Opinion
C090150
06-10-2021
THE PEOPLE, Plaintiff and Respondent, v. ARIEL EDENILSON MENDOZA ARCE, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. S18CRF0156
RENNER, J.
A jury found defendant Ariel Edenilson Mendoza Arce guilty of attempted murder, assault by means of force likely to produce great bodily injury, and battery with serious bodily injury. The jury found true allegations that the attempted murder was willful, deliberate, and premeditated and defendant inflicted great bodily injury upon the victim, Jane Doe. The trial court sentenced defendant to life with the possibility of parole, plus three years for the great bodily injury enhancement.
Defendant appeals, arguing (1) insufficient evidence supports the conviction for attempted murder because there was insufficient evidence he intended to kill Doe, (2) insufficient evidence supports the jury's finding that the attempted murder was willful, deliberate, and premeditated, and (3) the trial court should have instructed the jury on attempted voluntary manslaughter as a lesser included offense of attempted murder. We reject defendant's contentions and affirm the judgment.
I. BACKGROUND
A group of women travelled to South Lake Tahoe for a weekend getaway in August 2018. They attended a comedy show and then returned to their hotel suite near Heavenly Village. Later, in the early morning hours of August 13, 2018, they heard someone screaming in the courtyard outside their suite. They looked out their second-floor window and saw a man (later identified as defendant) continuously punching a woman (later identified as Doe) in the face. During the trial, one of the women, L., estimated that defendant punched Doe in the face more than 20 times.
L. yelled from the window to defendant to stop. Defendant continued to punch Doe. L. and three other women then ran outside, reaching the courtyard within seconds.
J. was among the group who ran outside. J. testified that defendant was punching Doe when she reached the courtyard. Doe was lying on the ground and making no attempt to defend herself. J. recalled that the women yelled, “Police are on their way. We called 911.” Defendant seemed to back away, giving J. and the others an opportunity to approach Doe. J., a nurse, noticed that Doe was choking on blood. She attempted to roll Doe onto her side to facilitate her breathing, but defendant “charged back towards [them].” Frightened, J. stepped away from Doe. She then saw defendant jump into the air and land on Doe's head with both feet. The impact caused Doe's head to strike the concrete underneath her. J. saw defendant jump on Doe's head two or three times. As before, Doe made no move to defend herself.
J. testified that she and the other women continued to yell, and defendant backed away from Doe a second time. He then picked up a rock that was part of the nearby landscaping. Defendant approached the women in a threatening manner, holding the rock as though he intended to throw it. Around this time, a police officer arrived, and defendant ran away.
B., another nurse, was also among the group who ran outside. B. testified that she reached the courtyard and saw Doe lying on her side on the cement. There was blood on Doe's face, and defendant was jumping on her head with both feet, using his full body weight. B. explained that L. had already dialed 911 and started speaking with the operator, but then handed the phone to B. to continue the call. B. turned away from defendant and Doe to concentrate on the call.
A recording of the 911 call was played for the jury. During the call, B. mistakenly reported that two men were fighting. She told the operator, “He's jumping on him right now.” She said, “He's gonna kill him but there's four girls right now and now he's trying to hit the girls.” She then told the operator that defendant was running away, and “The other guy's probably dead.” Someone in the background then clarified that the victim was female. B. passed this information along to the 911 operator, adding, “She's not breathing.” Someone in the background then said that defendant was coming back with a rock. B. repeated this information to the 911 operator as well, saying, again, “This girl. I don't think she's breathing.” B. then concluded the 911 call and helped care for Doe until medics arrived. During the trial, B. recalled that Doe's face was “covered in blood” and there was “blood everywhere.”
L., another nurse, testified that she ran out of the hotel towards defendant and Doe. As she drew closer, she saw that Doe was lying on the ground, and defendant was kicking her with one leg. During the trial, L. estimated that defendant kicked Doe more than 10 times. L. yelled at defendant to stop. Defendant briefly acknowledged the presence of the women and then lunged at them. The women retreated, and defendant continued kicking Doe with one leg, now in the head. At some point, defendant also jumped on Doe. During the trial, L. estimated that defendant jumped on Doe more than five times.
L. recalled that an older woman with a tea kettle entered the fray and made as though to use the kettle against defendant in some way. Defendant then ran towards some bushes and retrieved a rock. He approached the women with rock in hand, then turned and ran away. L. helped to care for Doe until medics arrived.
Police arrived and found Doe lying on the ground in a pool of blood. Doe was transported by air ambulance to Barton Memorial Hospital. A detective who interviewed Doe in the hospital the next day observed heavy swelling on her face, neck, and eyelids, bruising on her head, scabbing on her nose, and scratches on her neck. Doe's injuries were documented in photographs that would later become an important part of the prosecution's case in chief.
Police found defendant hiding in some nearby bushes. He was identified in an in-field show up and taken to the police station. His shoes, which had blood on them, were photographed and booked into evidence.
Defendant waived his Miranda rights and consented to an interview. He told the interrogating officer that he knew Doe and had been friends with her for three years. He explained that they had been to a casino that night, where he consumed at least one beer. He recalled leaving the casino with Doe and heading for home on foot. He acknowledged that he might have hit Doe without meaning to but claimed not to remember anything that happened after leaving the casino. When asked whether anything could have caused him to fight with Doe, defendant responded, “ ‘Oh, I don't know. She must have offended me.' ” When asked what Doe might have done to offend him, defendant responded that he could not remember. Defendant later reiterated that he did not intend to hit Doe and claimed not to remember stomping on her. When asked why he had run away from the scene, defendant responded that he had been mad.
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant was arrested and charged by information with attempted, willful, and deliberate premeditated murder (Pen. Code, §§ 187/664-count 1), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)-count 2), and battery with serious bodily injury (§ 243, subd. (d)-count 3). The information further alleged, with respect to all counts, that defendant inflicted great bodily injury upon Doe. (§ 12022.7, subd. (a).) Defendant pled not guilty and denied the allegations.
Undesignated statutory references are to the Penal Code.
Defendant was tried before a jury in June 2019. The prosecution's witnesses testified substantially as described ante. Defendant testified on his own behalf. Defendant testified that he had visited a casino that night, where he drank “quite a lot.” He denied knowing Doe and denied telling police that he knew her.
The jury found defendant guilty as charged. The trial court sentenced defendant to life with the possibility of parole, plus three years for the great bodily injury enhancement. This appeal timely followed.
II. DISCUSSION
A. Sufficiency of Evidence of Intent to Kill
Defendant contends the evidence was insufficient to support the attempted murder conviction as there was insufficient evidence that he intended to kill Doe. He emphasizes that there was no evidence indicating what might have happened in the moments preceding the beating and no evidence he had or used a weapon. Defendant's challenge to the sufficiency of the evidence lacks merit.
“ ‘ “The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”' ” (People v. Virgo (2013) 222 Cal.App.4th 788, 797.) “ ‘ “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder.”' ” (People v. Smith (2005) 37 Cal.4th 733, 739.) We will reverse for insufficient evidence only if “ ‘ “ ‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' ”' ” (People v. Manriquez (2005) 37 Cal.4th 547, 577.)
Defendant contends there was insufficient evidence he actually intended to kill Doe. “ ‘ “ ‘The mental state required for attempted murder has long differed from that for murder itself. Murder does not require the intent to kill. Implied malice-a conscious disregard for life-suffices. [Citation.]' [Citation.] In contrast, ‘[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.”' ” (People v. Virgo, supra, 222 Cal.App.4th at p. 797.) The specific intent to kill is the same standard as express malice. “Express malice requires a showing that the assailant ‘ “ ‘either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.' ”' ” (People v. Smith, supra, 37 Cal.4th at p. 739.)
Evidence of motive is often probative of intent to kill. (People v. Smith, supra, 37 Cal.4th at pp. 740-741.) “Evidence of motive aside, it is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant's acts and the circumstances of the crime. [Citation.] ‘There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions.' ” (Id. at p. 741; see also People v. Lashley (1991) 1 Cal.App.4th 938, 945-946 [“One who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he shoots. Absent such direct evidence, the intent obviously must be derived from all the circumstances of the attempt, including the putative killer's actions and words”].) “Whether a defendant possessed the requisite intent to kill is, of course, a question for the trier of fact. While reasonable minds may differ on the resolution of that issue, our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (People v. Lashley, supra, at p. 946.)
Viewing the evidence in the light most favorable to the judgment, we conclude the nature of the attack provides substantial evidence of defendant's intent to kill. Although no evidence was offered to explain what might have precipitated the beating, the evidence amply supported a determination that defendant either desired Doe's death or knew to a substantial certainty it would occur. (People v. Smith, supra, 37 Cal.4th at p. 739.) Defendant beat Doe relentlessly, delivering blow after blow to her face and head, even as she lay choking on blood and unable to defend herself. He did not stop when L. yelled to him from the hotel suite. He did not stop-or rather, stopped only briefly-when B., L, and J. confronted him in the courtyard. If anything, the beating became more vicious, escalating from punches in the face, to kicks in the head with one leg, to stomping on the head with both legs and defendant's full body weight. Indeed, the beating was so brutal that B., a nurse, told the 911 operator in real time that defendant was “gonna kill [her].” Moments later, B. reported that Doe was “probably dead.”
By the time the attack was over, Doe's face was “covered in blood.” A detective who interviewed Doe in the hospital observed heavy swelling on her face, neck, and eyelids, bruising on her head, scabbing on her nose, and scratches on her neck. Photographs of Doe's injuries were shown to the jury, admitted into evidence, and offered as proof of defendant's intent to kill in the prosecutor's closing argument. The prosecutor explained: “The reason why there was so many photographs shown in this case, it wasn't to overburden you, some were to show exactly how the injuries progressed. It also shows you the violence of this case. The sheer violence and injury to her shows you the defendant intended to kill.” The prosecutor also directed the jury's attention to the photographs of defendant's bloody shoes. Defense counsel, too, acknowledged the power of the photographs in closing argument, stating, “I saw your reactions when this case started and when you were shown these pictures. I admit it, this is serious....” Although the photographs have not been made part of our record, we presume they support the jury's resolution of the intent issue. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“ ‘All intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent' ”].)
On the record before us, we conclude the vicious and sustained nature of the attack constitutes substantial evidence that defendant had the specific intent to kill. (See People v. Finley (1963) 219 Cal.App.2d 330, 339-341 [vicious beating resulting in victim's death afforded sufficient basis for finding of express malice].) This case did not involve a single punch or kick, but a succession of powerful blows to Doe's head and face, both vulnerable parts of her body. (See People v. Cravens (2012) 53 Cal.4th 500, 508-509 [single sucker punch supported implied malice murder conviction].) Doe was on the ground, choking on blood, and unable to defend herself. She appeared to B. to be dead or about to die. That she managed to survive does not “ ‘ “necessarily establish a less culpable state of mind.”' ” (People v. Smith, supra, 37 Cal.4th at p. 741.) In attacking her head so brutally, defendant either desired Doe's death or knew to a substantial certainty that death would occur. (Id. at p. 739.)
Defendant observes that “there is absolutely no evidence that [he] brought a firearm or deadly weapon of any sort to the scene, or relied on anything but his body to commit the assault.” This observation misses the point. As we have shown, substantial evidence supports the jury's finding that defendant had the requisite intent to kill Doe. That the evidence might also have permitted the jury to reach a contrary conclusion is of no consequence. (People v. Covarrrubias (2016) 1 Cal.5th 838, 890.) We therefore reject defendant's challenge to the sufficiency of the evidence supporting the conviction for attempted murder.
B. Sufficiency of Evidence of Premeditation and Deliberation
Defendant next contends there was insufficient evidence to support the jury's finding that the attempted murder of Doe was deliberate and premeditated. This contention fails for many of the same reasons discussed above.
The substantial evidence standard of review is set forth ante, so we do not repeat it here.
“A crime is premeditated when it is considered beforehand and deliberate when the decision to commit the crime is formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. [Citations.] [¶] The process of deliberation and premeditation does not require any extended period of time: ‘ “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....”' [Citations.] The requirement of premeditation and deliberation excludes acts that are the ‘result of mere unconsidered or rash impulse hastily executed.' ” (People v. Gonzalez (2012) 210 Cal.App.4th 875, 886-887.)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27, our Supreme Court identified three categories of evidence that are typically sufficient to sustain a finding of premeditation and deliberation: (1) planning evidence; (2) motive evidence; and (3) a manner of killing (or attempted killing) from which the jury could reasonably infer a deliberate intent to kill. These factors need not be present in “some special combination” or “accorded a particular weight” (People v. Pride (1992) 3 Cal.4th 195, 247), and “it is not essential that there be evidence of each category to sustain a conviction” (People v. Gonzalez, supra, 210 Cal.App.4th at p. 887). Rather, the factors are “simply intended to guide an appellate court's assessment whether the evidence supports an inference that the [attempted] killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse.” (People v. Pride, supra, at p. 247.)
Defendant observes that there was no evidence of planning or motive. True enough, but there was substantial evidence from which a reasonable jury could have found premeditation and deliberation based on the manner of the attempted killing alone.
Defendant's attack on Doe proceeded in stages. He began by punching Doe in the face. He was still punching Doe when the group of nurses reached the courtyard and yelled at him to stop. Defendant briefly retreated, but then “charged back, ” resuming his attack on Doe and escalating from punching to kicking and stomping. From this conduct, the jury could have reasonably concluded that defendant had an opportunity to consider and reflect upon his actions but chose to continue with his plan to kill Doe. (See People v. Streeter (2012) 54 Cal.4th 205, 244 [manner of killing suggested premeditation and deliberation where “defendant's acts occurred in stages”].) The jury could have also reasonably inferred premeditation and deliberation from evidence that defendant retreated a second time, returned with a rock, and then ran away upon the arrival of police, suggesting that defendant was not acting in a frenzy, but was aware of what was happening around him. The prolonged nature of the struggle also afforded defendant “ample time... to consider the nature of his deadly act.” (People Hovarter (2008) 44 Cal.4th 983, 1020.) On the record before us, we conclude that there was substantial evidence of premeditation and deliberation. We therefore reject the claim of error.
C. Instruction on Attempted Voluntary Manslaughter
Finally, defendant argues the trial court committed error by failing to sua sponte instruct the jury on attempted voluntary manslaughter based on sudden quarrel or heat of passion, as a lesser included offense of attempted murder. As defendant acknowledges, however, the duty to instruct on lesser included offenses, or a theory thereof, only arises where there is substantial evidence to support the instruction. (People v. Breverman (1998) 19 Cal.4th 142, 155 [every lesser included offense, or theory thereof, supported by the evidence must be presented to the jury]; People v. Barton (1995) 12 Cal.4th 186, 203 [trial court must instruct on lesser included offenses supported by substantial evidence].) No such evidence exists here.
“Heat of passion is a mental state that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter.” (People v. Beltran (2013) 56 Cal.4th 935, 942.) “A heat of passion theory of manslaughter has both an objective and a subjective component.” (People v. Moye (2009) 47 Cal.4th 537, 549.) To satisfy the objective element, “ ‘ “the accused's heat of passion must be due to ‘sufficient provocation.' ”' ” (Ibid.) “ ‘The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.' ” (Id. at p. 550.)
To satisfy the subjective element, “the accused must be shown to have killed while under ‘the actual influence of a strong passion' induced by such provocation. [Citation.] ‘Heat of passion arises when “at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.” [Citations.]' [Citation.] ‘ “However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter.”' ” (People v. Moye, supra, 47 Cal.4th at p. 550.)
Defendant concedes the evidence relating to heat of passion was “far from extensive.” Nevertheless, he argues his statement to police that Doe “must have offended [him]” was evidence sufficient to warrant an instruction for attempted voluntary manslaughter. We disagree. Even assuming that defendant's statement was substantial evidence of the subjective component of the heat of passion theory, there was no evidence from which a reasonable juror could conclude that the objective component had been shown. At most, the evidence showed that defendant might have been offended by something, he could not recall what. There was no evidence, of any kind, from which a reasonable juror could conclude that Doe's conduct, whatever it was, would have caused an ordinary person of average disposition to act rashly or without due deliberation or reflection. (People v. Moye, supra, 47 Cal.4th at p. 550.) Although we may speculate on what might have caused defendant to become violent, “[s]peculation is an insufficient basis upon which to require the giving of an instruction on a lesser offense.” (People v. Wilson (1992) 3 Cal.4th 926, 941.) We therefore reject the claim of error.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: BLEASE, ACTING P. J., DUARTE, J.