Filed 9/14/21 P. v. Sierra CA1/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A159738
v.
SOCORRO SIERRA, (Sonoma County
Defendant and Appellant. Super. Ct. No. SCR-718066)
A jury convicted defendant Socorro Sierra of first degree felony murder
with kidnapping special circumstances, kidnapping, and possession of a
controlled substance with a firearm. On appeal, defendant claims (1) there
was insufficient evidence to support the kidnapping special circumstance
finding and the kidnapping conviction; (2) the prosecutor committed
misconduct during closing argument; and (3) the trial court abused its
discretion in limiting the cross-examination of a witness. We affirm.
BACKGROUND
Defendant was charged by third amended information with first degree
murder with kidnapping special circumstances (Pen. Code, §§ 187, subd. (a),
190.2, subd. (a)(17)(B))1; kidnapping (§ 207, subd. (a)); and possession of a
All further statutory references are to the Penal Code unless
1
otherwise indicated.
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controlled substance with a firearm (Health & Saf. Code, § 11370.1,
subd. (a)). Firearm enhancements were alleged as to the first two charges
(§12022.53, subd. (d)).
Defendant’s post-arrest interview was videotaped and played for the
jury. During the interview, defendant stated he had a marijuana business
with his “good friend” Jose Martinez: Martinez would trim marijuana
obtained from growers and defendant would find the buyers. Around May
2018, the business relationship deteriorated. Martinez was “not comfortable”
with defendant and wanted to cut defendant out of the business and continue
alone. Defendant, however, felt Martinez owed him a debt from a particular
deal involving 109 pounds of marijuana. Martinez said he returned the
marijuana because the grower came back, having not been paid. Defendant
did not understand, as the marijuana had been trimmed and defendant had
lined up the buyers. Defendant wanted to be compensated for his work, and
asked Martinez for either $16,000 or $5,000 plus 20 pounds of marijuana.
Martinez told defendant to give him time and he would make monthly
payments on the debt.
A few weeks later, defendant picked up two men in his car, telling them
they were going somewhere for “business.” Defendant drove to a parking lot
where he saw Martinez, started discussing the money owed, and then asked
Martinez to get into the car because his voice was “getting louder.” Martinez
agreed, but said he could not be gone too long, as he had to go somewhere.
Rather than staying in the immediate vicinity, defendant drove up a windy
road and parked by a bridge near a creek.
When detectives asked defendant why he had not remained in the
parking lot, he said he drove “that way” in order to “scare” Martinez into
taking him seriously and paying the money. Defendant further stated
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Martinez seemed scared while they were driving, asking why they were going
that way and holding up his cell phone to show that he was not calling
anyone. Martinez finally told defendant to stop, and when defendant pulled
over Martinez got out of the car. Defendant also got out of the car, and put a
gun in his back waistband. Defendant and Martinez continued talking, but
when he saw Martinez had a pocket multi-tool in his hand, he shot him once
in the head.
Defendant subsequently led police to Martinez’s body, which defendant
had moved and buried on the property where he lived using a backhoe rented
for that purpose.
Upon his arrest, defendant was in possession of a nine-millimeter
handgun, ammunition, and expended casing, as well as methamphetamines
and marijuana. The forensic pathologist who performed an autopsy of
Martinez testified that the expended bullet recovered from Martinez’s brain
was consistent with a nine-millimeter bullet. The DOJ’s criminalist testified
that the casing’s firing pin impressions were consistent with test firings from
the recovered handgun.
Video surveillance screenshots showed defendant’s car driving past
Martinez’s house several times on the morning of the murder. And
surveillance footage showed Martinez entering a commercial parking lot a
few minutes before defendant arrived and parked next to Martinez’s truck.
Martinez then approached defendant’s car, and defendant’s car left the
parking lot a few minutes later. The prosecution also presented video footage
recreating the driving route to the bridge and depicting the remote area.
One of the two other men in the car testified for the prosecution. The
day before the shooting, defendant had picked him and his housemate up to
help build a tractor ramp. The witness had used methamphetamines the day
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before; in fact, he was using drugs regularly at the time. When defendant
picked the two up the following day, the witness thought they would be going
back to finish the work. Instead, defendant drove to another town, Martinez
got in the car, and they drove for approximately 15 minutes over a freeway
and up to a bridge in a remote area with no houses or people around. While
Martinez got into the car voluntarily, he looked scared as they were driving
over the freeway and fidgeted with the door handle. The witness believed
defendant’s car doors locked when it reached a certain speed. During the
drive, defendant said something in Spanish the witness could not
understand, and then the witness’s housemate took Martinez’s phone. After
Martinez and defendant exited the car, the witness heard a gunshot. When
defendant returned to the car, he was smiling as he put the bullet casing up
to a necklace on the rearview mirror and turned on music. Later, the
witness’s housemate told the witness that defendant wanted him to move
Martinez’s truck from the parking lot to another location, threatening that if
the witness did not move it, his daughter might “come missing.”
The witness further testified he had been charged with kidnapping and
being an accessory after the fact, but pled guilty to the accessory charge in
exchange for his testimony and received a one-year jail sentence with three
years of probation. At the time of trial, the witness was in custody for failure
to report to probation. He testified regarding his criminal history, which
included one felony conviction for possession of a stolen vehicle and two
misdemeanor convictions for possession of stolen property. Before trial, the
People successfully moved in limine to exclude reference to the fact the
witness had originally been charged with murder, since the count was
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dismissed following the passage of Senate Bill No. 1437 (2017–2018 Reg.
Sess.) (SB 1437).2
During her closing argument, the prosecutor reviewed the elements for
first degree murder, including an intent to kill. She then argued defendant
“tricked the victim into getting into the car.” Defense counsel objected. The
court overruled the objection. The prosecutor continued that defendant had
“tricked” Martinez by making him believe it would be just a short drive, but
instead had scared him by driving a long way to an extremely remote location
with two other men and taking away his phone. She argued “all of these
actions” showed defendant had “the intent to kill.” The prosecutor then
moved to the elements for the kidnapping charge and special circumstance.
She stated: “So they tricked him to get into the car. Under the law, that
alone does not make it kidnapping.” She continued: “I am not telling you it
is kidnapping from the moment he got into the car. . . . It does become
kidnapping when he withdraws the consent. When does that happen? When
he becomes scared. When he goes outside of what he reasonably expected to
happen.”
The jury found defendant guilty as charged and found true the
kidnapping special circumstance and firearm enhancements. The trial court
sentenced defendant to life without parole on the murder count, consecutive
to a term of 25 years to life on the firearm enhancement, and four years on
the possession count. The sentence on the kidnapping count was stayed.
2 SB 1437 was enacted in 2018 and took effect on January 1, 2019.
(Stats. 2018, ch. 1015.) Among other changes, SB 1437 amended section 189
to limit liability for murder under a felony murder or natural and probable
consequences theory to a person who is the actual killer, has the intent to kill
and aids or abets the actual killer, or is a major participant in the underlying
felony and acts with reckless indifference to human life. (Stats. 2018, ch.
1015, §§ 1, 3.); see § 189, subd. (e)(1)–(3).)
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DISCUSSION
Substantial Evidence
Defendant maintains the kidnapping special circumstance finding and
conviction must be vacated because there was insufficient evidence to
establish that he detained Martinez “by force or fear.”
“In evaluating a claim regarding the sufficiency of the evidence, we
review the record ‘in the light most favorable to the judgment below to
determine whether it discloses substantial evidence—that is, evidence which
is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ ” (People v.
Westerfield (2019) 6 Cal.5th 632, 712.) “ ‘To assess the evidence’s sufficiency,
we review the whole record to determine whether any rational trier of fact
could have found the essential elements of the crime or special circumstances
beyond a reasonable doubt.’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 142,
italics omitted.) Reversal for insufficient evidence “is unwarranted unless it
appears ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297,
331.)
Section 207, subdivision (a) provides: “Every person who forcibly, or by
any other means of instilling fear, steals or takes, or holds, detains, or arrests
any person in this state, and carries the person into another country, state, or
county, or into another part of the same county, is guilty of kidnapping.” The
phrase “or by any other means of instilling fear” was added in 1990 to expand
the definition of the crime. (Stats. 1990, ch. 55, § 1, p. 393; Assem. Com. on
Pub. Safety, Analysis of Sen. Bill No. 1564 (1989–1990 Reg. Sess.) as
amended Jan. 16, 1990, pp. 2–3.)
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Prior to that amendment, however, courts had already agreed force
need not be physical to constitute kidnapping: it could be accomplished
through threats of force or “the giving of orders which the victim feels
compelled to obey because he or she fears harm or injury from the accused
and such apprehension is not unreasonable under the circumstances.”
(People v. Stephenson (1974) 10 Cal.3d 652, 660 (Stephenson).) Courts had
also agreed kidnapping could be established where a victim initially agrees to
accompany the defendant, but his or her liberty is subsequently restrained by
threat or force. (People v. Camden (1976) 16 Cal.3d 808, 814.)
After the amendment, the California Supreme Court discussed the two
bases for kidnapping—use of force or fear to compel asportation—in People v.
Majors (2004) 33 Cal.4th 321, 326–327 (Majors). The court explained
asportation by fraud alone, not force or fear, is insufficient to constitute
kidnapping because “the circumstances suggest the victim exercised free will
in accompanying the perpetrator.” (Id. at pp. 327, 331.) While declining to
delineate the precise parameters of the language “ ‘any other means of
instilling fear,’ ” the court explained that a kidnapping may occur where fear
accomplishes the same thing as force: in other words, the victim is compelled
by fear of “ ‘harm or injury from the accused.’ ” (Id. at pp. 333–334.) The
court distinguished that type of fear from “fear the perpetrator will not
attend a high school prom with the victim, or other fears substantially
removed from the use of force.” (Id. at p. 334.)
Here, the evidence was sufficient to support a finding that defendant
restrained Martinez “by means of instilling fear” and thus satisfied the
definition of kidnapping under section 207. During his post-arrest interview,
defendant admitted he drove Martinez a considerable distance to a remote
area with the explicit intent to scare him. Defendant further admitted his
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plan worked: Martinez was scared while they were driving, asked where
they were going, and told defendant to stop. The passenger witness similarly
testified that Martinez looked scared and began fidgeting with the door
handle, but the witness believed the doors locked at a certain speed. The
witness also testified defendant said something in Spanish and thereafter,
the witness’s housemate took Martinez’s phone. The jury could reasonably
infer from this testimony that defendant ordered Martinez to relinquish his
phone and thus maintained control of Martinez in his moving vehicle.
In sum, the totality of the evidence amply supports a finding that
Martinez did not assent to driving to the remote locale and to remaining in
the car of his own “free will,” but rather, did so out of fear and because
defendant had essentially trapped him in the car. (Majors, supra, 33 Cal.4th
at p. 331; see Stephenson, supra, 10 Cal.3d at p. 660.)
No Prosecutorial Misconduct
Defendant also maintains the prosecutor committed reversible
misconduct when she argued in closing that defendant had “tricked”
Martinez into getting into the car.
“ ‘The applicable federal and state standards regarding prosecutorial
misconduct are well established.’ ” (People v. Hill (1998) 17 Cal.4th 800, 819.)
A prosecutor’s behavior violates the federal Constitution “ ‘ “ ‘when it
comprises a pattern of conduct “so egregious that it infects the trial with such
unfairness as to make the conviction a denial of due process.” ’ ” ’ ” (Ibid.)
“ ‘Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it
involves “ ‘ “the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.” ’ ” ’ ” (Ibid.)
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In reviewing a prosecutor’s comments to the jury, “we must view the
statements in the context of the argument as a whole.” (People v. Cole (2004)
33 Cal.4th 1158, 1203.) Moreover, a prosecutor has “ ‘wide latitude to discuss
and draw inferences from the evidence at trial,’ and whether ‘the inferences
the prosecutor draws are reasonable is for the jury to decide.’ ” (Ibid.) The
relevant question is “ ‘whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of-remarks in an objectionable
fashion.’ ” (Ibid.)
Here, defendant contends the prosecutor committed misconduct by
(1) arguing facts not in evidence, and (2) wrongly suggesting to the jury that
defendant’s purported trickery amounted to kidnapping. Both contentions
fail.
First, the prosecutor relied on defendant’s admissions during his post-
arrest interview: Martinez had told defendant he could not be too long
because he had to go somewhere, but defendant nevertheless drove out of
town to a remote locale because he wanted to scare Martinez. Accordingly,
the prosecutor did not rely on facts not in evidence, and this evidence was
sufficient to support an argument that defendant led Martinez into believing
the drive would be short and thereby tricked him into getting into the car.
Second, it is not reasonably likely the prosecutor’s argument led the
jury to misunderstand the requisite elements of kidnapping. (People v. Cole,
supra, 33 Cal.4th at p. 1203.) The prosecutor first discussed the intent to kill
element of the first degree murder charge. Then, turning to the kidnapping
charge, she correctly told the jury: “So they tricked him to get into the car.
Under the law, that alone does not make it kidnapping.” Accordingly, the
prosecutor did not misstate the law.
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Even if the prosecutor had committed misconduct (which she did not),
defendant has not demonstrated that it is reasonably probable a result more
favorable to defendant would have occurred absent the claimed misconduct.
(People v. Castillo (2008) 168 Cal.App.4th 364, 386.) Defendant claims he
was prejudiced because a juror could have believed the kidnapping was
established when Martinez was “tricked” into getting into the car. The
prosecutor, however, explicitly stated otherwise, telling the jury that, alone,
was not sufficient to establish kidnapping. Rather, the prosecutor went on to
explain that the kidnapping occurred during the drive: “I am not telling you
it is kidnapping from the moment he got into the car. . . . It does become
kidnapping when he withdraws the consent. When does that happen? When
he becomes scared. When he goes outside of what he reasonably expected to
happen.” Moreover, the jury was correctly instructed on the law using the
CALCRIM No. 1215 instruction on kidnapping, and also instructed counsel’s
arguments are not the law. Additionally, there was abundant evidence to
support the kidnapping special circumstance and conviction.
No Abuse of Discretion in Limiting Cross-Examination
Defendant lastly claims the trial court abused its discretion in
precluding cross-examination of the passenger witness regarding his original
murder charge.
The constitutional right of confrontation “includes the right to cross-
examine adverse witnesses on matters reflecting on their credibility.” (People
v. Quartermain (1997) 16 Cal.4th 600, 623 (Quartermain).) The confrontation
clause, however, guarantees only “an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” (Delaware v. Fensterer (1985)
474 U.S. 15, 20.) Trial courts retain wide latitude to impose reasonable limits
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on cross-examination based on, among other things, marginal relevance or
potential confusion of the issues. (Delaware v. Van Arsdall (1986) 475 U.S.
673, 679.) A trial court’s limitation on cross-examination pertaining to the
credibility of a witness violates the confrontation clause only when “a
reasonable jury might have received a significantly different impression of
the witness’s credibility had the excluded cross-examination been permitted.”
(Quartermain, at p. 624.)
Defendant maintains that had the jury been aware of the original
murder charge, it would have had a different impression of the witness’s
credibility because, at the time the witness entered his plea, the
constitutionality of SB 1437 was “unsettled” and could have influenced the
witness to “go to the police and tailor his testimony to favor himself.”
To begin with, this argument rests on speculation that the witness
might have known or been told about the new law before he went to the
police. “[E]xclusion of evidence that produces only speculative inferences is
not an abuse of discretion.” (People v. Babbitt (1988) 45 Cal.3d 660, 684; see
Evid. Code, § 352.)
In any event, a reasonable jury would not have received a significantly
different impression of the witness’s credibility had such cross-examination
been permitted. (Quartermain, supra, 16 Cal.4th at pp. 623–624.) The
witness testified he was originally charged with kidnapping but pled to the
lesser accessory charge as part of his plea deal. He also testified regarding
another potential reason to cooperate—or give a biased account—beyond the
dismissal or reduction of charges against him: defendant had threatened his
daughter. Thus, the jury was well aware the witness had a motive for
favoring himself in his account of what happened.
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Moreover, the witness testified on several other topics related to his
credibility, including his drug use, criminal history, and current custody
status for violating probation. (See People v. Manson (1976) 61 Cal.App.3d
102, 137 [impeaching effect of drug use during critical events was properly
placed before jury]; Evid. Code, § 788 [felony conviction may be shown by
examination to attack witness credibility]; People v. Valenzuela (1984)
151 Cal.App.3d 180, 194 [jury may draw inference of diminished credibility
for incarcerated witness].)
Accordingly, the trial court acted well within its direction in precluding
cross-examination on the witness’s original murder charge.
Even if the trial court had abused its discretion (which it did not), any
such error was harmless. (People v. Dyer (1988) 45 Cal.3d 26, 47–48.)
Defendant claims he was prejudiced because the witness’s credibility was
“critical” to the prosecution’s case on the kidnapping count and special
circumstance. Not so. As we have discussed, defendant’s own admissions
that he drove a considerable distance into a remote locale in order to scare
Martinez and that Martinez appeared scared, supported the conviction and
finding. The witness’s testimony did not contradict any of these statements,
but instead corroborated that defendant did drive to a remote area and
Martinez, indeed, looked scared. The physical evidence, forensic evidence,
and surveillance evidence also all corroborated defendant’s admissions.
Accordingly, on this record, any error in restricting cross-examination of the
passenger witness was harmless.
Having considered and rejected each of defendant’s claims on the
merits, we likewise reject his assertion that the cumulative effect of the
supposed errors requires reversal. (People v. Kipp (1998) 18 Cal.4th 349,
383.)
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DISPOSITION
The judgment is affirmed.
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_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Margulies, J.
A159738, People v. Sierra
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