APPEAL from a judgment of the Superior Court of Los Angeles County, Eleanor Hunter, Judge. (Los Angeles County Super. Ct. No. TA105988)
The opinion of the court was delivered by: Klein, P. J.
Opinion following order vacating prior opinion
CERTIFIED FOR PUBLICATION
PETITION for writ of habeas corpus. Denied.
Defendant and appellant, Monica Mercado, appeals the judgment entered following her conviction for second degree murder and attempted murder, with enhancements for inflicting great bodily injury and inflicting injury knowing the victim was pregnant (Pen. Code, §§ 664 187, 12022.7, 12022.9.)*fn1 She was sentenced to state prison for a term of 32 years to life. In a related habeas corpus petition, Mercado claims she was denied the effective assistance of counsel.
We originally issued the opinion in this case on July 21, 2011. On June 29, 2012, the United States Supreme Court vacated the judgment and remanded the case to us for reconsideration in light of a new opinion, Williams v. Illinois (2012) 132 S.Ct. 2221 [183 L.Ed.2d 89]. After an initial round of supplemental briefing was solicited in order to address Williams, a second round was solicited because the California Supreme Court subsequently issued a trio of decisions analyzing Williams. After giving due consideration to all these high court opinions, we now reach the same result we did before.
The judgment is affirmed as modified. The habeas corpus petition is denied.
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
a. Porsche Davis's testimony.
Defendant Mercado and Porsche Davis were romantically involved with the same man, Bryant Waller. Davis testified she and Mercado had been fighting over Waller for three years. Davis testified she and Waller were living together, and that she believed he had ended his relationship with Mercado.
On April 5, 2009, Davis was eight months pregnant with Waller's child. That morning, as Davis was walking home from a McDonald's restaurant, she saw Mercado and Waller in a green Range Rover. Mercado was driving. Davis was angry because Waller had their car keys and she had been calling him because she was hungry; she felt Waller should have brought her breakfast that morning.
Mercado stopped the car. Davis walked to the passenger side and told Waller to give her their car keys. Waller tried to open the passenger door, but it wouldn't open. Mercado called Davis a bitch and Davis threw a cup of orange juice into the car, splashing Waller. Mercado drove off as Davis walked away. Davis looked to make sure Mercado was gone because Mercado had tried to run her over in the past. When she saw Mercado pull into a driveway, Davis kept walking. But when she looked again, Mercado was driving right toward her. Davis heard Waller say something like "watch out" or "Porsche, move." Davis put her hands on the car hood, curled into a ball and held her stomach. The next thing she knew she was underneath the Range Rover: "I just felt my baby go in my back and that was it. . . . And my stomach just went flat instantly." The front and back tires of the Range Rover had driven over her. Davis testified the car did not swerve before it hit her, and she never heard any sound to indicate Mercado had applied the brakes.
Davis was taken to a hospital. Her baby, delivered by cesarean section, was born critically injured and did not survive. Davis suffered a cracked pelvis, broken ribs and injuries to her spine and shoulder. She was hospitalized for three and a half weeks before being transferred to a rehabilitation center.
b. Bryant Waller's testimony.
Waller testified he had spent the night before the incident at Mercado's home after she invited him to come over. Mercado had previously obtained a restraining order against Waller, who had a prior conviction for domestic violence, but they spent an enjoyable evening. The next morning, Mercado drove them to a Jack in the Box in her Range Rover. After leaving the restaurant, Waller saw Davis walking down the street. He told Mercado to ignore her. Mercado stopped the car. She and Waller talked about spending a day with their two boys. Mercado brought up Davis's pregnancy and said, ". . . I can't believe that you're going to let her have this baby." Waller said Davis was eight months pregnant and there was nothing he could do about it. Mercado seemed upset, but not really angry.
While he and Mercado were talking, Davis walked up and asked him for the keys to their car. When Davis used the word "bitch," Mercado said, "[H]old on bitch," and Davis tossed her cup of orange juice into the car, hitting Waller in the face. Everybody started screaming. Mercado put the Range Rover into reverse and backed up. Waller told her to pull over. Mercado asked if he was going "to save this bitch." Waller tried to get out of the car but he had trouble opening the door. The car started moving.
Mercado turned into a driveway, backed out, and started driving down the street. Waller was still trying to get the passenger door open. When he finally succeeded in getting it open a little, Mercado grabbed him and again asked if he intended "to go help this bitch." The car swerved when Mercado grabbed him. At that moment, the Range Rover hit Davis, although Waller did not see the actual impact. After Mercado let Waller out of the car a half block away, he ran back to Davis. Mercado drove off.
After listening to a recording of his police interview from the day after the incident, Waller acknowledged that as Mercado turned her car around in the driveway she said, "Oh, I'm going to kill this bitch." He added, "But I don't think that she meant it in that form." Waller also told the police that Mercado "backs up and then she guns towards my girl. And runs her over." Asked at trial if Mercado had driven right at Davis, Waller answered no. But the recording showed Waller had told police that Mercado "went right at her." Although at trial Waller testified he could not say if Mercado had acted deliberately, he told police he had "no sympathy for her" because "don't nobody on God's green earth would do anything to gun a pregnant woman down." At trial, Waller agreed he had been pretty clear in his police interview that he believed Mercado acted deliberately.
Waller also acknowledged that when he subsequently spoke to Mercado in jail, he told her he would wait for her and marry her. He told her he would "give them all the information they need to help" Mercado get out of jail. Waller acknowledged he did not tell police there had been any kind of "tussle" inside the car between him and Mercado, or that Mercado had grabbed his arm just before the car hit Davis.
On cross-examination by defense counsel the following colloquy occurred:
"Q. Mr. Waller, looking back on everything that happened and trying to remember what all you heard, are you certain that she said, 'I'm going to kill that bitch,' or could she have said something else?
"A. If it's what I said . . . in the police report, it's what was said."
c. Independent eyewitness testimony.
Bruce Cotton, a truck driver, was sitting on his porch that morning. He saw Davis walking down the street and arguing with Waller, who was riding in a car. Davis was yelling at him: "Give me my keys, give me my keys." Mercado pulled over and parked, and Cotton heard all three of them arguing. When Mercado started driving again, Davis walked after the car yelling, "[P]lease give me my keys." Mercado turned around, headed back toward Davis and stopped right in front of her. Davis put her hand on the hood of the car and kept yelling for her keys. Waller yelled, "No, no, don't do it. Don't do it. Stop, don't do it." Mercado "hit the accelerator" and rolled slowly over Davis. The car did not swerve or brake. Cotton testified Davis screamed and he heard her bones being crushed as Mercado ran over her with the car's front and back tires. It looked like Waller tried to get out of the car, but Mercado sped around the corner and Waller could not get out until she came to a stop. After Waller got out, Mercado sped off.
Jai Gilyard testified she was sitting in the living room of her mother's house that morning and she looked out the window when she heard loud voices. She saw Davis walking and a Range Rover driving by in the same direction. Then the same car drove by in the opposite direction. Gilyard heard someone in the car say, "If you don't get from in front of my car, I'm going to run you over." Gilyard saw Davis "rolling under the car."
Meanwhile, Cotton had called 911, jumped into his car and followed Mercado. When Mercado stopped at a gas station, he pulled in behind her. Cotton testified Mercado jumped out of her car, came over to him and "in a vengeful voice . . . asked me what the hell am I following her for." When Cotton told her she'd just run over a woman and left the scene of an accident, Mercado gave him a "like, so what" look. She jumped back into her car and sped off.
Dr. Virender Rehan attended at the delivery of Davis's baby by emergency caesarian section. The baby was almost dead at birth, her heart beating only occasionally. Her skull had been fractured, she was suffering from convulsions and there was extensive internal head bleeding. It was obvious she would not survive. When life support was disconnected, the baby died within minutes.
Deputy Medical Examiner Dr. Ogbonna Chinwah was asked what his work in the Coroner's Department entailed:
"Q. What are your duties and responsibilities as a medical examiner?
"A. I examine the bodies brought into the department to determine the cause and manner of death.
"Q. What does 'manner of death' mean?
"A. Manner of death is classified in five classifications: Natural, accident, suicide, homicide, and undetermined."
Chinwah testified he performed the autopsy on Davis's baby. Because of a catastrophic skull fracture, it would have been virtually impossible to save the baby's life. Chinwah opined the cause of death had been blunt force trauma to the baby's head, and he characterized the death as a homicide. Chinwah based this homicide conclusion on information he received from a coroner's investigator indicating the baby's mother had been intentionally run over by a car.
e. Prior violent incidents involving Mercado.
Davis testified she and Mercado had had prior angry encounters during which Mercado had done such things as spraying mace into Davis's car, cutting her with a knife, and slashing her tires. During one of these encounters, Davis had pepper-sprayed Mercado. Mercado and Davis had a fight in January 2009, during which Mercado tried to run Davis down with her Range Rover. Waller had yelled at Davis to watch out, and Davis managed to jump out of the way. Mercado then crashed into the gates of a market and Davis threw a hammer at her. Davis got into her own car and Mercado chased her through the neighborhood. Later, Mercado drove into Davis's parked car.
Waller testified that once, in November 2007, he and a former girlfriend, Saraya Hollis, were riding in a car when Mercado drove up. Waller got out and Mercado started chasing Hollis. When Hollis returned, there was a dent in the car because Mercado had hit it. The next morning, Waller and Hollis were again driving when Mercado came up behind them and "bumped" their car.
Waller testified that, in addition to Davis's baby and the children he had with Mercado, he also had three children with Gwanna Hayes. In September 2007, Mercado came to Hayes's house looking for him. When Waller opened the door, Mercado "ran inside" and "[s]tarted banging up stuff." She smashed photographs of Waller and his children, and broke the window of Waller's car. Waller called the police.
Hollis also testified about the November 2007 incident. She was sitting in a car with Waller when Mercado approached and began arguing with him. When Hollis drove off, Mercado chased her and repeatedly ran into the car. The next morning, when Hollis was dropping Waller off, she noticed Mercado behind her. Hollis got out and they had words. Mercado then tried to hit Hollis with her car. Hollis moved out of the way and Mercado hit Hollis's car. Hollis filed a police report.
Mercado's sister, Violeta, testified that when she lived with Mercado in 2007-2008, Davis used to drive by and look at their house five or six times a month. Once, Davis came into their yard and threw a Coke can or bottle at the windshield of Violeta's car. When Violeta yelled at her, Davis asked, "Where the fuck is your bitch ass sister." Davis, who had a wrench in her hand, also said: "Oh, you just watch and see, I have something for that bitch."
Mercado's other sister, Gabriela, testified that once in March 2008 she was baby-sitting at Mercado's house while Mercado and Waller went out. At 2:30 a.m., she heard Mercado yelling. Running outside, Gabriela saw Mercado in her car and Davis running up to the car with a hammer. Davis started banging on Mercado's car with the hammer. Waller was there, yelling at Davis to leave. Mercado got out of the car and started fighting with Davis.
Mercado testified in her own defense. She had prior convictions for petty theft and grand theft. Mercado and Waller had two young children. Mercado testified Waller lived with her during the "whole course of [their] relationship." Mercado first learned Waller was seeing Davis two or three years ago. She and Davis had been engaged in a running battle over Waller, and she had told Davis to leave Waller alone many times.
On the morning of April 5, as she and Waller were driving home from Jack in the Box, Waller suddenly told her, "Man, just go straight and avoid the bullshit." When Mercado pulled over and asked what he was talking about, Waller said Davis was pregnant. Mercado started crying and asked why Davis was having the baby. Waller said there was nothing he could do because she was eight months pregnant. Mercado said, "I can't believe that she's going to have your baby." Just then, Davis appeared and said, "You're still fucking with this bitch. Give me my keys. Give me my keys." When Waller told her to hold on a minute, Davis threw her orange juice into the car.
Mercado decided to drive home, so she pulled into a driveway. Before backing up, she looked in both directions and saw Davis on the sidewalk. As Mercado put the car into reverse, Waller tried to get out. Mercado was upset. She pulled on him and Waller pushed her; they were screaming at each other. After turning around in the driveway, Mercado was going 20 or 25 miles per hour. Waller was still trying to get the car door open and Mercado was pulling on his arm. Mercado never saw Davis standing in the street. When she felt the impact, she got scared and drove off.
Mercado denied intentionally hitting Davis. She denied having said, "If you don't move, I'm going to run you over," or, "I'm going to kill this bitch." She testified Waller never said, "No, don't do it, don't run her over." Mercado also denied trying to run Hollis down, but admitted hitting the car Hollis had been sitting in.
1. The trial court misinstructed the jury when it asked a question while deliberating.
2. Defense counsel was ineffective for not obtaining a report of Mercado's psychological ...