Opinion
F072924
07-26-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL FAJARDO, Defendant and Appellant.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1463007)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge. Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Meehan, J.
-ooOoo-
Defendant Jose Manuel Fajardo was charged with the murder of his wife Marlene Rubi Sosa Fajardo (Pen. Code, § 187, subd. (a)). The information further alleged that he acted intentionally, deliberately, and with premeditation (see § 189) and personally used a deadly weapon in the commission of the crime (§ 12022, subd. (b)). The jury convicted defendant of second-degree murder and found true the deadly weapon allegation. Defendant was sentenced to 15 years to life plus one year for personal use of a deadly weapon.
Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
On appeal, defendant contends the trial court erroneously sustained the prosecutor's objections to certain cross-examination questions posed by defense counsel to the forensic pathologist. For the reasons set forth below, we find the court's conduct did not amount to prejudicial error and affirm the judgment.
STATEMENT OF FACTS
I. Steven Brayden.
Brayden and Marlene worked for the same internet service provider in Salida, the former as a wireless technician and the latter in the sales department. On August 27, 2013, sometime between 5:00 and 6:00 p.m., Brayden returned to the office to clock out. In the parking lot, he came across Marlene. While the two were chatting, defendant appeared. He repeatedly punched Brayden and then hurled him to the ground. After defendant drove away, Brayden asked Marlene if she knew him. She said that "she knew [defendant]" and "would take care of it." Brayden called the police and reported the incident. He and Marlene waited at least two hours for police officers to show up. Brayden continued to wait after Marlene left. At 8:00 or 9:00 p.m., when officers still had not arrived, Brayden left.
To avoid confusion, we identify individuals who share defendant's surname by their first name. No disrespect is intended.
Brayden knew Marlene had marital problems. Sometimes, she sent him text messages that were "sexual in nature." Marlene occasionally invited Brayden to "go out with her," but he declined each time. Brayden denied that "anything happen[ed] between the two of [them]."
II. Sarah Melite.
Melite and Marlene were friends since 2004. Sometime in August 2013, Marlene confided that she was in an unhappy marriage and talked to defendant about a possible divorce.
On August 27, 2013, at or around 7:00 p.m., Marlene called Melite and told her about a workplace altercation between defendant and Brayden. Marlene "wanted to go home, but she was fearful." She asked Melite to "meet her at her home" and "help her pack her things so that she could leave." At approximately 9:30 p.m., Melite arrived at the Fajardo residence on Santa Ana Avenue in Modesto, where she encountered defendant but not Marlene. For 30 to 40 minutes, Melite and defendant spoke in the backyard. During the conversation, defendant, who seemed upset, kept "looking at his phone screen." Nonetheless, Melite was able to "talk[] him down a little bit." By the end of the conversation, Marlene still had not appeared. Before going home, Melite texted Marlene. She never received a response.
III. Law enforcement.
On August 28, 2013, at or about 12:42 a.m., Stanislaus County Sheriff's Deputies Cody Cheary and Barry Ballance arrived at 260 South Santa Ana Avenue. Defendant answered the knock on the front door. His hands, shirt, and feet were bloody. Standing behind defendant was his brother Eduardo Fajardo, who stated, "He stabbed her." After defendant was taken into custody, Eduardo related the incident to Cheary:
"[Eduardo] was asleep on the couch in the living room when he heard screaming and someone calling his name. He got off the couch, went to the master bedroom where he found the door was locked. He forced his way into the bedroom where he saw [defendant] stabbing Marlene with a knife.
He . . . grabbed the knife from [defendant], held it to his own neck [and] stated, 'Kill me instead,' at which time [defendant] took the knife from Eduardo and continued to stab Marlene. He didn't know what to do at that point, so he retreated back to the living room and called 911."Inside the master bedroom, Ballance spotted blood on the bed, walls, and floor. He saw Marlene lying on the floor of the adjoining bathroom in a pool of blood.
Stanislaus County Sheriff's Sergeant Brandon Kiely processed the master bedroom and bathroom. He observed damage to the bedroom door, which was "consistent with . . . some type of forced entry . . . ." Kiely found two knives: (1) a knife with a bent blade and a wooden handle near the foot of the bed; and (2) a knife with a black handle "wedged in between the wall and . . . a plastic storage bin with the handle partially exposed." Both of the blades had fresh bloodstains and strands of black hair. IV. Eduardo Fajardo.
At trial, Eduardo claimed that he could not recall what transpired due to trauma. The jury watched a video recording of his interview with Detective David Hickman on August 28, 2013.
Eduardo lived with defendant and Marlene at 260 South Santa Ana Avenue for three-and-a-half months. On August 27, 2013, at or around 9:00 p.m., he saw his brother and sister-in-law chatting outside in a car. The couple came into the residence by approximately 10:00 p.m. Eduardo thought the two "seemed normal" and noticed "nothing unusual." At some point, defendant and Marlene were watching television in their bedroom. Eduardo, who was in the living room, "could hear them talking" and "it didn't sound like arguing." At or around midnight, defendant told Eduardo to wash the dishes. After completing the task, Eduardo returned to the living room and dozed off on the futon.
Eduardo woke up when he heard defendant "come out again" and saw him "go into the kitchen" and then "go back into his room." Defendant "slammed the door," but Eduardo "didn't think much of it." Suddenly, Eduardo heard screams and cries for help. He hurried to the master bedroom and used his shoulder to break through the locked door. Eduardo saw defendant knock Marlene off the bed and repeatedly stab her with a black-handled kitchen knife. He begged his brother to stop, but to no avail. Eduardo then grabbed the knife, put the blade against his own throat, and implored, "If you're gonna kill her, kill me first. Please, just kill me. . . . I love you, please don't do this." Defendant threw Eduardo out of the room and used a laundry hamper to barricade the door. Eduardo called 911.
V. Dr. Sung-Ook Baik.
Dr. Baik, a forensic pathologist at the Stanislaus County Coroner's Office, performed Marlene's autopsy. He noted a stab to the left side of the face severed the left carotid artery and two stabs to the right side of the neck severed the right carotid artery and the right jugular vein, respectively. These injuries, which cut off "the major blood supply to the brain," were fatal. Baik also observed other nonfatal "injuries by sharp instrument" that nonetheless contributed to Marlene's blood loss: (1) three stab wounds on the right side of the face; (2) three superficial cuts on the chin; (3) two stab wounds on the left breast and upper abdomen; (4) six superficial cuts on or near the left upper abdomen; (5) two stab wounds on the right breast; (6) 10 superficial cuts on the right upper and lower abdomen; (7) four superficial cuts along the left arm and shoulder; (8) a stab wound on the left forearm; (9) two cuts on the left wrist; (10) five superficial "defense wound" cuts on the left palm; (11) a superficial cut near the right armpit; (12) a stab wound on the right upper arm; (13) five cuts along the right arm; (14) seven superficial "defense wound" cuts on the right hand; (15) a superficial cut on back of the right hand; (16) a superficial cut on the upper left thigh; (17) a superficial cut on the right thigh; (18) five stab wounds on the left side of the back; (19) two superficial cuts on the left upper back; (20) three stab wounds on the right side of the back; and (21) five superficial cuts on the right side of the back. Baik determined Marlene's cause of death to be "blood loss due to stab wounds to the face, chest, abdomen, . . . back and the extremities."
During defense counsel's cross-examination of Baik, the following exchange took place:
"[DEFENSE COUNSEL:] Could you also characterize - would it be safe to characterize in your opinion that many of these wounds were delivered haphazardly?
"[PROSECUTOR]: Objection. Calls for speculation and lack of foundation.
"THE COURT: Sustained. You can rephrase.
"[DEFENSE COUNSEL]: . . . Do these wounds, in your opinion, look like - do some of these wounds look like they were delivered without much concern about location?
"[PROSECUTOR]: Objection. Same -
"THE COURT: Sustained."
DISCUSSION
The trial court instructed the jury on the elements of first-degree murder, second-degree murder, and voluntary manslaughter.
In his summation, defense counsel conceded that defendant killed Marlene but asserted that he did so in the heat of passion:
"[T]he trigger was the confrontation with Brayden . . . . [¶] . . . After [defendant] confronts Brayden and Marlene gets him off him and sends him home, . . . he goes to the house, [Melite] shows up. She calms him down a bit, but then what happens after that? [¶] What happens after that is Marlene doesn't respond for another hour. We know it's at least an hour or two. . . . [¶] . . . [¶] So we know during this time whatever benefit [Melite] was able to get from calming [defendant] down, could have spiked him right back up again because Marlene didn't come home on time. Marlene didn't answer her phone. [¶] Is it unreasonable to believe that that made his mind spin again about where she was and who she was with? Is it a reasonable inference that in his mind he thought she was still with this other guy, Brayden? It's possible.
"Then she comes home. Obviously, they talk about it . . . in the car. We know that. [¶] But at some point we know that for whatever reason they calm down . . . , the evidence is they went back in the house . . . . They were watching TV. [¶] . . . [¶] . . . Ed[uardo] told the police officers that he could hear them talking, so they were still discussing something. And it's entirely plausible, ladies and gentlemen, that something happened. That [defendant]'s calmness was just under the surface. After the confrontation with Brayden, after what happened and Marlene didn't come home, after the conversation in the car. Whatever was holding him barely together, something snapped during that time. . . . [¶] . . . Something triggered the tragic event, and it was quick. And whatever happened, it happened immediately. . . . [¶] . . . [¶]
". . . [D]efendant was provoked. Yes. Brayden provoked . . . defendant. Brayden got this thing started, and something happened in that bedroom. Something triggered what followed. [¶] As a result of the provocation, . . . defendant acted rashly and under the influence of intense emotion. [¶] . . . [¶] Again, we don't know what was said in there, but that's for you to decide. [¶] . . . [¶]
"What we're saying is it entirely fits the facts that [defendant] did this out of emotion. That what happened to him that day when he saw Mr. Brayden, saw him with his wife, it confirmed his worst fears, and he assaulted him. That's evidence right there that started this act of rage. [¶] He was temporarily calmed down by Ms. Melite, and everything came back up again, and something happened in the bedroom. Not at 7:00, not at 8:00, not at 9:00, not at 10:00, not at 11:00. Something happened right around midnight while they were talking that triggered this violent crime."
Even assuming, arguendo, the trial court should have overruled the prosecutor's objections and Baik would have opined that defendant stabbed and cut Marlene "haphazardly" and/or "without much concern about location," by constitutional mandate, "[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of . . . the improper admission or rejection of evidence, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) "[A] 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); accord, People v. Callahan (1999) 74 Cal.App.4th 356, 363.) Here, it is not reasonably probable that defendant would have obtained a more favorable verdict, i.e., a conviction for voluntary manslaughter.
Defendant suggests that the more stringent "harmless beyond a reasonable doubt" standard prescribed in Chapman v. California (1967) 386 U.S. 18, 24, is the proper test of reversible error. We disagree. The application of ordinary rules of evidence does not implicate the federal Constitution; therefore, we review allegations of evidentiary error under Watson's "reasonable probability" standard. (People v. Harris (2005) 37 Cal.4th 310, 336; People v. Marks (2003) 31 Cal.4th 197, 226-227; see People v. Page (2008) 44 Cal.4th 1, 42 ["In the absence of a violation of federal rights, we evaluate whether 'it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.' "].)
" '[T]he factor which distinguishes the "heat of passion" form of voluntary manslaughter from murder is provocation.' [Citations.] 'The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim.' [Citation.] '[T]he victim must taunt the defendant or otherwise initiate the provocation.' [Citations.] The ' "heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances . . . ." ' [Citation.] ' "[I]f sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter." ' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 705.)
In the instant case, on August 27, 2013, sometime between 5:00 and 6:00 p.m., defendant attacked Brayden because the former purportedly believed the latter and Marlene were having an affair. Defendant left the scene and returned home. On the other hand, Marlene did not arrive at the residence until much later: either 9:00 p.m. (based on Eduardo's account) or sometime after 10:00 p.m. (based on Melite's testimony). While Marlene was away, however, defendant spoke with Melite for over half an hour. Although defendant was upset, Melite was able to "talk[] him down a little bit." Moreover, after Marlene came back, she and defendant chatted outside, entered the house, and subsequently watched television together inside their bedroom. At or around midnight, defendant instructed Eduardo to wash the dishes. Eduardo, who lived with his brother and sister-in-law for three-and-a-half months, thought the couple "seemed normal" and noticed "nothing unusual." "The only inference to be drawn is that any passions that may have been aroused [when defendant saw Brayden and Marlene together or when Marlene did not come home until several hours after the altercation] had cooled so that the killing became an act of revenge or punishment." (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704; see People v. Golsh (1923) 63 Cal.App. 609, 617 [" 'If, in fact, the defendant's passion did cool, which may be shown by circumstances such as the transaction of other business in the meantime, rational conversations upon other subjects, evidence of preparation for the killing, etc., then the length of time intervening is immaterial.' "].)
Prior to the stabbing, defendant and Marlene talked in the bedroom. According to Eduardo, who was in the living room, "it didn't sound like arguing." Even though defense counsel insisted in his summation that "something happened in that bedroom" that caused defendant to "act[] rashly and under the influence of intense emotion," given the record "does not reflect any provocation, . . . [his] theory [wa]s mere speculation." (People v. Castaneda (2011) 51 Cal.4th 1292, 1331.)
The cited case stands for the proposition that speculation is an insufficient basis upon which to require the giving of an instruction on voluntary manslaughter as a lesser included offense of murder. (People v. Castaneda, supra, 51 Cal.4th at pp. 1327, 1330-1331.) Logically, speculation must also be an insufficient basis upon which to reverse an actual murder conviction. --------
DISPOSITION
The judgment is affirmed.