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People v. Espinoza

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Apr 24, 2018
G054569 (Cal. Ct. App. Apr. 24, 2018)

Opinion

G054569

04-24-2018

THE PEOPLE, Plaintiff and Respondent, v. AGUSTIN AMARAZ ESPINOZA, Defendant and Appellant.

Mark L Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Christine Y. Friedman, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10CF2088) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Mark L Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant Agustin Amaraz Espinoza killed his wife by hitting her on the back of her head with a tripod as she was lying asleep in her bed. In a second trial, a jury convicted defendant of first degree murder (we had reversed defendant's earlier conviction based on an instructional error). In this appeal, defendant argues that the trial court improperly excluded evidence of his wife's blood-alcohol concentration (BAC) at the time of her death. We find that the trial court did not abuse its discretion in excluding the evidence. Further, even if we were to assume error, we would find it to be harmless.

Thus, we affirm the judgment.

I

FACTS AND PROCEDURAL BACKGROUND

In July 2008, defendant's employer of 20 years relocated out of state. Defendant was paid severance, cashed out his retirement benefits, and received unemployment compensation. Defendant became depressed, started drinking more, and had a gambling problem. In the following two years, defendant could not find a job and the money ran out.

In July 2010, defendant's wife of 37 years, Marisela, argued with defendant about the finances. Marisela also discovered multiple text messages on defendant's cell phone from other women. Marisela began sleeping in a spare bedroom, while defendant stayed in the master bedroom. Marisela gave defendant two weeks to move out, which would have ended on or about July 28.

The Discovery of Marisela's Body and the Investigation

On July 28, Marisela's coworkers became concerned when she did not show up for work at 7:00 a.m., and did not call; Marisela was ordinarily punctual and responsible. Marisela's coworkers repeatedly called her home phone and her cell phone, but they could not reach her.

On July 29, Marisela's supervisor called the police. When officers arrived at Marisela's home to conduct a welfare check, they pulled back a window screen and saw Marisela's dead body lying face down on a bed. Marisela had sustained multiple fractures to the back of her head. The amount of force was significant; Marisela's skull was falling apart and brain matter was protruding through some of the injuries. There were no defensive wounds. On a wall near the bed there was blood splatter that went over six feet high. An expert opined that the person causing the injuries would have had blood all over his or her clothing. Trace amounts of blood were detected on a washing machine. A soap pump container and bar of soap were found in a trash can.

On July 29, border patrol agents detained defendant at the international border crossing in Otay Mesa. Defendant was stopped in his vehicle as it was entering the United States. Police searched the vehicle and found divorce documents. Police also found latex gloves, which contained a mixture of defendant's and Marisela's DNA.

Cell phone records disclosed that starting at 7:39 a.m., on July 28, and ending at 1:00 p.m., on July 29, Marisela's cell phone was used multiple times to check on her voicemail. During this time, Marisela's phone and defendant's phone were in the same location, which included various areas of Orange County and the Inland Empire.

Financial records disclosed defendant used his own debit card on July 28 at 5:57 a.m., at an ATM located three miles away from his home in Santa Ana. Defendant attempted to withdraw money from a joint account with Marisela, but the transaction was declined. At 10:04 a.m., defendant used Marisela's debit card at an ATM located in San Bernardino and again was unsuccessful in withdrawing money from their joint account. Defendant then used another debit card belonging to Marisela. This time, defendant was able to withdraw $100 from a joint account belonging to Marisela and her mother. Photographs were taken at both ATM locations; defendant was wearing two different shirts.

Court Proceedings

After defendant testified on his own behalf, a jury convicted him of first degree murder in a trial presided over by the Honorable Judge John Conley. This court later reversed the judgment based on an erroneous jury instruction (case No. G048522). At a second jury trial, again presided over by Judge Conley, the prosecution introduced and read into evidence defendant's testimony from the first trial.

Defendant testified that on July 28, at about 12:30 a.m., he had been drinking heavily and got into an argument with Marisela. Defendant said that Marisela was "a little bit tipsy" and smelled like alcohol. Defendant testified that they argued for 30 minutes in the master bedroom; Marisela reiterated that he needed to move out of the house, then she left the room and slammed the door. Defendant said that he waited about 10 minutes, then went into the room where Marisela was sleeping. Defendant testified that he was "a little bit" angry—"not much"—about a six on a scale from one to 10.

Defendant said that Marisela "was sleeping on the mattress. And I opened the door on the right side of the mattress was a tripod like for my camera. I got the tripod and hit her in the head." Defendant testified that after he hit Marisela, "everything went black completely." Defendant said that once he saw blood on his hands, he got scared and realized something had happened.

Defendant testified that he got a couple of trash bags and put his clothes and the tripod inside. Defendant said that on his way out of the house he grabbed Marisela's purse, debit card, and cell phone; however, defendant said that he did not kill Marisela so he could take her purse or get her money. Defendant testified that he thought he was unable to get money at the ATM because Marisela had done something to block their joint account. Defendant testified that he eventually went to Mexico where he threw away the trash bag containing his clothes, the tripod, and Marisela's purse.

The jury found defendant guilty of first degree murder. The trial court imposed a sentence of 25 years to life.

II

DISCUSSION

The trial court instructed the jury on three possible theories of first degree murder: 1) premeditation and deliberation; 2) lying in wait; and 3) felony murder (robbery). The jurors were instructed that they did not have to agree on a particular theory. As to the felony murder theory, the prosecution argued that defendant robbed and killed Marisela on the morning of July 28, sometime after 5:57 a.m., after he was unable to get money from the ATM near the couple's home.

Defendant does not challenge any of the trial court's jury instructions in this second appeal. Defendant's sole contention is the trial court abused its discretion and improperly excluded evidence regarding Marisela's BAC of .05 percent. A. The trial court did not abuse its discretion.

"'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless . . . the error . . . complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means . . . ." (§ 354.)

Further undesignated statutory references are to the Evidence Code.

A trial court is accorded broad discretion in determining the relevance of evidence. (People v. Jones (2011) 51 Cal.4th 346, 373.) Ordinarily, we review a trial court's discretionary rulings based on the facts made "known to the trial court at the time of the ruling." (People v. Box (2000) 23 Cal.4th 1153, 1195.) A trial court's exercise of discretion will be upheld on appeal unless it is shown "that the court exercised its discretion in an arbitrary, capricious or patently absurd manner." (People v. Williams (2008) 43 Cal.4th 584, 634-635; People v. Stewart (1985) 171 Cal.App.3d 59, 65 ["discretion is abused only if the court exceeds the bounds of reason"].)

"Where . . . a proponent of evidence does not assert a particular ground of admissibility below, he or she is precluded from arguing on appeal that the evidence was admissible under a particular theory." (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282.)

Here, during motions in limine, defendant's counsel sought to present evidence that Marisela had a BAC of .05 percent, which counsel intended to introduce through the testimony of the prosecution's autopsy witness. When asked to explain the relevance of the murder victim's BAC evidence, counsel said, "I think that goes toward the potential manslaughter argument, heat of passion . . . . [Defendant] can testify to that. [¶] In addition to that, I believe . . . it also goes to the timing of her passing. [¶] I think that there will be testimony that when a person passes away, the body stops processing alcohol. And there's a question, I anticipate there will be a question as to when, in fact, she died or was killed."

When asked to respond, the prosecutor said, "Well, I'm opposed to it, your honor. There's nothing that I know of medically, unless counsel has an offer of proof as to where this is going to come from. There is nothing I know of medically that will correlate a 0.05 blood alcohol content and time of death. Nothing. [¶] Even if you assume for the sake of argument that the body stops processing alcohol at the time of death, it's not going to tell you when somebody died. It's not going to tell you how much somebody had to drink. . . . [¶] So the time-of-death argument is sort of ridiculous. And I don't know where that testimony could come from. But if there's a witness that [counsel] thinks he can elicit that testimony from as an expert, I'd like to hear it."

After hearing further argument regarding the proffered BAC evidence, the trial court said, "The court is going to exclude it but without prejudice. I'm not seeing its relevance, but it's possible." Counsel sought to clarify the ruling and asked if the ruling was being made on the basis of section 352. The court responded, "Yeah. I'm not sure that it proves anything. And you might run into jurors who would be . . . dead set against alcohol. And that's what my concern is. It might be, in some people's, a few people's minds, it might be prejudicial to the way they look at her. Plus, I don't think it proves very much."

Defendant arguably forfeited an appellate challenge to the trial court's tentative ruling because he did not revisit the issue or pursue it any further during the course of the trial. (See, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 984 [failure to press court for ruling forfeits the issue on appeal].) However, the Attorney General did not argue forfeiture; we are exercising our discretion to analyze defendant's claim of error.

"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) --------

Here, during the motions in limine, the trial court was very familiar with the facts of the case; the same judge had presided over defendant's earlier trial. Because Marisela's alcohol consumption was not relevant in the first trial, the court considered the proffered evidence and reasonably (and tentatively) determined that the evidence was not likely to be relevant in the second trial. As far as the heat of passion defense, defendant did not claim during his testimony that his wife's consumption of alcohol had any bearing on his actions or intent. Further, as far as setting the time of Marisela's death, defendant's counsel did not make an offer of proof in order to establish that the BAC evidence would have been relevant in the time-of-death determination.

In sum, the trial court appears to have carefully weighed the negligible probative value of the proffered BAC evidence against its possible prejudicial effect under section 352. The record does not support an argument that the court approached its task in an arbitrary or capricious fashion. Further, in our estimation, the court's ruling was not beyond the bounds of reason. Thus, we find no abuse of discretion.

Defendant argued in his opening brief that "the evidence of a .05% blood alcohol in [Marisela's] body clearly was relevant to her action in slamming the door and going to bed and sleep within ten minutes." In the brief, defendant cites to purported internet evidence (a URL) in support of an argument that alcohol has a sleep-inducing or "soporific" effect, but no such offer of proof or evidence was made known to the trial court at the time of its ruling. We decline to consider a theory of admissibility (and certainly not evidence) that was not presented to the trial court for its consideration. B. In any event, defendant was not prejudiced.

A conviction may not be reversed based on the erroneous exclusion of evidence unless the error resulted in a miscarriage of justice. (§ 354.) The erroneous exclusion of evidence is evaluated under the reasonable probability prejudice standard. (People v. Watson (1956) 46 Cal.2d 818, 836.) "Under this standard, if a trial court erroneously excludes evidence, a defendant must show on appeal that it is reasonably probable he or she would have received a more favorable result had that evidence been admitted." (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 750.)

Defendant contends that we must evaluate the alleged evidentiary error under the more rigorous prejudice standard for federal constitutional error. (Chapman v. California (1967) 386 U.S. 18, 24.) We disagree. But even if we were to adopt that standard—and assume that the trial court improperly excluded the BAC evidence—we would find the alleged evidentiary error to be harmless beyond a reasonable doubt.

Here, defendant testified that he killed Marisela after they both had been drinking. Defendant said that he was angry, but his anger was only at a level six, on a scale from one to 10. Defendant admitted that he went into the bedroom where Marisela was sleeping and hit her on the back of her head with a tripod as she lay asleep in her bed. Although he minimized his actions, the physical evidence disclosed that defendant killed Marisela in a particularly vicious assault. The evidence further disclosed that defendant took steps to clean up the incriminating evidence. Defendant also admitted that he disposed of his clothes, the murder weapon, and Marisela's personal belongings in Mexico. In short, the evidence of first degree murder was overwhelming.

Defendant argues that "the excluded evidence would have corroborated [his] previous testimony that he smelled alcohol on his wife's breath, would have explained her actions in slamming the door and departing before hearing him out, would have explained why she was asleep so rapidly, and it would have cast a different light on the context of [his] decision to enter his wife's room." Again, we disagree. We do not think that the evidence of the victim's BAC would have had any impact on the jury's evaluation of the facts.

While it may be the case that evidence of Marisela's BAC of .05 percent would have corroborated a small portion of defendant's testimony (that Marisela was "a little bit tipsy"), such evidence would have been duplicative of what the jury already had heard. Moreover, defendant's testimony from the first trial was the most incriminatory evidence introduced by the prosecution in the second trial, so we are not sure that any corroboration of defendant's testimony would have been helpful to his defense. But most importantly, we do not see how the absence of the BAC evidence would cause us to doubt the jury's finding of first degree murder under either one of the three theories or how the proffered evidence would have aided defendant's purported claim of voluntary manslaughter (heat of passion).

The trial court instructed the jury on premeditation and deliberation: "The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill." (CALCRIM No. 521.) Here, defendant either "carefully weighed" his decision to kill or he did not. We fail to see how Marisela's level of intoxication would have aided the jury in the resolution of that question to defendant's benefit, particularly given his testimony that he struck Marisela while she was asleep.

The trial court instructed the jury on lying in wait: "The defendant is also guilty of first degree murder if the People have proved that the defendant murdered while lying in wait or immediately thereafter. The defendant murdered by lying in wait if: [¶] 1. He concealed his purpose from the person killed; 2. He waited and watched for an opportunity to act; [¶] AND [¶] 3. Then, from a position of advantage, he intended to and did make a surprise attack on the person killed." (CALCRIM No. 521.) Here again, we fail to see how Marisela's level of intoxication would have affected the jury's resolution of this question to defendant's benefit. Indeed, arguably Marisela's alcohol consumption would have afforded defendant a greater position of advantage.

The trial court instructed the jury on felony murder: "To prove that the defendant is guilty of first degree murder under this theory, the People must prove that: [¶] 1. The defendant committed or attempted to commit robbery; [¶] 2. The defendant intended to commit robbery; [¶] AND [¶] 3. While committing or attempting to commit robbery, the defendant caused the death of another person. [¶] A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent." (CALCRIM No. 540A.) Here, defendant argues that the evidence of Marisela's BAC of .05 percent would have undermined the prosecution's purported timeline (that defendant killed Marisela for money on the morning of July 28, after he discovered that he could not access the couple's joint checking account). But there was no offer of proof that the .05 percent BAC evidence would have helped to establish the time of Marisela's death. Thus, the proffered evidence would not have aided the jury in its evaluation of the prosecution's purported timeline.

The trial court instructed the jury on voluntary manslaughter, heat of passion: "The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment." (CALCRIM No. 570.) Here, defendant did not testify that he was provoked to commit murder by Marisela's consumption of alcohol or that their argument was in any way affected by Marisela's consumption of alcohol. We fail to see how the BAC evidence—which merely would have corroborated defendant's testimony regarding Marisela's alcohol consumption—would have affected the jury's evaluation of whether defendant killed Marisela as a result of a sudden quarrel or heat of passion.

In sum, even if we were to assume that the trial court committed error by excluding evidence of Marisela's BAC of .05 percent, we would find beyond a reasonable doubt that the error was harmless.

III

DISPOSITION

The judgment is affirmed.

MOORE, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.


Summaries of

People v. Espinoza

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Apr 24, 2018
G054569 (Cal. Ct. App. Apr. 24, 2018)
Case details for

People v. Espinoza

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. AGUSTIN AMARAZ ESPINOZA…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Apr 24, 2018

Citations

G054569 (Cal. Ct. App. Apr. 24, 2018)