Opinion
B225476
09-09-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS CAJERO, Defendant and Appellant.
Corona & Peabody and Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Robert C. Schneider, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA064975)
APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Corona & Peabody and Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Jose Luis Cajero guilty of the willful, deliberate, and premeditated attempted murder of Jose "Chepa" Deanda (Pen. Code, §§ 664, subd. (a), 187, subd. (a)). The jury also found true allegations that defendant personally inflicted great bodily injury upon Deanda (§ 12022.7, subd. (a)) and personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)). The jury additionally convicted defendant of possession for sale of a controlled substance (Health & Saf. Code, § 11378). The trial court sentenced defendant to life imprisonment for the attempted murder, plus three years for the great bodily injury enhancement and one year for the weapon-use enhancement. It also imposed 16 months for the narcotics offense.
All further statutory citations are to the Penal Code, unless stated otherwise.
In his timely appeal, defendant contends (1) there was constitutionally insufficient evidence to support the jury's special finding of premeditation and deliberation under section 664, and (2) the trial court abused its discretion in refusing defendant's request to discharge retained counsel at the time of sentencing. We affirm.
STATEMENT OF FACTS
Deanda had been acquainted with the Cajero family for his entire life. They lived in the same neighborhood. He was friends with defendant's father Pedro Cajero (Mr. Cajero), brother Miguel Angel Cajero (Angel), and uncle Juan Cajero. In the 1980's, Deanda would "cruise Laurel Canyon" with defendant. Deanda had been in fights with defendant and Angel, but had always acted in self-defense. Approximately 17 years before the stabbing incident, Deanda fought with defendant, when defendant and defendant's brother-in-law "jumped" him. Deanda and defendant had "a lot of problems" with each other back then.
According to Deanda, on July 3, 2009, he arrived at the Cajero's San Fernando residence in the late afternoon or early evening to visit Mr. Cajero. Defendant lived at that residence with his parents. Deanda drove Mr. Cajero to the store for "something to drink." At approximately 5:00 p.m., when defendant arrived at the residence in his white Toyota 4Runner, Deanda and Mr. Cajero were conversing in the front yard under a tree. Mr. Cajero and defendant began to argue. Defendant mocked his father. Mr. Cajero was afraid of defendant and asked Deanda to call the police. Deanda called Angel instead. Defendant angrily kicked a bird cage, causing a parrot to fly away, before driving away himself. Deanda stayed at the Cajero residence, socializing with Mr. Cajero. Deanda began drinking beers after sundown; he had two 24-ounce cans of beer that night and felt "buzzed."
Defendant returned sometime after 11:00 p.m. Deanda was sitting in the front yard by the tree. Defendant came up from behind and said he "was going to kill" Deanda. Deanda did not remember fighting defendant but did remember defendant had a small knife with a two- and one-half-inch blade, which defendant used to "repeatedly stab[]" him while Deanda was face down on the ground. Deanda was not armed.
Officer Walter Dominguez responded to the Cajero residence at approximately 11:30 p.m. Within five minutes, he and the other officers had identified and detained defendant and secured the scene. Deanda was lying on the ground in the front yard. He was covered in blood, lapsing in and out of consciousness, and laboring to breathe. Officer Dominguez saw defendant, sitting with his back against the house's outer wall. Deanda smelled of alcohol. A search of the area failed to uncover the knife used to stab Deanda. Defendant was covered in blood and his left eye was swollen shut.
Deanda received 25 stab wounds. He was stabbed in his chest (which punctured a lung), head, face, eyebrow, earlobe, cheek, stomach, foot, calf, leg, arm, and groin area. Deanda underwent five surgeries to repair the wounds. The deepest wound went four inches into the deltoid muscle at the shoulder. Two wounds to the left chest were very close to the heart. His left arm had not recovered, and he might suffer permanent disability.
Defendant's mother, Teresa Cajero, testified that Deanda typically visited Mr. Cajero twice a week. They would stay out front and drink beer. On the night of the stabbing, Deanda yelled curses at defendant when defendant returned and crossed the street to enter the house, but defendant never went inside. Mrs. Cajero repeatedly yelled at Deanda to leave. In a version of events different from that she gave to police after the incident, Mrs. Cajero testified at trial that Deanda pushed her away and struck defendant's left eye with a rock. Defendant fought back to defend himself.
When interviewed at the scene just after the incident, Mrs. Cajero told Officer Saul Esquivel that Deanda was a good friend of her husband and son Angel. That night, defendant and Deanda got into an argument in the front yard. Defendant went inside the house, while Deanda continued to yell obscenities at her son. Once inside, defendant "got really hot-headed, came back out to the front lawn," and immediately began striking Deanda, knocking him to the ground. Defendant "continue[d] hitting the victim endlessly." She ran to them and tried to pull defendant off, but her son was too heavy to move. The officer did not see a rock anywhere near the scene.
A knife was found stuck in the tree in the front yard, but Deanda testified that it was not the weapon used in the attack. Another officer searched for "any sort of cutting tool" at the scene, but found none. He did not notice any rocks, but saw a broken beer bottle.
A neighbor, Nancy Munoz, was outside on the sidewalk at approximately 11:30 p.m. She heard bottles breaking and a girl scream, "Get off my dad." She saw the two men wrestling on the ground and a woman admonishing them to stop. One man had pinned the other to the ground. Munoz's boyfriend, Florentino Lomeli, tried to separate them. Lomeli heard one of them say, "Get him off me, he's stabbing me."
Defendant's 10-year-old daughter testified that she was at the Cajero residence all day. She was sitting on the couch at approximately 11:30 that night, when her father arrived and gave her two Slurpees. Some 10 seconds later, defendant said he was "going to go and do something and he will be right back." She heard her father argue with Mr. Cajero while inside the front door, before both of them went outside into the front yard. Almost immediately, she heard glass break and her father and Mr. Cajero argue loudly. Defendant yelled, "Mama, Mama," which was the name he used for her, so she ran outside, where she saw her father "on top of a guy" on the ground. The victim was on his back, trying to get away. She yelled out, "Get off my dad," but meant to say, "Get off, dad." The daughter testified that her father carries a pocket knife with him, which he showed to her approximately one month before the incident. She estimated the length of the blade was four inches. Sometime after the incident, her father told her that he "won" the "fight."
On the afternoon after the incident, defendant waived his Miranda rights and agreed to be questioned by the police. The interview was recorded and the audiotape was played to the jury. Defendant related a version of the events in which he arrived at the house at approximately11:45 p.m., intending to deliver Slurpees to his daughter, but never made it into the house. Deanda and others insulted and threatened to kill him, threw a bottle at him, hit him from behind, and attacked him. Defendant defended himself and never used a blade or knife. Defendant's father presented corroborative testimony.
Miranda v. Arizona (1966) 384 U.S. 436.
Officer Robert Gallegos responded to the scene. He searched defendant's vehicle parked in front of the house and found a can of Tire Shine. Officer Travis Coyle testified that the Tire Shine can was a "hide-a-can," with a hidden compartment. It was stipulated the substances found in the can weighed 13.45 grams and contained methamphetamine. The officer opined that it was packaged for the purpose of sales.
Defense
Arturo Borroel, defendant's cousin, testified that 15 years ago he was sitting outside with Angel when Deanda approached them and began punching Borroel.
Defendant's 17-year-old cousin Miguel Cajero was present at the incident. He saw "some guy" cursing defendant, who responded by telling the person to leave. The person, however, attacked defendant, threw him to the ground, and got on top of him. The assailant appeared to have something in his hand. Miguel Cajero went inside the house when the fight began.
In rebuttal, an officer testified that he interviewed Miguel Cajero at the scene, who stated he was present during the entire fight and tried to separate defendant and Deanda. He did not say that Deanda initiated the fight by rushing at defendant or that defendant had something in his hand.
Victor Lomeli visited the Cajero's front yard that night. Deanda was drinking beer. Deanda was rude and verbally abusive, appeared to be intoxicated, and almost started a fight with Lomeli. Eventually, Lomeli walked up the street to the corner, only to be called back a few minutes later because of the altercation between defendant and Deanda.
DISCUSSION
Sufficiency of Evidence
Defendant contends there was constitutionally insufficient evidence to support the jury's special finding of premeditation and deliberation under section 664. The contention fails because the evidence supported a reasonable inference that the stabbing resulted from defendant's preexisting reflection and planning, rather than from an unconsidered or rash impulse.
"California law does not define attempted murder in terms of degrees. Rather, section 664, subdivision (a) provides that the punishment for attempted murder can be increased from the prescribed maximum determinate term to a life sentence when it is pleaded and proved that the murder attempted was willful, deliberate, and premeditated. (People v. Lee (2003) 31 Cal.4th 613, 616; People v. Bright (1996) 12 Cal.4th 652, 655-657.)" (People v. Arias (2010) 182 Cal.App.4th 1009, 1011, fn. 2.) There are three common categories of evidence bearing on the existence of the premeditation and deliberation in the context of murder—planning activity, motive, and the manner of killing. (People v. Perez (1992) 2 Cal.4th 1117, 1125; People v. Anderson (1968) 70 Cal.2d 15, 25-27.) These "factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive." (People v. Perez, supra, at p. 1125.) In assessing the sufficiency of the evidence as to the element of premeditation and deliberation, "'[t]he 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, but the express requirement for a concurrence of deliberation and premeditation excludes . . . those homicides . . . which are the result of mere unconsidered or rash impulse hastily executed.' [Citations.]" (People v. Velasquez (1980) 26 Cal.3d 425, 435, vacated and remanded on other grounds in California v. Velasquez (1980) 448 U.S. 903; People v. Hughes (2002) 27 Cal.4th 287, 370-371.)
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.)" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Here, the manner of the attempted killing, along with the attendant circumstances, provides strong evidence of premeditation and deliberation. The jury was entitled to believe Mrs. Cajero's statements to the police that after arguing with Deanda, defendant went inside the house. Having time to reflect upon his conduct, defendant "got really hot-headed, came back out to the front lawn," and immediately began striking Deanda, knocking him to the ground, "hitting the victim endlessly." That testimony was corroborated by defendant's daughter, who also provided evidence that defendant carried a pocket knife, consistent with the weapon used to stab Deanda. The daughter recalled that defendant came inside the house, told her he was going to "do something," and argued with his father before leaving the house. Thus, the testimony from defendant's mother and daughter supported the inference that defendant reflected upon his options before leaving the house with a knife to attack the unarmed Deanda.
In addition to that evidence of reflection and planning, there was ample testimony in support of a motive to kill: Deanda had fought with defendant in the past and in the minutes before the stabbing, Deanda had been yelling obscenities at defendant and taunting him. Moreover, Deanda recalled that just before the attack, he heard defendant say he "was going to kill" Deanda. The fact that defendant stabbed defendant approximately 25 times, inflicting wounds on Deanda's head and chest—close to the heart—militates against an unconsidered or rashly impulsive action, but rather provides strong evidence of premeditation and deliberation.
This case is closely analogous to People v. Manriquez (2005) 37 Cal.4th 547, 577, in which our Supreme Court found ample evidence to support the inference of preexisting reflection, rather than an unconsidered or rash impulse, where the victim was shot repeatedly several minutes after a verbal altercation with defendant. (See also People v. Morris (1988) 46 Cal.3d 1, 22-23 [the defendant's possession of a loaded gun in advance of the killing and rapid getaway are evidence of planning activity]; People v. Pride (1992) 3 Cal.4th 195, 247 [circumstances and manner of killing supported two plausible motives for murder]; People v. Koontz (2002) 27 Cal.4th 1041, 1082 [evidence that the defendant fired a shot at a vital area of the victim's body represented "a manner of killing indicative of a deliberate intent to kill"].)
Defendant argues that Deanda's testimony as to defendant's verbal threat to kill preceding the attack cannot be credited because the victim could not recall the fight itself and claimed to have been stabbed while lying face-down, despite having received most of his stab wounds on the front of his body. The inconsistencies in Deanda's testimony concerning the stabbing itself did not, however, render his testimony as to the events just seconds before physically impossible. Accordingly, the jury was entitled to decide which aspects of Deanda's testimony to believe. As in Manriquez, supra, 37 Cal.4th at page 578, we decline the invitation to reweigh the evidence.
Request to Discharge Retained Counsel
Defendant contends the trial court abused its discretion in refusing defendant's request to discharge retained counsel at the time of sentencing. In essence, defendant argues the trial court failed to apply the correct legal standard, effectively applying the Marsden standard for discharge of appointed counsel, instead of the more liberal standard applicable to the discharge of retained counsel. Our review of the record reveals the trial court applied the correct legal standard, reasonably found the request to discharge counsel was untimely, and acted within its legitimate discretion in denying the request.
People v. Marsden (1970) 2 Cal.3d 118.
--------
A defendant is entitled to discharge appointed counsel and substitute another attorney upon making a clear showing that the first appointed attorney is providing inadequate representation or the existence of an irreconcilable conflict between the defendant and appointed counsel such that ineffective representation is likely to result. (People v. Barnett (1998) 17 Cal.4th 1044, 1085, citing People v. Memro (1995) 11 Cal.4th 786, 857.) In contrast, a defendant "may discharge retained counsel for any reason. (People v. Ortiz [(1990) 51 Cal.3d 975,] 984.)" (People v. Keshishian (2008) 162 Cal.App.4th 425, 428 (Keshishian).)
"The right to discharge retained counsel is not, however, absolute. The trial court may deny a request to discharge retained counsel 'if discharge will result in "significant prejudice" to the defendant [citation], or if it is not timely, i.e., if it will result in "disruption of the orderly processes of justice" [citations].' [Citations.] '[T]he "fair opportunity" to secure counsel of choice provided by the Sixth Amendment "is necessarily [limited by] the countervailing state interest against which the sixth amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of 'assembling the witnesses, lawyers, and jurors at the same place at the same time.'"' [Citations.]" (Keshishian, supra, 162 Cal.App.4th at p. 428.)
Here, defendant did not broach the matter of discharging counsel until the sentencing hearing on May 5, 2010, when he stated that he had "a conflict of interest." Sentencing had been continued from the original date of March 30, 2010. The trial court conducted a hearing outside the prosecutor's presence to determine the nature of defendant's request. In so doing, the court stated its awareness that counsel was retained. The sealed transcript of that colloquy shows that defendant requested the court to conduct a Marsden hearing based on his "conflict of interest" with retained counsel. The court explained that such a hearing did not apply where counsel was retained. Rather, the right to discharge retained counsel was subject to the standard under Keshishian, supra, 162 Cal.App.4th 425, which recognized that the right to discharge was not absolute and may be denied if it is untimely. Defendant explained initially that he wanted to proceed with sentencing in propria persona. When pressed, however, defendant said he no longer wanted trial counsel to represent him. The court gave defendant the opportunity to explain his position. Defendant expressed disagreement with various tactical decisions by trial counsel, adding that he believed counsel neglected his case and was "in a very, very big hurry just to send me off to prison." Despite being a "wonderful person," trial counsel did a "very, very bad job."
The trial court expressed its familiarity with the Keshishian standard, noting that a request to discharge retained counsel may be denied if it is untimely and would disrupt the orderly process of justice, and that the court must balance the defendant's interest in new counsel against the disruption resulting from a substitution.
Trial counsel was permitted to respond to defendant's charge that counsel refused to permit his client to testify. Counsel explained that he informed defendant of his right to testify, but advised strongly against it in light of his client's anticipated testimony and the prosecution evidence, along with the nature of the statement defendant had given to the police. Defendant made the ultimate decision not to testify. Defendant disputed his lawyer's account and voiced his desire for a retrial. Defendant listed a host of tactical blunders he believed his counsel made and asserted various evidentiary approaches— most especially, the presentation of his own trial testimony—that he was convinced would have been more effective.
The trial court noted that defendant's request was "somewhat untimely." It found counsel to be credible on the issue of whether defendant was prevented from testifying on his own behalf and found that defendant's "conflicts" with counsel amounted to differences on trial tactics. The court, again emphasizing that trial counsel was retained, denied defendant's motion to remove him. It alternatively found that defendant had not moved to represent himself—but, in any event, defendant had not made a sufficient showing on that ground.
The trial court reasonably found defendant's request untimely, having been made at the time of the continued sentencing hearing. (See Keshishian, supra, 162 Cal.App.4th at p. 429 [request to discharge retained counsel made on day set for trial properly ruled untimely]; People v. Turner (1992) 7 Cal.App.4th 913, 919, fns. omitted ["Here defendant sought to replace his attorney on the day of trial. This meant that the request could not be granted without causing a significant disruption, i.e., a continuance with the attendant further inconvenience to witnesses and other participants."]; People v. Lau (1986) 177 Cal.App.3d 473, 479 [finding request untimely when "made literally the moment jury selection was to begin"]; see also People v. Hernandez (2006) 139 Cal.App.4th 101, 109 [request to discharge retained counsel properly denied, having been "made almost immediately before jury selection was to begin in a two-defendant case"].) We cannot accept defendant's suggestion that the court's lack of timeliness finding was tentative or ambiguous, based on its use of the qualifier "somewhat." In light of the court's obvious familiarity with the correct legal standard, we are confident the court was merely employing understatement.
Nevertheless, defendant argues the trial court, despite its statements to the contrary, implicitly applied the Marsden standard in rejecting defendant's request because the court failed to question defendant directly on the delay granting the discharge request would entail. We disagree. The court was careful to adduce from defendant the nature of his dissatisfaction with retained counsel and the remedy defendant sought. At no time did defendant suggest he had retained, or even sought to retain, new counsel.
The trial court's approach differed in no material manner from that found correct in Keshishian. There, "[a]ppellant asked for and was given an opportunity to address the court concerning his desire to discharge counsel and his reasons for doing so. He stated only that he had 'lost confidence' in his attorneys. This request was made on the day set for trial after the case had been pending for two and a half years. An indefinite continuance would have been necessary, as appellant had neither identified nor retained new counsel." (Keshishian, supra, 162 Cal.App.4th at p. 429.) Here, the trial court determined that defendant's differences with retained counsel were based exclusively on defendant's complaints as to trial tactics. Nothing in defendant's explanation pointed to a justification for the obvious delay in making the request or any significant concern regarding counsel's representation at sentencing. On the other hand, just as in Keshishian, granting defendant's belated request would necessarily have entailed the granting of a substantial continuance for defendant to obtain new counsel and for counsel to review the trial and sentencing records.
In sum, there was no abuse of discretion in the trial court's implicit finding that granting the request to discharge retained counsel would disrupt the orderly processes of justice and contravene the state's legitimate "'"interest in proceeding with prosecutions on an orderly and expeditious basis . . . ."" [Citations.]" (Keshishian, supra, 162 Cal.App.4th at p. 428.)
DISPOSITION
The judgment is affirmed.
KRIEGLER, J. We concur:
TURNER, P. J.
MOSK, J.