State v. Padilla

2018 UT App 108
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
R ICARDO A NTONIO PADILLA,
Appellant.
Opinion
No. 20160305-CA
Filed June 14, 2018
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 131907679
Marshall M. Thompson and Andrea J. Garland,
Attorneys for Appellant
Sean D. Reyes and Marian Decker,
Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and DIANA H AGEN concurred.
POHLMAN, Judge:
¶1 	Ricardo Antonio Padilla appeals his convictions for felony
discharge of a firearm and obstruction of justice. He argues that
the trial court erred by refusing to give a cautionary instruction
to the jury about accomplice testimony. He also argues that he
received constitutionally ineffective assistance of counsel when
his counsel failed to renew a motion for mistrial. We affirm.
BACKGROUND
¶2 	A jury convicted Padilla of felony discharge of a firearm
and obstruction of justice based on his involvement in events
that led to the death of a rival gang member (Victim). One

State v. Padilla
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evening in July 2013, Padilla, a member of the 18th Street gang,
and five others left his apartment to go tagging.1 They took two
cars. While driving, one of Padilla’s cohorts recognized someone
from a rival gang standing with a group in front of a house. The
two cars circled back around and another of Padilla’s cohorts
shot and killed Victim.
¶3 	The State charged Padilla with murder, felony discharge
of a weapon, and obstruction of justice, all first degree felonies.
He was initially tried with two codefendants, both of whom
were involved in the shooting.
¶4 	During trial, the State established Padilla’s involvement in
Victim’s death largely based on the testimony of two of Padilla’s
other companions, both of whom were present in one of the
vehicles during the shooting.2 On the third day of the trial, one
of those companions testified that, shortly before the shooting,
Padilla said that they were going to return to the house where
they had spotted Victim, “ask him which gang he belonged to,”
and, depending on Victim’s answer, shoot him.
¶5 	Based on this testimony, defense counsel for Padilla and
the 	two 	codefendants 	moved 	for 	mistrial 	on 	confrontation
grounds, arguing that they could not confront Padilla’s out-of-
court testimony. See Bruton v. United States, 391 U.S. 123, 126,
136–37 (1968) (holding that the petitioner’s constitutional right to
1. One of Padilla’s companions testified that “tag” in this context
meant graffiti.
2. 	The 	two 	companions 	who 	testified 	were 	not 	the 	two
codefendants 	tried 	with 	Padilla. 	The 	State 	charged 	both
companions with obstruction of justice, a first degree felony, and
they were granted immunity for their testimony. The State
agreed 	to 	dismiss 	the 	obstruction 	charges 	against 	both
companions 	if, 	after 	the 	trial, 	it 	believed 	they 	“testified
truthfully.”

State v. Padilla
20160305-CA 	3 	2018 UT App 108
confrontation 	had 	been 	violated, 	notwithstanding 	curative
instructions, when a codefendant’s confession was admitted and
inculpated the petitioner). As to Padilla in particular, defense
counsel acknowledged that Padilla’s “position is weaker” than
the other two codefendants, but nonetheless argued that if the
other codefendants “are suddenly gone and [Padilla] is alone
then it is perhaps prejudicial.”
¶6 	The court granted the motion for mistrial as to Padilla’s
codefendants but denied it as to Padilla. In doing so, the court
gave a curative instruction to the jury, addressing how the jury
should view the codefendants’ dismissals:
The trial will proceed tomorrow morning, but it
will only involve one of the defendants. Two of the
defendants, there are legal reasons that we cannot
proceed against them, so we are only going to
proceed against [Padilla].
I want to instruct you and admonish you that you
are not to draw any conclusions from that at all. It
doesn’t mean that the Court determined that the
other defendants lack responsibility for anything. It
doesn’t mean that the Court determined that they
do. It doesn’t mean that they entered pleas. It
doesn’t mean anything other than the fact for legal
reasons we cannot proceed against them.
So that’s not something you should hold against
[Padilla]. It doesn’t mean anything with respect to
his role in this versus anyone else’s role. And so no
conclusions really can be drawn one way or the
other 	with 	respect 	to 	the 	fact 	we 	are 	only
proceeding with regard to one of the defendants.
The 	court 	asked 	Padilla’s 	counsel 	if 	this 	instruction 	was
satisfactory, and counsel responded that it was.

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¶7 	The next day, the court again addressed the jury, stating
that the bailiff “told [the court] . . . that [the jury] had asked
questions of him whether there was any testimony or evidence
that 	[it] 	needed 	to 	disregard 	from 	yesterday.” 	The 	court
continued,
[O]ther than what I instructed you about at the
time, the answer is no. And I gather from your
questions that you posed to him that people are
kind 	of 	wondering 	about 	what 	happened
yesterday and why we’re proceeding the way that
we are. I told you not to worry about that. I
recognize it’s a little bit late telling you not to think
about a pink elephant.
So what I can tell you—and I don’t think that this
would offend counsel—is that there was a legal
irregularity, it’s fairly complicated, that occurred
yesterday, that just requires that we handle those
other two cases separately from this case. Doesn’t
have anything to do with the strength or weakness
of the State’s claims or case against this defendant
versus the other two. Doesn’t have anything to do
with what’s going to happen ultimately with those
two other cases. They just have to be handled
separately from this one. Don’t speculate as to
why, and don’t worry about it beyond that, if you
can, but that’s what occurred yesterday.
¶8 	The testimony of his two companions also prompted
Padilla to request that the court give a cautionary accomplice
testimony instruction to the jury. Referencing, among other
things, Utah Code section 77-17-7(2), Padilla asked the court to
instruct the jury as follows:
An 	accomplice 	is 	someone 	who 	joined 	with
another person in committing a crime, voluntarily

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and with common intent. The testimony of an
accomplice 	may 	be 	received 	in 	evidence 	and
considered by you, even though it is not supported
by other evidence. You may decide how much
weight it should have. You are to keep in mind,
however, 	that 	accomplice 	testimony 	should 	be
received with caution and considered with great
care.
You should not convict a defendant based on the
unsupported testimony of an alleged accomplice,
unless 	you 	believe 	the 	unsupported 	testimony
beyond a reasonable doubt.
¶9 	During review of these instructions, the State argued that
the instruction was improper. In particular, the State argued that
neither companion was an accomplice to the crimes Padilla had
been charged with because neither was charged as such. The
State 	also 	argued 	that 	instructing 	that 	the 	testimony 	was
“unsupported” was improper because it was “suggestive of
some sort of conclusion that the Court has reached,” and it
asserted that there was nothing in the proposed instruction that
was not already covered in the general instruction about how
much weight to give a witness’s testimony.
¶10 	Padilla 	argued, 	on 	the 	other 	hand, 	that 	the 	two
companions were accomplices because the status of being an
accomplice 	depends 	on 	conduct, 	not 	on 	whether 	“the
prosecution elects to charge people in different ways or elects to
not even choose to prosecute someone.” He therefore asserted
that the definition of accomplice “is accurate,” and he stated that
“the instruction should be given.” Padilla also contended that
the instruction correctly stated the law “with regard to not
convicting an individual simply because of an unsupported
statement.”
¶11 	In response to the State’s objections, the court modified
the proposed instruction. First, the court added an introductory

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sentence, explaining that the defense contended the companions
were 	accomplices. 	The 	court 	also 	completely 	omitted 	the
sentence advising the jury to receive the accomplice testimony
“with caution.” Finally, the court edited the proposed language
so 	as 	not 	to 	opine 	that 	the 	accomplice 	testimony 	was
“unsupported.” Thus, the court instructed the jury as follows:
You 	have 	heard 	testimony 	from 	witnesses 	the
defense contends were accomplices in the offense.
An 	accomplice 	is 	someone 	who 	joined 	with
another person in committing a crime, voluntarily
and with common intent. The testimony of an
accomplice 	may 	be 	received 	in 	evidence 	and
considered 	by 	you, 	even 	if 	you 	find 	it 	is 	not
supported by other evidence. You may decide how
much weight it should have.
As with any evidence, you should not convict a
defendant based solely on the testimony of an
alleged 	accomplice, 	unless 	you 	believe 	the
testimony beyond a reasonable doubt.
Defense 	counsel 	did 	not 	object 	to 	the 	addition 	of 	the
introductory sentence. Counsel did, however, lodge a general
objection to all of the other changes.
¶12 	The jury convicted Padilla of felony discharge of a firearm
and obstruction of justice. He now appeals.
ANALYSIS
I. The Jury Instruction Issue
¶13 	Padilla first argues that the trial court erred by refusing to
give 	the 	jury 	the 	cautionary 	instruction 	about 	accomplice
testimony under Utah Code section 77-17-7. After establishing
that a defendant may be convicted “on the uncorroborated

State v. Padilla
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testimony of an accomplice,” that statute provides that, “[i]n the
discretion of the court, an instruction to the jury may be given to
the effect that such uncorroborated testimony should be viewed
with caution, and such an instruction shall be given if the trial
judge 	finds 	the 	testimony 	of 	the 	accomplice 	to 	be 	self
contradictory, 	uncertain 	or 	improbable.” 	Utah 	Code 	Ann.
§ 77-17-7 (LexisNexis 2017). Padilla argues that the court erred
by refusing to give this instruction “because the accomplice
testimony 	was 	uncorroborated 	and 	was 	self-contradictory,
uncertain, or improbable,” and he contends that under these
circumstances the court was “statutorily required to warn the
jury to view accomplice testimony with caution.”
¶14 	Ordinarily, this is an alleged error we might review for
correctness. See State v. Malaga, 2006 UT App 103, ¶ 7, 132 P.3d
703. However, Padilla has not established that he preserved this
issue, and as a result, we do not reach its merits. “An issue is
preserved for appeal when it has been presented to the trial
court in such a way that the trial court had the opportunity to
rule on it.” State v. Kennedy, 2015 UT App 152, ¶ 21, 354 P.3d 775.
This means that the “party asserting error on appeal must have
(1) raised the issue in a timely fashion in the lower court,
(2) specifically raised the issue, and (3) introduced supporting
evidence or relevant legal authority.” In re Baby Girl T., 2012 UT
78, ¶ 34, 298 P.3d 1251 (quotation simplified). “[A]n objection at
trial based on one ground . . . does not preserve for appeal any
alternative grounds for objection.” State v. Low, 2008 UT 58, ¶ 17,
192 P.3d 867. And “failure to preserve an issue in the trial court
generally 	precludes 	a 	party 	from 	arguing 	that 	issue 	in 	an
appellate court, absent a valid exception,” such as plain error or
ineffective assistance of counsel. State v. Johnson, 2017 UT 76,
¶¶ 18–19, 416 P.3d 443.
¶15 	Utah Code section 77-17-7 describes how a court is to
instruct 	a 	jury 	about 	accomplice 	testimony 	under 	two
scenarios—one discretionary and one mandatory. In the first, if
the accomplice’s testimony is uncorroborated, a court may, in its
discretion, 	give 	the 	jury 	a 	cautionary 	instruction 	about 	the

State v. Padilla
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accomplice’s testimony. See Utah Code Ann. § 77-17-7(2). In the
second, if the trial judge makes findings that the accomplice’s
testimony is “self contradictory, uncertain or improbable,” then
a cautionary instruction “shall be given” to the jury. See id.; see
also State v. Crespo, 2017 UT App 219, ¶ 35, 409 P.3d 99 (noting
that “a cautionary instruction is not required if the district court
does not find the accomplice’s uncorroborated testimony to be
self-contradictory, uncertain, or improbable,” and observing that
“it falls within the district court’s discretion to instruct the jury
to 	view 	uncorroborated 	testimony 	with 	caution 	if 	no 	such
findings are made” (quotation simplified)); State v. Guzman, 2004
UT App 211, ¶ 35, 95 P.3d 302 (explaining that under section 77-
17-7(2) “a cautionary instruction may be given if the accomplice
testimony is uncorroborated and shall be given if the trial judge
finds the accomplice testimony self-contradictory, uncertain or
improbable” (quotation simplified)).
¶16 	Padilla argues on appeal that the trial court erred by
failing to give the mandatory instruction. He claims that the
record 	demonstrates 	that 	the 	“accomplice 	testimony 	was
uncorroborated and unreliable.” However, because the statute
describes two potential scenarios for providing a cautionary
instruction—one discretionary and one mandatory—to preserve
the issue he asserts on appeal, Padilla needed to afford the court
the 	opportunity 	to 	determine 	whether 	the 	instruction 	was
mandatory as opposed to discretionary. To do this, it was
incumbent upon him to specifically alert the trial court that the
circumstances fell within the mandatory, and not merely the
discretionary, scenario. See Kennedy, 2015 UT App 152, ¶ 21.
¶17 	He did not do so. First, in the requested jury instruction
itself, Padilla only generally referenced section 77-17-7(2), and he
made no suggestion that he considered the instruction to be
mandatory on the basis that the companions’ testimonies were
“self 	contradictory, 	uncertain 	or 	improbable.” 	Second, 	in
argument before the trial court, while Padilla asked that his
proposed cautionary instruction be given, he did not argue that
such 	an 	instruction 	was 	required 	by 	statute 	under 	the

State v. Padilla
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circumstances of the case. Much of his substantive argument on
the matter focused on refuting the State’s contention that the two
companions 	were 	not 	accomplices. 	Beyond 	that, 	he 	only
generally asserted that the instruction he proposed was legally
correct as to an accomplice’s unsupported testimony and, apart
from stipulating to the court’s addition of the introductory
sentence, he lodged only a general objection to the court’s other
modifications. He did not argue to the court that the instruction
was required because the companions’ testimonies were self-
contradictory, 	uncertain, 	or 	improbable. 	Indeed, 	he 	did 	not
request the court to make findings as to the quality of the
companions’ testimonies for instruction purposes at all. As a
result, 	the 	trial 	court 	made 	no 	findings 	about 	the 	two
companions’ 	testimonies, 	and 	it 	made 	no 	ruling 	regarding
whether, given the companions’ testimonies, the instruction was
mandatory.
¶18 	Therefore, at best, Padilla’s request for the instruction and
arguments at trial invoked the court’s discretionary authority to
give the proposed instruction under section 77-17-7(2). Indeed,
nothing 	in 	Padilla’s 	assertion 	that 	the 	companions 	were
accomplices and his otherwise general objection to the court’s
modifications to his proposed instruction could have sufficiently
alerted the court that Padilla believed, and was asking the court
to 	specifically 	find, 	that 	his 	proposed 	instruction 	was
mandatory. See State v. Alzaga, 2015 UT App 133, ¶¶ 21–22, 352
P.3d 107 (concluding that an objection on relevance grounds did
not preserve for appeal challenges to the evidence under rules
404 and 405, because the defendant’s relevance objection “did
not convey to the trial court that [the defendant] believed [that]
the testimony, though relevant, constituted improper character
evidence”); see also Low, 2008 UT 58, ¶ 17.
¶19 	On this basis, and given the unique circumstances here,
we conclude that Padilla has failed to preserve his argument that
the trial court erred by failing to give the cautionary instruction.
See State v. Kennedy, 2015 UT App 152, ¶ 21, 354 P.3d 775. We
therefore will exercise our discretion to consider the merits of his

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20160305-CA 	10 	2018 UT App 108
argument only if Padilla has established an exception to our
preservation requirement. See State v. Johnson, 2017 UT 76, ¶¶ 15,
18, 416 P.3d 443. In his issue statement, Padilla contended that
the issue was preserved but that, if it was not, we might
“nevertheless review this issue for plain error.” However, in his
argument about the instruction issue, he made no attempt to
develop or establish his plain error claim; indeed, he did not
refer again to his plain error claim at all. We therefore consider
this issue waived, and we decline to address it further. See id.
II. Renewing the Mistrial Motion
¶20 	Padilla 	next 	argues 	that 	he 	received 	constitutionally
ineffective assistance of counsel when his counsel failed to renew
a motion for mistrial once it became apparent that, due to
procedural irregularities, the jury was confused. “When a claim
of ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Parkinson, 2018
UT App 62, ¶ 8 (quotation simplified).
¶21 	To establish that he received constitutionally ineffective
assistance of counsel for failing to renew the mistrial motion,
Padilla must show both “(1) that counsel’s performance was so
deficient as to fall below an objective standard of reasonableness
and (2) that but for counsel’s deficient performance there is a
reasonable 	probability 	that 	the 	outcome 	would 	have 	been
different.” See State v. Wilkinson, 2017 UT App 204, ¶ 20, 407 P.3d
1045 (quotation simplified). Because Padilla must establish both
prongs to prevail, failure to establish either settles the question.
See State v. Franco, 2012 UT App 200, ¶¶ 6–10, 283 P.3d 1004.
¶22 	We 	conclude 	that 	Padilla 	has 	not 	demonstrated 	that
counsel performed deficiently by failing to renew the mistrial
motion. When evaluating whether counsel’s performance was
deficient, we “must bear in mind the strong presumption that
counsel’s conduct falls within the wide range of reasonable

State v. Padilla
20160305-CA 	11 	2018 UT App 108
professional assistance. Put another way, the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Wilkinson, 2017 UT App 204, ¶ 20 (quotation simplified).
¶23 	When 	the 	confrontation 	issue 	arose 	with 	regard 	to
Padilla’s 	two 	codefendants, 	Padilla’s 	counsel 	moved 	for 	a
mistrial 	along 	with 	them. 	He 	acknowledged 	that 	Padilla’s
position with regard to a mistrial was “weaker” than Padilla’s
codefendants. Nevertheless, as a basis for mistrial, Padilla’s
counsel contended, “If the codefendants are suddenly gone and
my client is alone then it is perhaps prejudicial.” The court
denied Padilla’s mistrial motion, and it gave the jury a curative
instruction, at Padilla’s request, which advised the jury not to
draw any conclusions from the codefendants’ dismissals and not
to hold the dismissals against Padilla.
¶24 	The next day, the court addressed the jury again, stating
that the bailiff informed it that the jury had asked “whether
there was any testimony or evidence that [the jury] needed to
disregard from yesterday.” The court then re-instructed the jury,
advising 	that 	the 	codefendants’ 	dismissals 	should 	have 	no
bearing on its assessment of the case against Padilla. Padilla’s
counsel did not thereafter renew his motion for mistrial.
¶25 	Padilla argues that trial counsel performed deficiently
when it became apparent that the “jury was so confused that
curative instructions could not provide an adequate remedy.” As
evidence of the jury’s confusion, he points to the fact that the
jury apparently attempted to resolve its confusion about the
“procedural 	abnormalities” 	by 	resorting 	“to 	improper
conversations with court staff.”
¶26 	We are not persuaded. “Curative instructions are a settled
and necessary feature of our judicial process and one of the most
important tools by which a court may remedy errors at trial.”
State v. Cruz, 2016 UT App 234, ¶ 56, 387 P.3d 618 (quotation
simplified). In addition, “curative instructions are ordinarily

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20160305-CA 	12 	2018 UT App 108
presumed on appeal to be effective.” Id. (quotation simplified).
Although Padilla cites the procedural abnormalities and the
jury’s questioning of the bailiff regarding whether to disregard
evidence, 	Padilla 	has 	not 	explained 	why 	it 	was objectively
deficient for his counsel to conclude that the court’s second
curative instruction—which occurred after the jury apparently
queried the bailiff—was insufficient to remedy any residual
confusion. 	See 	id. 	Indeed, 	Padilla 	cites 	no 	evidence
demonstrating that, after the second curative instruction, the
jury still remained confused. See State v. Curtis, 2013 UT App 287,
¶ 	25, 	317 	P.3d 	968 	(“In 	the 	absence 	of 	the 	appearance 	of
something persuasive to the contrary, we assume that the jurors
were conscientious in performing their duty, and that they
followed the instructions of the court.” (quotation simplified)).
And, absent some other indication that the jury’s confusion still
had not been dispelled, it would have been reasonable for
counsel to conclude the court’s instruction resolved the matter.
See id.
¶27 	In any event, we have observed that “[w]hether to move
for a mistrial or request a curative instruction is a strategic
decision that is generally left to the professional judgment of
counsel.” Id. ¶ 44 (quotation simplified). Indeed, “if there is any
plausible 	strategic 	explanation 	for 	counsel’s 	behavior, 	we
assume counsel acted competently.” Id. (quotation simplified).
¶28 	We 	can 	imagine 	a 	reasonable 	strategy 	for 	counsel’s
decision not to renew the mistrial motion. See State v. Clark, 2004
UT 25, ¶ 6, 89 P.3d 162 (explaining that, to establish that counsel
performed deficiently, the defendant “must overcome the strong
presumption that his trial counsel rendered adequate assistance
by persuading the court that there was no conceivable tactical
basis for counsel’s actions” (quotation simplified)). The court’s
limited recounting of the jury’s inquiry to the bailiff indicated
that the jury was concerned about whether it was still proper to
consider evidence admitted before Padilla’s codefendants were
dismissed. Padilla’s attorney may have reasonably inferred from
the jury’s inquiry that the jury was concerned about fairly

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20160305-CA 	13 	2018 UT App 108
considering 	Padilla’s 	case 	and, 	in 	light 	of 	that, 	may 	have
“concluded 	that 	the 	possibility 	of 	a 	less 	sympathetic 	jury
outweighed any marginal benefit his client might receive from a
new trial.” See Curtis, 2013 UT App 287, ¶ 45 (concluding that
counsel was not deficient for not moving for a mistrial where,
among other things, “a successful mistrial motion would have
meant a new jury”). Under these circumstances, it would have
been a reasonable strategy to go forward with the empaneled
jury. See id. ¶ 44.
¶29 	Thus, in the absence of any additional evidence of jury
confusion, it would have been reasonable for counsel to rely on
the court’s two curative instructions to address potential jury
confusion rather than renew Padilla’s mistrial motion and take a
chance on a different jury.3 Padilla’s counsel therefore did not act
deficiently by failing to renew the motion for mistrial. And
because he has failed to establish that his counsel performed
deficiently, Padilla’s ineffective assistance of counsel claim fails.4
State v. Franco, 2012 UT App 200, ¶¶ 6–10, 283 P.3d 1004.
3. Padilla briefly suggests that the jury’s interaction with the
bailiff 	was 	“an 	independent 	ground 	for 	mistrial” 	that
impermissibly 	tainted 	the 	proceedings. 	He 	asserts that trial
counsel should have moved for a mistrial on this basis or, “at the
very least, ask[ed] for a contemporaneous in camera review.”
But Padilla does not develop this argument as an independent
basis for reversal on appeal. Rather, it appears to be part of his
overall argument that the jury was so confused that counsel
should have renewed his motion for a mistrial. As a result, we
do not address this argument separately.
4. Padilla also argues that we should reverse “because the
cumulative effect of the errors was prejudicial.” However, we
have not concluded that the trial court committed any error
related to this appeal. The cumulative error doctrine therefore
does not apply. See State v. Gonzales, 2005 UT 72, ¶ 74, 125 P.3d
(continued…)

State v. Padilla
20160305-CA 	14 	2018 UT App 108
CONCLUSION
¶30 	Padilla did not preserve the issue of whether the trial
court, under the circumstances present in the case, was required
under 	Utah 	Code 	section 	77-17-7(2) 	to 	give 	his 	proposed
cautionary instruction. And because Padilla has not established
an exception to our preservation requirement, we do not reach
the merits of that issue. Further, we conclude that Padilla has not
established 	that 	he 	received 	constitutionally 	ineffective
assistance of counsel by failing to renew the mistrial motion.
Accordingly, we affirm.
(…continued)
878 (stating that the cumulative error doctrine will not apply
“[i]f the claims are found on appeal to not constitute error”).