Opinion
D076441
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. SERGIO CHAVEZ, Defendant and Appellant.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD272663) APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In July of 2017, defendant Sergio Chavez was living in a homeless camp just off San Diego Mission Road in San Diego. While living in the camp, he befriended victim Jose Hernandez, another occupant of the camp. Everyone at the camp generally had their own areas within the camp. Although close friends, defendant and Hernandez sometimes argued.
On July 4, 2017, defendant borrowed a mirror from camp resident Sharon Downing in order to shave. Later that day, camp residents heard Hernandez yelling in Spanish near his camp area. Downing walked over to defendant's area and saw a wall of fire. She started looking for defendant and, at the same time, found someone to help put out the fire. When they returned to the area, they saw that Hernandez's tent was on fire. Downing and the man who came to help pulled Hernandez from the fire.
After pulling Hernandez out of the fire, Downing and the man saw defendant standing nearby holding a wooden stool. Defendant appeared to be simply watching as Hernandez burned. Downing asked defendant why he was not helping rescue Hernandez. Defendant looked at her with a blank stare.
When the police arrived, they found a wood pallet on top of the burned campsite. They also found a tarp with liquid on it that appeared to be blood; a can of body spray; a pair of bloody scissors; a rock with blood on it; a backpack; and a barstool.
Officer Douglas Flores detained defendant at the scene. While the officer was completing some paperwork, defendant began speaking in soft tones. The officer asked defendant what he was saying. In response, defendant stated he had set Hernandez on fire. At that point the officer activated his body-worn camera and recorded his interaction with defendant.
While he was in a patrol car, defendant volunteered he set Hernandez on fire because Hernandez tortured him psychologically, gave him methamphetamine, and said he had killed defendant's mother.
Hernandez underwent two surgeries for severe burns to his head, left hand, and legs. Approximately 14 percent of Hernandez's skin was excised from Hernandez's body in the first surgery, and in the second surgery some skin had to be re-excised. He died while in the hospital and an autopsy was conducted the next day.
DNA testing on the rock found at the campsite contained a mixture of DNA consistent with both defendant and Hernandez. A sweatshirt defendant was wearing at the time of his arrest contained blood matching Hernandez's DNA.
The San Diego District Attorney charged defendant with one count of felony murder in violation of Penal Code sections 187, subdivision (a) and 189. It was further alleged as a special circumstance that the murder occurred while defendant was engaged in the commission of the crime of arson within the meaning of section 190.2, subdivision (a)(17)(H) [arson in violation of subdivision (b) of section 451].
Unless otherwise noted, all further statutory references are to the Penal Code.
A jury found defendant guilty of first degree felony murder and found true the special circumstances allegation. Defendant was sentenced to a term of life in prison without the possibility of parole.
Defendant filed a timely notice of appeal.
ANALYSIS
Defendant's counsel on appeal has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 (Anders). He concludes there are no arguable issues on appeal and asks this court to independently review the entire record to determine if arguable issues do exist.
As part of our review, and solely in order to assist the court in this endeavor, defense counsel, pursuant to Anders, asks we focus on the following:
1) the court's refusal to instruct the jury on either second degree implied malice murder, or voluntary manslaughter;
2) the court's instruction that the arson special circumstances allegation could be found true even if the defendant intended solely to commit murder and the arson was merely part of or incidental to commission of the murder;
3) the court's modification of CALCRIM No. 732, which defines the elements of arson special circumstances to include an inhabited property in addition to inhabited structure; and
4) the court's failure to instruct sua sponte on arson of property in violation of section 451, subdivision (d), as a lesser-included offense of the predicate felony of arson of an inhabited property in violation of section 451, subdivision (b). (See People v. Silva (2001) 25 Cal.4th 345, 371 [finding that, "[a]lthough a trial court on its own initiative must instruct the jury on lesser included offenses of charged offenses, this duty does not extend to uncharged offenses relevant only as predicate offenses under the felony-murder doctrine"].)
We have concluded an independent review of the record, including counsel's concerns under the Anders matter he raises, and we find there are no reasonably arguable issues.
Defendant has been offered the opportunity to file a brief on his own behalf and he has not done so.
Defendant has been competently represented by counsel in this appeal.
DISPOSITION
Judgment affirmed.
BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J.