Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Imperial County Ct. No. JCF18113, William D. Lehman, Judge. Affirmed.
BENKE, J.
The record in this case contains testimony from a medical examiner who believed appellant Salvador Mendoza Gonzalez strangled his girlfriend Maria Veloz for one or two minutes and that although the strangling itself would have killed Veloz, when appellant was finished strangling Veloz, appellant threw Veloz against a wall with such force that he inflicted what would have been a second fatal injury. The record also contains testimony from appellant in which he admitted he killed Veloz. The jury found him guilty of first degree murder. On appeal appellant argues the prosecution failed to show the killing was premeditated and deliberate. We affirm.
The record amply supports the prosecution's theory that for some time appellant seriously contemplated killing Veloz and that when she arrived at his residence on the evening of her death, appellant acted on his longstanding thoughts. The prosecution's theory was supported by substantial testimony about the manner in which appellant terrorized Veloz over a long period of time, her generally compliant response to his behavior and her otherwise polite and happy disposition. Given appellant's repeated threats and Veloz's genuine fear of appellant, the jury could conclude Veloz came to appellant's house out of fear and that the extreme violence appellant employed was more consistent with a determined killer than with someone acting on a sudden impulse. The prosecution's contention appellant planned to kill Veloz is also supported by the efficient and effective manner in which, immediately after the killing, appellant moved her car, moved his vehicle to an adjoining property, returned to the scene of Veloz's death to retrieve his second vehicle, and drove to the border.
Significantly, the jury's conclusion appellant planned to kill Veloz was also supported by the fact that when given an opportunity to explain how Veloz died, appellant came up with varying explanations which involved Veloz being provocative and aggressive towards him on the evening of her death. Because such conduct on Veloz's part would have been entirely inconsistent with her general disposition and her well-documented fear of appellant, the jury could find appellant's false and varying explanations were themselves evidence of his consciousness of guilt of a far more serious offense than the one to which he admitted on the stand.
We also find the trial court fully instructed the jury as to the requirements of manslaughter and that it did not err in instructing the jury that only conduct which would provoke a reasonable person will reduce a killing from murder to manslaughter.
FACTUAL AND PROCEDURAL BACKGROUND
A. Appellant's Relationship with Veloz
Veloz and appellant had a romantic relationship for more than 10 years at the time of her death. Veloz's four children, her three daughters and one son, did not like appellant because of the way he treated their mother. In the spring of 2006, only one daughter, Natalie, was still living with Veloz at her apartment in El Centro. Natalie was 17 years old at the time and a senior in high school.
According to Myra Veloz, one of Veloz's daughters, about a year before Veloz's death, her mother called her one day in great distress and fear. Veloz explained appellant picked her up at the school for disabled children where Veloz worked and demanded she go with him to Mexicali because appellant needed to find a dentist. According to Veloz, appellant used vulgar language on her, and on the way to Mexicali, they argued and Veloz wanted to get out of the car. Appellant would not let Veloz out of the car, and when they reached a dentist's office in Mexicali, appellant took Veloz's purse and put it in the trunk of his car. Veloz nonetheless left appellant when he went into the dentist's office and was able to make it back to her apartment in El Centro. According to her daughter, Veloz was nonetheless frightened and did not want to stay at her apartment.
According to Myra, at the time of her mother's death she thought her mother, who obtained two restraining orders against Gonzalez, had stopped seeing Gonzalez. She believed her mother did not disclose she was still seeing Gonzalez because she knew Myra would not approve. Myra also believed her mother would only keep seeing Gonzalez out of fear, either for herself or for her children. Myra testified her mother was a sweet and loving parent and did not use profanities.
Maria de Socorro Zazueta, one of Veloz's co-workers and friends, testified Veloz confided in her that appellant repeatedly threatened to kill her and harm her children. According to Zazueta, Veloz would often cry when she described her relationship with appellant. Veloz told Zazueta that appellant told her if he ever found Veloz with another man, he would kill her. After Veloz obtained a restraining order against appellant, Veloz told Zazueta that she just hoped appellant would go far away and leave her alone.
At one point Veloz told Zazueta that appellant was going to try to get her fired from her job. Zazueta told her appellant would not do that. However, one day Veloz did not come to work early as she usually did, and Zazueta saw appellant approach the school. Appellant told Zazueta that he found Veloz with another man. Zazueta told appellant to leave the school. Veloz eventually arrived at school and told Zazueta she knew appellant was coming to the school and that she parked her car away from the school. At the end of the day, the school principal and another person walked Veloz to her car where they discovered the tires were flattened.
According to Zazueta, Veloz was not a violent person, but was a happy person who enjoyed her work with the children at the school and was respected by her peers. Zazueta testified Veloz was close to her children and did not use profanity.
In July 2005 an El Centro police officer had a very disturbing encounter with appellant. Appellant and Veloz had an argument at Veloz's apartment, and someone called the police. Apparently, before the police arrived, appellant drove away in his car. The El Centro police officer stopped appellant a short time later and, among other issues, suspected appellant was driving under the influence of alcohol. Appellant asked the officer to explain why he was stopped and immediately accused Veloz of calling the police. At the scene of the stop, appellant then told the officer he was going to kill Veloz. He told the officer: "I know it is Maria that called, and you better write down that I'm going to kill her." Later, after the officer took appellant to the police department and placed him in a holding cell, appellant told the officer: "You better tell that bitch to move because I'm going to kill her." What was significant for the officer was that appellant repeated this threat at least 30 times. The officer took the threats seriously and called Veloz. In relating the conversation he had with Veloz, the officer stated: "Initially, I just called her and asked her if the defendant had ever threatened her before, and she told me he had. Then I notified her that he had repeatedly told me that she better move because he was going to kill her, and I actually noticed her voice start to tremble. And she told me that she felt that if he was capable of telling me, a police officer, that he was going to kill her, she had no doubt believing that he was capable of carrying out the threats." After talking with Veloz, the officer contacted a superior court judge and obtained an emergency protective order preventing appellant from contacting Veloz.
The officer served the emergency protective order on appellant in the holding cell and also explained to appellant that he was being charged with making a criminal threat in violation of Penal Code section 422. When the officer explained the emergency protective order to appellant, appellant became irate again, and again threatened to kill Veloz. When the officer also explained that appellant was being charged with making a criminal threat, appellant threatened the officer. According to the officer, appellant told the officer "that he knew what unit I drove, he could find out where I live, that he knows that I'm armed off duty, but he is too, and when he found me on the street, things would be different."
Although Veloz obtained a restraining order against appellant, on February 5, 2006, appellant used a key to enter Veloz's apartment at a time when Natalie was home alone. Natalie told appellant to leave. When Veloz found out that appellant was at her apartment without her permission and when Natalie was there alone, Veloz was quite concerned and immediately called the police. According to Myra, her mother told her she was afraid of appellant and that she wanted to end the relationship but that appellant would not leave her alone. Veloz later told Myra she was quite relieved because as a result of this incident appellant would be going to jail.
Ustolia Trigo lived in the apartment below Veloz. One day a few weeks before Veloz was killed, Trigo heard appellant fighting with and chasing Veloz. Veloz ran downstairs and took refuge in Trigo's apartment. Appellant knocked on Trigo's door and asked if Veloz was there. Upon seeing Veloz, appellant told Veloz: "I'm going to get you motherfucker. I'm going to kick your ass along with your daughters." He then told Trigo: "And you, too, you gossipy old lady." Although appellant did not make any express death threat, Trigo believed appellant was threatening to kill her and Veloz.
B. Veloz's Death
On Friday May 19, 2006, Veloz came home from work and she and Natalie watched television until 7:30 p.m., when Natalie went out with friends. Veloz did not tell Natalie she had any plans to go out. Rather, the only plan Natalie was aware of was her mother's plan to go to a wedding with Zazueta the following day.
On May 19, 2006, appellant lived in a one-room house in El Centro. The house was behind a trailer where Jovita Cortez lived. At approximately 10:45 p.m., Cortez and her son-in-law Antonio Montanez saw Veloz drive up in her white car and park near Cortez's house. At that point both appellant's white pickup truck and his green Thunderbird were parked at appellant's house. Cortez saw Veloz knock on appellant's door rather insistently; she saw Veloz knock on a window and say: "It is I. Open up for me." Veloz then went into appellant's house. At around midnight Montanez went to Mexicali. When Montanez returned around 4:30 a.m., Veloz's car was moved closer to appellant's house and both appellant's truck and Thunderbird were gone.
Around 8:30 a.m. a Calexico police officer put a parking ticket on appellant's Thunderbird, which was parked immediately adjacent to the international port-of-entry. Natalie returned to her mother's apartment at around 2:00 a.m. and noticed her mother's car was gone and her mother was not home. When Natalie woke up the following morning, her mother had not returned and she became concerned when Zazueta called to see if her mother was going to the wedding. Natalie called her sister Myra and they waited at the apartment for Veloz to return. Later in the day, Natalie and Myra went to appellant's house and noticed their mother's car was there. Because Natalie and Myra were afraid of appellant, they called Myra's husband Juan Molina. Molina arrived, knocked on the door of appellant's house, and when no one answered, opened the door. Inside, he discovered Veloz's body.
According to the medical examiner, Veloz's body was in rigor mortis. There were bruises on her neck and large hemorrhages in her eyes. Veloz bit her tongue in an effort to breathe while she was being strangled and there were abrasions on her chin. The strangulation broke Veloz's hyoid bone in two places and her hyoid cartilage in several places. The medical examiner believed it would have taken appellant one or two minutes to strangle Veloz. Although the strangulation itself would have been fatal, the examiner believed appellant threw Veloz against the wall when he was finished strangling her. He based this conclusion on the fact that lower vertebrae in Veloz's neck were broken and she had a six-by-four and one-half inch bruise on the top front portion of her head. The medical examiner believed the head injury would also have been fatal.
During the course of the investigation, the medical examiner found appellant's semen in Veloz's vagina. Investigators also located appellant's truck on property immediately south of the lot appellant shared with Cortez.
Appellant was arrested in Mexico on May 30, 2006. Although appellant gave Mexican law enforcement officials an assumed name, he eventually agreed to be transferred to the United States. When he was initially questioned in the United States, appellant told law enforcement officers he spoke to Veloz on the telephone earlier in the evening of the 19th and asked her if she was eating a "chupiril," which is a Mexican candy and also slang for penis. According to appellant, when he asked the question, a friend of his was present and laughed and Veloz became offended and later came over to his house. In this initial version of events, Veloz told appellant that she wanted to go out. Appellant did not want to go out and accused her of wanting to dance with another man. Veloz then told appellant she wanted to break up with him and began pushing him, telling him to hit her. Veloz then started grabbing for a knife on the counter. Appellant told the police he then pushed Veloz back against the wall with his open palms and she hit her head on the wall and fell to the floor. Appellant believed Veloz hurt her neck when she fell to the floor. When interviewed by the police, appellant denied putting his hands around her neck.
At trial, appellant admitted he killed Veloz by strangling her and throwing her against the wall. He also testified that in addition to pushing him, scratching him and grabbing for a knife, Veloz told him he had a small penis and that she had found a man who moved his penis better than appellant. Appellant also admitted that on the day before he killed Veloz, the couple had sexual relations.
The jury found appellant guilty of first degree murder, and the trial court sentenced him to a term of 25 years to life.
DISCUSSION
I
In his principal argument on appeal, appellant contends there is insufficient evidence he committed premeditated and deliberate murder. He argues there is no evidence from which the jury could infer prior planning and deliberation. We find ample evidence of premeditation and deliberation.
A. Legal Principles
" 'Generally, there are three categories of evidence that are sufficient to sustain a premeditated and deliberate murder: evidence of planning, motive, and method. [Citations.] When evidence of all three categories is not present, "we require either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing." [Citation.] But these categories of evidence, taken from People v. Anderson (1968) 70 Cal.2d 15, 26-27, "are descriptive, not normative." [Citation.] They are simply an "aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse." [Citation.]' " (People v. Elliot (2005) 37 Cal.4th 453, 470-471, italics added.) Importantly, " '[t]he process of premeditation and deliberation 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.]' " (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
Here, the record does not provide evidence which neatly fits into the categories set forth in People v. Anderson. On the other hand, it does contain a great deal of evidence appellant acted after considerable reflection rather than in a rash impulse in response to provocation. We begin with appellant's testimony. As we have seen, appellant's portrayal of Veloz as an aggressor who provoked him was entirely inconsistent with all the other evidence of her genuine and profound fear of him, her generally compliant behavior towards him and her otherwise cheerful and kind demeanor. Appellant's portrayal of Veloz's character and behavior was startlingly at odds with the testimony of her family, her good friend and her neighbor. Given the large volume of evidence as to Veloz's well-founded fear of appellant and her gentle demeanor, the jury was entitled to not only reject appellant's explanation but to infer from the fact that he gave false testimony about her a consciousness of guilt of a far more serious offense. " ' "[W]here a material fact is established by evidence and it is shown that a defendant's testimony as to that fact was wilfully untrue, this circumstance not only furnishes a ground for disbelieving other testimony of this defendant [citations], but also tends to show consciousness of guilt or liability on his part and has probative force in connection with other evidence on the issue of such guilt or liability. Such false testimony is in the nature of an admission from which with other evidence guilt or liability may be inferred. [Citations.]" ' [Citations.] 'Here defendant did not simply deny his guilt; he ventured upon an explanation so unusual that the triers of fact could conclude that it was an intentional fabrication indicating consciousness of guilt and the absence of any true exculpatory explanation.' " (People v. Duran (2001) 94 Cal.App.4th 923, 932-933.)
As in People v. Duran, here appellant offered an explanation which was simply irreconcilable with the overwhelming weight of evidence the prosecution presented: the Veloz portrayed by the prosecution witnesses would never have physically challenged the man who terrorized her and threatened her children for at least a year. Importantly, the inference appellant acted with deliberation and premeditation which arises from the fact appellant invented an unbelievable explanation of how Veloz was killed, was corroborated by all the other circumstances presented by the prosecution. The most dramatic corroboration was of course the unusual number and intensity of threats appellant made to the law enforcement officer in July 2005. As we have described, those statements caused the officer to contact Veloz and immediately obtain a restraining order against appellant. Importantly, the prosecution was able to show that the homicidal determination appellant vividly expressed in July 2005 was unabated through the time of Veloz's death. In particular, the jury could reasonably infer that the February 2006 unauthorized entry into Veloz's apartment was a poorly disguised message to Veloz that appellant had the ability to harm not only Veloz but Natalie as well. The inference appellant was thinking about harming both Veloz and her daughter was of course actually expressed by appellant only a few weeks before Veloz was killed when appellant chased Veloz to her neighbor's apartment.
In addition to appellant's repeated verbal threats and threatening behavior, the evidence of the manner in which Veloz was killed also supports the inference appellant acted with deliberation and determination. Veloz was the victim of a fairly lengthy and violent assault which inflicted not one, but two mortal injuries. Because the record shows in a persuasive way that Veloz would not have provoked the man she feared so profoundly, the high level of violence reinforces the inference, created by appellant's less than credible explanation, that Veloz was the victim of a premeditated and determined effort to kill her. The inference of premeditation and planning was also reinforced by the successful means by which appellant managed to move Veloz's car closer to his house, move one of his cars to a neighboring property, and drive his second vehicle to the border before dawn broke on the Saturday after appellant killed Veloz. Appellant's successful and complicated early morning flight not only suggest some level of planning on his part, but also demonstrates a lack of remorse which he reemphasized on the stand by inventing a story in which Veloz was the aggressor.
Finally, there is substantial evidence appellant was motivated by obsessive jealousy. Appellant not only accused Veloz of infidelity while she was alive, but he repeated the accusation when he testified at trial.
In short, the record shows that appellant killed Veloz in an extremely violent and unprovoked attack which he then lied about to law enforcement and again at trial. The inference of premeditation which arose from his false explanation was corroborated by his history of explicit and implicit threats, his documented jealousy, his successful and undetected escape from the scene and his apparent lack of remorse. On this record the jury could reasonably conclude that as a consequence of his obsessive jealousy appellant planned to kill Veloz.
II
Relying on People v. Blakeley (2000) 23 Cal.4th 82, 88-89, and People v. Lasko (2000) 23 Cal.4th 101, 111, appellant next contends the trial court erred in failing to sua sponte instruct the jury that even if a defendant intends to kill his victim, he may be guilty of manslaughter if he was acting under the heat of passion or an unreasonable belief that he needed to defend himself. We find no error.
The trial court is required to instruct on the general principles of law relevant to the issues raised by the evidence, even in the absence of a request. (People v. Breverman (1998) 19 Cal.4th 142, 154.) This obligation includes correct instructions on all essential elements of the charged offense. (People v. Wickersham (1982) 32 Cal.3d 307, 323, disapproved on other grounds, People v. Barton (1995) 12 Cal.4th 186, 200-201.)
In the companion cases People v. Blakeley and People v. Lasko, the court held an intent to kill is not a necessary element of voluntary manslaughter either when the defendant's malice is mitigated by a sudden heat of passion or when it is mitgated by an unreasonable, but good faith, belief in the need to act in self-defense. (People v. Blakeley, supra, 23 Cal.4th at p. 85.) In the course of its holding in People v. Blakeley, the court stated: "A person who intentionally kills in unreasonable self-defense lacks malice and is guilty only of voluntary manslaughter, not murder." (Id. at p. 88.) Apparently relying on this principle, appellant contends the court should have expressly instructed the jury that even if appellant intended to kill Veloz, he would be guilty of voluntary manslaughter if he nonetheless acted under a heat of passion or as the result of an unreasonable belief in the need to defend himself.
Our review of the record shows the trial court fully met the requirements of Blakeley and Lasko. In particular, the trial court instructed the jury with CALCRIM No. 570, which in pertinent part states: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion" (italics added) and CALCRIM No. 571, which states in part: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because [he] acted in [imperfect self-defense]." (Italics added.) The phrase "[a] killing that would otherwise be murder is reduced to voluntary manslaughter" which appears in both instructions fully conveyed the idea that an intentional killing could be mitigated by the heat of passion or unreasonable self-defense. While appellant argues use of the word "killing" by itself is an inadequate reference to intentional killing, he ignores the fact that the instructions refer to killings which are murders. We believe that reference to a killing which is a murder will be usually be apprehended as an intentional killing. Thus the instructions fully meet the requirements of Blakeley.
However, even if we found instructional error, we would be required to find that it was harmless. We reverse for instructional error only if it "it appears 'reasonably probably' the defendant would have obtained a more favorable outcome had the error not occurred." (People v. Blakeley, supra, 23 Cal.4th at p. 93.) Here, the jury, in finding appellant guilty of first degree murder, unequivocally rejected appellant's contention that he was in any manner provoked by Veloz. In light of that circumstance, a more explicit reference to intentional killing than appears in CALCRIM Nos. 570 and 571 would not have had any impact on the verdict.
III
As we have noted, the jury was instructed with CALCRIM No. 570, which states, with respect to the heat of passion needed to reduce murder to manslaughter: "It is not enough that the defendant simply was provoked. The defendant is not allowed to set up [his] own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts." In addition to CALCRIM No. 570, the prosecution asked the trial court to instruct the jury that "[u]nrestrained and unprovoked rage does not constitute heat of passion and a person of extremely violent temperament cannot substitute his or her own subjective standard for heat of passion." The trial court gave this special instruction, and on appeal appellant argues this special instruction effectively directed the jury to reject his heat of passion defense. We find no error.
As the respondent notes, the special instruction is an accurate statement of law. "The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. As we explained long ago in interpreting the same language of section 192, 'this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,' because 'no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances arouse the passions of the ordinarily reasonable man.' " (People v. Steele (2002) 27 Cal.4th 1230, 1253.)
Contrary to appellant's argument, the special instruction as given did not direct the jury to reject his heat of passion defense. Rather, consistent with People v. Steele, the instruction only informed the jury that appellant's well-established anger and volatile temper did not, by themselves, establish the provocation needed to reduce murder to manslaughter. In light of the considerable evidence about appellant's temper and anger toward Veloz, it was appropriate to instruct on this principle of law.
Moreover, once again, even if there were instructional error, in light of the jury's rejection of appellant's contention that he was provoked, the error was not prejudicial.
Because we have found no error, we also reject appellant's contention that cumulative errors require reversal.
Judgment affirmed.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.