Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2007004760 James P. Cloninger, Judge
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Michael Alexander Bryant appeals from judgment after conviction by jury of one count of first degree murder. (Pen. Code, §§ 187, subd. (a), 189.) The jury found true a special circumstance allegation that appellant killed the victim while he was attempting to rape her. (§§ 190.2, subd. (a)(17)(C), 664/261.) The jury also found true allegations that appellant personally used deadly weapons (a blunt object and a knife). (§ 12022, subd. (b)(1).) The trial court sentenced appellant to life in prison without the possibility of parole, plus one consecutive year for the use of a deadly weapon. The court ordered victim restitution and imposed fines including a $5,000 parole revocation fine which was suspended.
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends that the trial court committed reversible error by limiting evidence of third party culpability, that there was insufficient evidence of attempted rape to sustain the special circumstance finding or to sustain the first degree murder conviction on a felony murder theory, and that the parole revocation fine must be stricken because his sentence does not allow for parole. We agree that the parole revocation fine must be stricken, as respondent concedes, and otherwise affirm.
Appellant was prosecuted for first degree murder on alternate theories: the murder was willful, deliberate and premeditated or it was committed in the course of felony attempted rape.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant confessed to killing Ordie Jaloma. He killed her in College Park in Oxnard at about 6:00 in the evening on January 23, 2007, after she agreed to walk him part-way home. He had met her the previous day.
Appellant gave various contradictory accounts to friends, to his mother, and to police, but they included statements that he and Jaloma went into a field together to smoke marijuana, that he thought they "were cool, " but then she told him she did not like Black men, that he was compelled at gunpoint by gangsters to try to rape her, that he pulled down her pants but did not penetrate her because he was not aroused, that he strangled her, that he stabbed her with a kitchen knife that broke off inside her, that he threw the handle into the woods, and that he hit her on the head with a small barbell weight that he carried in his back pocket for protection.
On the day after she was killed, teenagers found appellant with Jaloma's body in the park. Jaloma's head was bloody and her throat had been slit. Her pants were unzipped, her underwear was ripped, and her bra was pulled up to expose her breasts, which were covered with superficial knife cuts. Her over-shirt was partially buttoned in an incorrect pattern and one button was missing. She had one shoe on and the other shoe was six feet away.
Physical evidence corroborated many of appellant's admissions. The medical examiner determined that Jaloma had been strangled, and this was not evident from the outward appearance of her body. She had been stabbed in the chest. The examiner found a broken-off knife tip after removing Jaloma's shirt. The knife handle was not found. Blunt force had been used on Jaloma's head. Her underwear was torn but her vagina had not been penetrated and no semen was deposited. Her wounds were not immediately fatal and she may have lived up to 12 hours after the attack.
Appellant was sexually interested in Jaloma. On the day before she was killed, a friend drove appellant to Jaloma's house. Appellant said he had met Jaloma earlier that day. Jaloma's roommate said appellant spent 45 minutes alone with Jaloma in her bedroom that afternoon. On January 23, the day Jaloma was killed, appellant smoked marijuana with Jaloma and a friend in Jaloma's backyard. Appellant and Jaloma flirted and appellant told his friend that Jaloma was "hot." His friend left around 5:00 p.m.
Jaloma's roommate saw appellant and Jaloma leave together around 6:00 p.m. on the evening she was killed. Jaloma said she would be back in 15 minutes but she never returned. The medical examiner found a piece of paper in Jaloma's pocket with appellant's name and number and the notation, "Call me anytime of day. I'm here for you."
Before he confessed to killing her, appellant gave various accounts of Jaloma's absence and death. Some involved gangsters of varying number with varying weapons. In some accounts, he ran away before Jaloma was hurt. In others, he was forced to hurt her.
Starting at about 7:30 p.m. on the night Jaloma was killed, appellant left telephone messages for two friends, spoke with them both by phone, and spoke with one in person. He had one drive him to Jaloma's house and then to College Park. Appellant said he was worried about Jaloma because, as they were walking together, gangsters approached them and he ran away. He heard her scream as he left.
On the morning after Jaloma died, January 24, appellant told a friend that he saw the men grab Jaloma and take her into the bushes. Later that morning he told another friend, "She's dead." He said he had been back to the place where she was grabbed and had seen her shoe. Still later that morning, he told the same friend that Jaloma owed the men money and had a price on her head, that there were two men with guns and two men with knives, that they forced him at gunpoint to get on top of her, to choke her, and to "[p]ull down her pants and do her, " and that he was not aroused and did not penetrate her. He said one man took the barbell from appellant's pocket and hit Jaloma over the head with it. Appellant's friend did not believe this story.
On the afternoon of January 24, when the teenagers saw appellant with Jaloma's body, he was crying and saying that she died because of him. He told them that he was walking with Jaloma the night before when two or three men pulled up in a car. He said he ran away. He was worried about her, so came back to look for her and found her body. He told a 911 operator a similar story.
Police officers arrived and one interviewed appellant at the park. Appellant told him that Juan Carlos Gallardo (Jaloma's ex-boyfriend) was in the car that pulled alongside them. Jaloma had told appellant that these were her "homies from Fillmore." In this version, Jaloma got into the car, willingly, and told appellant she would call him later. A man in the front passenger seat asked what a "fine Mexican chick" like Jaloma was doing with a "nigger, " and said he had a surprise for appellant if he did not run away. Appellant ran away because the man was reaching for his pocket and appellant thought he had a gun, although appellant did not see one. Appellant did not clarify whether this man was Gallardo. The man chased appellant, did not catch him, and returned to the car. The car drove by appellant and the man said, "[D]on't worry, she'll be back." This was the last he saw of Jaloma and the men.
Later on January 24, a detective interviewed appellant at the police station. Appellant told a similar story about Jaloma leaving in a car with gangsters, including Gallardo. He added that Jaloma gave him oral sex at her house before she walked him home. He also said that as he was running away he heard Jaloma scream. He was shown photographs and he identified Gallardo in one picture as one of the men. He identified other men as well.
On the following day, January 25, police re-interviewed appellant. His mother had called the police and brought appellant to the station. Appellant carried a bible and said it was wrong for him to "lie to negate [him]self from the situation." He said Gallardo was not there and was just Jaloma's ex-boyfriend, and that none of the men he had identified were suspects. He had actually never seen the men before and could not identify them. He had seen a picture of Gallardo in Jaloma's room. He said the three men who pulled up in the car were looking for Jaloma and she owed them money. They called her a bitch and when appellant tried to defend her honor, the man in the front passenger seat waived a gun at him. The men got out, one with the gun and two with knives. They walked Jaloma and appellant into the park, made Jaloma lie down and made appellant choke her. They made appellant pull down her pants, unzip his own, and get on top of her. He was not aroused and did not penetrate her. He pretended to have sex with her. One man took the dumbbell out of appellant's pocket and hit Jaloma in the head and put his foot on Jaloma's throat, choking her. Appellant ran away. Appellant said he did not kill Jaloma and he thought she was not dead when he left.
On January 26, police made a walk-through video with appellant at the scene. He was questioned again at the station afterward. The detective confronted appellant about the inconsistency and implausibility of his statements. He accused appellant of killing Jaloma, which appellant denied. The detective said that Gallardo would never have told a Black man to have sex with his ex-girlfriend, and appellant replied, "That's exactly what happened."
On February 6, appellant's mother brought him to the station again and he was questioned for six to seven hours. He gave several different accounts of Jaloma's death, including one in which Gallardo was one of the men who forced appellant at gunpoint to choke Jaloma, and to pull down her pants. He said that they also made him stab her and slit her throat. Later, he said there were no other men and that he had his own knife. Then he said he was there with Jaloma and one of Jaloma's friends, who cut her throat. He also said that he slit Jaloma's throat when she attacked him with a knife and told him she did not like Black men.
Appellant then spoke to his mother and the conversation was recorded. He told her that he killed Jaloma in self-defense after she attacked him with a knife. He told his mother that no one else was involved, and that he made the story up about gangsters. He said that when he stabbed Jaloma the knife broke and he threw the handle into the woods. Finally, he told a police detective that Jaloma attacked him with a knife and there had been one male and one female person with them.
The trial court granted a prosecution motion to exclude evidence of third party culpability. Appellant sought to present evidence that Gallardo had a motive and opportunity to kill Jaloma. The court excluded the evidence on the ground that the proffered evidence was minimally probative on the issue of motive and there was no evidence linking Gallardo to the actual perpetration of the crime. The ruling was without prejudice to reconsideration should the defense offer evidence that could link Gallardo to the crime. After 15 days of trial, the jury deliberated for two hours and returned a verdict of guilty as charged.
DISCUSSION
Exclusion of Evidence of Third Party Culpability
Appellant contends that exclusion of the evidence of Gallardo's' motive and opportunity to kill the victim was prejudicial error. We disagree.
Third-party culpability evidence, like any other evidence, is admissible if it is relevant (Evid. Code, § 350), unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion (Evid. Code, § 352). (People v. Hall (1986) 41 Cal.3d 826, 833-834.) The standard for its introduction is not high, but evidence of a third party's motive or opportunity to commit the crime will not be admitted without some "direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Id. at pp. 833.) The evidence linking the third party to perpetration of the crime need not be substantial proof of a probability that a third party committed the crime; it "need only be capable of raising a reasonable doubt of defendant's guilt." (Ibid.) On the other hand, the court is not required to admit remote evidence. (Id. at p. 834.) Application of the ordinary rules of evidence, including section 352, "does not impermissibly infringe on the accused's constitutional right to present a defense." (Ibid.) We review the trial court's decision to exclude evidence of third-party culpability for abuse of discretion. (Id. at pp. 834-835.)
To prove Gallardo's motive, the defense offered evidence that Jaloma told people that Gallardo hit Jaloma when he was her boyfriend, that Gallardo had a criminal history that included assaults, that Gallardo knew Jaloma aborted his child at some time in the past, that Gallardo called Jaloma's house after they broke up to find out if she was out with other men, that she had an angry telephone conversation with Gallardo on the day she was killed, that the day after she was killed Gallardo called her house, and that inconclusive DNA taken from under Jaloma's fingernails was from a male other than appellant. The defense also offered evidence to prove Gallardo had an opportunity to kill Jaloma by showing that he knew where Jaloma lived and did not have an ironclad alibi. To link Gallardo with the actual perpetration of the murder, defense counsel offered only the DNA. Counsel said, "Well, I can't say we don't have anything specific again because we are missing a complete profile on the DNA." On appeal, he argues that his own eyewitness account of Gallardo's involvement linked Gallardo to the crime.
The trial court did not abuse its discretion when it refused to admit the proffered evidence. Defense counsel conceded that there was no evidence that Gallardo threatened Jaloma. He did not offer any evidence that Gallardo had been angry about the abortion. The prosecution represented to the trial court that no evidence of any kind had linked Gallardo to the murder, and that three alleles of DNA found on Jaloma's hand were insufficient to run any profiles. The abusive prior relationship, if proven, was remote, and the angry telephone conversation had minimal probative value on the issue of motive. The only evidence to link Gallardo to the crime was partial DNA evidence that did not implicate him or anyone else, and one of appellant's many self-serving and contradictory accounts of the crime, in which Gallardo was present but did not kill Jaloma. Appellant has not met his burden of establishing that the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Evidence of Attempted Rape
Appellant contends there was insufficient evidence that he attempted to rape Jaloma to support conviction of first degree murder in the course of attempted rape (§§ 187, 189) or to support the special circumstance finding (§ 190.2, subd. (a)(17)(C).) We disagree.
We review the evidence in the light most favorable to the judgment and determine whether substantial evidence supports the conclusion of the trier of fact that the prosecution sustained its burden of proving each element of the crime charged (People v. Rayford (1994) 9 Cal.4th 1, 23), or the special circumstance alleged. (People v. Cain (1995) 10 Cal.4th 1, 38.)
Attempted forcible rape requires proof that the defendant formed the specific intent to commit the crime of forcible rape and performed a direct but ineffectual act, beyond mere preparation, leading toward the commission of a rape. (People v. Rundle (2008) 43 Cal.4th 76, 138 [disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390].) Specific intent to forcibly rape is specific intent to engage in an act of sexual intercourse against the will of the victim by means of force or violence. (§ 261, subd. (a)(2).)
Intent to rape may be inferred from all the surrounding facts and circumstances. (People v. Guerra (2006) 37 Cal.4th 1067, 1130.) Evidence that the victim suffered a sexual assault is not essential to proof of attempted rape. (People v. Holloway (2004) 33 Cal.4th 96, 138-139.) Evidence that the victim's body was unclothed is not alone sufficient to prove attempted rape, but it is a relevant circumstance to be considered. (People v. Rundle, supra, 43 Cal.4th at p. 139.) In this case, as in Rundle, intent to rape can be inferred from the circumstances. In Rundle, evidence was sufficient to support a special circumstance finding of attempted rape where the victim was found naked with her arms bound, the incident occurred in a secluded area where rape might readily be attempted, the defendant had met the victim the same day, he was much larger than she was, and the victim had told her boyfriend that she would not have sex with him because she was menstruating. Here, appellant was found with Jaloma's body in a wooded area of a park. Her bra had been lifted to expose her breasts, her pants had been pulled down, and her panties had been shredded. He had attempted to restore her clothing by pulling up her pants and re-buttoning her shirt.
In one account, appellant said that Jaloma had performed oral sex on him previously, and there was testimony that she may have flirted with him and sat on his lap. He argues this tends to prove that she would likely have consented to sex with him. But the fact that he bludgeoned her, slit her throat, and cut her multiple times with a knife has a tendency in reason to prove that she did not consent to his advances. Moreover, appellant admitted to police that he pulled down Jaloma's pants, tore her underware and unzipped his own zipper, but could not penetrate her because he was not aroused. The jury was not required to believe his claim that he did so unwillingly at gunpoint. We do not reweigh the credibility of defendant's contradictory versions of the events; we address only those statements that the jury could have found credible and reasonably indicative of his guilt. (People v. Rundle, supra, 43 Cal.4th 76, 139-140, fn. 30.) Viewed in the light most favorable to the judgment, substantial evidence supports the conclusion of the trier of fact that appellant attempted to rape Jaloma.
Parole Revocation Fine
Appellant argues and respondent concedes that the parole revocation fine must be stricken. A parole revocation fine under section 1202.45 does not apply where the defendant is sentenced to life without the possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181-1186.)
DISPOSITION
The $5,000 parole revocation fine is stricken. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.