Filed 1/13/20 P. v. Cauich CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

LIZETTE CAUICH,

Defendant and Appellant.

A154490

(San Francisco County

Super. Ct. No. 227068-2)

Defendant Lizette Cauich (defendant) and her codefendant Oscar Mendez (Mendez) were involved in two violent incidents, one in which they both stabbed a man who suffered grievous injuries but survived, another in which defendant fatally stabbed a woman and Mendez was an accessory to the murder after the fact. Following a jury trial, defendant was found guilty of second degree murder, attempted robbery, battery with serious bodily injury, and two counts of assault with a deadly weapon, and was sentenced to 23-years-to-life in state prison. She appeals, asserting two arguments: (1) the trial court committed prejudicial error by instructing the jury with CALJIC No. 2.51, which provides that motive is not an element of the charged offenses and need not be proven by the prosecution; and (2) the attempted robbery conviction is unsupported by substantial evidence and must be reduced to theft from a person. Defendant’s first argument lacks merit. Her second argument, however, is well taken, and we therefore reduce the conviction for attempted robbery to grand theft from a person and remand for resentencing on that count. In all other regards, we affirm.

BACKGROUND

Evidence at Trial

The May 29, 2016 Assault on Amar Dahmi (Counts 3, 7, 8 & 9)

On May 29, 2016, Amar Dahmi was working as a valet parking attendant at a parking lot in the Tenderloin neighborhood of San Francisco. He was sitting at the kiosk when defendant walked up and asked to use a port-a-potty. Dahmi responded that he was sorry but it was not for public use. Defendant became very angry, swearing at him and motioning with her hands. He told her to leave, but instead she pulled out two knives and said she would “fuck [him] up.” When Dahmi said he was going to call 911, defendant began to move towards him with the knives drawn. She continued to approach, so he picked up a plastic garbage can and used it to keep her at a distance. Defendant attacked him, attempting to strike him with both knives. He deflected the blows with the garbage can and then pushed her in the chest with it, knocking her down and causing her to drop the knives. He again told her to leave, and this time she gathered her knives and other belongings and left, yelling, “Help, help, help,” as she did.

Dahmi called his manager to report what had happened and asked another attendant who had witnessed the incident why he had not called 911. Dahmi was picking up trash that had fallen out of the garbage can when defendant returned, still carrying the two knives in her hands. She was accompanied by two Latino men, one smaller than the other, both of whom were also carrying knives. The smaller man—who Dahmi subsequently identified as Mendez—was wearing a baseball hat and carrying a five-inch hunting knife.

Defendant pointed at Dahmi and spoke to Mendez in Spanish. The three assailants then approached Dahmi, and Mendez swung a knife at him. Dahmi began running, and the attackers gave chase. As he was running, a third man jumped out from behind a car and stabbed him with a large knife. They both fell to the ground. As Dahmi attempted to get back up, he saw the other three assailants behind him, but before he could get up and continue running, he was stabbed again, this time by Mendez. Defendant then stabbed him twice as he struggled to get up. She said something like, “Die now,” and he also heard someone say something like, “He’s done, he’s done.” The assault then finally stopped.

Dahmi was able to run to a nearby hotel to get help, and from there he was taken by ambulance to a hospital. His injuries included four stab wounds and significant blood loss and required a four-night hospitalization. His recovery was lengthy, he was still taking pain medication 19 months after the assault, and he had been diagnosed with posttraumatic stress disorder (PTSD).

A few days after Dahmi got out of the hospital, he saw a televised newscast about a stabbing death in San Francisco. Two “big” photos of defendant and Mendez were shown during the newscast, along with video of them being arrested, and “right away” Dahmi recognized them as the two people who stabbed him.

A day or two later, he informed the district attorney’s office that defendant and Mendez were the two people who stabbed him.

On June 11, the police showed Dahmi a photo lineup containing photographs of six women. He identified a photo of defendant as the female assailant, but failed to identify a photo of Mendez as one of the male assailants.

At a preliminary hearing and at trial, Dahmi identified defendant and Mendez as two of his assailants.

The June 10, 2016 Murder of Mitzi Campbell (Counts 1, 2, 4, 5 & 6)

On the morning of June 10, 2016, nearly two weeks after the Dahmi assault, Mitzi Campbell was working as a flagger in charge of traffic control at a South of Market construction site in San Francisco. Chad Doyle and Zachary Hallquist were also working there that morning. At some point, defendant attempted to enter the construction site to use a port-a-potty. Hallquist told her she could not use it because it was for employees only, and she instantly became agitated. Campbell, who needed to direct a truck through the area, approached them, telling defendant she could not use the bathroom and had to leave. Defendant responded that she wanted to use the bathroom. When defendant did not move, Campbell put her hand on her shoulder to move her off down the street. As the two women were moving, with defendant pushing a bicycle she had with her, they began arguing. When the arguing escalated to yelling and then a physical scuffle, Doyle and Hallquist began walking towards them to help Campbell. They lost sight of the two women for a few seconds when a building obscured their view; when they regained sight of them, Campbell was on the ground on her stomach. Defendant rolled her over and began digging through her pockets. A bloodstain was visible on Campbell’s chest, and she died from multiple stab wounds.

Cesar Lujan and Muhammad Malik also witnessed part of the murder. Lujan, a construction worker, was walking nearby when he saw the two women fighting. He saw defendant push Campbell to the ground with both hands and then attempt to flee. Malik was working at a nearby liquor store when he heard yelling outside. He walked over to the door and saw Campbell and defendant in a physical altercation, with Campbell trying to get away from defendant. Because this was a common occurrence, he went back inside. He then heard a loud thump and walked over to the door, and this time he saw Campbell lying on the ground and defendant bent over her, yelling. Defendant then turned Campbell over and searched her upper body. Malik could see that Campbell was bleeding so he called 911.

As Malik called 911, Hallquist and Doyle confronted defendant. Hallquist shouted, “You just stabbed her. You can’t rob her now too,” and said that he was calling the police. Defendant responded, “She was pulling my hair.” She began to push her bicycle away, so Doyle grabbed its back wheel to prevent her from fleeing. As Doyle and defendant struggled over the bicycle, she yelled for help from Mendez, who was about a block away. Mendez approached on a bicycle and told defendant to forget the bicycle, and, “Let’s get out of here.” Hallquist told Mendez that defendant had just stabbed his employee and the police were on their way.

Mendez continued to encourage defendant to leave the construction site, and the two began walking away. Defendant was still pushing her bicycle, but when a police siren became audible, she dropped it and began running. Mendez crouched down behind a parked car and appeared to hide something inside a wheel well. The police caught defendant and Mendez a short distance away and arrested them. They both had two knives in their pockets, and the police found a large, hunting-type knife on top of the parked car’s tire.

The Defense Cases

Mendez’s defense was one of misidentification as to the Dahmi assault. His sole witness was psychologist Geoffrey Loftus, an expert in the field of eyewitness memory and perception, whose testimony primarily concerned the impact “post-event information” may have on a witness’s memory.

Defendant admitted her role in the Dahmi assault and the Campbell murder but claimed she acted in the heat of passion, self-defense, or imperfect self-defense. She testified on her own behalf, describing a difficult upbringing that included having been physically and sexually abused by her mother’s boyfriends when she was very young, time spent in foster care, an abusive relationship from when she was 13 to 19 years old, significant time spent living on the streets, and substantial substance abuse. As to the Dahmi assault and the Campbell murder, she testified as follows:

Defendant was in her early 20’s and living in Los Angeles when she met Mendez, who was 20 years her senior. In April 2016, after they had been dating for a few months, she left Los Angeles to get away from him because he “put hands on” her. In May, she agreed to meet him in San Francisco so they could start a new life. Once they met up in San Francisco, they stayed in a variety of shelters.

On May 29, defendant, who was then 23 years old, was with Mendez and another man they had met at a shelter. They were waiting to get lunch when defendant decided to use a port-a-potty. She asked a man in a parking lot a few times if she could use the bathroom, but he told her it was for employees. She insisted, saying, “Please, please, please,” and he first ignored her and then responded, “ ‘No, bitch.’ ” She was telling him to have some respect when he bashed her with a trashcan “[c]ountless times.” After she had “had enough,” she pulled out two knives. She left the parking lot and crossed the street, where she told Mendez and the other man from the shelter that someone had attacked her. She followed Mendez back to the parking lot, and they began chasing the man who attacked her. When they rounded a corner, they saw him fall. He got up and then tripped again, and then defendant and Mendez both tripped so all three of them were on the ground. While on the ground, defendant stabbed the man. He eventually stood up and walked away.

As to the murder of Mitzi Campbell, defendant testified she tried to use a

port-a-potty but was stopped by a construction worker who told her it was for employees only. She understood and was walking away when she heard someone behind her screaming at her to get out of there. She turned and saw a woman yelling at her to get off her street and saying that she had seen her “robbing” all morning. Offended and confused because she is “not a robber,” defendant stopped and asked the woman, “Who am I robbing?” and “What did I rob?” Defendant called the woman a liar, and the woman became aggressive, calling defendant a “skinny bitch” and telling her, “I’m going to kick your ass. I’m going to stab you in the neck. I’m going to break you into pieces.” This led defendant to believe the woman had a weapon. The woman then swung at her and pulled her hair so hard she believed she was going to be pulled to the ground. Defendant “flashed” and “snapped,” pulling out her knife and stabbing the woman multiple times. The woman fell face first to the ground, and defendant turned her over and went through her pockets because she thought she had a weapon or a syringe. She was not trying to steal from the woman and was instead thinking that if she could find the weapon, she could give it to the police.

Defendant presented testimony from the following expert witnesses:

Bernadette O’Leary, a clinical psychologist who specializes in domestic violence and child sexual abuse, was defendant’s therapist for a year when she was 15 years old. At that time, she diagnosed defendant as suffering from PTSD, with a secondary diagnosis of sexual abuse as a child. Defendant did not complete her treatment when she was 15 years old, given which O’Leary would expect the PTSD symptoms to have worsened.

Karen Froming, a doctor of clinical psychology, testified as an expert in psychology and neuropsychology. She assessed defendant and diagnosed her as suffering from PTSD with several disorders related to memory and decisional capacity.

Jennifer Friedenbach, an expert on homelessness in the Bay Area, testified that homeless individuals often take measures to protect themselves from assault, such as carrying a knife, because incidents of violence against them are very common, and homeless women are particularly vulnerable to sexual assault, including by intimate partners.

Defendant also presented testimony from two character witnesses, one of whom described her as friendly, honest, and having integrity, another who described her as “totally mellow,” “just really laid back . . . .”

Defendant also called her uncle and aunt to testify about her and defendant’s relationship. Her uncle described having seen two fights between Mendez and defendant, both times Mendez throwing “her bicycle on her.” He had seen her with black eyes and when she told him what happened, she was worried and was making plans to leave. Her aunt described arguments she witnessed between defendant and Mendez and injuries defendant had on her face.

Defendant also presented testimony from two witnesses who testified about Campbell’s purported character for aggression. The prosecution introduced evidence rebutting defendant’s evidence on the issue. He also elicited testimony from defendant and her character witnesses about defendant’s racial animus towards Black people, which the prosecutor theorized fueled her assault on Campbell, who was Black.

Procedural Background

An information filed on October 19, 2017, alleged nine counts arising out of the Dahmi assault and the Campbell murder:

Counts 1 through 3 charged defendant with (1) the June 10, 2016 murder of Mitzi Campbell, (2) the attempted second degree robbery of Campbell, and (3) the May 29, 2016 assault on Amar Dahmi with a deadly weapon, with a personal use of a deadly weapon allegation as to counts 1 and 3.

Counts 4 through 6 charged Mendez with three crimes that occurred on the date of Campbell’s murder: (4) accessory after the fact to murder, (5) carrying a concealed dirk or dagger, and (6) receiving stolen property.

Counts 7 through 9 charged both defendant and Mendez with three offenses arising out of the Dahmi assault: (7) attempted murder, (8) assault with a deadly weapon, and (9) battery with serious bodily injury, each count with personal use of a deadly weapon and personal infliction of great bodily injury allegations.

A joint jury trial resulted in the following verdicts: defendant guilty of the second degree murder of Campbell, attempted robbery of Campbell, and assault on Dahmi with a deadly weapon (counts 1 through 3), with a true finding on the count 1 enhancement; Mendez guilty of being an accessory after the fact to Campbell’s murder (count 4) and carrying a concealed dirk or dagger (count 5); and both guilty of assault on Dahmi with a deadly weapon (count 8) and battery of Dahmi with serious bodily injury (count 9), with true findings on the enhancements on both counts. The jury was unable to reach a verdict on count 7 (attempted murder of Dahmi), and the court dismissed that count, having also previously entered a judgment of acquittal on defense counsel’s motion as to count 6 (receiving stolen property) due to insufficient evidence.

Defendant was sentenced to 23-years-to-life in state prison, Mendez to seven years eight months.

Defendant filed a timely notice of appeal.

DISCUSSION

The Trial Court Did Not Commit Error In Instructing the Jury on Motive

Defendant’s first argument challenges the court’s giving of CALJIC No. 2.51, which instructed the jury as follows: “Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty.” Defendant’s challenge is based on her theory that motive is an element of the defenses she

asserted—namely, heat-of-passion manslaughter, self-defense, and imperfect self-defense. She contends that, given this, by instructing the jury that the prosecution need not prove motive, the court improperly absolved the prosecution of its burden of proving the absence of justification or mitigation, which unconstitutionally shifted the burden to her to prove her defenses. We are unpersuaded.

Defendant’s argument hinges on the fundamental premise that claims of heat-of-passion manslaughter, self-defense, and imperfect self-defense require motive as an element. We disagree with this premise, however. While defendant discusses at length the concepts of “ultimate fact,” “elemental fact,” and “motive” versus “intent,” none of the legal authority she cites holds, or otherwise convinces us, that motive is an element of these defenses. We consider it unnecessary to distinguish each authority she cites, but we address J.C. Penney Casualty Ins. Co. v. M.K. (1991) 52 Cal.3d 1009, as it is illustrative of how defendant’s reliance on her cited authorities is misplaced. Defendant quotes the following passage from J.C. Penney Casualty Ins. Co.: “Whether the conduct is wrongful, however, will depend on the insured’s motive. For example, the motive may be self-defense.” (Id. at p. 1026.) While at first blush the language may appear to favor defendant’s argument, upon further examination the case cannot reasonably be construed as supporting her theory. J.C. Penney Casualty Ins. Co. is an insurance coverage case that concerned whether an insurer that issued a homeowner’s policy to a child molester was obligated to pay a $500,000 civil judgment obtained by the victim and her mother against the insured. The court held that the insurer was not required to indemnify its insured for damages caused by his sexual molestation of a child because there was no coverage for intentional acts, rejecting defendant’s position that the exclusion for intentional acts did not apply because his motive was “wholesome.” In so doing, it discussed a hypothetical in which an insured intentionally shoots another person, and noted that in such a situation coverage would depend on the insured’s motive: if the motive for the shooting was robbery, the shooting would be wrongful and not covered; if the shooting was justified, such as in the case of self-defense, the insured did not act wrongfully. (Id. at p. 1026.) This dictum in an insurance coverage case simply has no relevance here.

Beyond the lack of legal support for defendant’s underlying premise, it is also significant that the effect of defendant’s claim would be to make motive a de facto element of the prosecutor’s case any time a defendant asserts a claim of heat-of-passion, self-defense, or imperfect self-defense. Accepting this argument would subvert decades of jurisprudence establishing that motive is not an element of the offenses charged here. (See, e.g, People v. Aranda (1938) 12 Cal.2d 307, 310 [motive is not an element of murder]; People v. Beasley (1958) 163 Cal.App.2d 22, 25 [same]; People v. Gorgol (1953) 122 Cal.App.2d 281, 304 [motive is not an element of robbery].) We decline to be complicit in defendant’s backdoor attempt to make motive an element the prosecution must prove whenever defendant asserts a claim of justification or mitigation.

Finally, even if the instruction was erroneous, defendant has not established a reasonable likelihood that the jury applied the challenged instruction in a manner that violates the law. (People v. Castaneda (2011) 51 Cal.4th 1292, 1320.) She claims there was a reasonable likelihood the jury understood the motive instruction “to mean that the defendant does have to prove [her] motive, at least in regard to self-defense and manslaughter, which depend on facts peculiarly within [her] knowledge, and which, in the instant case, depended primarily on facts presented in [defendant’s] own testimony in the defense case.” Not so. The court gave instructions on self-defense (CALCRIM No. 505), heat-of-passion manslaughter (CALCRIM No. 570), and imperfect self-defense (CALCRIM No. 571), all of which instructed that the People bore the burden of proving beyond a reasonable doubt that defendant did not act with justification, in the heat of passion, or in imperfect self-defense. The jury is presumed to have followed its instructions (People v. Chism (2014) 58 Cal.4th 1266, 1299; People v. Yeoman (2003) 31 Cal.4th 93, 138–139), and defendant has not demonstrated otherwise.

In light of the foregoing, we conclude the instructions as a whole delivered a correct interpretation of the law, and defendant fails to show any reversible instructional error.

Defendant’s Attempted Robbery Conviction Is Unsupported by Substantial Evidence

In her second argument, defendant contends that her attempted robbery conviction is unsupported by substantial evidence and must be reduced to theft from a person because there was no evidence she formed an intent to steal before or during her use of force on Campbell. When, as here, defendant challenges the sufficiency of the evidence to support a conviction, we review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

(People v. Nguyen (2015) 61 Cal.4th 1015, 1055; People v. Green (1980) 27 Cal.3d 1, 55.) Applying this standard here, we conclude defendant’s argument is meritorious.

The Penal Code defines robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Pen. Code, § 211.) “To support a robbery conviction, the evidence must show that the requisite intent to steal arose either before or during the commission of the act of force. [Citation.] ‘[I]f the intent arose only after the use of force against the victim, the taking will at most constitute a theft.’ ”

(People v. Marshall (1997) 15 Cal.4th 1, 34.) Defendant’s intent to steal may be inferred from direct and circumstantial evidence. (People v. Jackson (2016) 1 Cal.5th 269, 345.) Here, the testimony consistently depicted an incident that began when defendant sought to use the port-a-potty on the construction site, Campbell intervened, an altercation ensued between the two, and defendant stabbed Campbell. Nothing in the evidence suggested, expressly or inferentially, that defendant formed an intent to rob Campbell before or while she stabbed her.

The People dispute this conclusion, arguing “that there was some evidence that [defendant] had intended to steal before the stabbing, as Ms. Campbell accused her of having been ‘robbing’ all morning.” Campbell’s alleged accusation that defendant had been committing robberies all morning does not constitute substantial evidence that defendant intended to rob Campbell, let alone that she formed the intent to do so either before or while she stabbed Campbell.

The People also contend that “even if [defendant] did not form the intent to steal from Ms. Campbell until after she had stabbed her, the jury could reasonably have found that physical act of turning Ms. Campbell’s body over and reaching into Ms. Campbell’s pockets constituted sufficient force to support a robbery conviction given that Ms. Campbell’s vulnerable physical state prevented her from resisting [defendant’s] actions.” We cannot agree that defendant’s act of turning Campbell onto her back—particularly at a time when Campbell was either unconscious or deceased—constituted substantial evidence of the force required to support a robbery conviction.

Finally, the People rely on People v. Marshall, supra, 15 Cal.4th at p. 35, in which the court observed, “If a person commits a murder, and after doing so takes the victim’s wallet, the jury may reasonably infer that the murder was committed for the purpose of obtaining the wallet, because murders are commonly committed to obtain money.” This has no application here, where the evidence regarding the circumstances surrounding Campbell’s murder does not support an inference that defendant stabbed Campbell for the propose of robbing her.

DISPOSITION

Defendant’s conviction for attempted robbery is reduced to grand theft person (Pen. Code, § 487, subd. (c)), and the matter is remanded for the sole purpose of resentencing on that count. In all other regards, the judgment of conviction is affirmed.

 

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Stewart, J.

People v. Cauich (A154490)