Opinion
G061831
01-16-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE ANTONIO BOJORQUEZ- ROMERO, Defendant and Appellant.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, Eric A. Swenson, Supervising Deputy Attorney General, Christine Y. Friedman, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 17NF1192 Gary S. Paer, Judge. Affirmed.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, Eric A. Swenson, Supervising Deputy Attorney General, Christine Y. Friedman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
DELANEY, J.
Appellant Jose Antonio Bojorquez-Romero killed his girlfriend, Selena, by stabbing her repeatedly. He admitted the killing but, at trial, claimed he was provoked. He was convicted of second degree murder. During the closing rebuttal, the prosecutor commented on Jose's failure to present evidence regarding his ability to form an intent to kill. Jose appeals, arguing that comment improperly interfered with his defense of provocation, which would have supported a finding of manslaughter.
Jose also argues the court erred in awarding restitution to Selena's aunt. He claims the aunt does not qualify as a victim under Penal Code section 1202.4, subdivision (k)(3)(C) and, even if she did, she could not recover for mental health counseling.
All further statutory references shall be to the Penal Code, unless otherwise stated.
We find no errors and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
This is a story of a youthful relationship gone terribly, tragically wrong. Jose and the victim, Selena began dating when they were about ages 14 and 15, respectively. Over the course of the next three years and seven months, Jose and Selena broke up and got back together numerous times. Their friends labeled the relationship as both toxic and caring. Witnesses testified when Selena did not do what Jose wanted, he would call her names and insult her. There was also testimony Jose frequently accused Selena of seeing someone else when she was with her friends and that Jose and Selena had physical interactions resulting in bruises on Selena's arms.
During the last weeks of April 2017, Jose and Selena broke up and got back together several times. On April 25, 2017, Jose gave Selena back all the gifts she had ever given him. That day, Jose looked up ways to kill himself. He also researched information on potential future careers.
The evidence of what transpired during the week leading up to the killing and the killing itself comes, almost entirely, from two sources: (1) text messages on Selena's phone; and (2) Jose's testimony at trial.
Two nights later, Jose went to see Selena. They met, as they had many times before, in the parking lot next to Selena's apartment. During the next few hours, they sat in the car in the parking lot and broke up "multiple times." At some point in the conversation, Selena admitted she had sex with someone named Joe. To Jose, the breakup felt different than any of the previous break-ups.
Around 3:30 in the morning, Jose and Selena got out of the car and walked to Selena's apartment. Selena entered her house, but Jose remained outside. At 4:04 a.m., Selena texted Jose that she could not go outside and asked him to go home. Jose returned to his car and drove home. As he drove, Selena texted Jose to be safe because drunk drivers were out driving at this time. Jose told Selena not to act like she cared, and he hoped a drunk driver hit him. Selena said she was going to sleep but asked Jose to call her "if anything." Jose said he would not call her and suggested she call Joe "to fuck [her] again."
When Jose got home, he went to bed but he testified he was still depressed and wanted to die. He got up and grabbed a kitchen knife with which he planned to kill himself. He drove back to the parking lot outside Selena's apartment. He testified he returned to Selena's because he intended to say goodbye to Selena one last time and because he hoped Selena would talk him out of suicide. He arrived around 5:00 a.m. and texted Selena, asking her to come to the parking lot.
Selena did not respond. Jose texted Selena demanding she answer his texts and calls and asking if she was too scared to answer. Selena told Jose to leave her alone. Jose responded with more accusations about Joe, and Selena repeatedly asked Jose to leave her alone. Ultimately, Selena agreed to come out to meet Jose.
Jose testified he wrote a goodbye note on his phone as he walked Selena from her apartment to his car. The note read: "This is my good-bye note and I just want to say that I love my family and most of all my beautiful girlfriend and I'm sorry it led to this there could be many stories but just know this isn't a fake. I loved her with everything and she had sex with another man and I just couldn't."
Jose and Selena got into the car. Forty minutes later, Selena was dead -stabbed repeatedly and fatally by Jose. After stabbing Selena, Jose stabbed himself in the neck, but did not cause any serious damage.
Jose called 911 and reported there was a "guy with a knife" running around in the parking lot. He made the call while still in the car, sitting next to Selena. He did not mention Selena or her injuries. A few minutes later, he called 911 a second time and told them the guy was fighting with somebody and the police needed to come right away. Again, he said nothing about Selena or the stabbing.
When the police arrived, they found Jose in the parking lot, holding a knife. The officers repeatedly directed Jose to drop the knife and get on the ground. He did not comply with the orders, so the police used a taser and a 40-millimeter less lethal weapon to subdue him. Jose fell to the ground and was handcuffed. The blade of a knife with blood on it and lacking a handle was taken from him. While being taken into custody, Jose told the officer someone was in the car who needed help. The police walked to the car and discovered Selena, dead.
Jose was taken to the hospital and, while there, was interviewed by an officer. When the officer asked what happened, Jose said he was going to tell the truth. He told the officer he and Selena had been together for four years and Selena wanted to take a break from the relationship. He said he asked Selena if there was someone else. She told him there was no one else but two days before the killing he learned she had been with someone else, and he just couldn't take it and was thinking of killing himself. He told the officer he went to say goodbye to Selena but when she got in the car, she found the knife and jumped on him to take it away. Jose told the officer, "I don't know why, for whatever reason, I ended up swinging at her in the neck" with the knife. He told the officer Selena was in shock and moved to the other seat and "I don't know, I don't know what got in me. I just kept hitting her with the knife." Jose repeated "And I don't know why but I, I just repeatedly started hitting her with the knife." Jose told the officer Selena was just screaming. Selena suffered 65 stab wounds. She had wounds to her face, neck, shoulder, chest, and abdomen.
At trial, Jose told a somewhat different story. He testified he cut Selena during the struggle over the knife and, when she realized she had been cut, Selena "freaked out" and yelled at him, saying "Look what you did. You're a fucking mess. If you're going to kill yourself just fucking kill yourself. Just hurry up so I can go be with Joe." Jose did not mention any such statement by Selena when he was interviewed following the killing. When the interviewer specifically asked if Selena said anything, Jose said only that she screamed. Jose admitted at trial that, in the moment he was stabbing Selena, he intended to kill her.
In support of his defense, Jose presented evidence he had been sent to live with his grandparents in Mexico when he was five and, during his two years there, he was repeatedly sexually abused. Jose testified he felt abandoned by his parents because of those experiences. Jose also testified that in middle school, he felt suicidal and was taken to a hospital for a few hours before he was released. He had some therapy sessions after that incident. He does not remember how many.
Jose presented testimony at trial from Allison Maxon, a licensed psychotherapist specializing in children's mental health and child trauma. She presented evidence regarding attachment relationships and the impact of childhood disruption in those relationships and childhood trauma, including sexual trauma, on the brain. She did not provide any opinion about Jose, whom she had never met, evaluated, diagnosed, or treated.
At trial, the jury was asked to make findings on three counts: first degree murder, second degree murder, and voluntary manslaughter. The jury returned a verdict finding Jose guilty of second degree murder.
DISCUSSION
I. The Prosecutor's Comment
During his rebuttal closing, the prosecutor commented on the testimony from Maxon, the psychotherapist. The prosecutor reiterated Maxon had never met Jose, reviewed any of his records, or spoken with anyone regarding him. Those comments were appropriate. The prosecutor then concluded his comments about Maxon's testimony with the following statement: "She was brought in to testify. How come he wasn't evaluated to see if this had some sort of impact on his mental health at the time or his ability to form the intent to kill? That's not before you."
At the outset of trial, the prosecution moved to exclude Maxon's testimony. The motion was the subject of several discussions between the trial court and counsel. In the first conversation, before trial began, Jose's counsel offered Maxon a "teaching expert to talk about adolescent brain development." He suggested the testimony might be relevant to Jose's intent. The trial judge's immediate response was that Maxon "couldn't testify that [Jose] did or did not have the intent." Almost immediately in the same discussion, the court twice reminded counsel that Maxon could not testify regarding lack of intent to kill. The motion to exclude was taken under submission.
Maxon's testimony was again discussed after Jose had offered some testimony of the trauma he suffered in his youth. In this discussion, the prosecutor requested an opportunity to examine Maxon to see if she was qualified to offer an opinion on intent. The trial court responded that she could "never be asked that. That goes to the jury....I mean, the defense can't ask could someone willfully and with premeditation form the intent to kill someone? That could never be asked. [¶] [The defense] can never ask, could [Jose] []form the intent to kill? It wouldn't be a proper question." The prosecution explicitly agreed with the trial court on that point. The court kept the motion under submission.
After Jose completed his testimony, the motion to exclude was discussed for the last time. The trial court reminded the parties that the expert could not be asked about Jose's intent to kill: "I mean, you realize that you can't ask the expert whether they have an opinion as to whether the defendant could form the intent to kill." The prosecutor responded: "Right. I have no intention of asking that." The trial court determined that Maxon would be allowed to testify on the general issue of trauma and reminded the parties that she could not be asked about intent: "But certainly I would never allow any witness to give an opinion which the jury is saddled with. [¶] In other words, did the defendant willfully and with premeditation and deliberation go over to that parking lot with the intent to kill. That is a jury decision."
The prosecution argues the statement regarding the lack of evidence on Jose's ability to form an intent to kill was appropriate because evidence regarding a defendant's ability to form the intent to kill is appropriate under Evidence Code sections 28 and 29. Whether or not Evidence Code sections 28 and 29 ever allow such examination is a discussion for another day because, in this particular matter, the trial court ordered the parties no expert could be asked about a defendant's ability to form the intent to kill and the prosecution explicitly agreed with the trial court on that point. In light of the court's order, the prosecutor's statement during rebuttal closing was improper. However, it was not prejudicial.
Jose argues the prosecutor's statement was prosecutorial misconduct because it unfairly undermined the strength of Jose's defense of provocation by attacking the credibility of the defense and suggesting there should have been testimony Jose acted in the heat of passion. Prosecutorial misconduct may not be raised on appeal unless the defendant makes a timely objection and requests the jury be admonished. (People v. Johnsen (2021) 10 Cal.5th 1116, 1164 (Johnsen).) A defendant is excused from the necessity of a timely objection only if an objection would have been futile or an admonition would not have cured the harm. (Ibid.) Jose did not object to the prosecutor's statement or request the jury be admonished. He makes no argument an objection would have been futile and acknowledges an admonishment might have cured the harm. Thus, he forfeited the claim of prosecutorial misconduct. Recognizing the forfeiture, Jose argues the failure to object or request an admonishment was ineffective assistance of counsel. "'A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel.'" (People v. Centeno (2014) 60 Cal.4th 659, 674.)
The Sixth Amendment of the United States Constitution provides a criminal defendant with a right to effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687.) To prove a claim of ineffective assistance of counsel, a criminal defendant "'must show that counsel's performance was deficient, and that the deficiency prejudiced the defense. [Citation.]'" (Johnsen, supra, 10 Cal.5th at p. 1165.) To show prejudice, a defendant must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, at p. 694.) "[R]easonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.) In other words, prejudice requires a showing of "a '" demonstrable reality," not simply speculation.'" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) If no prejudice is shown, a reviewing court can reject a claim of ineffective assistance of counsel without examining the issue of deficient performance. (Strickland, supra, at p. 697.)
The prosecutor's error does not support the request for a reversal and retrial because it did not prejudice Jose in any way. The jury was given three counts to consider: first degree murder, second degree murder, and voluntary manslaughter. Murder is "the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) First degree murder is "murder that is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or that is committed in the perpetration of, or attempt to perpetrate [certain enumerated crimes], or . . . by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death ...." (§ 189, subd. (a).) Second degree is every other kind of murder. (§ 189, subd. (b).)
Both first degree and second degree murder require "malice aforethought." (Pen. Code, § 187.) Malice may be either express or implied. (§ 188, subd. (a).) Express malice is a deliberate intent to kill. (§ 188, subd. (a)(1).) Implied malice is a killing "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188, subd. (a)(2).) Or, as explained by the California Supreme Court, implied malice is the deliberate performance of an act whose natural consequences are dangerous to life, knowing the conduct endangers another's life and acting with conscious disregard for life. (In re Ferrell (2023) 14 Cal.5th 593, 600.)
Manslaughter is the "unlawful killing of a human being without malice." (§ 192.) There are two types of manslaughter, voluntary and involuntary, but only voluntary manslaughter is relevant to this appeal. Although the statute defines manslaughter as a killing "without malice," the language is slightly misleading. In the case of voluntary manslaughter, the act of killing is the result of either a "heat of passion" or "unreasonable self-defense." These circumstances "negate" the existence of malice. (People v. Schuller (2023) 15 Cal.5th 237, 252 ["'[t]hese mitigating circumstances reduce an intentional, unlawful killing from murder to voluntary manslaughter "by negating the element of malice that otherwise inheres in such a homicide...."'")
Heat of passion has both an objective and a subjective component. (People v. Moye (2009) 47 Cal.4th 537, 549.) The objective component is a "reasonable person" test. The defendant must show conduct by the victim (or reasonably believed to have been engaged in by the victim) that is sufficiently provocative to "cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Id., at pp. 549-550.) Subjectively, the "'anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene." (People v. Beck and Cruz (2019) 8 Cal.5th 548, 649 (Beck).)
Jose admitted he intended to kill Selena. That intent was required for all three counts sent to the jury: first degree murder, second degree murder, and voluntary manslaughter. After deliberating, the jury convicted Jose of second degree murder. By this appeal, Jose argues he should have been convicted of voluntary manslaughter. His argument rests on the theory he killed Selena in a "heat of passion" triggered by her alleged statement that he should hurry and kill himself so she could be with Joe and that "heat of passion" should negate his admitted intent. The only evidence relevant to Jose's "heat of passion" defense is evidence of a statement that would provoke the proverbial reasonable person to act rashly and evidence showing Jose was actually provoked by such statement. The difference between second degree murder (of which Jose was convicted) and manslaughter is not Jose's intent but the claimed provocation. The prosecutor's statement regarding lack of evidence on Jose's ability to form intent is irrelevant to the issue of provocation. It did not, therefore, cause any prejudice and cannot support Jose's request for reversal and retrial.
Further, Jose does not and cannot show a "reasonable probability" that the outcome would have been any different without the prosecutor's reference to lack of evidence on intent. (Strickland, supra, 466 U.S. at p. 694.) Jose admitted he intended to kill Selena at the time he was stabbing her. When asked about the stabbing in the hours following it, he volunteered, three times, that he did not know why he began stabbing Selena: "I don't know why, for whatever reason, I ended up swinging at her in the neck" with the knife; "I don't know, I don't know what got in me. I just kept hitting her with the knife;" "And I don't know why but I, I just repeatedly started hitting her with the knife." When asked if Selena said anything, Jose said only that she was screaming. While his story at trial was that Selena told him to hurry and kill himself so she could be with Joe, the jury was entitled to: (i) believe Jose's first version of events (i.e., that Selena said nothing to provoke him); (ii) find the statement, even if made, was not "sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection" (Beck, supra, at p. 649); or (iii) that Jose was not actually provoked by the statement, if made. A finding of second degree murder is appropriate under any of those scenarios. Jose has not shown a reasonable probability of a different outcome and the judgment is affirmed.
II. Restitution
Jose argues the court erred in two ways in ordering restitution for Selena's aunt. He argues the aunt was not entitled to any restitution because she is not a "victim" within the meaning of section 1202.4, subdivision (k). He also argues even if the aunt was a victim, there is no restitution for mental health counseling in a murder case.
Section 1202.4, subdivision (k)(3)(C) identifies those who qualify as victims for the purpose of recovering restitution. It defines a victim as a "person who had previously lived in the household of the victim for a period of not less than two years in a relationship substantially similar to [the immediate surviving family of the victim.]" (Ibid.) Restitution statutes "should be interpreted broadly and liberally." (People v. Saint-Amans (2005) 131 Cal.App.4th 1076, 1084.)
A trial court's restitution order is reviewed for abuse of discretion. "This standard is deferential. [Citations.] But it is not empty....[I]t asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts." (People v. Williams (1998) 17 Cal.4th 148, 162.)
We find substantial evidence supports the trial court's finding that the aunt was a victim under section 1202.4, subdivision (k)(3)(C). Selena and her aunt lived in separate sides of a duplex for the first 12-13 years of Selena's life. Although the duplex did not have a door that opened directly from one side to the other, both sides of the duplex shared an address and driveway, and testimony was presented that the members of both families had access to and freely used both sides of the duplex. Additionally, the aunt and her husband financially supported Selena during that time. Eventually, Selena, her father, and her siblings moved out, but the aunt and her husband continued to financially support them.
Because she qualifies as a "victim" under section 1202.4, subdivision (k)(3)(C), the aunt was entitled to recover the cost of her mental health counseling. (§ 1202.4, subd. (f)(3)(C) ["[m]ental health counseling expenses" are specifically allowed].) There was no error in the trial court's award of such reimbursement.
DISPOSITION
The judgment and order of restitution are affirmed.
WE CONCUR: BEDSWORTH, ACTING P.J. MOTOIKE, J.