Filed 3/25/15 P. v. Felix CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066686
Plaintiff and Respondent,
v. (Super. Ct. No. SWF1100211)
ALFREDO FELIX,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Mark A. Mandio, Judge. Affirmed.
Eric S. Multhaup, 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, William M. Wood
and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Alfredo Felix guilty of first degree murder and robbery and
found true a special circumstance that he committed the murder while engaged in the commission of a robbery. The court sentenced Alfredo to life without the
possibility of parole for the murder conviction and special circumstance finding
and the upper term of five years on the robbery conviction. Alfredo contends
insufficient evidence corroborated an accomplice's testimony and supported the
true finding on the robbery-murder special circumstance. He also asserts the
prosecutor committed misconduct by violating an in limine ruling barring any
mention of the outcome of an earlier trial of his brother, Fabian Felix. We find
Alfredo's arguments unavailing and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On October 3, 2005, Fabian rented a Dodge Magnum vehicle.
(Undesignated date references are to the year 2005.) The next day, Fabian,
Alfredo and their cousin, Cristobal D'Arte, drove south from Waterford to Hemet,
California to visit Juan Molina who had asked Fabian to bring down marijuana.
Molina was married to Fabian's and Alfredo's sister.
Molina testified that on October 4, Fabian called him and said that he was
on the road on his way down to Hemet. In the early afternoon, Fabian, Alfredo
and D'Arte arrived at Molina's apartment in the Dodge Magnum. Fabian did not
have any marijuana with him, but told Molina he was meeting with someone to get
it. The four men discussed a plan for getting the marijuana. Fabian and Alfredo
were going to meet with a person who had marijuana and rob him. They expected
the victim to have twenty pounds of marijuana on him.
2 Based on the plan, Fabian and Alfredo were going to meet with the victim
and convince him to get into their car with the marijuana. D'Arte and Molina were
supposed to wait for them at an apartment complex on Cawston Avenue. Once
Fabian, Alfredo and the victim were parked at the apartment complex, the plan
was for D'Arte and Molina to pull the victim out of the car and fight with him
while Fabian and Alfredo drove off with the marijuana. During the discussion
about the plan, Fabian and Alfredo each pulled out .45 caliber handguns.
That same day, when Fabian and Alfredo left Molina's apartment, Molina
and D'Arte drove to the apartments on Cawston Avenue and parked. After waiting
for some time, Molina saw the Dodge Magnum arrive and park. Molina and
D'Arte approached the rear side of the Dodge.
Molina saw Alfredo, who was seated in the rear passenger-side seat, grab
the victim in the front passenger seat around the neck and put a gun to his head.
Molina also saw Fabian, who was in the driver's seat, turn toward the victim.
Molina then heard a shot. The passenger door opened and the victim fell out of
the car. Alfredo then got into the front passenger seat and D'Arte jumped into the
back seat. As the Dodge backed up, Molina ran to his car and returned to his
apartment.
Alfredo, Fabian and D'Arte arrived at Molina's apartment approximately
five minutes after Molina. Alfredo and Fabian were both upset about the shooting.
Fabian left that day but Alfredo stayed the night at Molina's apartment.
3 On the day of the shooting, several residents of the Cawston Avenue
apartments saw the Dodge at the apartment complex. Residents also saw two men
approach the car, heard a shot and then saw the victim fall out of the parked car.
They then saw one of the two men who had approached the car get into it and the
other man run away. Residents then observed the Dodge speed out of the
apartment complex driveway.
Officers were dispatched to the location of the shooting at 4:41 p.m.
Officer Derek Maddox found the victim lying on his back in a flower bed. The
victim had died from a gunshot wound. If the victim had been in the front
passenger seat, his wound was consistent with being shot from close proximity on
the left side.
Police arrested Fabian in July 2006 and prepared a wanted poster for
Alfredo. The poster included Alfredo's picture, date of birth, and physical
characteristics. It also stated, "[Alfredo], along with his brother and cousin, were
involved in a 20 [pound] marijuana drug rip off with the victim of this case. The
victim was shot to death with a .45 caliber handgun during this incident."
The Kern County Sheriff's special operations group located Alfredo in
January 2011. When Deputy Raul Murrillo initially asked Alfredo his name,
Alfredo identified himself as "Rafael." When asked again, Alfredo repeated his
name was "Rafael." When asked if his name was Alfredo, Alfredo responded that
it was not. Deputy Murrillo showed Alfredo the wanted poster with Alfredo's
picture and asked Alfredo yet again if he was Alfredo Felix. Alfredo looked at the
4 poster, shook his head to suggest "no" and then put his head down. Police found
no information connecting the name "Rafael" with Alfredo.
DISCUSSION
I. Motion Regarding Respondent's Brief
On January 13, 2015, Alfredo, in propria persona, filed a motion entitled
"Motion Pursuant to People v. Marsden." In that motion, Alfredo complained
about his appellate counsel's willingness to allow the Attorney General to file a
late respondent's brief. Alfredo requests that we find the Attorney General is time
barred from filing a brief. However, the Attorney General filed its respondent's
brief on May 23, 2014, nearly eight months before Alfredo's motion. Alfredo did
not file a reply brief. Moreover, we granted both parties in this case multiple
extensions of time for filing briefs. The last extension permitted the Attorney
General to file its brief by June 4, 2014. The Attorney General complied with that
order. We see no reason to strike the Attorney General's brief. Accordingly,
Alfredo's motion is denied.
II. Sufficiency of the Corroborating Evidence
A. Additional Background
Police found a set of keys next to the victim's foot. The keys unlocked a
truck that had been reported abandoned in Hemet about three to four miles from
the shooting scene. Police found two cell phones in the truck. One of those
phones showed an August 20 call from a cell phone registered to Alfredo's wife,
5 Christina Cervantes. Cervantes had two cell phones registered in her name, one
with a number ending in 7780 and the other in 7790.
Cell phone records showed frequent communication between Fabian's
phone and the cell phones ending in 7780 and 7790. The cell phone records also
indicated that Fabian's cell phone and the 7790 cell phone traveled from northern
to southern California on the day of the crime and later returned to northern
California.
On October 3, Fabian's cell phone was in the Stockton area. On October 4,
his phone was in the Los Angeles and Hemet regions. Late in the evening on
October 4, Fabian's cell phone made or received calls through a Bakersfield tower
and a Fresno tower.
The phone number ending in 7790, which was in Cervantes's name, made
or received calls in the early afternoon of October 3 while in the Sacramento area.
Later that day, the cell phone was in the San Francisco area and then the Los
Angeles area. That phone was in the San Diego area for calls between 12:06 p.m.
on October 4 and 2:51 p.m. on October 5. The San Diego coverage area stretches
east to Arizona and possibly north of San Diego. On the night of October 5, the
phone with the number ending in 7790 was again in northern California.
B. Analysis
Alfredo argues insufficient evidence corroborated Molina's testimony as
required by Penal Code section 1111. (Undesignated statutory references are to
the Penal Code.) We disagree.
6 A conviction cannot be based only on accomplice testimony. (§ 1111.)
There must be sufficient corroborating evidence that "shall tend to connect the
defendant with the commission of the offense; and the corroboration is not
sufficient if it merely shows the commission of the offense or the circumstances
thereof." (Ibid.) "To determine if sufficient corroboration exists, we must
eliminate the accomplice's testimony from the case, and examine the evidence of
other witnesses to determine if there is any inculpatory evidence tending to
connect the defendant with the offense. [Citations.]" (People v. Falconer (1988)
201 Cal.App.3d 1540, 1543.)
"[C]orroborative evidence is sufficient even though slight and entitled to
little consideration when standing alone [citation]." (People v. Wood (1961) 192
Cal.App.2d 393, 396; People v. Frye (1998) 18 Cal.4th 894, 966 ["Corroboration
need only be slight."].) "Only a portion of the accomplice's testimony need be
corroborated, and the corroborative evidence need not establish every element of
the offense charged. [Citation.] All that is required is that the evidence
' " ' "connect the defendant with the commission of the crime in such a way as may
reasonably satisfy the jury that the [accomplice] is telling the truth." ' " '
[Citation.]" (People v. DeJesus (1995) 38 Cal.App.4th 1, 25.) In determining the
sufficiency of corroborative evidence, we must view the evidence in the light most
favorable to the verdict and uphold the trial court's disposition if, on the
evidentiary record, the jury's determination is reasonable. (People v. Garrison
(1989) 47 Cal.3d 746, 774.)
7 Here, the record contains minimal evidence corroborating Molina's
testimony regarding Alfredo's involvement in the crime. The cell phone record
evidence, although somewhat unclear, backed up Molina's testimony that on
October 4, Alfredo traveled from northern to southern California with Fabian and
D'Arte and thus had an opportunity to commit the crimes. Although the phone
with a number ending in 7790, which is the phone that traveled from northern to
southern California on the date of the murder, was registered to Cervantes, there
was evidence of multiple calls between the two phones registered in her name
(numbers ending in 7780 and 7790). This evidence suggests Alfredo used one
phone and Cervantes used the other. Further, cell phone evidence connected
Alfredo to the victim. Specifically, the victim's cell phone showed a call from the
7790 phone number, the phone that had traveled from northern to southern
Even without the cell phone evidence, however, Alfredo's lies to police
about his identity "warrant an inference of consciousness of guilt and may
corroborate an accomplice's testimony [citation]." (People v. Perry (1972) 7
Cal.3d 756, 772.) Multiple times during Deputy Murrillo's questioning, Alfredo
said his name was "Rafael" and denied his name was Alfredo. Further, Alfredo
denied being the person depicted in the wanted poster with his picture and
description of the crime in this case. This evidence tended to show a
consciousness of guilt. (People v. Liss (1950) 35 Cal.2d 570, 576.)
8 While the corroborating evidence was not overwhelming, it was minimally
sufficient to connect Alfredo to the commission of the crimes of which he has
been convicted and we must uphold the jury's verdict. (People v. Garrison, supra,
47 Cal.3d at p. 774.)
III. Sufficiency of the Evidence on Robbery-Murder Special Circumstance
Alfredo argues insufficient evidence supported the jury's true finding on the
robbery-murder special circumstance. He contends he was not a "major
participant" in the crime because Fabian instigated the plan and "was the person in
charge and the person calling the shots." Alfredo also suggests he did not act with
reckless indifference to human life because the original "plan [was] designed to
avoid any actual violence" and the record shows he was angry with Fabian for
deviating from the plan. We reject Alfredo's argument.
Well settled standards apply to Alfredo's sufficiency of the evidence
challenge. We determine " ' "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." [Citations.] We
examine the record to determine "whether it shows evidence that is reasonable,
credible and of solid value from which a rational trier of fact could find the
defendant guilty beyond a reasonable doubt." [Citation.] Further, "the appellate
court presumes in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence." ' " (People v. Virgil (2011) 51
Cal.4th 1210, 1263.) Reversal for insufficient evidence "is unwarranted unless it
9 appears 'that upon no hypothesis whatever is there sufficient substantial evidence
to support' " the jury's verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.) We
review a challenge to the sufficiency of the evidence to support a special-
circumstance finding in the same manner as a challenge to the sufficiency of the
evidence to support a conviction. (People v. Cole (2004) 33 Cal.4th 1158, 1229;
see People v. Burney (2009) 47 Cal.4th 203, 253 [applying standard to support
felony murder predicated on robbery].)
"Under the felony-murder rule, a murder 'committed in the perpetration of,
or attempt to perpetrate' one of several enumerated felonies, including robbery, is
first degree murder. [Citation.] The robbery-murder special circumstance applies
to a murder 'committed while the defendant was engaged in . . . the commission
of, [or] attempted commission of' robbery. [Citation.]" (People v. Lindberg
(2008) 45 Cal.4th 1, 27-28.)
When the defendant is an accomplice rather than the actual killer, the
People must plead and prove the defendant either intended to kill (§ 190.2, subd.
(c)) or acted with "reckless indifference to human life" while a "major participant"
in the underlying felony. (§ 190.2, subd. (d); see People v. Thompson (2010) 49
Cal.4th 79, 125-126 [for special circumstances based on the enumerated felonies
in paragraph (17) of subdivision (a) of § 190.2, which includes robbery, an aider
and abettor must have been a major participant and have acted with reckless
indifference to human life].) " '[T]he culpable mental state of "reckless
indifference to life" is one in which the defendant "knowingly engage[es] in
10 criminal activities known to carry a grave risk of death" . . . .' [Citation.] This
mental state thus requires the defendant be 'subjectively aware that his or her
participation in the felony involved a grave risk of death.' " (People v. Mil (2012)
53 Cal.4th 400, 417, quoting People v. Estrada (1995) 11 Cal.4th 568, 577.)
Courts have found substantial evidence of reckless indifference to life
under circumstances where, as here, a defendant, knowing about the presence of a
weapon, has continued to assist with a violent robbery and flee rather than come to
the injured victim's aid. (See People v. Lopez (2011) 198 Cal.App.4th 1106, 1115-
1118 [shooter's testimony that accomplice knew he had a gun and was with him
when he picked it up, as well as evidence the accomplice may have been planning
to "jack" the victim behind his back supported jury's conclusion she acted with
reckless indifference to the life of the man she lured into the alley]; People v.
Proby (1998) 60 Cal.App.4th 922, 929 [defendant knew of codefendant's
willingness to do violence and provided him with a gun, and continued to rob a
restaurant, took money and left after the codefendant shot the victim in the back of
the head]; People v. Bustos (1994) 23 Cal.App.4th 1747, 1754 [sufficient evidence
for special circumstance found where defendant was involved in planning the
robbery, knew another codefendant had a knife, went into the restroom and
struggled with the victim who was stabbed, and "fled together with his
accomplices and the robbery loot, leaving the victim to die"].)
Here, substantial evidence supported the findings that Alfredo was a major
participant in the crime and acted with reckless indifference to human life. The
11 evidence showed that Alfredo planned the robbery and actively participated in its
commission. Alfredo went with Fabian to meet with the victim, drove with Fabian
and the victim to the Cawston Avenue apartments, restrained the victim by
grabbing the victim from behind around the neck, and put a gun to the victim's
head. Alfredo's knowledge of the robbery plan and his participation in it was
substantial evidence that he had a conspicuous role and acted as a major
participant in the crime. A major participant need not be armed or participate in
the actual taking (People v. Hodgson (2003) 111 Cal.App.4th 566, 579), nor is a
major participant required to be the "ringleader." (People v. Proby, supra, 60
Cal.App.4th at p. 934.)
Further, Alfredo and Fabian were both armed. Despite having a gun
himself and knowing that Fabian had one as well, Alfredo proceeded to participate
in the robbery. Moreover, Alfredo used his gun during the robbery, holding it to
the victim's head while restraining the victim. The use of a weapon to affect the
robbery presented a grave risk of death. Additionally, rather than coming to the
victim's aid, Alfredo fled with Fabian and D'Arte. This constitutes substantial
evidence that Alfredo knowingly engaged in criminal activity involving a grave
risk of death. (People v. Mil, supra, 53 Cal.4th at p. 417; People v. Lopez, supra,
198 Cal.App.4th at pp. 1115-1116; People v. Bustos, supra, 23 Cal.App.4th at pp.
1751, 1754-1755.)
12 IV. Alleged Prosecutorial Misconduct
A. Background
Alfredo moved in limine to preclude any mention of the outcome of
Fabian's earlier trial. The prosecutor agreed and the trial court made that order.
In his closing argument, defense counsel stated, "The evidence did a good
job . . . of convicting Fabian Felix and Juan Molina. It did not do a good job of
convicting Alfredo Felix." In the prosecutor's closing argument, he stated he
agreed with defense counsel that the evidence did "a really good job of convicting
Fabian Felix." The prosecutor went on to say, "[A]s I told you before this
morning, if the evidence has done a convincing job of demonstrating that Fabian
Felix shot [the victim] in that car that day in Hemet, then the evidence
demonstrates Juan Molina told the truth when he testified November, 2010, and
when he testified for you a couple weeks ago. We apparently agree on that. I
guess the interpretation is what's different." Defense counsel did not object to the
prosecutor's statements.
Alfredo argues the prosecutor committed misconduct by violating the
court's in limine ruling barring any mention of the outcome of an earlier trial of his
brother, Fabian Felix. We reject this argument.
"It is . . . misconduct for a prosecutor to make remarks in opening
statements or closing arguments that refer to evidence determined to be
inadmissible in a previous ruling of the trial court. Because we consider the effect
13 of the prosecutor's action on the defendant, a determination of bad faith or
wrongful intent by the prosecutor is not required for a finding of prosecutorial
misconduct. [Citation.] A defendant's conviction will not be reversed for
prosecutorial misconduct, however, unless it is reasonably probable that a result
more favorable to the defendant would have been reached without the misconduct.
[Citation.] Also, a claim of prosecutorial misconduct is not preserved for appeal if
defendant fails to object and seek an admonition if an objection and jury
admonition would have cured the injury. [Citation.]" (People v. Crew (2003) 31
Cal.4th 822, 839.)
Here, Alfredo forfeited his claim of prosecutorial error by failing to object
at trial. Even if the claim was preserved, however, it is not reasonably probable
that a result more favorable to Alfredo would have been reached without the
prosecutor's statement. If we read defense counsel's comment in his closing
argument as a statement indicating Fabian and Molina were previously convicted,
defense counsel had opened the door to such information and made the jury aware
of Fabian's and Molina's convictions before the prosecutor did so. Given defense
counsel's closing argument, the prosecutor's statement was harmless.
An equally plausible alternative reading of defense counsel's comment that
"the evidence did a good job of convicting Fabian Felix and Juan Molina" is that
defense counsel was commenting on the strength of the evidence against Fabian
and Molina as presented in this trial as opposed to the strength of the evidence
against Alfredo. If we interpret defense counsel's statement this way, then the
14 prosecutor's statement agreeing with defense counsel that the evidence "did a
really good job of convicting Fabian Felix" does not run afoul to the trial court's
ruling precluding reference to Fabian's conviction in an earlier trial. Thus, the
prosecutor did not commit misconduct.
DISPOSITION
The judgment is affirmed.
MCINTYRE, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.