitted testimony that the defendant "displayed hatred" (ibid.) and People v. Chatman

(2006) 38 Cal.4th 344, 397, in which the trial court properly admitted testimony that the

defendant " 'seemed to be enjoying it' " when kicking someone (ibid). Here, in contrast

the trial court was well within its discretion to conclude that by asking if Zamora

appeared to be "in his right mind," defense counsel was not inquiring about Zamora's

demeanor, such as the display of hatred or enjoyment at issue in Weaver and Chatman,

but instead was seeking to solicit testimony about Isaac's opinion on Zamora's mental

state. Accordingly, we conclude that the trial court was within its discretion to sustain



                                             7
the objection on the ground that the question called for inadmissible layperson testimony

about Zamora's state of mind, not tied to any specific description of behavior.

       We also reject Zamora's argument for the independent reason that, even if there

was any error in excluding the testimony, Zamora has not established that the error was

prejudicial. In assessing whether an erroneous exclusion of evidence was prejudicial we

inquire whether it is "reasonably probable that a more favorable result would have

occurred had the evidence been admitted." (Rodrigues, supra, 8 Cal.4th at p. 1125, citing

People v. Watson (1956) 46 Cal.2d 818, 836.)3 Here, although Isaac was not permitted

to respond to the question about whether Zamora appeared to be in his right mind,

defense counsel managed to convey essentially the same concept by eliciting testimony

from Isaac that during the assault Zamora "just wasn't really him," "turned into a different

person," and "was not like his normal self." Further, S. testified to the same effect,

explaining that when she confronted Zamora as he was walking back from the kitchen

with the knife, "he wasn't even himself" and "wasn't even responding." Relying on the

testimony that Zamora was not like himself during the assault, defense counsel was


3       Zamora contends that the trial court's evidentiary ruling implicated his
constitutional right to due process and to present a defense, so that prejudice should be
assessed based on the standard applicable to federal constitutional error. We reject the
argument. "As a general matter, the '[a]pplication of the ordinary rules of evidence . . .
does not impermissibly infringe on a defendant's right to present a defense.' . . .
Although completely excluding evidence of an accused's defense theoretically could rise
to this level, excluding defense evidence on a minor or subsidiary point does not impair
an accused's due process right to present a defense. . . . Accordingly, the proper standard
of review is . . . not the stricter beyond-a-reasonable-doubt standard reserved for errors of
constitutional dimension . . . ." (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103,
citations omitted.)

                                              8
specifically able to assert during closing argument that Zamora "was not in the right state

of mind." Based on this evidence describing Zamora's behavior during the assault, which

conveyed something very similar to the concept that Zamora was not "in his right mind,"

we conclude that even had the trial court allowed Isaac to testify whether Zamora

appeared to be in his right mind during the assault, there is not a reasonable probability

that Zamora would have received a more favorable result at trial.

B.     Zamora Forfeited His Prosecutorial Misconduct Claims by Not Asserting Them at
       Trial

       Zamora next argues that the prosecutor committed misconduct during closing

argument by making two different statements that purportedly misstated the law.

       First, Zamora contends that the prosecutor incorrectly represented the law

concerning a defendant's presumption of innocence by making the following statement

during closing argument:

       "When you were brought in here, you were all told . . . that you have to
       believe that at that point in time that the defendant, in any criminal case,
       when he comes in here, he is presumed innocent. And that's fair.

       "And then his accuser has to bring in evidence to show he's guilty. . . . We
       also bring in people that are not associated with the D.A.'s office or the
       defense — you all — the neutral people, to take a look at the evidence, to
       make a decision, and decide guilt or not guilt. . . .

       "Now that evidence has been presented, that presumption, that cloak of
       innocence, that's gone. Witnesses have testified. That presumption of
       innocence is gone. He's been given his day in court. He's guilty of murder.
       And we'll get into that in just a second."

       Second, Zamora contends that the prosecutor incorrectly stated the law regarding

circumstantial evidence by making the following comment:


                                              9
       "You've heard a lot of talk in this case about molestation, and this is how
       this whole thing started. The thing I want to remind you of in this case is,
       when you were selected as jurors in this case one of the things that I said to
       you and the judge said to you, we were in a closed universe. You have to
       work with the evidence. You have to work with what has been presented.
       You can't infer. You can't make up facts. You can't do any of that. You
       have to work with what you heard in this trial. What the witnesses saw.
       What they talked about.

       "And the state of the evidence is that there has been no witness that has
       testified that they saw [Willis] touch that baby. They can get up here and
       infer and talk about all of that other stuff, but not one witness has testified
       that they saw [Willis] touch that baby."

       We begin our analysis with the observation that " '[t]he standards governing

review of [prosecutorial] misconduct claims are settled. "A prosecutor who uses

deceptive or reprehensible methods to persuade the jury commits misconduct, and such

actions require reversal under the federal Constitution when they infect the trial with such

' "unfairness as to make the resulting conviction a denial of due process." ' [Citations.]

Under state law, a prosecutor who uses such methods commits misconduct even when

those actions do not result in a fundamentally unfair trial." ' [Citation.] [¶] ' "As a

general rule a defendant may not complain on appeal of prosecutorial misconduct unless

in a timely fashion—and on the same ground—the defendant made an assignment of

misconduct and requested that the jury be admonished to disregard the impropriety." ' "

(People v. Hajek (2014) 58 Cal.4th 1144, 1238 (Hajek).)

       Without reaching the merits of Zamora's prosecutorial misconduct argument, we

conclude that the argument has been forfeited. As we have explained, a defendant may

generally not complain on appeal of prosecutorial misconduct unless he has timely

objected and requested that the jury be admonished. (Hajek, supra, 58 Cal.4th at

                                              10
p. 1238.) Here, defense counsel did not object to the prosecutor's comments during

closing argument, and made no request that the jury be admonished. Although the

"defendant's failure to object will be excused if an objection would have been futile or if

an admonition would not have cured the harm caused by the misconduct" (People v.

Centeno (2014) 60 Cal.4th 659, 674), Zamora has not established that an objection or

admonition would have been futile. Indeed, as the alleged misconduct consisted of

purported misstatements of law, they could have easily been corrected by the trial court

with an admonition that set forth the correct rule of law or directed the jury to look to the

law as stated in the jury instructions rather than as argued by counsel. As our Supreme

Court recently pointed out in a similar context, "[a] prosecutor's misstatements of law are

generally curable by an admonition from the court." (Ibid.)

       Zamora contends that he should be excused from objecting on the ground that "an

objection would have been harmful because it would have called more attention to the

prosecutor's comments, making the prejudice worse," and "redirecting jurors to the

prosecutor's comments may have solidified the incorrect statements of the law in jurors'

minds." Our Supreme Court has expressly declined to create an exception for such a

circumstance, explaining that "[t]he mere concern of highlighting alleged misconduct by

objecting, without more, cannot serve as an exception to the general rule requiring an

objection and request for an admonition" because such an "exception, of course, would

swallow the rule requiring a timely objection and request for admonition, for one always

runs the risk of drawing the jury's attention to an improper line of argument by registering

an objection." (People v. Boyette (2002) 29 Cal.4th 381, 432.)

                                             11
       We therefore conclude that Zamora may not pursue the issue of prosecutorial

misconduct on appeal because the issue has been forfeited.

C.     Zamora Has Failed to Establish That Counsel Was Ineffective for Failing to
       Object to the Alleged Prosecutorial Misconduct

       Acknowledging that defense counsel may have forfeited the prosecutorial

misconduct argument by not objecting during closing argument, Zamora contends that

defense counsel was ineffective for failing to object.

       "A defendant whose counsel did not object at trial to alleged prosecutorial

misconduct can argue on appeal that counsel's inaction violated the defendant's

constitutional right to the effective assistance of counsel. The appellate record, however,

rarely shows that the failure to object was the result of counsel's incompetence; generally,

such claims are more appropriately litigated on habeas corpus, which allows for an

evidentiary hearing where the reasons for defense counsel's actions or omissions can be

explored." (People v. Lopez (2008) 42 Cal.4th 960, 966.)

       "Under both the Sixth Amendment to the United States Constitution and article I,

section 15, of the California Constitution, a criminal defendant has the right to the

assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) A defendant

claiming ineffective assistance of counsel has the burden to show: (1) counsel's

performance was deficient, falling below an objective standard of reasonableness under

prevailing professional norms; and (2) the deficient performance resulted in prejudice.

(Strickland v. Washington (1984) 466 U.S. 668, 687; Ledesma, at pp. 216, 218.)

Prejudice is shown when "there is a reasonable probability that, but for counsel's


                                             12
unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome." (Strickland, at p. 699.)

       Further, as is important here, "[r]eviewing courts reverse convictions on direct

appeal on the ground of incompetence of counsel only if the record on appeal

demonstrates there could be no rational tactical purpose for counsel's omissions."

(People v. Lucas (1995) 12 Cal.4th 415, 442; see People v. Anderson (2001) 25 Cal.4th

543, 569.) "In the usual case, where counsel's trial tactics or strategic reasons for

challenged decisions do not appear on the record, we will not find ineffective assistance

of counsel on appeal unless there could be no conceivable reason for counsel's acts or

omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.)

       Zamora has not established that defense counsel performed below the standard of

care by failing to object to either of the prosecutor's statements.

       First, as to the prosecutor's statement concerning the presumption of innocence,

defense counsel could reasonably have determined that the statement was not

objectionable. Specifically, defense counsel could have concluded that, put in context,

instead of misstating the law on the presumption of innocence, the prosecutor was

commenting that based on the evidence at trial, guilt had been proved beyond a

reasonable doubt. Case law from our Supreme Court holds that a prosecutor may make a

comment referring to the presumption of innocence having been " 'stripped away' " by the

evidence presented at trial or the fact that the defendant " 'doesn't stay presumed

innocent.' " (People v. Panah (2005) 35 Cal.4th 395, 463 [prosecutor's comment that the

                                              13
evidence " 'stripped away' " the presumption of innocence was proper when "made in

connection with his general point that, in his view, the evidence, to which he had just

referred at length, proved defendant's guilt beyond a reasonable doubt"]; People v.

Booker (2011) 51 Cal.4th 141, 183, 185 [prosecutor's comment that the presumption of

innocence " 'should have left many days ago' " and the defendant " 'doesn't stay presumed

innocent' " did not constitute misconduct because, in context, and in light of jury

instruction on the burden of proof, it was clear that by referring to the presumption of

innocence "the prosecutor . . . simply argued the jury should return a verdict in his favor

based on the state of the evidence presented"].) Based on this authority, defense counsel

could reasonably have concluded that the prosecutor's comment regarding the

presumption of innocence was not improper, as it was aimed at commenting on her view

of the evidence presented at trial, not at claiming that Zamora was no longer entitled to a

presumption of innocence during jury deliberations.

       Second, as to the prosecutor's comments on circumstantial evidence, Zamora has

failed to establish ineffective assistance of counsel on two grounds. First, defense

counsel reasonably could have concluded that there was nothing objectionable about the

prosecutor's statement. Zamora contends that in stating that the jury " 'can't infer,' " the

prosecutor was improperly stating that the jury could not use circumstantial evidence in

reaching a verdict and was required to rely solely on direct evidence. However, defense

counsel reasonably could have concluded that, put in the context, the jury would not have

understood the prosecutor to be claiming that it could not rely on circumstantial evidence

at all, but rather was commenting that the evidence did not support an inference of

                                              14
molestation. Specifically, looking at the entirety of the prosecutor's comment, and the

fact that it focused on the lack of evidence that Willis ever touched Baby, defense counsel

reasonably could have concluded that the jury would have understood that the prosecutor

was making the point that the jury could not infer a molestation occurred, and was not

claiming that the jury could not rely on circumstantial evidence.

       Second, Zamora has failed to establish prejudice from defense counsel's failure to

object that the prosecutor misstated the law on circumstantial evidence. The jury was

properly instructed on the use of circumstantial evidence pursuant to CALCRIM

Nos. 223 and 225. Further, the jurors were instructed under CALCRIM No. 200 that they

must follow the court's instructions, not the law as stated by the attorneys. Thus, even

without an objection from defense counsel that the prosecutor misstated the law on

circumstantial evidence, we presume that the jury followed the court's instructions, absent

evidence to the contrary. (People v. Johnson (2015) 61 Cal.4th 734, 770 ["We presume

the jurors understood and followed the instructions."]; People v. Clair (1992) 2 Cal.4th

629, 663, fn. 8 ["We presume that jurors treat the court's instructions as a statement of the

law by a judge, and the prosecutor's comments as words spoken by an advocate . . . ."].)

D.     Correction of Minute Order Regarding Sentencing Enhancement

       Zamora was charged with a single sentencing enhancement, based on his personal

use of a dangerous and deadly weapon. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).)

The jury's verdict form, the oral pronouncement of the verdict at trial, and the abstract of

judgment all correctly reflect a true finding on that single sentencing enhancement.

However, the minute order for March 21, 2014, which sets forth the jury's verdict, shows

                                             15
that there were two enhancements found true by the jury: "Jury Finds Enhancement (s)

1U in count 1 True. [¶] Jury Finds Enhancement (s) DW in count 1 True."

       Zamora contends that because the minute order incorrectly states that two

sentencing enhancements were found to be true, we should order the trial court to correct

the erroneous minute order. The Attorney General concurs that the minute order is

erroneous and should be corrected.

       "A discrepancy between the judgment as orally pronounced and as entered in the

minutes is presumably the result of clerical error." (People v. Mesa (1975) 14 Cal.3d

466, 471.) "Courts may correct clerical errors at any time." (People v. Mitchell (2001)

26 Cal.4th 181, 185.) We accordingly direct the trial court to correct the erroneous

minute order to reflect a true finding on only one sentencing enhancement, for personal

use of a dangerous and deadly weapon. (See People v. Gonzalez (2012) 210 Cal.App.4th

724, 744 [ordering correction of a minute order to reflect the court's oral pronouncement

of judgment as reflected in the reporter's transcript]; People v. Moses (2011) 199

Cal.App.4th 374, 380 [same].)




                                            16
                                      DISPOSITION

       The trial court is directed to correct the March 21, 2014 minute order to properly

reflect that a true finding was made only on a single sentencing enhancement, namely

that Zamora personally used a deadly and dangerous weapon (§§ 12022, subd. (b)(1),

1192.7, subd. (c)(23)). In all other respects the judgment is affirmed.



                                                                                 IRION, J.

WE CONCUR:



MCCONNELL, P. J.



O'ROURKE, J.




                                            17
