P. v. Beltran 3/30/11 CA1/4

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A124392

Case Date: 06/16/2011

Preview:Filed 3/30/11 P. v. Beltran CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, Plaintiff and Respondent, v. TARE NICHOLAS BELTRAN, Defendant and Appellant. (San Francisco City & County Super. Ct. Nos. 175503, 203443) A124392

After a two-year relationship marred by repeated incidents of domestic violence, appellant stabbed his estranged girlfriend to death in front of her children. He fled to Mexico, but was later located, brought to trial, and convicted of second degree murder. On appeal, appellant argues that the prosecutors closing argument, the jury instructions, and the trial courts response to a question from the jury all reflected the same error of law regarding the degree of provocation necessary to negate malice and reduce the degree of homicide to voluntary manslaughter. Specifically, appellant contends that this error permitted the jury to reject appellants claim of voluntary manslaughter, and reach a verdict of second degree murder, if it found that the victims provocation of appellant would have caused a reasonable person to act rashly, but was not sufficient to cause such a person to kill. We agree with appellant that the relevant jury instruction was at least ambiguous, if not misleading, and that under the circumstances of this case, the error was prejudicial. Accordingly, we must reverse appellants conviction.

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This conclusion moots many of appellants other contentions. For the guidance of the trial court in the event of a retrial, however, we will address appellants arguments that the trial court erred in admitting hearsay statements by the victim to police and to a lay witness, as well as evidence of appellants prior acts of domestic violence. FACTS AND PROCEDURAL BACKGROUND A. Appellant's Relationship with the Victim In November 1998, appellant met a woman named Claire Joyce Tempongko at a bar. About a month later, they began dating. In mid-January 1999, appellant moved into the apartment that Tempongko shared with her school-age son, J.N.,1 and toddler daughter. Appellant sometimes referred to Tempongko as his wife, and J.N. addressed and referred to appellant as "dad," even though appellant was not his father. According to appellant, he and Tempongko discussed the possibility of having a child of their own. She told him she was somewhat hesitant, because she was afraid he would abandon her as the fathers of her existing children had done, but he denied that she ever told him that she did not want to have a child with him because he was abusive. Eventually, according to appellant, they agreed that she would try to become pregnant, but she never told him that she had succeeded. Appellants relationship with Tempongko was "off and on again," had "ups and down[s]," and was marred by domestic violence almost from the start. In June 1999, appellant was convicted of felony domestic violence and put on probation. At appellants trial, over the objection of his counsel, and subject to limiting instructions by the court, the prosecution introduced evidence of three domestic violence incidents between appellant and Tempongko, and of appellants subsequent violation of a protective order. 1. The April 28, 1999 Incident. On April 28, 1999, Tempongko called the police from a pay phone half a block from her apartment. When San Francisco police officer Laxman Dharmani arrived, Tempongko and J.N. appeared to be frightened. Tempongko

To protect the privacy of Tempongkos son, an innocent bystander who was a minor at the time of the crime, we will refer to him by his initials. 2

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told Dharmani that appellant had come to her apartment demanding to be let in, and that when she refused, because she was afraid of him, he made a commotion and broke a rear window.2 Tempongko explained to Dharmani that she had then let appellant into the apartment, because she was embarrassed by the scene he was making, but once he was inside, she told him he was no longer welcome there. He began gathering his belongings, but then suddenly grabbed her and threw her to the ground. When Tempongko got up, appellant grabbed her by the hair and pulled her along a hallway, but then let her go and drove away in the couples pickup truck.3 Shortly after that, appellant left Tempongko a voicemail message saying that he would be back. Tempongko then called the police. She told Dharmani that she was afraid of appellant, but when Dharmani suggested that she go to a friends or relatives house, she declined to leave home. 2. The May 17, 1999 Incident. About three weeks later, during the late evening on May 17, 1999, Tempongko and appellant, riding in a limousine they had rented, picked up a friend of appellants named Teofilo Miranda and took him to a nightclub. The two men drank alcohol in the limousine, and then had two or three beers at the club. After they had been at the club for a while, several men at an adjacent table commented about how Tempongko loved to dance. Appellant appeared to Miranda to become jealous, and got into an argument with the men. The clubs security guard then told appellant, Tempongko, and Miranda to leave. They did so, and headed for Mirandas house. On the way, a truck came close to hitting them as they were crossing the street, and appellant got angry and threw a beer bottle at it. After that, according to Miranda, appellant got into a bad mood. After the group had sat talking for a little while at Mirandas apartment, appellant asked Miranda to call a taxi so that he could go home, and told Tempongko she was to come with him.
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Appellant testified that the window was already cracked, and that he was only knocking on it when it broke. In appellants own testimony, he admitted grabbing Tempongko by the arm or shoulder, but did not recall ever pulling her by the hair. J.N., however, remembered seeing appellant drag his mother down a hallway by her hair on this occasion. 3
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Tempongko told Miranda that she did not want to go in the taxi with appellant because she was afraid he would hit her, and asked him several times not to let appellant take her away. When the taxi arrived, Tempongko threw herself onto the floor, crying. Appellant took hold of her and tried to pick her up and remove her from Mirandas apartment, but was not able to do so. Miranda tried to persuade appellant to let Tempongko go, and then called the police. The tape recording of Mirandas 911 call was played for the jury; in the background, Tempongko could be heard calling out for help. When the police arrived, Tempongko was "shaking, crying, [and] hysterical," and told them she did not want to be left alone with appellant. Appellant was detained. The following afternoon, the police photographed Tempongkos arms and legs, which were bruised where appellant had grabbed her. At trial, appellant admitted causing the bruises on Tempongkos arm, but did not recall grabbing her by the leg. He contended he was trying to pick Tempongko up off the floor, even though she did not want him to do so, because the taxi was waiting for them. He remembered her asking for help, but did not recall her telling Miranda that she was afraid he would beat her. 3. The November 18, 1999 Incident. On November 18, 1999, the police, including officer John Tack, were called to Tempongkos apartment by Tempongkos mother, who told them that her daughter had gotten into a fight with her boyfriend, and he had beaten her.4 When they arrived, they found the bedroom door closed, and either locked or blocked shut. After repeated requests, appellant opened it a few inches, enabling the police to force it open and pull appellant out of the room. He smelled of alcohol. Tempongko was inside the bedroom, distraught. The police saw many empty beer cans or bottles scattered about in the living room. Tempongko told the police that she and appellant had been drinking to celebrate their one-year anniversary, and had gotten into an argument, during which appellant grabbed Tempongko by the hair and held her with her head pulled back for several

The jury was instructed that Tempongkos mothers statement was introduced only to explain why the police entered the apartment, and not for its truth. 4

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seconds. After appellant released Tempongko, she left to get her mother and stepfather, who came back to the apartment with her. Appellant argued with them and yelled at them, and Tempongkos mother left, saying she was going to call the police. Appellant then forced Tempongko into the bedroom and locked her in along with him for about five minutes.5 Tempongko did not appear to be injured. 4. The Protective Order Violation. At some point prior to September 7, 2000, Tempongko obtained an emergency protective order requiring appellant to stay at least 100 yards away from her apartment. However, he still had a key. On September 7, 2000, the police were dispatched to Tempongkos apartment building. When they arrived, they saw appellant on the street, lurking in the shadows near the door of the building. The police detained him, and observed that he was slightly disheveled, had bloodshot eyes and slurred speech, and smelled of alcohol. He was arrested because he appeared to be so intoxicated as to pose a danger to himself or others. The police knocked on Tempongkos door, and she told them about the emergency protective order. She appeared to be frightened, and "became almost panic stricken" when the police told her that they had detained a man outside the building. According to appellant, he had come to Tempongkos apartment, uninvited and unannounced, because he wanted to see the children, and Tempongko called the police when he rang the buzzer and called her name. He did not use his key because Tempongko was not expecting him. He admitted knowing at the time that there was a protective order prohibiting him from coming within 100 yards of Tempongkos apartment. B. The Homicide In early October 2000, appellant started living "off and on" in a room in an apartment in another neighborhood, which he rented from a man named Oscar Sanchez, whom he knew through a mutual friend. Sanchez testified that appellant told Sanchez

Appellant acknowledged grabbing Tempongko and taking her into the bedroom with him, but denied locking the door. 5

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only he had been "thrown out" of his prior residence; appellant did not explain further. According to appellant, Tempongko never told him that she wanted to end their relationship; rather, he moved out because he and Tempongko "mutually decided to take a timeout to kind of reevaluate our relationship." In an employment application that appellant filled out on October 13 or 15, 2000, he gave Tempongkos address and telephone number as his own. Around the same time that appellant moved out of Tempongkos apartment, she started dating a man named Michael Houtz, whom she had known as a friend since January 2000. Shortly before they started dating, Tempongko told Houtz that she had finally gotten appellant to break up with her, as she had wanted to do since January 2000. Tempongko told Houtz that appellant had told her the relationship would end only "over his dead body [or] over her dead body." During the morning of October 22, 2000, which was a Sunday, Houtz picked up Tempongko and her children (then aged 10 and 5) for a planned excursion to Sacramento to get Halloween costumes for the children. Meanwhile, according to Sanchez, appellants roommate, appellant spent most of that morning drinking; he and Sanchez consumed 24 to 36 cans of beer between the two of them. Appellant testified that he thought he drank nine cans of beer, but he was not positive. As both Sanchez and appellant recalled, Tempongko called around noon on October 22, 2000, and when Sanchez answered the telephone, she asked for appellant. Sanchez gave appellant the phone, and a 10-minute conversation ensued, during which Sanchez testified that appellant was calm and did not use any profanity. According to appellant, Tempongko called him that day because they were supposed to have lunch. Instead, she told him that some female friends were taking her and the children to buy Halloween costumes, but she said she would still see him later in the day, and asked him to call her in the afternoon to find out when she would be home. After the call, appellant showered, dressed, and left the apartment. After stopping at Houtzs house in Vallejo, Houtz, Tempongko, and her children arrived in Sacramento at about 2:45 p.m. As they were getting out of the car, 6

Tempongkos cell phone rang. According to Houtz, Tempongkos son, J.N., took the phone out of her purse, answered it, and then handed it to Tempongko, saying, "Dad is mad." Houtz could hear a male voice on the other end of the call, speaking extremely loudly to Tempongko. Houtz could not understand what Tempongko was saying to the caller, because she was not speaking in English. After a minute or two, she yelled into the phone and hung up. J.N. remembered his mother getting what he considered an unusual number of calls on her cell phone during the Sacramento outing. However, he did not recall answering the phone himself, or knowing the identity of any of the callers. Both Houtz and J.N. recalled that after receiving the telephone call, Tempongkos mood changed; she had been acting happy and carefree earlier, but after the call, she appeared to J.N. to be nervous, and to Houtz to be apprehensive and upset, or at least embarrassed. Nonetheless, Houtz, Tempongko, and the children went on with their excursion. Shortly after the call, Tempongko told Houtz that the call had come from "him," which Houtz understood to mean Tempongkos boyfriend or former boyfriend. Tempongko complained that he was "bothering" her. Appellant testified that he called Tempongko around 3:00 p.m. that day from a pay phone. His recollection was that it was not J.N., but Tempongko herself, who answered the call. Appellant acknowledged that he might have spoken loudly, due to the background noise near the pay phone, but averred that he was not upset and did not yell, nor was he angry or upset at Tempongko for changing their plans. She told him she would call him later. Appellant testified that he did not tell her to be home by 7:00 p.m., and that they did not agree she would be home by any specific time. He also denied knowing anything about her having met a new male friend, or started dating another man. When Tempongko and Houtz planned their shopping excursion, she had told Houtz that she would need to be home by 7:00 p.m. During the trip back, Tempongko received a few more calls on her cell phone, during which she spoke to the caller or callers in Tagalog, and sent at least one other call directly to voicemail. She appeared to Houtz to be "fidgety" and concerned about the time, but she told him not to worry. When they neared her apartment at about 6:45 p.m., Tempongko appeared to Houtz to become 7

alarmed by the sight of a green Honda parked near the door of her building, with a man who looked Caucasian or Hispanic sitting slumped down in the drivers seat.6 Tempongko told Houtz not to stop, and to drive around the block. As they did so, Tempongko scanned the area carefully. When they returned to her street, the car was still there, and Tempongko became very frightened, and told Houtz to drive around again, this time in a larger circle. After they circled the block a third time, the green Honda was gone, but Tempongko remained tense, and asked Houtz to circle around one more time. At the end of this fourth circuit, Houtz pulled into a driveway next to Tempongkos building. Tempongko and the children got out of the car quickly, without saying goodbye; ran into the building, and shut the door. Shortly after that, Houtz tried to call Tempongko from his cell phone, both at her home telephone number and on her cell phone. According to Houtz, J.N. answered the home phone, said his mother was not home, and hung up. The cell phone rang straight through to voicemail. Houtz then drove by the apartment to check on them, and noticed a man sprinting away from the side of the street on which Tempongko lived.7 Everything appeared all right when Houtz checked the front door, however, so he headed home. While driving home, and soon after he arrived, Houtz tried several more times to reach Tempongko on her cell phone, but was only able to reach her voicemail.

The prosecution argued that the man in the car was appellant. Appellant denied having a car at that time, and testified that he traveled to Tempongkos that evening by bus, and had not been in a car waiting for Temponko to arrive. Christina Maldonado, who lived on the top floor of the three-unit building in which Tempongko had the basement apartment, recalled that appellant had a car, but was not certain of the make or model. In an interview with the police on October 24, 2000, Houtz told the police that the car was a green four-door Honda Civic, and that Tempongko said she had also seen the same car in front of her house a month earlier. According to the notes the police took of their interview with Houtz on October 24, 2000, he did not mention that Tempongko told him to circle the block several times when they came back to her apartment, nor did he mention seeing a man run away from the vicinity. He merely told them that he had dropped her off at 6:45 p.m. 8
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In contrast to Houtzs testimony, appellant introduced the testimony of Flor Yee. Yee lived a block away from Tempongko, and her daughter was a school friend of Tempongkos daughter. Yee testified that Tempongko and her children stopped by to see her for about 10 minutes between 4:00 p.m. and 6:00 p.m. on October 22, 2000. Yee said that Tempongko and the children seemed happy at the time, and said they had been to Vallejo that day. Later the same evening, around 8:00 or 9:00 p.m., J.N. came over to Yees house terrified and crying because his mother had just been killed. He was there for about 20 minutes, and then the police came. J.N., who was 18 years old by the time of appellants trial, testified about what happened inside Tempongkos apartment that evening. He said that his mothers cell phone rang several times, but he did not hear the conversations, except that at around 8:15 or 8:30 p.m., he heard his mother arguing with the caller, sounding frantic or at least upset, and urging the caller not to come to the house.8 Some 30 to 45 minutes later, appellant opened the apartment door with a bang, entered the apartment without being let in by Tempongko or her children, and began yelling loudly at Tempongko, angrily asking her where she had been, and with whom. Tempongko did not answer him. According to J.N., she did not push or strike appellant, and J.N. did not remember her swearing at him. After appellant yelled at Tempongko and they argued for about five or ten minutes, something appeared to J.N. to "trigger" appellant. Appellant walked very quickly into the kitchen area and grabbed a large kitchen knife with a six-inch blade. When appellant came back to the living room, he angrily approached Tempongko and began stabbing her repeatedly. She retreated, fell back onto the couch, put up her arms to try to push appellant away, and tried to grab the knife, but appellant kept stabbing her. After Tempongko slid to the floor, appellant stabbed her a few more times, and then ran out of the apartment, still carrying the knife.

In an interview recorded in 2007, J.N. said he was not sure whether his mother told the caller to come to the house, or not to do so. 9

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Appellants version of these events differed in several respects from J.N.s. Appellant testified that he arrived at about 8:40 p.m., and let himself in with the key he still had. He did not knock, because they were expecting him. He denied being angry when he arrived, or banging the door. Appellant maintained that Tempongko was upset with him for coming over so late, but he acknowledged that she never physically assaulted him during their argument. Appellant said Tempongko also criticized him for taking a job washing dishes, at which point they began to argue about money and exchange angry insults. Tempongko called appellant an "illegal" and a "nobody," and said she could "do better" than him. According to appellant, he then said he was leaving, and this only made Tempongko even more angry. Finally, she yelled, " ,,Fuck you. I was right. I knew you were going to walk away someday. Thats why I killed your bastard. I got an abortion. "9 Appellant testified that he had not known Tempongko was pregnant or that she had an abortion, and that learning this shocked him so much that he had no recollection of what happened next, until he found himself holding a bloody knife, with blood on his hands. Still in shock, he looked at the children, and then ran out of the apartment, holding the knife, which he threw away. 10 He admitted taking Tempongkos

This aspect of appellants version of the events was corroborated by portions of Tempongkos medical records introduced into evidence by the defense, which established that she had an abortion on July 13, 2000. Later that evening, the police found a knife, with Tempongkos blood on it, on the sidewalk at a street corner near her apartment building. A passerby had earlier seen a Hispanic man near that location, running very fast in the middle of the street, cursing and muttering to himself in English and Spanish, and carrying a knife with a five-inch to seven-inch blade. The passerby was not able to identify appellant as that man, however. 10
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cell phone, explaining that she handed to him while they were arguing, urging him to call her friend if he did not believe her about where she had been.11 Maldonado, Tempongkos neighbor on the top floor, testified that during the evening on October 22, 2000, she heard sounds of a struggle coming from Tempongkos basement apartment, with what sounded like furniture being knocked over or someone being thrown against a wall. She heard a muffled male voice, but did not hear a female voice. She also heard the children screaming, and calling frantically to their mother that they loved her. After listening for a couple of minutes, Maldonado looked down the inside stairwell of the building and saw J.N. running out of the apartment toward the sidewalk. At that point, she left her apartment by the front door with her cordless phone in her hand. As she did so, she saw the occupant of the apartment on the middle floor of the building, Frederick Keagy, standing outside the door with J.N. Keagy had just been driven home by two friends, and encountered J.N. at the street door of the passage leading to Tempongkos apartment. J.N. was crying hysterically, and called to Keagy that his mother was hurt, their phone was not working because the cord had been cut or "messed up," and he needed to call for help. J.N. told Keagy, "He stabbed my mom," and "he ran away." Keagy did not ask J.N. who "he" was, but J.N. told Keagys friend Gregory Stork that it was J.N.s "dad," his mothers boyfriend. Keagy started up the stairs to get to a phone, but on the way, he encountered Maldonado. He told her to call 911, which she did. Meanwhile, Keagy and Stork went into Tempongkos apartment and saw her propped up in the corner by the couch, surrounded by blood, and barely breathing. Furniture had been knocked over, and according to Keagy and Stork, the telephone had The prosecution introduced business records showing that eight calls were made from Tempongkos cell phone starting at 9:13 p.m. on October 22, 2000, which was several minutes after the police arrived at Tempongkos apartment in response to Maldonados 911 call. Appellant admitted using the phone to make several calls, including one to his sister in San Rafael. Some of the calls went to the phone number of appellants acquaintance Chili Bowles. 11
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been detached from the wall and was on the floor. Keagy recalled the telephone cord being next to Tempongko; Stork testified that it was "sort of all over" her. Maldonado also went into Tempongkos apartment after placing the 911 call, and saw the phone jack still on the wall, but with no telephone connected to it. She did not recall seeing the cord on Tempongkos body. Appellant denied pulling any telephone cord out of the wall, or at least did not remember doing so, and testified that he did not recall there being any telephone in the apartment other than the cordless telephone in the bedroom.12 The statements that Keagy, Stork, and Maldonado wrote out for the police on the night Tempongko was killed did not include any information regarding the telephone or the telephone cord. These witnesses testified at trial, however, that their statements were not necessarily a complete account of everything they saw. J.N. and Maldonado also both testified that the apartment had a land line telephone, with a cord, mounted on the wall near the front door, although Maldonado did not recall when she had last seen it. J.N. did not recall appellant doing anything to the wall-mounted telephone on the night Tempongko was killed, but he did remember that he tried to use it to call for help after the stabbing, and it was not working. The police report and the investigating officers chronology did not mention anything about a telephone or a telephone cord at the scene of the homicide. However, crime scene photographs taken at the time showed a telephone cord on the floor, as well as the telephone jack in the wall. The officer who took the photographs opined that it looked as though the cord had been pulled out of the wall jack. Dr. Boyd Stephens, who was the chief medical examiner for San Francisco at the time of the homicide, performed an autopsy on Tempongko on October 23, 2000. Stephens died in the spring of 2005, shortly after his retirement. In his stead, the prosecution called Dr. Amy Hart, Stephenss successor. Based on the autopsy report, The crime scene photographs taken after Tempongko was killed showed a cordless phone base in one of the bedrooms, and a matching telephone handset on the bed. 12
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which was admitted into evidence as a business record, and on her review of Stephenss notes, Hart testified that Tempongko received 17 "sharp force injuries" that were consistent with wounds that could be inflicted by the knife found near Tempongkos apartment, as well as 4 blunt force injuries. Some of the sharp force injuries were wounds on Tempongkos hands that Hart characterized as "defensive," that is, as injuries that could have been sustained by someone trying to ward off an assault with a sharp weapon. Hart testified that in her opinion, based on the records that she reviewed, Tempongko died of hypovolemic shock, which is the medical term for what happens when someone bleeds to death. C. Appellant's Actions After the Homicide Sometime after 9:00 p.m. on the night Tempongko was killed, appellant showed up at a bar in the Tenderloin where he was a regular patron. According to appellant, he flagged down a taxi in Tempongkos neighborhood, and had it take him to the bar so he could look for his only close friend, Ezequiel Perez. While appellant was in the taxi, he realized that he had taken Tempongkos cell phone with him, because it rang. He turned it off without answering it,13 though he turned it back on later to make outgoing calls. When appellant arrived at the bar, both the owner and the bartender noticed that appellant had blood and scratches on his hand, and blood on his shirt. Appellant appeared nervous, and told them he had gotten into a fight outside the bar. Appellant went to the bars restroom, where he cleaned up; he also asked if the bar owner had an extra shirt he could put on, and after the owner found one, he changed into it. Appellant told the bar owner that the police were looking for him, and obtained permission to use the bars phone so he could call a friend. Shortly thereafter, appellants friend Perez met him at the bar. They went outside the bar and called Bowles, who was a close friend of Perezs, to ask him for a ride; they then left the immediate area of the bar. Bowles picked up appellant and Perez, and took This testimony was consistent with Houtzs statement that he tried to call Tempongkos cell phone some time after he dropped her off, but only reached her voicemail. 13
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them to his apartment in San Bruno, where they spent the night. At about 2:00 a.m. on October 23, 2000, appellant called his roommate, Sanchez, and told Sanchez in Spanish that he had done something wrong. The following evening, Bowles drove appellant to a convenience store or laundromat somewhere north of the Golden Gate Bridge. At the store, appellant met briefly with his sister, spoke with her for a few minutes, embraced her, and then left with Bowles. Appellant testified that he met with his sister to say goodbye to her, and to ask her, when she found out what he had done, to explain it to their mother. Later that evening, appellant asked Bowles to take him to the Greyhound bus station in San Francisco, where appellant caught a bus to Los Angeles, telling Bowles that he was heading for Mexico. According to appellant, he went to Mexico at Perezs suggestion, because he was afraid. Appellant remained in Mexico until he was apprehended in June 2006, and returned to San Francisco in 2007. D. Procedural History The San Francisco District Attorney filed an information on November 21, 2007, charging appellant with the willful, deliberate, premeditated murder of Tempongko (Pen. Code,

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