Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA039792 Hayden Zacky, Judge.
Lynda A. Romero, 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, Assistant Attorney General, Susan Sullivan Pithey and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Anthony Limaco, appeals the judgment entered following his conviction for first degree murder with personal use of a firearm enhancement (Pen. Code, §§ 187, 12022.53). He was sentenced to state prison for a term of 50 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
Jennifer Brehm met defendant Limaco when she was in junior high school. Brehm was experimenting with drugs and Limaco was a drug dealer. They began dating and in 2005 they had a daughter, Kaylie. By 2006, Brehm was living with Limaco on Sagetree Street in Palmdale.
One of Limaco’s closest friends was Alicia Cox, who sold marijuana with him. Cox was openly gay. In October 2006, Cox and Brehm developed a romantic relationship which they kept hidden from Limaco.
On September 4, 2007, Cox and her parents, along with Limaco and Brehm, were in Las Vegas to celebrate Cox’s mother’s birthday. That night, while Cox, Brehm and Limaco were at a hotel nightclub, Brehm told Limaco she was leaving him and moving in with Cox. Limaco started yelling. He grabbed Brehm by the neck and slammed her against a door. Brehm slapped him back and they both fell to the floor, where Limaco punched her in the face two or three times. Cox pulled Limaco off Brehm. Hotel security came and Limaco was arrested. The assault had been recorded by a hotel security camera.
After they returned to Palmdale, Brehm and Limaco made temporary living arrangements while they tried to work things out. Brehm and Kaylie remained at the Sagetree house while Limaco moved to his parents’ house on Desert Holly Lane. Limaco made Brehm promise not to let Cox near Kaylie, saying he feared Cox might molest her. This fear was based on something his sister, Medalid Cuneo, told Limaco that Cox had confided to her: Cox had been molested as a child. Cuneo thought Cox might try to molest Kaylie because she herself had been molested. Brehm told Limaco this was ridiculous, but Limaco said he didn’t care and he made Brehm promise to keep Kaylie away from Cox.
Brehm testified Limaco remained upset about her relationship with Cox: “He referred to her as a dike [sic] a few times. Said many hateful things about her.” Limaco had never called Cox a dyke before, and Cox had told him the term was offensive. Over the next few days, Limaco became more and more angry.
Brehm’s mother, Deborah Milburn, testified Cox called from Las Vegas to say Limaco was in jail for assaulting Brehm. Cox said she had talked to “someone up north” about having Limaco killed. Cox said this person supplied drugs to her and Limaco, that he had never liked Limaco and that he “was more than happy to do it.” Cox told Milburn where two guns were hidden and asked her to hold them for this guy from up north. Milburn refused. Milburn reported to Limaco what Cox had said about arranging for someone to kill him.
A few days later, Limaco called Milburn and said Brehm had asked him to watch Kaylie while she went out with Cox. Limaco cried and complained Brehm and Cox were throwing their relationship in his face. He said he never thought Brehm would disrespect him so much.
On September 10, Brehm asked Milburn to come over the following day and stay with Kaylie so she could run errands. That night, after Kaylie had gone to bed, Cox went to the Sagetree house and spent the night.
When Milburn arrived at the Sagetree house the next morning, Brehm wasn’t ready to go and asked her to come back later. Milburn thought Brehm was acting strange and probably lying about something. She asked if Cox was there. Brehm denied it, but Milburn discovered Cox hiding inside a closet in the master bedroom. Milburn got mad and yelled at Cox: “... I just said... this is the kind of shit that’s going to make this not work out very well. And I just left.” Milburn called Limaco a few minutes later and told him about finding Cox hiding in the closet.
Cuneo called Milburn five minutes later to say Limaco was “freaking out, ” crying and yelling. She asked Milburn to calm him down. Limaco got on the phone and said, “It’s just too much. I can’t do it any more. I can’t let my daughter get hurt.” Milburn advised him to calm down and said, “Tony... you’re upset, but don’t go doing anything stupid that’s going to keep you from your daughter.”
Cuneo testified that on the morning of September 11, she was driving in her van with Limaco. They were going to an insurance agency to find out about insurance for Limaco’s car. While they were driving, Limaco got the call from Milburn about finding Cox hiding in the closet. Cuneo testified Limaco got very upset: “He was about to cry. He was just about to burst into tears. His eyes were watering up and he was very upset.” Cuneo and Limaco continued on to the insurance agency, where they got price quotes and Limaco ultimately decided he could not afford the policy. When they left, Limaco talked about being upset with Brehm and said he wanted to talk to her. Cuneo drove back to the Desert Holly house, got out and Limaco drove off in her van. Cuneo then called Brehm. After they talked for a few minutes, Cuneo said Limaco was on his way over. Suddenly the phone went dead. The last thing Cuneo heard was Brehm saying, “ ‘Tony, no.’ ”
Brehm testified that while she was on the phone with Cuneo, she saw Limaco’s shadow in the backyard. Limaco tried to open a sliding door and a window, which were both locked. Then he moved to a low window which had a broken lock, opened the window, and stepped into the house. Brehm testified she warned Cox, telling her: “ ‘Tony’s here. Run.’ ” Limaco raised his hand; he was holding a gun. He fired at Cox. Brehm started screaming and Limaco kept shooting. When the shooting stopped, Brehm turned and saw Cox on the kitchen floor, not moving. Limaco walked over to Cox and, standing about two feet from her, fired seven more times while calling her a “fucking bitch.” When Brehm screamed again, Limaco stopped, walked back toward her and said, “ ‘That’s what you get.’ ” Then he left the house.
The officers responding to the scene found Cox lying dead on the kitchen floor. She had a black cell phone in her hand. It was a Razor flip phone which she had been holding in the closed position.
Police found 14 expended bullet casings. There were two bullet holes in the wall behind Cox’s body, and there were seven bullet impacts on the kitchen floor directly beneath her body. All of the cartridge cases at the crime scene had been fired from Limaco’s semiautomatic Baretta, which was found at Limaco’s parents’ house. Seven bullets had been fired directly downward into Cox, apparently while Limaco was standing over her. The Baretta had been stolen in 2004 from a Los Angeles County deputy sheriff’s house in Palmdale.
The medical examiner testified he could identify six discreet gunshot wounds to Cox’s arms, thigh, shoulder and chest. In addition, her head had sustained a combination of 13 entry and exit gunshot wounds: “There were many injuries to the head, both on the left and right side, and also to the face. And there were so many individual entries and exits that I couldn’t designate the individual paths in terms of exact directions, exact tissues affected or the exact trajectories. [¶] There was extensive destruction of the bones at the base of the skull, as well as of the bones of the cranial vault of the head. So that the head essentially collapsed on itself because of the lack of support by the bone.” The majority of the gunshot wounds had been inflicted while Cox was lying on the kitchen floor.
Police found three full magazine clips and an additional 82 rounds in Cuneo’s van. Two of the magazines were stamped, “Restricted. Law enforcement, government use only.” Cuneo testified she did not see the two magazine clips and the box of ammunition in the front of her van when she drove home from the insurance agency.
2. Defense evidence.
Limaco testified in his own defense. When he started working for Cox as a drug dealer, she told him he needed a gun so he bought the Baretta from her. He and Cox used to practice shooting together. Cox sometimes carried a gun, but she always carried a large knife.
When Brehm told him in Las Vegas she was involved with Cox and they were moving in together, Limaco was confused and sad, but he wasn’t angry. He testified he jumped on Brehm at the hotel nightclub and punched her only after she slapped him. On cross-examination, Limaco acknowledged the security camera videotape showed him grabbing Brehm and slamming her against a wall before she slapped him. Limaco also admitted he must have been angry that night.
After his arrest, Limaco called Milburn from the police station. Milburn told him about Cox’s threat: “That’s when Debbie told me about the guns and that I needed to watch my back, that [Cox] was going to get me killed; that she has people that... she knows that would really kill me, or she was going to do it herself.”
Limaco testified when he met with Brehm after getting back from Las Vegas he wasn’t angry, he “was more sad and broken hearted than anything.” He denied being jealous. Brehm was mad at him for hitting her and didn’t want him in the house, so he agreed to stay with his parents while they figured out what to do. He and Brehm agreed Cox would not go to the Sagetree house.
During the week leading up to September 11, Limaco started carrying the Baretta all the time because he feared Cox was arranging to have him killed. He had put the magazine clips and ammunition box into the trunk of Cuneo’s van a few days before the shooting, together with some clothes he had picked up from the Sagetree house. He never took the clips and ammunition out of the trunk. He was carrying the loaded gun around in his pocket.
Limaco was supposed to pick Kaylie up on the morning of September 11 to take her to Chuck E. Cheese after he finished at the insurance agency. When he learned from Milburn that Cox had been hiding in the closet, Limaco thought she had been lying in wait to kill him. However, Milburn told him Cox had left the house, so he decided to go over and talk to Brehm about not having Cox around Kaylie. Limaco testified he was calm at this point; he was not sad, angry or upset.
Limaco testified Milburn told him Cox was gone by the time Milburn left the Sagetree house: “She said, I saw her in the closet, and that... she left, or she might have left because she saw me there. I seen her walk out the door so she’s probably gone....”
When Limaco arrived, he parked far down the street from the Sagetree house. He did not see Cox’s car. He thought Brehm might be gone too. He knocked on the front door just to make sure. He knocked for about a minute, but there was no response and he did not hear any sounds coming from inside the house. He decided to go in through the back to retrieve some more of his things. When he entered, he was surprised to see Brehm sitting on the couch. Then, out of the corner of his eye, he saw Cox coming toward him. Limaco asked Cox what she was doing in his house, and Cox told him to leave. Contrary to Cuneo’s testimony, Brehm did not say, “Tony, no.” Rather, Brehm said something to Cox about getting the gun or “grab[bing] something.” Cox then came towad Limaco and pointed something at his head. He thought it was a gun. When Cox was eight or ten feet from him, Limaco pulled out his gun and started shooting. He wanted to shoot Cox before she could shoot him. He continued shooting until he ran out of bullets. He did not walk toward Cox, but remained standing by the couch where Brehm was sitting. Limaco testified the Baretta had a hairpin trigger: “[Y]ou can just touch it and it will go off.”
After he ran out of ammunition, Limaco had to leave the house because Cox was bleeding and he has a phobia about blood. He turned around and walked out through the sliding glass door. He could not explain why his bloody footprints were found near the sink on the other side of Cox’s body from where he had been standing. He could not explain why some of the bullet impacts underneath Cox’s body had been fired straight downward. Limaco testified someone else must have taken the magazine clips and box of ammunition out of Cuneo’s trunk and moved them to the front of her van.
3. Rebuttal evidence.
Limaco’s Baretta required at least 4.75 pounds of force to fire every time the trigger was pulled; the gun could not be fired just by touching the trigger. There was a series of bloody shoeprints which went around Cox’s body and then toward the sliding glass door. These shoeprints matched Limaco’s shoes. The forensic evidence was inconsistent with Limaco’s testimony he fired all the shots while standing in the same place near the couch. Rather, the forensic evidence indicated some of the gunshots had been fired when Limaco “was close to, if not directly over, the victim.”
CONTENTIONS
1. There was insufficient evidence to sustain Limaco’s conviction for first degree murder.
2. The trial court erred by admitting evidence Limaco’s gun had been stolen from a police officer.
DISCUSSION
1. There was sufficient evidence to sustain Limaco’s murder conviction.
Limaco contends there was insufficient evidence to sustain his murder conviction because the prosecution failed to show, beyond a reasonable doubt, that the killing had not been committed in imperfect self-defense. This claim is meritless.
a. Legal principles.
“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. [Citation.] 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. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[, ] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
“Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 314.)
The various types of premeditation and deliberation evidence have been described as follows: “The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing – what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ [Citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2). [¶] Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).” (People v. Anderson (1968) 70 Cal.2d 15, 26-27.)
“Imperfect self-defense obviates malice because that most culpable of mental states ‘cannot coexist’ with an actual belief that the lethal act was necessary to avoid one’s own death or serious injury at the victim’s hand. [Citations.] Because one who kills unlawfully and intentionally, but lacks malice, is guilty of voluntary manslaughter, ‘[intentional] voluntary manslaughter... is considered a lesser necessarily included offense of intentional murder.’ [Citation.] [¶] Thus, where the defendant killed intentionally and unlawfully, evidence of heat of passion, or of an actual, though unreasonable, belief in the need for self-defense, is relevant only to determine whether malice has been established, thus allowing a conviction of murder, or has not been established, thus precluding a murder conviction and limiting the crime to the lesser included offense of voluntary manslaughter. Indeed, in a murder case, unless the People’s own evidence suggests that the killing may have been provoked or in honest response to perceived danger, it is the defendant’s obligation to proffer some showing on these issues sufficient to raise a reasonable doubt of his guilt of murder. [Citations.] [¶] If the issue of provocation or imperfect self-defense is thus ‘properly presented’ in a murder case [citation], the People must prove beyond reasonable doubt that these circumstances were lacking in order to establish the murder element of malice.... In such cases, if the fact finder determines the killing was intentional and unlawful, but is not persuaded beyond reasonable doubt that provocation (or imperfect self-defense) was absent, it should acquit the defendant of murder and convict him of voluntary manslaughter.” (People v. Rios (2000) 23 Cal.4th 450, 461-462, fn. omitted.)
b. Discussion.
In this case, there was evidence of all three Anderson factors: planning activity, motive and manner of killing.
There was overwhelming evidence of motive. The evidence showed Limaco was extremely upset because Brehm was ending their relationship in order to be with Cox. Although Limaco tried to downplay the severity of his dismay, several witnesses directly contradicted his testimony. The Las Vegas videotape, showing how he had reacted when he initially learned of Brehm’s plans, was graphic evidence of how he felt.
There was also evidence of planning activity. On the day of the killing, Limaco drove to the Sagetree house with a loaded gun in his pocket, and spare magazine clips and ammunition in the front of his sister’s van. He parked far away from the house and climbed through a window in the backyard instead of knocking on the front door, which would have alerted the occupants. The jury could have reasonably discounted Limaco’s contrary testimony he knocked on the front door and that, because he had put the magazine clips and ammunition box into Cuneo’s trunk, someone must have moved them. Similarly, the jury could have reasonably discounted Limaco’s testimony he believed Cox had left the house based on his conversation with Milburn, because this contradicted Milburn’s apparent testimony she had left the house while Cox was still there.
All this preparatory activity constitutes strong planning evidence. (See, e.g., People v. Miranda (1987) 44 Cal.3d 57, 87, disapproved on other grounds by People v. Marshall (1990) 50 Cal.3d 907 [“that defendant brought his loaded gun... and shortly thereafter used it to kill an unarmed victim reasonably suggests that defendant considered the possibility of murder in advance”]; People v. Alcala (1984) 36 Cal.3d 604, 626 [“when one... brings along a deadly weapon which he subsequently employs, it is reasonable to infer that he considered the possibility of homicide from the outset”].)
Finally, the manner of the killing also tended to show premeditation and deliberation. The evidence showed Limaco initially fired at Cox while standing eight to ten feet from her. Then, after she fell to the kitchen floor, Limaco walked over to her and fired more shots into her prone body, most of them directly into her head. (See People v. Silva (2001) 25 Cal.4th 345 369 [“The manner of killing – multiple shotgun wounds inflicted on an unarmed and defenseless victim who posed no threat to defendant – is entirely consistent with a premeditated and deliberate murder.”]; People v. Bolin (1998) 18 Cal.4th 297, 332 [evidence defendant fired at least once as victim lay in fetal position showed defendant wanted to make sure victim died]; People v. Vorise (1999) 72 Cal.App.4th 312, 318-319 [premeditation and deliberation established where evidence showed defendant calmly shot incapacitated victim in chest twice at close range].)
As the Attorney General points out: “[E]ven if appellant’s initial shooting was not premeditated, he paused long enough to think about what he was doing, walk over to Cox, and begin shooting all over again.” “ ‘The 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.)
Also manifesting premeditation and deliberation was the evidence that after shooting Cox, Limaco walked over to Brehm and said, “That’s what you get.” (See, e.g., People v. Mayfield (1997) 14 Cal.4th 668, 767 [evidence of premeditation and deliberation included “testimony that after the killing defendant said that ‘he had to do it’ ”]; People v. Perez (1992) 2 Cal.4th 1117, 1128 [“Additionally, the conduct of defendant after the stabbing... would appear to be inconsistent with a state of mind that would have produced a rash, impulsive killing.”].)
Limaco argues the evidence showed Cox had threatened his life and that he only shot her in the belief she was about to kill him: “The facts reflect appellant actually believed he was in imminent danger of death or great bodily injury. Appellant’s belief was credible and corroborated.” We disagree. Limaco’s testimony was not credible and the jury reasonably rejected it. The evidence showed he did not actually believe he was acting in self-defense, even if not when he fired his initial volley of gunshots, then certainly when he paused, walked over to where Cox was lying on the kitchen floor, pumped more rounds into her head, and then sneered at Brehm before leaving the house. There was overwhelming evidence Limaco murdered Cox because she had gotten romantically involved with Brehm.
2. Evidence regarding stolen gun properly admitted.
Limaco contends the trial court erred by admitting evidence the gun he used to shoot Cox had originally been stolen from a deputy sheriff.
a. Background.
When the trial court inquired about the relevance of evidence showing Limaco’s gun had been stolen, the prosecutor explained the gun held 15 bullets and argued any juror who was knowledgeable about guns might be aware that only law enforcement-issued guns held 15 bullets. Moreover, one of the alternate jurors was a former sheriff’s deputy who would certainly know this. The prosecutor wanted to make sure no juror mistakenly believed a law enforcement officer had been involved in the shooting.
Defense counsel had no objection to evidence showing the gun had been stolen from someone in law enforcement, as long as the trial court told the jury there was no evidence Limaco had stolen the gun or knew it had been stolen. The trial court agreed.
When the parties subsequently stipulated in open court that Limaco’s gun had been stolen from the Palmdale home of a deputy sheriff in May 2004, the trial court gave the following limiting instruction: “That evidence... is being admitted for the sole purpose of explaining why this particular gun had the capacity to shoot the number of rounds used during this incident and to negate speculation that law enforcement had any connection to this offense. [¶] There is no evidence to suggest that the defendant is the person who actually stole the gun, and it is not being admitted to establish that the defendant has a propensity to steal or otherwise engage in any illegal behavior. [¶] The significance, if any, of this evidence is for the jury to determine.”
b. Discussion.
Limaco argues evidence he possessed a stolen gun was irrelevant, prejudicial and “served no other purpose than an attempt on the prosecution’s part to portray appellant in a negative light and to prove appellant’s criminal disposition.” Not so. The evidence was at least minimally relevant to dispel jury speculation that law enforcement had somehow been involved in the shooting. This was not an entirely far-fetched possibility since the jury would learn Limaco and Cox were drug dealers. The trial court gave a limiting instruction, informing jurors why the evidence had been admitted and cautioning them against any improper usage.
In addition to the extra round held by the Baretta, the magazine clips were marked for law enforcement use only.
Limaco complains the trial court’s limiting instruction was inadequate for failing to advise jurors there was no evidence he knew the gun had been stolen. However, if the limiting instruction given was not exactly the one he asked for, Limaco was responsible for raising this problem with the trial court. (See People v. Heldenburg (1990) 219 Cal.App.3d 468, 474-475 [where trial court agreed it should have given a curative jury admonition, but then failed to do so, defense counsel’s failure to call trial court’s attention to this omission waived the issue].)
Moreover, we cannot see how Limaco could have been prejudiced by this evidence. The jury was expressly told Limaco had not stolen the gun. Brehm testified Limaco had purchased the gun from a friend. Limaco testified that when he started working with Cox she advised him to acquire a gun and he bought one from her. And the moral wrong of purchasing a stolen gun pales into insignificance compared to the charged crime of murder.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., ALDRICH, J.