Filed 10/19/22 P. v. Cortes CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076206
v. (Super. Ct. No. RIF1701214)
RUBEN ADRIAN CORTES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bambi J. Moyer, Judge.
Affirmed.
Spolin Law, Aaron Spolin and Caitlin E. Dukes, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, A. Natasha Cortina, Acting Assistant Attorney General, Eric A. Swenson and
Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
Defendant and appellant Ruben Cortes was convicted and sentenced to life
without the possibility of parole, plus several additional prison terms, for two counts of
murder, two counts of attempted murder, and several gang and firearm enhancements.
He contends the trial court prejudicially denied his motion for a mistrial and that the
prosecutor committed prejudicial misconduct. We disagree and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
F.O. was driving when he was approached by another car with several occupants,
including defendant, began displaying West Side Riva gang signs. Defendant told the
other occupants to “hit this fool,” referring to F.O. Defendant and the others began
threatening F.O. and accused him of being a snitch.
F.O. pulled into a parking lot, but the other car followed him. Defendant handed
his gun to Joseph S. and urged him to shoot F.O. Joseph fired five shots, hitting F.O.’s
car only once. F.O. fled the scene and reported the incident to the police.
Less than a year later, T.H., who has no ties to any gang, threw a party to celebrate
a friend’s birthday. She asked her brother, N.A., to provide security, check attendees for
weapons, and collect an entrance fee. N.A. agreed, and completed the tasks with his
friends, C., J.D., and Nathaniel H.
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Defendant showed up at the party with Joseph and another fellow gang member,
incorrectly believing it was being thrown by a rival gang. He told J.S. that he was
“packing” and that he and his cohorts had come to the party to “do business” and “handle
it.” They refused to pay the entrance fee because “it’s our f—king neighborhood.”
Defendant became confrontational and said he was with the “West Side Blue Devils
clique.”
C. and Nathaniel tried to deescalate the situation by escorting defendant and his
cohorts outside. Defendant told Joseph, “it’s time, bro” and explained, “‘Once I start
busting, just start running fool.’”
Defendant then began firing shots and hit Nathaniel. Someone returned fire and
hit Joseph. Both of them died from gunshot wounds.
About a month later, F.A., a member of the Dogstown Rivas gang, was filling up
his car at a gas station while playing loud music associated with his gang. Two men, who
F.A. recognized as rival gang members, began shooting at him. Law enforcement
identified defendant as one of the shooters based on surveillance footage from
surrounding businesses due to defendant’s shoes, a pair of which were later found in his
home. An eye witness to the incident described having seen two Latino males, aged 18
or 19, approach a “rival gang” member pumping gas and shoot at him.
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Defendant was charged and convicted of two counts of murder (Pen. Code, § 187,
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subd. (a); counts 1 & 2) for the murders of Nathaniel A. and Joseph S., two counts of
attempted murder (§§ 664, subd. (a)/187, subd. (a); counts 3 & 4), for attempting to kill
F.O. and F.A., and one count of felon in possession of a firearm (§ 29800, subd. (a)(1);
count 5). The jury found true multiple sentence enhancements: intentional killing
committed for the benefit of a criminal street gang (§ 190.2, subd. (a)(22)) as to count 1;
multiple murder special circumstance (§ 190.2, subd. (a)(3)) as to counts 1 and 2;
personal, intentional discharge of a firearm (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8))
as to count 3; intentional discharge of a firearm by a principal causing death or serious
bodily injury (§ 12022.53, subds. (d), (e)) as to counts 1 and 4; and a violent offense
committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) as to counts 1-
4. In a bifurcated proceeding, defendant admitted that he had suffered a serious felony
prior (§ 667, subd. (a)) and a strike prior (§§ 667, subds. (c), (e)(1), 1170.12, subd.
(c)(1)).
The trial court sentenced defendant to the following terms: two concurrent terms
of life without parole for counts 1 and 2, plus two consecutive terms of 30 years to life
for counts 4 and 5, plus a six-year upper term for count 5, plus a consecutive 25-year-to-
life term for the count 1 enhancement, two determinate 20-year terms for the counts 3 and
4 enhancements, and an additional five-year term for the serious felony prior.
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All further statutory references are to the Penal Code.
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III.
DISCUSSION
A. The Trial Court Properly Denied Defendant’s Motion for a Mistrial
During the trial, the prosecutor asked Riverside County Sheriff’s Sergeant Frank
Lodes about his review of the video footage from the gas station shooting. He explained
that, based on his review of the footage, he determined that defendant was one of the
shooters.
The prosecutor then asked Sergeant Lodes, “After you made that identification,
are you aware of whether or not a search warrant was executed for [defendant’s] home?”
Sergeant Lodes responded, “I thought it was a probation search.” “I don’t remember it
being a search warrant.” The prosecutor replied, “So was there a search executed for his
home?” Sergeant Lodes confirmed, “Yes.”
Defendant moved for a mistrial based on Sergeant Lodes’s testimony. He argued
that Sergeant Lodes improperly and prejudicially told the jury that defendant was on
probation at the time of gas station shooting.
The trial court denied the motion for three main reasons. First, Sergeant Lodes
stated only that a probation warrant was executed at defendant’s house; he did not say
that a probation warrant for defendant’s arrest. Second, Sergeant Lodes’s comment was
not prejudicial “in the least” because the jury had already heard evidence that defendant
had a prior felony conviction and had served jail time. Third, Sergeant Lodes made the
comment in passing and none of the jurors reacted to it.
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“In reviewing rulings on motions for mistrial, we apply the deferential abuse of
discretion standard. [Citation.] ‘A mistrial should be granted if the court is apprised of
prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a
particular incident is incurably prejudicial is by its nature a speculative matter, and the
trial court is vested with considerable discretion in ruling on mistrial motions.
[Citation.]’” (People v. Wallace (2008) 44 Cal.4th 1032, 1068.) The trial court “should
grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably
damaged.” (People v. Bolden (2002) 29 Cal.4th 515, 555.)
The trial court reasonably found that Sergeant Lodes’s testimony was not
sufficiently prejudicial to warrant a mistrial. As the trial court observed, the jury already
knew that defendant was an admitted gang member with a criminal record, which
included a felony conviction and time served in prison. Even if the jury understood
Sergeant Lodes as testifying that a probation warrant for defendant was executed at his
house, defendant was on trial for two murders and two attempted murders. The trial
court thus reasonably found that Sergeant Lodes’s brief testimony was not “incurably
prejudicial.” (See People v. Ledesma (2006) 39 Cal.4th 641, 683 [testimony that
defendant had been convicted of murder and sentenced to death and was on retrial for the
offense not incurably prejudicial].) The trial court’s instructions to the jury that they
could convict defendant only based on the evidence, not based on passion or prejudice
against defendant, sufficiently cured any prejudice from Sergeant Lodes’s testimony.
(See ibid.; see also People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 861 [“We
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presume that jurors follow instructions [citation], even where supposedly ‘improper
inflammatory attacks’ are at issue”].)
B. There Was No Prejudicial Prosecutorial Misconduct
During closing argument, the prosecutor emphasized defendant’s recorded
statements and argued they showed he was guilty as charged. In his closing argument,
defense counsel noted that the prosecutor “gave a tremendous reliance on” those
statements, but urged a different interpretation of them. In his view, defendant was
exaggerating and lying to impress someone he thought was another gang member. His
statements, according to defense counsel, were “nothing other than puffing, boasting
himself” to improve the reputation of his gang.
The prosecutor began her rebuttal with the following: “That was a lot the digest.
And as I listened to it, kept thinking, is he literally saying do not listen to the only person
that knows exactly what happened and knows exactly why he did what he did? I like
[defense counsel]. You probably can tell that. But everything he told, he’s just making it
up. And he’s not evidence. The testimony from the witnesses is evidence. And the
evidence found on the scene is evidence. But the rest of that stuff is just made up.”
(Italics added.) Defense counsel did not object.
Defendant contends the prosecutor’s rebuttal argument that “everything” defense
counsel was “made up” constituted prosecutorial misconduct because it improperly
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denigrated defense counsel. He also contends his defense counsel was ineffective for
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failing to object or move for a mistrial based on the prosecutor’s misconduct.
“When a prosecutor’s intemperate behavior is sufficiently egregious that it infects
the trial with such a degree of unfairness as to render the subsequent conviction a denial
of due process, the federal Constitution is violated.” (People v. Shazier (2014) 60 Cal.4th
109, 127.) That did not occur here. The prosecutor’s alleged misconduct, even if outside
the bounds of acceptable argument, did not deny defendant due process or render his trial
fundamentally unfair. (See People v. Marquez (1992) 1 Cal.4th 553, 575-576 [prosecutor
may properly describe a defense as a “‘heavy, heavy smokescreen laid down . . . to hide
the truth from you.’”]; People v. Frye (1998) 18 Cal.4th 894, 978 [prosecutor permissibly
called the defense “‘ludicrous’” and a “‘smoke screen’”]; see also People v. Sandoval
(1992) 4 Cal.4th 155, 180 [prosecutor may describe witness’s testimony as “lies”].)
We agree, however, that the prosecutor’s rebuttal argument violated California
law. “A prosecutor commits misconduct if he or she attacks the integrity of defense
counsel, or casts aspersions on defense counsel.” (People v. Hill (1998) 17 Cal.4th 800,
832.) The prosecutor was free to disagree with defense counsel’s arguments and tell the
jury they were misguided or not persuasive. But by arguing that “everything” defense
2
The People argue defendant forfeited the issue by failing to object to the
prosecutor’s rebuttal argument. We will address the issue to “to avert [defendant’s] claim
of inadequate assistance of counsel.” (People v. Yarbrough (2008) 169 Cal.App.4th 303,
310.)
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counsel said in closing argument was “made up,” the prosecutor improperly “attack[ed]
the integrity of defense counsel.” (Ibid.)
The prosecutor’s misconduct, however, was harmless. Prosecutorial misconduct
that violates state law warrants reversal only when it is reasonably probable that the
defendant would have received a better outcome but for the misconduct. (People v.
Milner (1988) 45 Cal.3d 227, 245; People v. Crew (2003) 31 Cal.4th 822, 839.) It is not
reasonably probable that defendant would have received a better outcome had the
prosecutor not made the purportedly improper arguments in rebuttal because the evidence
of defendant’s guilt was overwhelming. (See People v. Fudge (1994) 7 Cal.4th 1075,
1103-1104.)
To begin with, defendant was recorded by an undercover officer admitting to all of
the offenses. (See People v. Memro (1995) 11 Cal.4th 786, 847 [error was harmless
because “[defendant’s] confession amounted to almost the whole of the prosecution’s
guilt and penalty case”].) Defendant told the officer in unambiguous, specific detail
about the two murders and two attempted murders. His statement, which was consistent
with other evidence, was powerful evidence of his guilt. (See Arizona v. Fulminante
(1991) 499 U.S. 279, 296 [“‘The defendant’s own confession is probably the most
probative and damaging evidence that can be admitted against him. . . .’”].) He told the
officer that he encountered F.O., who defendant identified by name, and told Joseph to
“bust” F.O. Defendant told the undercover office that he and his cohort began shooting
at the birthday party to confront rival gang members, who defendant believed were
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throwing the party. Defendant later admitted to shooting at a Dogstown Riva rival gang
member at a gas station about two weeks after the party, which was consistent with the
evidence of the shooting of Francisco A. Finally, defendant’s statement admitting to the
offenses was later corroborated in part when law enforcement used it to locate the gun
defendant used at the birthday party.
And as for the birthday party incident, several eyewitness accounts were consistent
with defendant’s incriminating statements. These witnesses described the incident
largely in the same way that defendant did in the undercover recording. A friend of
defendant’s testified that he saw defendant at the party. Another eyewitness testified that
he saw three Latino males say something like “you think you can have a party in our f—
king hood?” during an altercation with Nathaniel and his friends. Two witnesses testified
that they saw three Latino males flee after the shooting.
As for the gas station shooting, surveillance footage showed that one of the
shooters had the same pair of shoes that were later found in defendant’s house. An
eyewitness’s description of the shooting was consistent with defendant’s recorded
statement.
In short, there was strong evidence of defendant’s guilt that corroborated his own
statement to an undercover officer unequivocally saying that he committed all of the
charged offenses. As a result, the prosecutor’s misconduct, if any, was harmless. We
therefore reject defendant’s claim that his defense counsel was ineffective for failing to
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the alleged misconduct. (See People v. Hart (1999) 20 Cal.4th 546, 624 [to establish
ineffective assistance of counsel “‘prejudice must be affirmatively proved’”].)
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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