THE PEOPLE v. HERBERT ALEJANDRO SALVADOR (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Herbert Alejandro Salvador appeals from a judgment following his conviction for first degree murder.   He contends that the trial court erred in granting the prosecution's motion to exclude from the guilt phase of his trial a statement he made to a police officer.   Finding no error, we affirm the judgment in its entirety.

STATEMENT OF THE CASE

Appellant was charged with first degree murder of Christopher O'Leary (Pen.Code, § 187, subd. (a)).¹  Three firearm enhancements were also alleged.   Appellant initially pled not guilty, but on October 14, 2009, he changed his plea to not guilty by reason of insanity.   Pursuant to section 1026, his trial was bifurcated into guilt and sanity phases.   Prior to trial, the prosecution successfully moved to exclude from the guilt phase of the trial a statement appellant made to Los Angeles Police Detective Larry Burcher.   In the statement, appellant told Detective Burcher that the victim had mouthed the word “rape” at him prior to the murder.   Defense counsel opposed the motion on the ground that the statement showed appellant's “state of mind” which she argued was “very much at issue in this case.”   Defense counsel also suggested that the statement might be relevant to a self-defense claim.   The trial court granted the motion, but stated that if appellant testified, “he can bring in the statement.”   Appellant did not testify.

A jury found appellant guilty of first degree murder and found true the firearm enhancement allegations.   The same jury also found that appellant was sane at the time he murdered O'Leary.²  The trial court sentenced appellant to 25 years to life on the first degree murder, doubled to 50 years to life because of one of the firearm enhancements.   Appellant timely appealed from the judgment of conviction.

STATEMENT OF THE FACTS

Appellant was shown on security surveillance tapes entering a liquor store and standing near the victim at the front counter.   Both men then left the store;  appellant went to his minivan while the victim walked towards his house.   While appellant's minivan was stopped at a stop sign, the victim crossed the street in front of the van and sat on a small wall.   After a delay of 15 to 20 seconds, the minivan pulled to the curb and appellant emerged from the vehicle.   He approached the victim, and with no apparent exchange of words, shot him in the head.   Appellant ran back to the minivan and sped away.   The victim died of a single gunshot wound to his forehead.

Based upon the surveillance tapes, police officers were able to locate and apprehend appellant.   When appellant was arrested, a loaded semi-automatic handgun was found on his person.   Additional handgun ammunition was found at appellant's residence.   An expert testified that the handgun was the murder weapon.

Detective Burcher interviewed appellant after he was arrested.   Detective Burcher read appellant his Miranda rights and conducted a videotaped interview.³  When Detective Burcher asked appellant if he knew of any reason why he was being interrogated, appellant replied, “Just the gun.”   Appellant explained he had found the gun that day, lying on the ground by a tree.   He admitted hearing about a shooting at the liquor store because he was “driving the car that day.”   According to appellant, he had driven the minivan to do some laundry, then went to a liquor store to buy some chips, and had pulled over to open the bag of chips when he heard the gunshot.   After he heard the gunshot, he took off in the minivan without looking back.

Detective Burcher then told appellant that the police had evidence the handgun was stolen from Henderson, Nevada, the same town where appellant had formerly lived.   He also told appellant that the police had surveillance tapes showing appellant driving to the liquor store, buying a bag of chips, getting into the minivan, and driving down the street.   The tapes showed the victim walking in front of appellant's vehicle and sitting on the corner.   The tapes then showed appellant pulling up the street past the victim, getting out of the minivan, and shooting the victim.   Detective Burcher asked appellant if this was what happened.   Appellant said, “Yeah.”

Detective Burcher then asked appellant to explain why he shot the victim.   Appellant stated that when the victim walked in front of his vehicle, he saw the victim mouth the word “rape” at him.   Appellant also stated that the victim “licked his lips” after mouthing the word.   Appellant explained that he thought the victim was going to rape him.   He further stated that he did not know the victim and that nothing occurred between them in the liquor store.   Appellant told Detective Burcher that after he drove past appellant and pulled over, he thought two or three times about what he had to do.   Appellant then said, “I came outside and waited and thought about it.   And I didn't want to do it.   And I was just like, well, he said, ‘Rape,’ to me and like I was outside already․  He either rapes me or I shoot him.   And then I have to think about, you know, what to do.”   Appellant admitted he did not believe the victim would attempt to rape him at the time, but thought the victim “was going to do it eventually.”   He also stated the victim was not doing anything inappropriate.   He further stated that he had never been molested or raped.

DISCUSSION

Appellant contends that the trial court erred in excluding evidence of his statements to Detective Burcher during the guilt phase of trial because (1) those statements were admissible under Evidence Code section 1250 as evidence of appellant's then existing state of mind;  and (2) the exclusion of those statements interfered with his constitutional right to present a defense.   We address each contention in turn.

A. Evidence Code section 1250

Evidence Code section 1250, subdivision (a) provides that, “[s]ubject to Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation ․ is not made inadmissible by the hearsay rule when:  [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action;  or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.”   The exception to the hearsay rule provided in Evidence Code section 1250 “is limited to out-of-court statements describing a relevant mental state being experienced by the declarant at the time the statements were made.  [Citation.]”  (People v. Whitt (1990) 51 Cal.3d 620, 642-643, italics omitted (Whitt ).)   Moreover, “statements recounting past events are an implicit expression of the declarant's belief or memory that such events occurred, and are inadmissible for their truth under Evidence Code section 1250, subdivision (b).”  (Id. at p. 643, fn. 13;  see Evid.Code, § 1250, subd. (b) [“This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.”].) Finally, the statements sought to be admitted must show indicia of trustworthiness.  (Whitt, supra, at p. 643, fn. 13;  see also Evid.Code, § 1252 [“Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness.”].)

Here, appellant sought to admit his “confession” to Detective Burcher.   Defense counsel argued that appellant's statement that he thought the victim would rape him after he saw the victim mouth the word “rape” reflected appellant's state of mind.   However, this statement was not made at the time of the shooting.   Rather, the statement was made several days later during a police interrogation.   Thus, at most, the statement showed appellant's mental state at the time he spoke with Detective Burcher.  (See Whitt, supra, 51 Cal.3d at pp.   642-643 [“The exception is limited to out-of-court statements describing a relevant mental state being experienced by the declarant at the time the statements were made.”].) Moreover, this statement and similar statements purporting to explain his motivation lacked indicia of trustworthiness because they were made after appellant had initially denied any involvement in the shooting and only after he was confronted with evidence that he appeared on surveillance tapes of the shooting.  (See People v. Jurado (2006) 38 Cal.4th 72, 130[“[T]he circumstance that defendant made his statements during a postarrest police interrogation, when he had a compelling motive to minimize his culpability for the murder and to play on the sympathies of his interrogators, indicated a lack of trustworthiness.”].)

Additionally, appellant has not shown how the statements that he thought he would be raped by the victim or that he would have to kill the victim or be raped by him were relevant to the guilt phase of the trial.   Appellant suggests these statements were circumstantial evidence of his mental state, and that they could negate the elements of malice aforethought and premeditation and deliberation required to sustain a first degree murder conviction.   The fact that the statements might show that appellant was thinking irrationally about the victim, however, is irrelevant to whether he formed an intent to kill or whether he acted with premeditation and deliberation in shooting the victim.   Appellant's confession indicated that despite his purported fear of being raped by the victim, he thought about killing the victim several times before he finally acted on that thought.   Thus, the statements were not relevant to a state of mind that was “an issue in the action.”  (Evid.Code, § 1250, subd. (a)(1).)   Accordingly, the trial court did not abuse its discretion in excluding appellant's statements to Detective Burcher.

B. Right to Present a Defense

Appellant also contends that the exclusion of his confession to Detective Burcher impaired his right to present a defense during the guilt phase.   Specifically, he contends that the confession was circumstantial evidence that would support an imperfect self-defense claim.   We disagree.

First, appellant could have presented his imperfect self-defense claim by testifying at trial.   Had he done so, he could have explained his fear of the victim to the jury.   The trial court had indicated that if appellant testified, he could introduce his statements to Detective Burcher.  (See People v. Edwards (1991) 54 Cal.3d 787, 821 [The trial court did not err in excluding a postarrest interview of defendant during the guilt phase.  “Defendant was fully allowed to present a defense.   He could have testified had he so chosen.   [Citation.]  Defendant has no right to effectively ‘address the jury without subjecting himself to cross-examination.’  [Citation.]”].)

Second, the doctrine of imperfect self-defense requires that “the defendant actually but unreasonably believed he was in imminent danger of death or great bodily injury.”  (In re Christian S. (1994) 7 Cal.4th 768, 783.)  “Fear of future harm-no matter how great the fear and no matter how great the likelihood of the harm-will not suffice.   The defendant's fear must be of imminent danger to life or great bodily injury.”  (Ibid., italics omitted.)   Here, appellant's confession showed that he was in no fear of imminent danger.   Indeed, appellant admitted he did not fear for his safety at the time, but thought that the victim would rape him “eventually.”   Moreover, the victim's alleged actions do not constitute sufficient grounds to support a claim of imperfect self-defense because “mere sexual overtures would not alone suffice to support a perfect or imperfect self-defense claim.”  (People v. Valencia (2008) 43 Cal.4th 268, 286.)   In short, appellant's statements would not have provided an evidentiary basis for giving the jury instructions on imperfect self-defense.   Accordingly, we reject appellant's claim of error.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. All further statutory citations are to the Penal Code, unless stated otherwise..  FN1. All further statutory citations are to the Penal Code, unless stated otherwise.

FN2. Appellant's statement to Detective Burcher was introduced in the sanity phase of the trial..  FN2. Appellant's statement to Detective Burcher was introduced in the sanity phase of the trial.

FN3. Miranda v. Arizona (1966) 384 U.S. 436..  FN3. Miranda v. Arizona (1966) 384 U.S. 436.

EPSTEIN, P.J. SUZUKAWA, J.