1

Filed 9/14/21 P. v. Sierra CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or

or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent

,

v.

SOCORRO SIERRA,

Defendant and Appellant

. A15 9738

( Sonoma County

Super. Ct. No. SCR

- 718066 )

A jury convicted defendant Socorro Sierra of first degree felony murder

with kidnapping special circumstance s

, kidnapping , and possession of a

controlled substance with a firearm

. On appeal, d efendant claims (1) there

was insufficient evidence to support the kidnapping special circumstance

finding and the kidnapping conviction ; (2) the prosecutor committed

miscond uct during closing argument ; and (3) the trial court abused its

discretion in limiting the cross

- examination of a witness

. We affirm.

B ACKGROUND

Defendant was charged by third amended information with first degree

murder with kidnapping special circumstance s (Pen. Code, § § 187

, subd. (a)

,

190.2, subd. (a)(17) (B) ) 1 ; kidnapping (§ 207, subd. (a) ); and possession of a

1 All further statutory references are to the Penal Code unless

otherwise indicated

.2

controlled substance with a firearm (Health & Saf. Code, § 11370.1,

subd. (a) )

. Firearm enhancements were alleged as to the first two charges

(§12022.53

, subd. (d)).

D efendant’s post

- arrest interview was videotaped and played for the

jury

. During the interview, defendant stated he had a marijuana business

with his “good friend” Jose Martinez : Martinez would trim marijuana

obtained from growers and defenda n t would find the buyers

. Around May

2018, the business relationship deteriorated

. Martinez was “not comfortable”

with defendant and wanted to cut defendant out of the business and continue

alone . Defendant , however, felt Martinez owed him a debt from a particul ar

deal involving 109 pounds of marijuana

. Martinez said he returned the

marijuana because the grower came back , having not been paid

. D efendant

did not understand , as the marijuana had been trimmed and defendant had

lined up the buyers

. Defendant wanted to be compensated for his work , and

asked Martinez for either $16,000 or $5,000 plus 20 pounds of marijuana.

Martinez told defendant to give him time and he would make monthly

payments on the debt

.

A few weeks later, d efendant picked up two men in his car , telling them

they were going somewhere for “ business.” Defendant drove to a parking lot

where he saw Martinez , started discussing the money owed

, and then asked

Martinez to get into the car because his voice was “getting louder

. ” Martinez

agreed

, but said he could not be gone too long , as he had to go somewhere

.

Rather than staying in the immediate vicinity, d efendant drove up a windy

road and parked by a bridge near a creek.

When detectives asked defendant why he had not remained in the

parking lot

, he s aid he drove “that way” in order to “ scare ” Martinez into

taking him seriously and paying the money. Defendant further stated3

Martinez seemed scared while they were driving

, asking why they were go ing

that way and holding up his cell phone to show that he was not calling

anyone

. Martinez finally told defendant to stop, and when defendant pulled

over Martinez got out of the car. Defendant also got out of the car, and put a

gun in his back waistband

. Defendant and Martinez continued talking

, but

when he saw Martinez had a pocket multi

- tool in his hand

, he shot him once

in the head.

Defendant subsequently led police to Martinez’s body , which defendant

had moved and buried on the property where he lived using a backhoe rented

for that purpose

.

Upon his arrest, d efendant was in possession of a nine

- millimeter

hand gun , ammunition, and expended casing , a s well as methamphetamines

and marijuana. Th e forensic pathologist who performed an autopsy of

Martinez testified that the expended bullet recovered from Martinez’s brain

was consistent with a nine

- millimeter bullet . The DOJ’s criminali st testified

that the casing’s firing pin impressions were consistent with test firings from

the recovered handgun.

Video surveillance screenshots showed defendant’s car driving past

Martinez’s house several times on the morning of the murder

. And

surveillance footage showed Martinez entering a commercial parking lot a

few minutes before defendant arrived and parked next to Martinez’s truck

.

Martinez then approached defendant’s car

, and defendant’s car left the

parking lot a few minutes later

. The prosecution also presented v ideo footage

recreating the driving route to the bridge and depicting the remote area

.

O ne of the two other men in the car testified for the prosecution

. The

day before the shooting

, defendant had picked him and his housemate up to

help build a tractor ramp

. T he witness had used methamphetamines the day4

before ; in fact, he was using drugs regularly at the time. W hen defendant

picked the two up the following day

, the witness thought they would be going

back to finish the work. Instead, defendant drove to another town, Martinez

got in the car

, and they drove for approximately 15 minutes over a freeway

and up to a bridge in a remote area with no houses or people around

. W hile

Martinez got into the car voluntarily, he looked scared as they were driving

over the freeway and fidgeted with the door handle

. The witness believed

defendant’s car doors lock ed when it reached a certain speed. During the

drive, defendant said something in Spanish the witness could not

understand, and the n the witness’s housemate took Martinez ’s phone

. After

Martinez and defendant exited the car

, the witness heard a gunshot. When

defendant returned to the car

, he was smiling as he put the bullet casing up

to a necklace on the rearview mirror and turned on music

. Later, t he

witness ’s housemate told the witness that defendant wanted him to move

Martinez’ s truck from the parking lot to another location

, threatening that if

the witness did no t move it, his daughter m ight “come missing.”

The witness further testified he had been charged with kidnapping and

being an accessory after the fact , but pled guilty to the accessory charge in

exchange for his testimony and received a one

- year jail sentence with three

years of probation

. At the time of trial, the witness was in custody for failure

to report to probation

. He testified regarding his criminal history, which

included one felony conviction for possession of a stolen vehicle and two

misd emeanor convictions for possession of stolen property

. Before trial, the

People successfully moved in limine to exclude reference to the fact the

witness had original ly been charged with murder

, since the count was5

dismissed following the passage of Senat e Bill No. 1437 (2017

– 2018 Reg.

Sess.) (SB 1437)

. 2

During her closing argument, the prosecutor reviewed the elements for

first degree murder , including an intent to kill

. She then argued defendant

“tricked the victim into getting into the car.” Defense counsel objected. The

court overruled the objection. The prosecutor continued that defendant had

“tricked” Martinez by making him believe it would be just a short drive, b ut

instead had scared him by driving a long way to an extremely remote location

with two other men and taking away his phone . She argued “all of these

actions” showed defendant had “the intent to kill.” The prosecutor then

moved to the elements for the kidnapping charge and special circumstance

.

She stated: “So they tricked him to get into the car. Under the law, that

alone does not make it kidnapping.” She continued : “I am not telling you it

is kidn apping from the moment he got into the car.

. . . It doe s become

kidnapping when he withdraws the consent. When does that happen? When

he becomes scared. When he goes outside of what he reasonably expected to

happen.”

The jury found defendant guilty as charged and found true the

kidnapping special circumstance and firearm enhancements

. The trial court

sentenced defendant to life without parole on the murder count

, consecutive

to a term of 25 years to life on the firearm enhancement, and four years on

the possession count

. The sentence on the kidnapping count was stayed.

2 SB 1437 was enacted in 2018 and took effect on January 1, 2019.

(Stats. 2018, ch. 10 15.) Among other changes, SB 1437 amended section 189

to limit liability for murder under a felony murder or natural and probable

consequences theory to a person who is the actual killer, has the inten t to kill

and aids or abets the actual killer , or is a major participant in the underlying

felony and acts with reckless indifference to human life. ( Stats. 2018, ch.

10 15, §§ 1, 3 .) ; see § 189, subd. (e) (1)

– (3) .)6 D ISCUSSION

Substantial Evidence

Defendant maintains the kidnapping special circumstance finding and

conviction must be vacated because t here was insufficient evidence to

establish that he detained Martinez “by force or fear.”

“In evaluating a claim regarding the sufficiency of the evidence, we

review the record ‘in the light most favorable to the judgment below to

determine whether it discloses substantial evidence

— that is, evidence which

is reasonable, credible, and of solid value

— such that a reasonable trier of fact

could find the defendant guilty beyond a reasonable doubt.’ ” ( People v.

Westerfield (2019) 6 Cal.5th 632, 7 1 2 .) “ ‘To assess the evidence’s sufficiency,

we review the whole record to determine whether any rational trier of fact

could have found the essential elements of the crime or special circumstances

beyond a reasonable doubt.’ ” ( People v. Penunuri (2018 ) 5 Cal.5th 126, 142

,

italics omitted .) Reversal for insufficient evidence “is unwarranted unless it

appears ‘that upon no hypothesis whatever is there sufficient substantial

evidence to support [the conviction].’ ” ( People v. Bolin (1998) 18 Cal.4th 297

,

331. )

Section 207

, subdivision (a) provides : “Every person who forcibly, or by

any other means of instilling fear, steals or takes, or holds, detains, or arrests

any person in this state, and carries the person into another country, state, or

county, or into another part of the same county, is guilty of kidnapping.” The

phrase “ or by any other means of instilling fear” was added in 1990 to expand

the definition of the crime

. (Stats. 1990, ch. 55, § 1, p. 393 ; Assem. Com. on

Pub. Safety, Analy sis of Sen. Bill No. 1564 (1989

– 1990 Reg. Sess.) as

amended Jan. 16, 1990, pp. 2

– 3.)7

Prior to that amendment, however, courts had already agreed force

need not be physical to constitute kidnapping : it could be accomplished

through threats of force or “the giving of orders which the victim feels

compelled to obey because he or she fears harm or injury from the accused

and such apprehension is not un reasonable under the circumstances

. ”

( People v. Stephenson (1974) 10 Cal.3d 652, 660 ( Stephenson ) .) Courts had

also agreed kidnapping could be established where a victim initial ly agree s to

accompany the defendant

, but his or her liberty i s subsequently restrained by

threat or force

. ( People v. Camden (1976) 16 Cal.3d 808, 814.)

After the amendment, the California Supreme Court discussed the two

bases for kidnapping

— use of force or fear to compel asportation

— in People v.

Majors (2004) 33 Cal.4th 321, 326

– 327 ( Majors )

. The court explained

asportation by fraud alone

, not force or fea r, is insufficient to constitute

kidnapping because “the circumstances suggest the victim exercised free will

in accompanying the perpetrator

. ” ( Id. at p p. 327, 331.) While declining to

delineate the precise parameters of the language “ ‘any other means of

instilling fear,’ ” the court explained that a k idnapping may occur where fear

accomplishes the same thing as force : in other words, the victim is compelled

by fear of “ ‘harm or injury from the accused.’ ” ( I d

. at pp. 333

– 334. ) The

court distinguished that type of fear from “fear the perpetrator will not

attend a high school prom with the victim, or other fears substantially

removed from the use of force.” ( Id. at p. 334. )

Here, the evidence was sufficient to support a finding that defendant

restrained Martinez “by means of instilling fear” and thus satisfied the

definition of kidnapping under section 207

. During his post

- arrest interview,

defendant admitted he drove Martinez a considerable distance to a remote

area with the explicit intent to scare him

. D efendant further admitted his8

plan worked: Martinez was scared while they were driving

, asked where

they were going, and told defendant to stop

. The passenger witness similarly

testified that Martinez looked scared and began fi d geting with the door

handle , but the witness believed the doors lock ed at a certain speed

. T he

witness also testified defendant said something in Spanish and the reafter,

the witness’s housemate took Martinez’s phone. T he jury could reasonably

infer from th is te stimony that defendant ordered Martinez to relinquish his

phone and thus maintained control of Martinez in his moving vehicle

.

In sum, t he totality of the evidence amply supports a finding that

Martinez did not assent to driving to the remote locale and to remain ing in

the car of his own “ free will

, ” but rather, did so out of fear and because

defendant had essentially trapped him in the car. ( Majors

, supra

, 33 Cal.4th

at p. 331 ; see Stephenson

, supra

, 10 Cal.3d at p. 660.)

No Pro secutorial Misconduct

Defendant also maintains the prosecutor committed reversible

misconduct when she argued in closing that defendant had “tricked ”

Martinez into getting into the car.

“ ‘The applicable federal and state standards regarding prosecutorial

misconduct are well established. ’ ” ( People v. Hill (1998) 17 Cal.4th 800

, 819.)

A prosecutor’s behavior violates the federal Constitution “ ‘ “ ‘ when it

comprises a pattern of conduct “ so egregious that it infects the trial with such

unfairness as to make the conviction a denial of due process. ” ’ ” ’ ” ( Ibid. )

“ ‘ Conduct by a prosecutor that does not render a criminal trial

fundamentally unfair is prosecutorial misconduct under state law only if it

involves “ ‘ “ the use of deceptive or reprehensible methods to attempt to

persuade either the court or the jury

. ” ’ ” ’ ” ( Ibid. )9

In reviewing a prosecutor ’ s comments to the jury, “we must view the

statements in the context of the argument as a whole.” ( People v. Cole (2004)

33 Cal.4th 1158, 1203.) Moreover, a prosecutor has “ ‘ wide latitude to discuss

and draw inferences from the evidence at trial, ’ and whether ‘the inferences

the prosecutor draws are reasonable is for the jury to decide .’ ” ( I bi d .) The

relevant qu estion is “ ‘whether there is a reasonable likelihood that the jury

construed or applied any of the complained

- of

- remarks in an objectionable

fashion.’ ” ( Ibid. )

Here, d efendant contends the prosecutor committed misconduct by

(1) arguing facts not in evidence , and (2) wrongly suggest ing to the jury that

defendant’s purpo r ted trickery amounted to kidnapping. Both contentions

fail.

First, the prosecutor relied on defendant’s admissions during his post

arrest interview: Martinez had told defendant he could not be too long

because he had to go somewhere , but defendant nevertheless drove out of

town to a remote locale because he wanted to scare Martinez. Accordingly,

the prosecutor did not rely on facts not in evidence, and this evidence was

sufficient to support an argument that defendant led Martinez into believing

the drive would be short and thereby tricked him into getting into the car

.

Second, it is not reasonably likely the prosecutor’s argument led the

jury to misunderstand the requisite eleme nts of kidnapping

. ( People v. Cole

,

supra

, 33 Cal.4th at p. 1203.) T he prosecutor first discussed the intent to kill

element o f the first degree murder charge. Then, turning to the kidnapping

charge, she correctly told the jur y: “So they tricked him to get into the car.

Under the law, that alone does not make it kidnapping.” Accordingly

, the

prosecutor did not misstate the law

.10

E ven if the prosecutor had committed misconduct (which she did not)

,

defendant has not demonstrate d that it is reasonably probable a result more

favorable to defendant would have occurred absent the claimed misconduct.

( People v. Castillo (2008) 168 Cal.App.4th 364, 386.) Defendant claims he

was prejudiced because a juror could have believ ed the kidnapping was

established when Martinez was “tricked” into getting into the car

. T he

prosecutor , however, explicitly stated otherwise, telling the jury that, alone,

was not sufficient to establish kidnapping . Rather, the prosecutor went on to

exp lain that the kidnapping occurred during the drive : “I am not telling you

it is kidnapping from the moment he got into the car.

. . . It does become

kidnapping when he withdraws the consent. When does that happen? When

he becomes scared. When he goes outside of what he reasonably expected to

happen.” Moreover, the jury was correctly instructed on the law using the

CALCRIM No. 1215 in struction on kidnapping , and also instructed counsel’s

arguments are not the law. A dditionally, there was abundant evidence to

support the kidnapping special circumstance and conviction.

No Abuse of Discretion i n Limiting Cross

- Examination

Defendant lastly claims the trial court abused its discretion in

precluding cross

- examin ation of the passenger witness regarding his original

murder charge

.

The constitutional right of confrontation “includes the right to cross

examine adverse witnesses on matters reflecting on their credibility.” ( People

v. Quartermain (1997) 16 Cal.4th 600, 623 ( Quartermain ).) The confrontation

clause, however, guarantees only “an opportunity for effective cross

examination, not cross

- examination that is effective in whatever w ay, and to

whatever extent, the defense might wish.” ( Delaware v. Fensterer (1985)

474 U.S. 15, 20.) Trial courts retain wide latitude to impose reasonable limits11

on cross

- examination based on , among other things , marginal relevance or

potential confusio n of the issues . ( Delaware v. Van Arsdall (1986) 475 U.S.

673, 679.) A trial court’s limitation on cross

- examination pertaining to the

credibility of a witness violates the confrontation clause only when “a

reasonable jury might have received a significa ntly different impression of

the witness’s credibility had the excluded cross

- examination been permitted.”

( Quartermain , at p. 624.)

D efendant maintains that had the jury been aware of the original

murder charge , it would have had a different impression of the witness’s

credibility because, at the time the witness entered his plea, the

constitutionality of SB 1437 was “unsettled” and could have influenced the

witness to “go to the police and tailor his testimony to favor himself.”

To begin with, this argument rests on speculation that the witness

might have known or been told about the new law before he went to the

police . “[E]xclusion of evidence that produces only speculative inferences is

not an abuse of discretion.” ( People v. Babbitt (1988) 45 Cal.3d 660, 684; see

Evid. Code, § 352.)

In any event , a reasonable jury would not have received a significantly

different impression of the witness’s credibility had such cross

- examination

been permitted . ( Quartermain

, supra , 16 Cal.4th at pp. 623

– 624.) The

witness testified he was originally charged with kidnapping but pled to the

lesser accessory charge as part of his plea deal

. He also testified regarding

another potential reason to cooperate

— or give a biased account

— beyond the

dismissal or reduction of charges against him : defendant had threatened his

daughter

. Th us, th e jury was well aware the witness had a motive for

favoring himself in his account of what happened

.12

Moreover, t he witness testified on several other topics related to his

credibility, including his drug use, criminal history, and current custody

status for violating probation. (See People v. Manson (1976) 61 Cal.App.3d

102, 137 [impeaching effect of drug use during critical events was properly

placed before jury]; Evid. Code, § 788 [felony conviction may be shown by

examination to attack witness credibility]; People v. Valenzuela (1984)

151 Cal.App.3d 180, 194 [jury may draw inference of diminished credibility

for incarcerated witness].)

Accordingly, t he trial court acted well within its direction in precluding

cross

- examination on the witness’s original murder charge

.

Even if the trial court had abused its discretion ( which it did not)

, any

such error was harmless

. ( People v. Dyer (1988) 45 Cal.3d 26, 47

– 48 .)

D efendant claims he was prejudiced because the witness’s credibility was

“critical” to the prosecution’s case on the kidnapping count and special

circumstance

. Not so. As we have discussed, defendant’s own admission s

that he drove a considerable distance into a remote locale in order to scare

Martinez and that Martinez appeared scared

, support ed the conviction and

finding

. The witness’s testimony did not contradict any of these statements,

but instead corroborated that defendant did drive to a remote area and

Martinez , indeed, looked scared. The physical evidence, forensic evidence,

and surveillance evidence also all corroborated defendant’s admissions

.

Accordingly, on this rec ord, any error in restricting cross

- examination of the

passenger witness was harmless.

H aving considered and rejected each of defendant’s claims on the

merits , we likewise reject his assertion that the cumulative effect of the

supposed errors requires reve rsal. ( People v. Kipp (1998) 18 Cal.4th 349,

383.)13 D ISPOSITION

The j udgment is affirmed.14 _________________________ Banke, J.

We concur:

_________________________ Humes, P.J.

_________________________ Margulies, J.

A 159738, People v. Sierra