Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County. Kathleen Kennedy Powell, Judge., Los Angeles County Super. Ct. No. BA221198.
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, Senior Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant Manolo Morataya appeals from his second conviction of the second degree murder of Noe Alvarado. We reversed his first conviction because the jury was not instructed on the lesser included offense of voluntary manslaughter (case No. B179525) (Morataya I). In this appeal, he contends: (1) the evidence was insufficient to support the conviction; and (2) the trial court erred in imposing a security fee. We affirm.
The record does not include a copy of the information. But, according to the opinion in Morataya I, defendant and Nilda Palacios were jointly charged with first degree murder of Alvarado; an enhancement for personal use of a deadly weapon was also alleged. They were tried separately. In an unpublished opinion, we reversed Palacios’s conviction for first degree murder (case No. B181634), finding the evidence sufficient to support the conviction for first degree murder, but that the trial court erred in failing to instruct on voluntary manslaughter.
FACTUAL AND PROCEDURAL BACKGROUND
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that defendant and Nilda Palacios lived in a house on Makee Ave. The victim, Noe Alvarado, had lived alone in a motor home for several years. In February 2001, Alvarado met defendant and, some time in the middle of May 2001, Alvarado accepted defendant’s invitation to move his motor home onto the Makee Ave. property.
On Friday, July 26, 2001, Alvarado’s longtime friend, Mayor Barrientos, drove Alvarado to the motor home. After spending about an hour washing one of several cars Alvarado kept on the property, Barrientos left. When Barrientos returned on the following Monday, Alvarado was not there. Barrientos found it odd that there were no signs of the crutch that the polio-stricken Alvarado needed to walk. In response to Barrientos’s repeated inquiries over the next several weeks, defendant said at first that he did not know Alvarado’s whereabouts; later, defendant said that Alvarado had gone to live with a sibling.
Meanwhile, on July 29, 2001, a male body was found in a parking lot on Slauson Ave., a few miles from Makee Ave. Later identified as Alvarado, the body was wrapped in a sleeping bag with his head at the bottom of the bag and his feet protruding from the opening; a shirt was wrapped around his neck. The cause of death was determined to be head trauma and strangulation. The medical examiner opined that, despite potentially fatal head wounds, Alvarado had been alive when he was strangled. There was no alcohol and no drugs in his system.
When Barrientos learned of Alvarado’s death, he contacted the police and on August 16, 2001, Barrientos positively identified the body found in the sleeping bag. Barrientos told police whom he suspected as the killer. That day, the police detained defendant, codefendant Palacios, and Palacios’s mother. After first interviewing Palacios for about an hour, detective Jesus Linn talked to defendant.
In the interview, defendant told Linn that, in the days before the killing, Palacios was upset with Alvarado because Alvarado knocked on their door every morning at 5:00 a.m. to ask to use their bathroom or to watch television. Palacios became even more perturbed when she found her panties among Alvarado’s things. Palacios and Alvarado also quarreled over Alvarado getting a key to the house and Palacios getting a key to the motor home. The day of the killing, defendant and Palacios were in Alvarado’s trailer arguing about Alvarado taking Palacios’s underwear, Palacios’s use of Alvarado’s microwave oven, and Alvarado’s refusal to sell defendant a car. The argument was escalating and, when defendant refused Alvarado’s offer to give them Alvarado’s microwave oven (defendant was afraid that Alvarado would later accuse them of stealing it), Alvarado moved the microwave in such a way that the cord swung around and hit Palacios.
Defendant reacted by grabbing Alvarado: “because he wasn’t able to hold himself up without his crutches, you know -- I mean, he could hold himself up but not very well -- I grabbed him and threw his arms back like this, and I told him, ‘Calm down because -- because you can’t even defend yourself,’ I said to him. That’s when she -- she said to me, ‘Get out of the way,’ and that’s it. That’s what she told me, and she hit him the first time, you know.” While defendant continued to hold Alvarado, Palacios hit him several more times with a wood block like the kind used behind a tire to stop a car from rolling. When Alvarado became too heavy for defendant to hold any longer, defendant dropped him on the ground.
After Palacios convinced defendant that Alvarado would call the police if he got up, defendant followed her instructions to tie up Alvarado with a shirt. But as defendant tied the shirt around Alvarado’s hands, Palacios grabbed it and tied it around Alvarado’s neck. Defendant complied when Palacios instructed him to pull the shirt. Complaining that defendant was not pulling hard enough to stop Alvarado from breathing, Palacios used a small stick to make the shirt into a tourniquet; she turned the stick a few times. Defendant told Linn that, when Palacios asked defendant for help: “Quite frankly, I didn’t know what to do. And I already -- I was already mixed up in this mess. [¶] You know? From the -- from the moment I grabbed him and she hit him, and -- and she saw that -- I saw that she hit him, and she hit him again, . . . [¶] . . . maybe if I had grabbed him and she had hit him, and I had told her, ‘That’s it, that’s enough,’ it would’ve been different, but I -- I also -- how can I say it? -- I didn’t stop her. [¶] I didn’t stop her and at the time, uh, I also got involved in this. [¶] . . . [¶] But like I say, I’m partly at fault, that’s clear, and -- like I say, I don’t deny it.”
When it was over, they took outside the wood block Palacios used to hit Alvarado. That night, they left Alvarado’s body in the motor home. The next day, defendant did not want to go back in the motor home, but Palacios pointed out that the body would begin to smell if they left it there. So defendant and Palacios wrapped Alvarado’s body in a bedspread, carried it out of the motor home, and put it in the trunk of a car, which defendant drove. Later, Palacios convinced defendant to run away; she told defendant that her mother said, “ ‘Leave that house before they come looking for you, because they’re not gonna be looking for those who are guilty but for someone to blame.’ ”
At trial, defendant testified that he met Alvarado in February 2001; later, he gave Alvarado permission to park his motor home on the Makee Ave. property. Because the bathroom in the motor home was not working, they agreed that Alvarado could use the bathroom in the house between 8:00 a.m. and 9:00 p.m., in exchange for which Alvarado agreed to maintain the yard. But Alvarado did not keep to the agreement; he frequently knocked at the door at 5:00 a.m. to use the bathroom and if defendant did not let him in, Alvarado defecated on the back wall and left the mess for defendant to clean up. Alvarado not only failed to maintain the yard, he also refused to remove some broken-down cars he deposited there with the stated intention of fixing them.
On the morning of the killing, Palacios complained to defendant that when she was in Alvarado’s trailer to use the microwave the night before, she found her panties under Alvarado’s pillow and that Alvarado had touched her inappropriately. Resolving to talk to Alvarado about Palacios’s complaints, defendant waited with his dog in the gated yard for Alvarado’s return. When Alvarado arrived and defendant tried to open the gate for him, Alvarado cursed and hit defendant in the face with his crutch. After standing in the middle of the yard arguing with defendant for a few minutes while Palacios looked on, Alvarado suggested that they all go into the motor home to continue their discussion. Inside the motor home, defendant complained to Alvarado that Alvarado was falsely telling people that defendant had been stealing from him, and about Alvarado’s early morning knocking, defecating on the wall, and leaving the old cars on the property. Meanwhile, Palacios was yelling at Alvarado about her panties.
In an apparent attempt to change the subject, Alvarado shoved a microwave oven towards defendant and told him to take it; but defendant refused and while Alvarado was putting the microwave back, the cord hit Palacios in the face. Defendant testified that, upon seeing the cord hit Palacios, “all [the] anger I’ve been keeping inside, for all the problems we had had in the past, all of it, I just couldn’t stand it any more. I just stood up and I went towards him. I couldn’t really describe with words, you know, specific words what -- what the anger and the frustration I was feeling at that time.” Defendant grabbed Alvarado by the shoulders and punched him in the face; Alvarado responded by grabbing the front of defendant’s shirt and calling him by a derogatory term. While defendant and Alvarado struggled, Palacios said “get out of the way,” and then hit Alvarado on the head with a wooden board. Defendant let Alvarado fall to the ground, where Palacios hit him twice more with the wooden board. Handing defendant a shirt, Palacios instructed him to tie up Alvarado. Defendant started to tie Alvarado’s hands because he thought Alvarado would get up and be even angrier and because defendant was still angry at Alvarado for all the things Alvarado had done, including hitting Palacios in the face with the microwave oven cord. But Palacios yanked the shirt out of defendant’s hand and tied it around Alvarado’s neck.
When Palacios yelled at defendant to “pull on it, pull on it,” defendant took hold of one shirt sleeve in each hand and pulled, but not very hard. Dissatisfied, Palacios took the sleeves away from defendant and used a stick to make a tourniquet out of the shirt, which she twisted to tighten the shirt around Alvarado’s neck. Defendant “just stood there where I was, observing or -- I don’t know. I was scared to tell her to stop, to - [¶] . . . [¶] . . . Something happened to me. I can tell you that in a way, I was -- I was not myself. I was not in touch with my feelings at that time.” Although he was six years older and physically bigger than the 18-year-old, 100-pound Palacios; defendant felt out of control and was unable to stop her. After Palacios finished, she and defendant left the motor home and went for a walk. When they returned 15 minutes later, defendant did not want to go back inside the motor home -- he hoped that Alvarado was just unconscious -- but Palacios convinced him that they had to go inside; when they did, they discovered that Alvarado was dead. While defendant pulled a car into the front yard, Palacios got a sleeping bag; together, they stuffed Alvarado’s body into the sleeping bag head-first and put the bag into the car trunk. Defendant then drove to a parking lot where they left the body.
DISCUSSION
A. Substantial Evidence Supports the Conviction for Second Degree Murder
Defendant contends there was insufficient evidence of the malice element of second degree murder. He argues that the prosecution failed to prove beyond a reasonable doubt that the killing was not committed in the heat of passion. We disagree.
“Under the due process clauses of both the Fourteenth Amendment of the federal Constitution and article I, section 15 of the California Constitution, the test of whether evidence is sufficient to support a conviction is 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. [Citations.] In making this assessment the court looks to the whole record, not just the evidence favorable to the respondent to determine if the evidence supporting the verdict is substantial in light of other facts. [Citations.] [¶] The standard of appellate review is the same when the evidence of guilt is primarily circumstantial. 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 be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 667, internal quotations omitted.)
In People v. Manriquez (2005) 37 Cal.4th 547, 583 (Manriquez), our Supreme Court explained the distinction between murder and manslaughter: “An unlawful killing with malice is murder. ([Pen. Code,] § 187.) Nonetheless, an intentional killing is reduced to voluntary manslaughter if other evidence negates malice. Malice is presumptively absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation ([Pen. Code,] § 192, subd. (a)), or kills in the unreasonable, but good faith, belief that deadly force is necessary in self-defense. [Citations.] Only these circumstances negate malice when a defendant intends to kill. [Citations.]”
A killing is upon “a sudden quarrel or heat of passion” if the killer’s reason was obscured by a “provocation” sufficient to cause an ordinary person of average disposition to act rashly and without deliberation. There is both an objective and a subjective component to the heat of passion requirement: (1) subjectively, the defendant must actually kill under the heat of passion and (2) objectively, the provocation must be such as would naturally arouse such passion in the mind of an ordinarily reasonable person. To be sufficient, the provocation may be physical or verbal, but it must have been caused by the victim or the defendant must have reasonably believed that the victim engaged in the provocative conduct. (Manriquez, supra, 37 Cal.4th at p. 584; People v. Najera (2006) 138 Cal.App.4th 212, 223, 225.) Provocation can arise over a period of time. (People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1245.) But, if sufficient time has elapsed between the provocation and the fatal blow “for passion to subside and reason to return,” the killing is not voluntary manslaughter. (Id. at pp. 1244-1245.)
If the evidence in a murder case suggests that the killing may have been provoked (i.e. committed in the heat of passion), it is the prosecution’s burden to “prove beyond reasonable doubt that these circumstances were lacking in order to establish the murder element of malice. [Citations.]” (People v. Rios (2000) 23 Cal.4th 450, 462.) This burden is reflected in CALJIC No. 8.50 which, as given here, reads in pertinent part as follows: “To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel.”
To meet this burden, the prosecution need not introduce evidence that contradicts the evidence relied upon by the defendant to establish heat of passion. Rather, the burden is met if the evidence relied upon by defendant is susceptible of an interpretation which suggests the absence of heat of passion. Where the jury has been properly instructed on voluntary manslaughter as a lesser included offense of murder, a finding that the defendant is guilty of second degree murder includes an implicit a finding that the prosecution proved beyond a reasonable doubt that the killing was not done in the heat of passion or upon a sudden quarrel. If substantial evidence supports this finding, that the circumstances might also be reasonably reconciled with a contrary finding does not warrant reversal. (Cf. Holt, supra, 15 Cal.4th at p. 667.)
As we understand defendant’s argument, it is that the prosecution failed to meet its burden of proving the absence of heat of passion because the following evidence constituted “compelling and undisputed evidence that appellant was so inflamed that he lost judgment and reason” and thus established that the killing was committed in the heat of passion as a result of Alvarado:
· Frequently knocking at the door of defendant’s and Palacios’s home to use their bathroom at 5:00 a.m.;
· Defecating in their yard;
· Storing old cars on the property in front of their house;
· Surreptitiously acquiring Palacios’s underwear;
· Inappropriately touching Palacio;
· Peeping into their windows;
· Accusing defendant of stealing;
· Assaulting defendant on the day of the killing;
· Calling defendant names; and
· Hitting Palacios with the microwave oven cord.
In Morataya I, we found this evidence warranted voluntary manslaughter instructions because a reasonable trier of fact could infer from it that defendant acted in the heat of passion (i.e., that Alvarado’s conduct was sufficiently provocative to cause an ordinary person of average disposition to act rashly and without deliberation). But it does not follow that this is the only inference to be drawn from the evidence. On the contrary, a reasonable trier of fact could reasonably find that this same evidence did not establish the objective element of heat of passion. For example, the jury could have reasonably found that Alvarado’s conduct was simply not sufficiently provocative to negate the element of malice. Or, it could have reasonably found that the time between the microwave oven cord hitting Palacios (Alvarado’s last alleged provocative act) and defendant pulling on the sleeves of the shirt to strangle Alvarado, was sufficient for the passion to subside in a reasonable person. Because the evidence supports a finding beyond a reasonable doubt that defendant did not kill Alvarado in the heat of passion, the prosecution met its burden of proving that the killing was not committed in the heat of passion.
B. The Security Fee
Defendant contends the $20 security fee imposed pursuant to Penal Code section 1465.8 (§ 1465.8) must be stricken. He argues that, because the offense was committed more than a year before the effective date of the statutory authorization for the fee, its imposition violated (1) retroactivity principles codified in Penal Code section 3; and (2) is an ex post facto law barred by the United States and State Constitutions. We disagree.
Section 1465.8, subdivision (a)(1) provides: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . .”
In People v. Wallace (2004) 120 Cal.App.4th 867, 870, the court rejected the defendant’s ex post facto challenge to imposition of a section 1465.8(a)(a) fine, holding that “the section 1465.8, subdivision (a)(1) $20 court security fee, which was part of a budget trailer bill, may be imposed on defendants whose crimes were committed prior to its August 17, 2003, effective date.” The Wallace court found the statute non punitive, a conclusion with which we agree.
Wallace did not specifically address Penal Code section 3, which provides no penal statute may be applied retrospectively unless the statute so declares. However, from Wallace’s conclusion that the court security fee is not punitive, it follows that section 3, which addresses only penal sanctions, does not apply here. (See People v. Adames (1997) 54 Cal.App.4th 198, 214 [AIDS testing probation requirement is not punishment and may be applied retroactively].) Section 1465.8 contains the Legislature’s statement that the security fee is part of court funding of the security measures necessary to conduct criminal trials. Defendant’s current trial took place after section 1465.8 was enacted. A fair reading of the section is that the Legislature intended the statute to apply here. Even if it is said that the security fee is being applied retroactively, the Legislature has complied with Penal Code section 3 by “expressly . . . declar[ing]” its intent that section 1465.8 applies “retroactively” to crimes committed before its passage but to trials that take place after the statute’s effective date.
Whether section 3 applies to section 1465.8 court security fees was addressed in two recent cases, both of which are now pending in our Supreme Court: People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006, S141415 [holding the fee cannot be imposed retroactively because there was no clear indication that the Legislature intended the statute to be applied retroactively]; and People v. Alford (2006) 137 Cal.App.4th 612, review granted May 10, 2006, S142508 [holding the fee may be imposed upon a defendant whose crime occurred before the effective date of the statute because the history, purpose, and impact of the law reveals the Legislature intended section 1465.8 to apply retroactively].
DISPOSITION
The judgment is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.