Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF127990A Gary T. Friedman, Judge.
Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J. Cornell, J., Kane, J.
INTRODUCTION
A jury convicted Jose Rosario Aguilar Lopez of the second-degree murder of Sandra Aparicio. Lopez challenges his conviction on the basis there was insufficient evidence he acted with malice aforethought. We will affirm.
STATEMENT OF THE CASE
On December 10, 2009, an information was filed in Kern County Superior Court charging Lopez with first-degree murder (Pen. Code, §187, subd. (a)), with an enhancement for the use of a deadly or dangerous weapon. (§ 12022, subd. (b)(1).)
Unless otherwise indicated, all further statutory references are to the Penal Code.
Trial commenced on May 20, 2010 and concluded on June 4, 2010. The jury found Lopez guilty of second-degree murder, and found the weapon-use allegation true. He was sentenced to 15 years to life with an additional year for the weapon-use enhancement for a total term of 16 years to life.
STATEMENT OF THE FACTS
On May 23, 2009, Estela Cabrera and her sister Sandra Aparicio were patronizing Graddy’s, a bar in the city of Shafter. Ana Ochoa Martinez (Ochoa) was managing the bar that night, and arrived sometime after Aparicio. Between 10:00 p.m. and 11:00 p.m., Lopez arrived with the father of Cabrera’s daughter, Antonio Zuniga Tirado (Zuniga). According to Zuniga, Lopez and he drank 10 or more beers each before arriving at Graddy’s.
Cabrera had introduced Aparicio to Lopez a few months earlier, and the two were dating. Lopez testified they were engaged.
Lopez seemed upset that Aparicio was at Graddy’s, and began arguing and pushing her. Lopez testified he thought she was dressed inappropriately and did not believe Graddy’s was an appropriate place for a woman with a family. Aparicio asked Lopez to go outside to talk, and the two argued outside for approximately 30 to 40 minutes before returning inside. The arguments did not stop, however, and Lopez attracted the attention of the security guard, Ricardo Nieves at least twice. While Nieves contemplated removing Lopez from the bar, Ochoa instructed him not to do so.
According to Lopez, after their argument, Aparicio began dancing with and talking to other men. Lopez said this made him feel bad. He was angry, sad, and generally upset. A new bout of arguments started, in which Aparicio allegedly told Lopez to “Go fuck your mother.”
What happened next is undisputed. Lopez took out a knife and stabbed Aparicio. Ochoa, thinking Lopez had simply hit Aparicio, told Nieves to escort him out of the bar. Aparicio went to her sister and said Lopez had stabbed her. Aparicio then collapsed. The cause of death was the stab wound, which cut her aorta.
After Nieves ejected Lopez from the bar, Lopez began running. Nieves gave chase and observed Lopez throw something in a trash can. Nieves apprehended Lopez and restrained him while another security guard called police. Police found a bloody knife in a trash can.
Lopez waived his Miranda rights and confessed to stabbing Aparicio.
Miranda v. Arizona (1966) 384 U.S. 436.
DISCUSSION
Lopez contends there is insufficient evidence to sustain his conviction of second-degree murder. He maintains he was provoked, negating any malice and making him guilty of-at most-voluntary manslaughter. Accordingly, Lopez asks that his conviction be reversed and the matter remanded.
1. Substantial Evidence of Malice
We “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which 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.) “If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
“Murder is the unlawful killing of a human being … with malice aforethought.” (§ 187, subd. (a).) Malice is either express or implied. (§ 188 .) Express malice is exhibited when there is a deliberate intent to unlawfully kill. (Ibid.) Implied malice is exhibited when “1. The killing resulted from an intentional act; 2. The natural consequences of the act are dangerous to human life; and 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.” (CALJIC 8.11.)
“Manslaughter is the unlawful killing of a human being without malice.” (§ 192.) One of the three types of manslaughter includes an unlawful killing “upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).) “[T]he factor which distinguishes the ‘heat of passion’ form of voluntary manslaughter from murder is provocation.” (People v. Lee (1999) 20 Cal.4th 47, 59.) This provocation must be caused by the victim, and “must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.” (Ibid.) This is an objective test which does not take into account the character or personality of a specific defendant. Because such provocation reduces the crime from murder to manslaughter, it is said to “negate” or “mitigate” any malice that may exist.
The existence of malice and adequate provocation are questions of fact for the jury. (People v. Valentine (1946) 28 Cal.2d 121, 139.)
The court instructed the jury that 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.” Other instructions informed the jury the prosecution had the burden of proving the defendant did not kill because of adequate provocation, and that the ultimate question over the existence of provocation was a question for them to decide. In addition, the jury was instructed they could take into account Lopez’s cultural background in determining whether he was adequately provoked.
Lopez does not contend these instructions were improper. The jury was aware of its ability to find Lopez guilty of manslaughter rather than murder. By refusing to do so the jury implicitly found Lopez did have malice aforethought, and therefore was not adequately provoked.
There is abundant evidence to support the jury’s conclusion Lopez acted with implied malice. He confessed to intentionally stabbing Aparicio, an act which was inherently dangerous to human life, and was deliberately done in conscious disregard for the danger to life. Thus, the only question left to be resolved is whether there is sufficient evidence of adequate provocation to negate this malice.
The jury heard evidence Lopez pushed Aparicio before being provoked in any way, that Lopez and Aparicio were arguing for as much as an hour, and that Lopez was acting aggressively enough to cause the security staff to consider ejecting him. Lopez may have insulted Aparicio at some point, causing her to scream she was not a prostitute. In addition, Lopez himself testified he became increasingly angry and jealous over the course of the evening. Lopez’s anger may also have been compounded by his consumption of 10 or more beers that night. These facts indicate Lopez was agitated well before Aparicio’s comment about his mother that allegedly provoked him. The jury clearly could have found Lopez did not act out of any “sudden quarrel” or “heat of passion” but instead acted out of increasing jealousy and rage building over the entire night.
A reasonable finder of fact also could have found provocation existed, but was insufficient to justify Lopez’s response. While it is true the jury instruction for voluntary manslaughter, CALCRIM No. 570, includes as examples of sufficient provocation “verbal taunts by an unfaithful wife [citation]; and the infidelity of a lover [citation], ” these are examples; the law does not require a murder conviction be reduced if these circumstances exist. The ultimate determination of whether the specific provocation in a specific case was adequate enough to preclude malice aforethought is for the jury, subject to a substantial evidence standard of review. Given the above facts, there is sufficient evidence to support the conclusion that an ordinary, reasonable person of average disposition would not stab their lover over the conduct exhibited by Aparicio.
We hold there was substantial evidence to support a finding of malice and a conviction for second-degree murder.
DISPOSITION
The judgment is affirmed.