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People v. Diaz

Supreme Court of California

April 6, 2015

THE PEOPLE, Plaintiff and Respondent,
v.
DORA DIAZ, Defendant and Appellant

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Superior Court of Santa Clara County, No. CC954415, Ron M. Del Pozzo, Judge. Court of Appeal, Sixth Appellate District, No. H036414.

Dallas Sacher, under appointment by the Supreme Court, and Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan, Jeffrey M. Laurence, Stan Helfman, Christopher J. Wei, Luke Fadem and Masha A. Dabiza, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion by Cantil-Sakauye, C. J., with Werdegar, Chin, Corrigan, Liu, Cué llar, and Kruger, JJ., concurring.

OPINION

[185 Cal.Rptr.3d 433] [345 P.3d 64] CANTIL-SAKAUYE, C. J.--

We granted review to resolve a conflict in the Courts of Appeal regarding whether a trial court has the duty to instruct a jury to consider a criminal defendant's out-of-court statements with caution when the statements at issue form the basis of a prosecution for making criminal threats. We also asked the parties to brief whether we should continue to require courts to instruct that a defendant's out-of-court statements must be viewed with caution even in the absence of a request.

We hold that the cautionary instruction is applicable when the statements at issue are criminal threats. However, the trial court is no longer required to give the instruction sua sponte. In the present case, the failure to give the instruction, even if error, was harmless.

I. Facts and Procedure

Defendant Dora Diaz was charged with and convicted of one count of willful, deliberate, and premeditated attempted murder (Pen. Code, § § 187, 189, 664, subd. (a)) [1] and three counts of threatening to commit a crime resulting in death or great bodily [185 Cal.Rptr.3d 434] injury (§ 422). The jury found defendant guilty on all four counts and the trial court sentenced her to a prison term of life, with the possibility of parole after seven years, for the attempted murder and a consecutive three-year four-month prison term for the three criminal threats.

The criminal threats charges stemmed from statements defendant made during and after the attempted murder of Eduardo Morales. On September 5, 2009, Eduardo lived in a two-room apartment in San Jose with his mother, Marta Rosales, his sister-in-law, Indira Pineda, and three other family members. Defendant had recently ended a relationship with Eduardo. Between 1:00 a.m. and 1:30 a.m., Eduardo was asleep in the apartment's living room when he awoke to knocking on the window and door. He peeked out the window and saw defendant and two women he did not recognize yelling at him to come out. While putting on his shoes to go outside, he heard one of the apartment's windows break. He opened the door and asked the women why they were doing this to him. The three women grabbed Eduardo by his

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hair, which was long, and dragged him into the driveway. Marta called 911 to report that her son was being assaulted.

The three women began hitting and kicking Eduardo in his face and chest. Eduardo was knocked to the ground and covered himself. During the attack, the women were calling him names and one yelled, " Puro catorce," which an expert later testified constituted a declaration that the Norteño street gang was responsible for the attack.

Defendant then stepped back, snapped her fingers twice, and whistled. Three men, including one who looked like defendant's 16-year-old son, emerged and joined in the beating. One of the men had a knife with a four- or five-inch blade; he began stabbing Eduardo.

Marta came out of the apartment and pleaded with the assailants to cease the attack on her son. Eduardo called out to tell her that he had been stabbed. Possibly alerted by the sound of sirens, some of the assailants retreated to a dark-colored Lincoln [345 P.3d 65] Town Car. Defendant remained and lifted Eduardo's shirt so she could view his wounds. When looking at the wounds, defendant laughed. Defendant then argued with Marta and Eduardo's sister-in-law, Indira, who also had come out of the house. Defendant and Indira grabbed at each other and exchanged words. Eventually, defendant ran off.

The three counts of criminal threats correspond with statements allegedly made by defendant to Eduardo, Marta, and Indira during the attack. Each testified concerning the statements. Eduardo testified that when defendant lifted his shirt to view his wounds, she told him " that if [he] did not die this time, that [he] surely would the next time and that she was going to finish off [his] whole family." He further testified that he saw defendant arguing with Indira and calling her names, but he could not recall whether defendant had said anything else to Indira.

Marta testified that defendant told Eduardo, " If you don't die from this one, you'll die next time around." She further testified that defendant threatened her, saying " you're going to pay for this" and that defendant " would kill every member of [Marta's] family one by one." She recalled defendant also telling Indira, " you're going to pay for this." Marta's husband, Alvaro Hernandez, testified that defendant told his wife that she was going to kill everyone.

Indira testified that while the women were dragging Eduardo out by his hair, defendant " was telling him, 'I'm going to kill you.' " Later, she said, defendant told [185 Cal.Rptr.3d 435] Eduardo that " if he didn't die from this one, he would die from the next one." Indira further testified, " she did say that she could

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possibly kill all of us ... Marta, Eduardo, and whoever else lived there." Indira testified that defendant told her specifically, " You're going to pay for this ...


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