Filed 12/5/13 P. v. Roque CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064229
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11901249)
                   v.

LEONARD HILARIO ROQUE,                                                                   OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Hilary A.
Chittick, Judge.
         Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Appellant Leonard Roque was convicted by jury of second degree murder (Pen.
Code, § 187, subd. (a))1 and sentenced to 16 years to life in prison. His appeal is based
         1   Subsequent statutory references are to the Penal Code.
on the trial court’s failure to instruct the jury with a portion of CALCRIM No. 358 that
warns evidence of a defendant’s unrecorded extrajudicial statements should be viewed
with caution. We find that the trial court’s omission of this instruction was harmless
error and affirm the judgment accordingly.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Joseph Farkas was stabbed repeatedly by Roque during a fight that occurred in the
early morning hours of March 5, 2011 on Blackstone Avenue in Fresno. Several people
witnessed the altercation and saw Roque flee the scene as Mr. Farkas bled to death in the
street. Roque was apprehended by police the next day.
       On September 9, 2011 the Fresno County District Attorney filed a criminal
information charging Roque with murder. The information included an enhancement
allegation pursuant to section 12022, subdivision (b)(1), for personal use of a deadly
weapon. It was further alleged that Roque had inflicted great bodily injury for purposes
of section 1203.075 (ineligibility for probation). The charges were tried before a jury in
November 2011.
Prosecution Evidence
       Maxine Barfield had a brief encounter with Mr. Farkas before he died. He
approached her as she was walking to a gas station and asked if she had seen two
prostitutes. Ms. Barfield said that she had not seen the women he was looking for and
continued on her way. Mr. Farkas walked in the opposite direction towards the
Manchester Motel on Blackstone Avenue.
       After making a purchase inside of the gas station, Ms. Barfield exited the premises
and observed Mr. Farkas moving hurriedly away from the adjacent parking lot of the
motel. Roque emerged from the same parking area approximately two minutes later.
Ms. Barfield testified that Roque was walking fast and eventually started running. As he
passed by her, she heard Roque say, “I’m about to get that motherfucker.”



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       Ms. Barfield briefly lost sight of both men and subsequently witnessed them
fighting in the middle of the street. It appeared to her that Mr. Farkas was trying to
defend himself by holding his hands up in front of his chest as Roque swung at him. She
watched Roque land several blows but never saw Mr. Farkas strike back. Mr. Farkas
eventually fell to the ground, at which point Roque knelt down on his chest and continued
to swing at him until the victim stopped moving. Roque stood up and ran away as a car
drove up to the scene.
       Mario Gonzalez witnessed the incident while driving on Blackstone Avenue. He
saw Roque approach Mr. Farkas on the sidewalk and hit him from behind. Mr. Farkas
tried to push Roque away and held his hands up in front of his chest as Roque continued
punching him. The men eventually moved into the middle lane of traffic and in front of
Mr. Gonzalez’s vehicle.
       Mr. Gonzalez described the fight as one-sided. Roque overpowered his opponent,
who “was never really trying to fight back.” Although Mr. Farkas appeared motionless
after falling to the ground, Roque got on top of him and struck him approximately ten
more times. When Mr. Gonzalez saw this happening, he got out of his car, yelled at
Roque, and tried to intervene. Roque took off running. Mr. Gonalez looked down at the
victim and saw that he appeared to be choking on his own blood.
       Alejandra Lopez was a passenger in the vehicle driven by Mario Gonzalez.
Ms. Lopez witnessed part of the incident in between sending text messages on her phone.
She remembered seeing two individuals trading punches with each other and one of the
men running away afterward.
       A fourth witness named Sigrid Manjarrez had been driving behind Mario
Gonzalez. She testified that from her vantage point she could see Roque running towards
Mr. Farkas before the physical confrontation began. She further recalled seeing Roque
hit the victim several times and Mr. Farkas returning only a single punch. Ms. Manjarrez
turned away momentarily after Mr. Farkas fell down. When she looked back, the victim

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had stopped moving and she saw “a whole bunch of blood.” She later told police that
Roque had continued to hit Mr. Farkas while he was lying motionless on the ground.
       Dr. Venu Gopal, chief forensic pathologist for the Fresno County Coroner's
Office, performed an autopsy on the victim. He determined the cause of death to be
perforation of the left internal jugular vein and left common carotid artery due to multiple
stab wounds. Dr. Gopal testified that Mr. Farkas suffered five different stab wounds on
his neck, chest, and left hand, the latter of which was characterized as a defensive wound.
       The general manager of the Manchester Motel, Shantilal Desai, also testified at
trial. Roque had paid for lodging on the night in question but promptly asked for a refund
after seeing the condition of his room. After processing the refund, Mr. Desai observed
Roque arguing loudly with Mr. Farkas near the motel entrance. Mr. Farkas was holding a
flashlight and pointing it at Roque as the men exchanged words.2 They vacated the
premises after Mr. Desai threatened to call the police if they did not leave.
       Detective Jennifer Federico of the Fresno Police Department conducted a recorded
interview with Shantilal Desai on the morning of the incident. Detective Federico
testified that Mr. Desai originally told her the loud argument occurred before he issued a
refund to Roque. Mr. Farkas reportedly walked away after being asked to leave by
Mr. Desai, but Roque stayed behind to obtain his refund. Once the refund was processed,
Roque departed in the same direction as Mr. Farkas had gone.
Defense Evidence
       Roque testified in his own defense, providing an account of the events leading up
to Mr. Farkas’ death. He spent the evening of March 4, 2011 consuming alcoholic
beverages with friends at various locations. By 1:00 a.m. the next morning, Roque was



       2Police found a flashlight near the victim’s body at the crime scene. None of the
eyewitnesses recalled seeing anything in Mr. Farkas’ hands during the fight.



                                             4.
walking along Blackstone Avenue in search of a motel with vacancy. He eventually
arrived at the Manchester Motel as Mr. Farkas was leaving the same establishment.
       When they passed by each other, Mr. Farkas said, “Man, what the fuck you
looking at, bitch?” Roque replied that he could look wherever he wished, but walked
away after saying, “I ain’t got time for this shit.” Mr. Farkas followed Roque back to the
motel and stood near the entrance watching him as Roque paid for a room.
       Roque went to his room, found it to be unacceptable, and returned to the front of
the building to ask for a refund. Mr. Farkas was still standing near the motel entrance.
He began taunting Roque by pointing a flashlight at him and saying things like, “I’m
going to fuck you up.” Mr. Farkas appeared to be intoxicated, as later confirmed by
toxicology screening which showed his blood alcohol level to be 0.11 percent. Roque
responded to Mr. Farkas’ threats by saying, “Man, why don’t you just go [away]. Ain’t
nobody trying to get into it with you. I don’t know what your problem is.”
       The motel manager came out and told the men to be quiet. Mr. Farkas walked
away and out of sight while Roque spent the next “five to seven minutes” waiting for the
room charge to be refunded to his credit card. After obtaining his refund, Roque headed
northbound on Blackstone Avenue to find another motel.
       Roque was walking and checking his cell phone when Mr. Farkas suddenly
appeared and said, “What’s up now, bitch?” He proceeded to hit Roque on the top of his
head and across the bridge of his nose. Roque’s eyes watered up, mixing with blood
from his “busted nose.”
       Roque panicked as he tried to block additional punches. The initial blows had
impaired his vision and left him dazed to the point where he feared he might lose
consciousness. In an effort to stop the attack, Roque pulled a knife from his pocket and
swung the blade across the front of his body. His assailant was undeterred by the
weapon; he held on to Roque’s shirt with one hand and continuing punching him with the
other. Roque swung his knife upwards several times until he felt an impact. He

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explained: “As I was swinging, I knew I hit something because I felt blood squirt
me…That’s when I knew I actually hit something.”
       Mr. Farkas fell to the ground and pulled Roque down with him. Roque
acknowledged that he dropped to one knee, as described by other witnesses, but denied
striking the victim after he had fallen. As Roque paused to catch his breath, he heard a
car door open and saw someone walking towards him. He claimed to be frightened by
the sudden appearance of this individual: “When the car door opened in the manner that it
did, I thought maybe this guy was coming after me, and I panicked and took off
running…I was scared. They came out real fast on me and I just ran.”
       Roque testified that he stabbed the victim in self-defense and out of fear for his
own life. Photographic evidence and other witness testimony corroborated Roque’s
claim that he sustained injuries during the fight. The injuries included facial bruising, an
allegedly broken nose, and a wound on the side of his head.
Verdict and Sentencing
       The jury found Roque guilty of second degree murder and returned true findings
on the enhancement allegations. He was sentenced to a total prison term of 16 years to
life, consisting of 15 years to life for the murder conviction, plus an additional year for
the personal use of a deadly weapon enhancement. This timely appeal followed.
                                       DISCUSSION
       At the request of defense counsel, and in light of Maxine Barfield’s testimony that
she heard Roque say “I’m about to get that motherfucker,” the jury was instructed
pursuant to CALCRIM No. 358. The instruction given was as follows: “You have heard
evidence that the defendant made an oral or written statement before the trial. You must
decide whether the defendant made any such statement, in whole or in part. If you decide
that the defendant made such a statement, consider the statement, along with all the other
evidence, in reaching your verdict. It is up to you to decide how much importance to
give to the statement.”

                                              6.
       The trial court omitted the final bracketed sentence of CALCRIM No. 358 which
admonishes jurors to “[c]onsider with caution any statement made by [the] defendant
tending to show [his] guilt unless the statement was written or otherwise recorded.”
Roque contends the failure to include this language was reversible error. Respondent
concedes the error, but argues it was harmless.
       “When the evidence warrants, the court must instruct the jury sua sponte to view
evidence of a defendant’s oral admissions or confession with caution.” (People v. Dickey
(2005) 35 Cal.4th 884, 905 (Dickey).) The same is true of a defendant’s “pre-offense
statements of later intent” and other incriminating remarks made before, during, or after
the crime. (People v. Carpenter (1997) 15 Cal.4th 312, 393-394 (Carpenter).) We thus
accept the Attorney General’s concession, but also agree that the instructional error was
harmless. The standard of review for erroneous failure to give the cautionary instruction
contained in CALCRIM No. 358 is “the normal standard of review for state law error:
whether it is reasonably probable the jury would have reached a result more favorable to
defendant had the instruction been given.” (Dickey, supra, 15 Cal.4th at p. 905.)
       The California Supreme Court has explained that the purpose of the cautionary
instruction is to assist the jury in determining whether the defendant made the out-of-
court statement in question. (Dickey, supra, 15 Cal.4th at p. 905; People v. Beagle
(1972) 6 Cal.3d 441, 456.) The instruction serves to warn jurors that testimonial
discrepancies regarding what the defendant actually said may indicate the defendant’s
words did not constitute an incriminating statement or admission. (See Dickey, supra, at
pp. 905-906; People v. Bunyard (1988) 45 Cal.3d 1189, 1224 (Bunyard).)
       “Since the cautionary instruction is intended to help the jury to determine whether
the statement attributed to the defendant was in fact made, courts examining the prejudice
in failing to give the instruction examine the record to see if there was any conflict in the
evidence about the exact words used, their meaning, or whether the admissions were
repeated accurately.” (People v. Pensinger (1991) 52 Cal.3d 1210, 1268.) Where there

                                              7.
is no such conflicting evidence and the defendant simply denies making the statement,
failure to give the cautionary instruction has been held to be harmless error. (Dickey,
supra, 15 Cal.4th at pp. 905-906; Bunyard, supra, 45 Cal.3d at pp. 1225-1226.) This is
especially true in cases where the trial court has otherwise thoroughly instructed the jury
on assessing the credibility of witnesses. (See, e.g., People v. McKinnon (2011)
52 Cal.4th 610, 680 (McKinnon); People v. Wilson (2008) 43 Cal.4th 1, 20 (Wilson).)
        Roque claims the instructional error in this case cannot be deemed harmless under
the foregoing authorities because his trial counsel “vigorously challenged the reliability
and meaning of appellant’s alleged admission” during closing argument. He is wrong.
“It is axiomatic that argument is not evidence.” (People v. Breaux (1991) 1 Cal.4th 281,
313.)
        The accuracy of Maxine Barfield’s testimony concerning what she heard Roque
say prior to the altercation with his victim was not contradicted by other evidence. There
was no conflicting testimony regarding the words that were used, the context in which
they were uttered, or their meaning. (McKinnon, supra, 52 Cal.4th at p. 680.) At best,
Roque’s own trial testimony amounted to an implicit denial that he made any statements
in the presence of Ms. Barfield, which merely raised an issue of witness credibility.
(Ibid.; Wilson, supra, 43 Cal.4th at pp. 19-20.)
        While it did not recite the full version of CALCRIM No. 358, the trial court
thoroughly instructed the jury on how to assess the credibility of a witness. The jury was
instructed with CALCRIM Nos. 226 (Witnesses), 301 (Single Witness Testimony), 302
(Evaluating Conflicting Evidence), 315 (Eyewitness Identification), 316 (Additional
Instructions on Witness Credibility), and 318 (Prior Statements as Evidence). These
instructions, coupled with the standard instructions on reasonable doubt, presumption of
innocence, the prosecution’s burden of proof, and reliance on circumstantial evidence,
adequately addressed witness credibility issues and provided the necessary guidance for
evaluating Maxine Barfield’s testimony about Roque’s alleged out-of-court statement.

                                             8.
(Dickey, supra, 35 Cal.4th at p. 906; Carpenter, supra, 15 Cal.4th at p. 393; see also,
People v. Moore (2011) 51 Cal.4th 1104, 1140 [claims of instructional error evaluated in
light of instructions as a whole].)
       The jury was also instructed with CALCRIM No. 359 on the corpus delicti rule,3
which Roque now claims exacerbated the prejudicial impact of the trial court’s error. His
argument is unavailing, particularly because Roque’s trial counsel requested the
instruction and made no subsequent objections to its use. (People v. Enraca (2012)
53 Cal.4th 735, 761 [The doctrine of invited error bars a defendant from challenging an
instruction when the defendant has made a conscious and deliberate tactical choice to
request it.].) In any event, trial courts have a sua sponte duty instruct on the corpus
delecti rule under CALCRIM No. 359 if a defendant’s out-of-court statements form part
of the prosecution’s evidence. (People v. Howk (1961) 56 Cal.2d 687, 706-707.) The use
notes for CALCRIM No. 359 likewise state that the instruction must always be given
along with CALCRIM No. 358. Since Roque makes no showing that the jurors
misinterpreted CALCRIM No. 359, we presume the jury understood the instruction and
applied it properly. (People v. Delgado (1993) 5 Cal.4th 312, 331; People v. Campos
(2007) 156 Cal.App.4th 1228, 1237.)
       Our conclusion that the trial court’s instructional error was harmless is reinforced
by the fact that Roque’s alleged out-of-court statement was not essential to the


       3 The instruction was as follows: “The defendant may not be convicted of any
crime based on his out-of-court statement alone. You may only rely on the defendant’s
out-of-court statements to convict him if you conclude that other evidence shows that the
charged crime or a lesser included offense was committed. That other evidence may be
slight and need only be enough to support a reasonable inference that a crime was
committed. The identity of the person who committed the crime and the degree of the
crime may be proved by the defendant’s statement alone. You may not convict the
defendant unless the People have proved his guilt beyond a reasonable doubt.”




                                              9.
prosecution’s case. (Cf. People v. Bemis (1949) 33 Cal.2d 395, 400-401 [omitting
cautionary instruction held to be reversible error where alleged statements were “the only
evidence that connected defendant with the crime”].) Equally probative was the
testimony by multiple witnesses indicating Roque chased the victim down, hit him from
behind, and continued using force in the absence of any apparent threat of further
aggression by his opponent. Neither the self-defense nor imperfect self-defense doctrines
may be invoked by “a defendant who, through his own wrongful conduct (e.g., the
initiation of a physical assault or the commission of a felony), has created circumstances
under which his adversary’s attack or pursuit is legally justified.” (In re Christian S.
(1994) 7 Cal.4th 768, 773, fn. 1; accord, People v. Booker (2011) 51 Cal.4th 141, 182-
183.) The right of self-defense also ceases to exist when one’s attacker no longer appears
capable of inflicting harm. (CALCRIM No. 3474; People v. Crandell (1988) 46 Cal.3d
833, 873.)
       Roque admitted to stabbing and killing Joseph Farkas. Irrespective of his alleged
out-of-court statement, the testimony by prosecution witnesses regarding Roque’s non-
verbal conduct provided substantial evidence to support the verdict. Although the trial
court erred in omitting a portion of CALCRIM No. 358 from the jury instructions, the
testimony of Maxine Barfield concerning what she heard Roque say was essentially
uncontroverted and the jury was thoroughly instructed on how to assess the credibility of
witnesses. Therefore, we conclude it is not reasonably probable that the jury would have
reached a more favorable verdict had the cautionary portion of the instruction been given.




                                             10.
                                 DISPOSITION
     The judgment is affirmed.



                                               _____________________
                                                     Gomes, Acting P.J.
WE CONCUR:


 _____________________
Poochigian, J.


 _____________________
Detjen, J.




                                     11.
