People v. Cortez
63 Cal. 4th 101
| Cal. | 2016Background
- On Sept. 3, 2008, Rodrigo Bernal (passenger) shot at two youths from a car driven by Norma Cortez; one victim died. Bernal and Cortez were tried together; both convicted by a jury of first‑degree murder and attempted murder.
- Witnesses placed Cortez driving, observed Bernal exit and shoot, and police found a live round in Cortez’s passenger‑side floorboard matching casings at the scene. Cortez gave inconsistent statements to police and testified at trial she was scared and did not know details.
- Bernal made out‑of‑court admissions to his nephew Oscar Tejeda that he and a woman (identified as Norma) “went shooting some 18s” and that he had ridden in her car and shot; Tejeda later recanted at trial.
- The trial court instructed the jury with CALCRIM No. 361 (failure-to-explain instruction for a testifying defendant), admitted Bernal’s taped statements under the statements‑against‑penal‑interest exception (Evid. Code § 1230), and overruled an objection to a prosecutor’s remark about reasonable doubt.
- The Court of Appeal reversed Cortez’s convictions based on (1) erroneous use of CALCRIM No. 361, (2) improper admission of Bernal’s statements as to Cortez, and (3) prosecutorial comments that allegedly lowered the reasonable‑doubt standard. The California Supreme Court granted review as to Cortez.
Issues
| Issue | People (Prosecution) Argument | Cortez (Defendant) Argument | Held |
|---|---|---|---|
| Whether CALCRIM No. 361 (failure to explain) was properly given | Instruction appropriate where defendant’s testimony left unexplained facts or logical gaps and jury may draw inferences from silence | Instruction only applies where defendant completely fails to explain a specific, significant fact within her knowledge; conflicts/implausibility alone do not justify it | Instruction may be given only when defendant wholly fails to explain or deny incriminating evidence (or claims lack of knowledge when the evidence shows she could reasonably be expected to know). Here, court properly gave CALCRIM No. 361. |
| Admissibility of Bernal’s out‑of‑court statement to Tejeda under statements‑against‑penal‑interest | Statement qualified under Evid. Code § 1230 and was trustworthy; references to a female companion were disserving to Bernal (linked him to evidence in Cortez’s car) | Statements were unreliable, speculative as to Cortez’s state of mind, and portions identifying Cortez were not against Bernal’s penal interest; admission violated Evid. Code § 352 and confrontation principles | Trial court did not abuse discretion: statements were against Bernal’s penal interest when viewed in context, Tejeda’s limited memory did not make them inadmissible, §352 exclusion was not warranted, and Sixth Amendment confrontation claim failed because statements were nontestimonial. |
| Prosecutor’s comments about reasonable doubt in rebuttal ("I believe I know what happened...") | Comments were responsive to defense and referred jurors to the court’s correct instructions; viewing context, no reasonable likelihood jurors misapplied the standard | Comment misstated and lowered the beyond‑a‑reasonable‑doubt standard, prejudicing a close case on Cortez’s mental state | No prosecutorial misconduct warranting reversal: remarks were brief, isolated, the court repeatedly and correctly instructed jury on reasonable doubt, and counsel emphasized those instructions; no reasonable likelihood jurors applied a lower standard. (Concurring justice would treat the remark as an error but not prejudicial.) |
| Overall disposition | Errors argued cumulatively required reversal | Defendant’s convictions should stand | Reversed Court of Appeal; majority finds no reversible trial error and remands for proceedings consistent with opinion (i.e., Court of Appeal judgment reversed). |
Key Cases Cited
- People v. Belmontes, 45 Cal.3d 744 (Cal. 1988) (discussed circumstances in which failure‑to‑explain instruction was held appropriate)
- People v. Redmond, 29 Cal.3d 904 (Cal. 1981) (addressed when instruction on failure to explain may be given)
- People v. Saddler, 24 Cal.3d 671 (Cal. 1979) (held instruction improper where defendant had explained matters within his knowledge)
- People v. Adamson, 27 Cal.2d 478 (Cal. 1946) (historical discussion of inferences from a defendant’s failure to explain evidence)
- Griffin v. California, 380 U.S. 609 (U.S. 1965) (U.S. Supreme Court holding that prosecution may not comment on a defendant’s silence at trial)
- Williamson v. United States, 512 U.S. 594 (U.S. 1994) (framework for determining whether statements implicating others are sufficiently against declarant’s interest)