Filed 1/22/14 P. v. Baltazar CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. PETER ALBERT BALTAZAR, Defendant and Appellant. G048136
(Super. Ct. No. 09NF2874)

O P I N I O N

Appeal from a judgment of the Supe rior Court of Orange County, W. Michael Hayes, Judge. Affirmed. Thien Huong Tran, under appointm ent by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
* * *2 Defendant Peter Albert Baltazar file d a notice of appeal after a jury convicted him of first degree murder (Pen. Code , § 187, subd. (a); all statutory references are to the Penal Code unless noted), and fou nd to be true the allegation he personally discharged a firearm causing d eath (§ 12022.53, subd. (d)). His appointed counsel filed a brief summarizing the case, but advised this court he found no i ssues to support an appeal. At our invitation, Baltazar submitted a written brie f on his own behalf. After considering Baltazar’s brief and conducting an independent review of the record under People v. Wende (1979) 25 Cal.3d 4 36, we affirm.

F ACTS Around 10:30 p.m. on the evening of March 2, 2009, Leesa Sandel was in
the kitchen of her Brea home when she hear d a gunshot. Looking out the window, she saw a white, older model van traveling down th e street with its side door open and its lights off. The door closed as the van ro unded the corner. Sa ndel’s neighbor, Patrick Mannion, heard a bang and saw a flash. Manni on walked outside to investigate, saw the van, and found the body of 24- year-old James Arrecis in the street. Arrecis had suffered a single gunshot wound to the head at close range by a 12-gauge shotgun. Arrecis’s pocket contained a piece of paper with Baltazar’s mother’s home address in La Habra. Arrecis’s cell phone, found near the body, reflected Arrecis had exchanged text messages with Baltazar throughout the day. The last text message occurred at 5:09 p.m., and stated, “‘Look, Du mbass. I didn’t realize we were doing our own thing now that Mina is going to be gone. Get right, dog. Stop acting like my cuz. P.B.’” Arrecis’s cell phone also showed he ha d communicated with Marina Nunez,
Baltazar’s cousin. Nunez and Arrecis were in an intimate relati onship and had a young daughter together. The couple had been w ith Baltazar and Baltazar’s father, Pedro, earlier in the day.3 Zachary Morrison was a friend of Nun ez’s. Both he and Arrecis dealt illegal drugs. Morrison, Arrecis, Baltazar, and Pedro dr ank beer, smoked marijuana, and used methamphetamine together in Pedro’s Anaheim garage, about five miles from the scene of the shooting, in the h ours leading up to the murder. At some point that evening, Arrecis asked Morrison to go w ith him to pick up money. Arrecis drove Pedro’s white minivan while Morrison sat in the front passe nger seat and Baltazar sat in the back.
Baltazar directed Arrecis to Brea and told him to pull ove r. Baltazar pulled out a sawedoff shotgun and told Arrecis, “‘Get the fuck out of the car.’” Arrecis complied and asked what was going on. They wa lked towards the back of th e car, exchanged some words, and a shot rang out. Arrecis fe ll over. Baltazar returned to th e van, sat in the driver’s seat, and drove off. Morrison closed the side do or as they drove back to Pedro’s. A few days later, Baltazar told Morris on to forget what he saw. Police charged Morrison w ith the murder in Octobe r 2009. While in jail, Baltazar encouraged Morrison no t to cooperate with the polic e. Morrison initially denied knowledge or involvement in the crime but u ltimately entered into an agreement with the prosecutor in January 2012 to testify agai nst Baltazar. He susp ected the murder had something to do with Arrecis “‘burn[ing] ’” Baltazar in a credit card scam. Officers searched Pedro’s garage and found shotgun shells for a 12-gauge shotgun. Pedro eventually told the polic e his son admitted killing Arrecis because the latter had “disrespected” him.
Melissa Pardini dated Baltazar in 2009 . She told officers Baltazar asked her to say he was in her bedroom on the night of the murder between 9:00 p.m. to 2:00 a.m. Baltazar told her he had a problem with Arrecis, Arrecis “got him mad,” and Baltazar had “fucked up.” Baltazar’s friend Virginia Arreola, wh o lived in Fullerton, testified Baltazar called one evening in March 2009 to ask if he could borrow a car. He and two other men visited her later that night and Baltazar urged her to tell anyon e who asked about his4 activities that evening that he was with Pa rdini. A week later, Arreola approached
Baltazar and asked where she could locate Arrecis because she was missing money and suspected Arrecis had used he r ATM card. Baltazar told he r, “‘You don’t have to worry about it.’” He said, “‘You heard on the news about the guy they foun d in La Habra[?]’”
Baltazar revealed it was Arr ecis, that she shou ld not “‘worry about it’” and it was “‘ none of [her] business, for [her] not go get in to it.’” After talking to the police, she wrote Baltazar a letter apologizing a nd asking for his forgiveness. Following trial in Nove mber 2012, a jury convi cted Baltazar as noted
above. In March 2013 , the trial court sentenced Baltazar to a prison term of 50 years to life, 25 years to life for murder (§ 190, subd. (a)) plus a consecutive 25 years to life for the firearm use enhancement (§ 12022.53, subd. (d)). The court imposed various fines
and fees. The court awarded Baltazar 1,243 days of presentence credits.

P OTENTIAL I SSUES Baltazar’s appellate lawyer identifies the following poten tial issues for our consideration: (1) whether trial counsel pe rformed ineffectively by failing to request an alibi instruction; and (2) whether the trial c ourt prejudicially erred by failing to instruct the jury to determine whether Pedro Baltazar was an accomplice.

Counsel’s Failure to Reques t Alibi Instruction Does No t Raise an Arguable Issue A defendant claiming a constitutiona l violation based on ineffective
assistance of counsel must show “counsel ’s representation fell below an objective standard of reasonableness,” and “the defici ent performance prejudiced the defense.” ( Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)5 People v. Freeman (1978) 22 Cal.3d 434, 437-438 , held an alibi instruction is mandatory if alibi witnesses are pres ented and the instruction is requested. 1 Freeman rejected a sua sponte duty to instruct on alibi because “the jury was instru cted to acquit defendant if the prosecution failed to estab lish his guilt beyond a reasonable doubt. It
would have been redundant to have required an additional in struction which directed the jury to acquit if a reasonabl e doubt existed regarding defe ndant’s presence during the crime. As stated in [ People v. Whitson (1944) 25 Cal.2d 593, 604], no juror could possibly be misled by the failure to instruct on the significance of defendant’s alibi defense.” ( Id. at p. 438.)
In People v. Alcala (1992) 4 Cal.4th 742, 8 03-804, the Supreme Court rejected the defendant’s contention the trial c ourt had a sua sponte du ty to instruct the jury on identity (CALJI C No. 2.91), eyewitness identifica tion factors (CALJIC No. 2.92), and alibi (CALJIC No. 4.50). ( Alcala, supra, at p. 804.) The court explained, “[i]t is sufficient that the jury be inst ructed generally to consider all the evidence, and to acquit
the defendant in the event it en tertains a reasonable doubt regarding his or her guilt.” ( Id. at p. 804.) The court acknowledged these in structions should be given upon request, but only if “identification is a crucial is sue and there is no substantial corroborative evidence.” ( Ibid .) The court concluded defense co unsel’s failure to ask for these instructions did not prejudice defendant beca use “the instructions given adequately apprised the jury of all relevant legal principles.” ( Id. at pp. 804-805.) On this score, we
have found no California case in which a defense attorney’s failure to request an alibi
instruction violated a defenda nt’s right to effective a ssistance of counsel.

1 The instruction in Freeman (CALJIC No. 4.50) provided: “‘The defendant in this case has introduced ev idence tending to show that he was not present at the time and place of the commission of the alleged offens e for which he is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, he is entitled to an acquittal.’” ( Freeman , supra , 22 Cal.3d at p. 437.)6 Here, defense counsel lacked any basi s to request an alibi instruction.
Baltazar did not offer an alibi defense and rested without presen ting any evidence. Morrison, a friend of Baltazar’s cousin, was an eyewitness who testified that Baltazar shot Arrecis. Baltazar admitted killing A rrecis to his father, and made damaging
admissions to Pardini and Arreola. The trial court instructed the ju ry on reasonable doubt (CALCRIM No. 220), and the evaluation of testimony (CALCRIM No. 226). In sum, defense counsel’s failure to request an alibi instruction did not rais e an arguable issue on appeal.

Accomplice Instruction Co ncerning Pedro Baltazar The trial court instructed (CALCRIM No . 335) that “If the crime of murder with malice aforethought was committed, th en Zachary Morrison was an accomplice to that crime. [¶] You may not convict the defendant of murd er with malice aforethought based on the statement or testimony of an accomplice alone. You may use the statement or testimony of an accomplice to convict the de fendant only if: [¶] 1. The accomplice’s statement or testimony is supported by ot her evidence that you believe; [¶] 2. The supporting evidence is independent of the ac complice’s statement or testimony; [¶] and [¶] 3. That the supporting evidence tends to connect the defendan t to the commission of the crime. [¶] Supporting ev idence, however, may be slight. It does not have to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact about which the witness testifie d. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The sup porting evidence must tend to connect the
defendant to the commission of the crime. [¶] Any statement or testimony of an accomplice that tends to incriminate the defenda nt should be viewed with caution. You may not, however, arbitrarily disregard it. Y ou should give that statement or testimony7 the weight you think it deserv es after examining it with care and caution and in the light
of all the other evidence.” The failure to provide a similar inst ruction concerning Pedro Baltazar does not raise an arguable issue. “The court need give [accomplice] in structions only where
there is substantial evidence that the witness was an accom plice. [Citations.] ‘An accomplice is . . . one who is liable to pros ecution for the identical offense charged against the defendant’ (§ 1111) and does not include an accessory (§§ 31, 32; People v. Tewksbury (1976) 15 Cal.3d 953, 960). ‘An acc omplice must have “‘guilty knowledge and intent with regard to the commission of the crime.’” [Citation.]’ [Citation.]” ( People v. Boyer (2006) 38 Cal.4th 412, 466-467.) The evidence in this case suggested Pe dro was an accessory after the fact to murder, rather than a principal in the crime. In any event, ample evidence apart from that supplied by Pedro Baltazar’s testimony and statem ents to the police co nnected Baltazar to the commission of the charged crime. Any theoretical error was harmless. ( People v.
Williams (2010) 49 Cal.4th 405, 4 56 [no prejudice where the accomplice’s testimony was sufficiently corroborated]; ( People v. Richardson (2008) 43 Cal.4th 959, 1024 [slight
evidence suffices to corroborate accomplice testimony].)

Baltazar’s Letter Brief
Baltazar’s letter brief asserts “almo st all the witnesses perjur[]ed themsel[ves],” their statements were made under duress, and trial counsel performed ineffectively by not attempting to suppress their statements. Baltazar cites nothing in the record supporting these claims. If witnesse s perjured themselves, it was by testifying they did not remember statem ents they previously provid ed to the police implicating Baltazar, who had advised and intimidated them to lie about his whereabouts. We discern no other arguable issues from counsel’s brief, Baltazar’s letter brief, or in our independent review of the record.8 D ISPOSITION The judgment is affirmed.

ARONSON, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.