Opinion
B320521
10-24-2023
THE PEOPLE, Plaintiff and Respondent, v. DIEGO MUNEVAR, Defendant and Appellant.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. PA075444 Michael Terrell, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST Acting P. J.
A jury convicted defendant and appellant Diego Munevar (defendant) of one count of first degree murder (Pen. Code, § 187, subd. (a)) and one count of attempted premeditated murder (§§ 664/187, subd. (a)). On appeal, defendant argues that (1) there was insufficient evidence of deliberation and premeditation on both counts; and (2) the prosecutor wrongly withheld discovery. We find no error and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
On November 24, 2012, two men were attacked within several blocks of each other. At around 2:18 p.m., a Los Angeles Police Department (LAPD) officer found the body of Francisco Avila (Avila) on the street. The parties subsequently stipulated that he was murdered, and that he died of a single stab wound to the left side of his neck.
Seven hours later, Rafael Sanchez (Sanchez) was stabbed in the neck in the parking lot of the Vallarta supermarket where he worked. As Sanchez arrived for his shift, a stranger approached him. He asked Sanchez how to find a taxi and pointed towards the road. When Sanchez turned to look in the direction the man was pointing, the man pulled out an object, struck the left side of Sanchez's neck, and fled. Sanchez was rushed to the hospital and hospitalized for 9 days following surgery to repair several lacerated veins in his neck.
II. The Trial
In 2015, the People charged defendant with one count of first degree murder (§ 187, subd. (a)) for killing Avila, and one count of attempted premeditated murder (§§ 664/187, subd. (a)) for stabbing Sanchez. The information further alleged that defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) in the commission of both crimes, and that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)) upon Sanchez. Defendant pled not guilty.
The matter proceeded to trial in 2017.
Partway through the pretrial proceedings, the trial court suspended the case due to concerns about defendant's competence. After receiving treatment in a state hospital, defendant received a certificate of mental competence and the prosecution resumed.
A. The Prosecution's Case
Several LAPD officers involved in the investigation testified to establish how defendant was identified as the assailant in both charged offenses. Detective Maria Perez, who interviewed Sanchez at the hospital shortly after he was attacked, took his description of the attacker. Sanchez reported that, among other things, the defendant wore a gray hooded sweatshirt (hoodie) and shorts.
This description matched surveillance videos of the stabbing taken from several cameras in the Vallarta parking lot (the Vallarta tapes). One of these tapes depicts a man wearing a hoodie, shorts, and pulled-up socks walking through the alley adjacent to the parking lot five minutes before the assault on Sanchez. Other tapes show the attack itself; a man in a gray hoodie, shorts, and pulled-up socks approaches Sanchez and talks to him for one minute before striking him in the side of his neck and running away. Another tape shows the man fleeing back down the alley.
In one of the Vallarta tapes, the assailant was holding a soda can; this prompted Detective Perez to look for additional security footage from nearby stores. Surveillance video from a nearby ARCO gas station (the ARCO tape) shows a man dressed in a hoodie, shorts, pulled-up socks, and a long rosary necklace stealing a canned drink from the station's convenience store roughly 30 minutes before the assault.
These images and descriptions matched those of the man depicted in surveillance videos taken near the Avila murder (the Avila videos). In these videos, Avila is seen walking past a storefront minutes before the discovery of his body; less than 30 seconds later, a man wearing a hoodie, shorts, and pulled-up socks quickly walks by in the same direction. Seconds later, the man reappears on the video, running in the opposite direction.
Lastly, at the preliminary hearing and trial, Sanchez identified defendant as his assailant. Sanchez also testified about his experience of the attack.
B. The Defense's Case and Allegations of Prosecutorial Misconduct
The defense presented one witness, an expert on memory and eyewitness identification. After the expert's testimony, the defense rested.
The next morning, defense counsel moved for a mistrial, or, alternatively, to dismiss the charges against defendant. The evening before, the prosecutor notified defense counsel of additional discovery, including notes made by various LAPD officers during the investigation of defendant's case. One of these notes (the Livesey notes), made by an individual identified as "Officer Livesey" stated that after viewing the ARCO tape, Officer Livesey identified the man stealing the canned drink as Manuel Vasquez, whom Officer Livesey had stopped at a nearby eatery earlier that week.
Defense counsel acknowledged that the prosecutor had made the entire record of the case, which included the Livesey notes, available for her review, but argued that the prosecution was required to provide her with individual pieces of exculpatory evidence. She argued that the late discovery of the Livesey notes "affected the entire way I've handled this case. I . . . potentially would have approached my client's defense from a much different angle if I only had this information."
The prosecutor contended that defense counsel had rejected several invitations to go through the prosecution's record of the case, and that the Livesey notes were immaterial.
The trial court denied both of defense counsel's motions, concluding that the prosecution had not acted in bad faith and that the late discovery of the Livesey notes was not prejudicial. The court explained that Officer Livesey's identification "is not . . . relevant information because the jurors decide who is on the video, who is not on the video. [¶] The ability of the defense to argue that there's other people that look like [appellant] . . . is not hampered."
C. The Verdict, Sentence, and Appeal
In August 2017, the jury found defendant guilty of both charged offenses and found all special allegations to be true. In May 2022, the trial court sentenced defendant to 25 years to life, plus an additional five years for the special allegations.Defendant filed this timely appeal.
In October 2017, defendant filed an unsuccessful motion for new trial based on the prosecution's purported failure to disclose exculpatory evidence.
This gap between the verdict and sentencing was caused by another suspension to assess defendant's competence.
DISCUSSION
I. Sufficiency of the Evidence
Defendant argues that there is insufficient evidence of deliberation and premeditation to support his convictions for first degree murder and attempted premeditated murder.
A. Applicable Law
To convict a defendant of first degree murder and attempted premeditated murder, the prosecution must prove beyond a reasonable doubt that the defendant acted with deliberation and premeditation. (§ 189 [first degree murder includes any "willful, deliberate, and premeditated killing"]; § 21a ["An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission"].)
"'A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill.'" (People v. Solomon (2010) 49 Cal.4th 792, 812.) "'"Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance.'" (People v. Sandoval (2015) 62 Cal.4th 394, 424.) However, "[p]remeditation and deliberation can take place in a quick interval." (People v. Mendoza (2011) 52 Cal.4th 1056, 1069.) "'"'"The test is not time, but reflection. "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly."'" [Citation.]'" (Solomon, supra, 49 Cal.4th at p. 812.)
Courts consider three nonexhaustive factors when assessing whether a defendant committed murder with deliberation and premeditation: (1) motive, (2) planning activity, and (3) manner of killing. (People v. Cage (2015) 62 Cal.4th 256, 276.)
B. Standard of Review
"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Jones (1990) 51 Cal.3d 294, 314.) "The same standard applies when the conviction rests primarily on circumstantial evidence. [ Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 396.)
Because we begin with the presumption that the evidence was sufficient, it is the appellant who bears the burden of convincing the court otherwise. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1430.) Reversal on a substantial evidence ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
C. Analysis
Defendant argues that "[t]he only logical explanation for [both] attack[s] is that it was the product of a disturbed mental process" resulting in "sudden and inexplicable attacks." Contrary to these assertions, the record contains sufficient evidence to support the jury's findings on premeditation and deliberation.
Defendant argues that there is no evidence of motive, as defendant did not have any "'prior relationship and/or conduct with the victim from which the jury could reasonably infer a "motive" to kill the victim[.]'" (People v. Thomas (1992) 2 Cal.4th 489, 516-517.) However, the lack of a motive does not preclude findings of premeditation and deliberation. (See People v. Edwards (1991) 54 Cal.3d 787, 814 [a "senseless, random" killing can supports a verdict of first degree murder as long as the evidence otherwise support a finding that the murder was conducted with premeditation and deliberation], overruled on other grounds by People v. Diaz (2015) 60 Cal.4th 1176.)
1. Planning activity
With respect to the attempted murder, Sanchez testified that defendant approached him in a parking lot, asked him a question and pointed to the street, and stabbed him in the neck immediately after he looked in the direction defendant was pointing. The jury reasonably could have construed this conduct as the execution of a plan to distract Sanchez just long enough to give defendant the opportunity to stab him and run before Sanchez could react. (See People v. Jablonski (2006) 37 Cal.4th 774, 821 [a defendant's "plan[] to approach the victim[] []by stealth as opposed to open confrontation[] . . . w[as] relevant to premeditation"].)
Regarding the murder, which took place seven hours before the Sanchez stabbing, the Avila tapes depict a man dressed identically to Sanchez's assailant pursuing Avila down the street immediately before Avila was stabbed to death. Within seconds, the man turned around and ran away in the opposite direction. Assuming from the verdict that the jury identified defendant as the man depicted in all of the surveillance videos submitted, it could reasonably infer from the Vallarta tapes and Sanchez's testimony that defendant was armed with a knife on the day of both the Sanchez attack and the Avila murder. Taken together, these inferences support a conclusion that defendant planned to commit both attacks. (See, e.g., People v. Koontz (2002) 27 Cal.4th 1041, 1082 [defendant's arming himself and following the victim demonstrated planning activity].)
2. Manner of actual or attempted killing
In both the murder and attempted murder, the manner of actual or attempted killing evidenced premeditation and deliberation. The nature of the wounds inflicted on both victims-a single, carefully aimed stab into the left side of the neck with enough force to lacerate underlying veins and arteries-suggests that defendant deliberately stabbed them in a manner calculated to inflict maximum harm. (See, e.g., People v. Booker (2011) 51 Cal.4th 141, 152, 173 [infliction of stab and cut wounds to the neck evidenced that the victim was killed deliberately]; accord, People v. Cruz (1980) 26 Cal.3d 233, 245 [aiming and discharging deadly force at the head and face "permit the jury to infer that the manner of killing was so particular and exacting that defendant must have killed intentionally according to a preconceived design"].)
Evidence that Sanchez was stabbed without provocation lends further credence to the jury's findings. (People v. Harris (2008) 43 Cal.4th 1269, 1287 [premeditation evidence when the "defendant was armed with a knife and stabbed [the victim] without provocation directly in [a vital area] with . . . force"].)
II. Discovery Misconduct
Defendant also contends the prosecution violated Brady v. Maryland (1963) 373 U.S. 83 (Brady) and the California discovery statute, section 1054.1, by failing to disclose the Livesey notes until after the defense rested its case.
A. Applicable Law and Standard of Review
In general, a prosecutor must disclose favorable and material evidence to the defendant. (Brady, supra, 373 U.S. at p. 87.) "'There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.'" (People v. Salazar (2005) 35 Cal.4th 1031, 1043, quoting, Strickler v. Greene (1999) 527 U.S. 263, 281-282.)
Section 1054.1 "'independently requires the prosecution to disclose to the defense, in advance of trial or as soon as discovered, certain categories of evidence 'in the possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in the possession of the investigating agencies.' (§ 1054.1) Evidence subject to disclosure includes . . . '[a]ny exculpatory evidence' (id., subd. (e))." (People v. Zambrano (2007) 41 Cal.4th 1082, 1133 [disapproved of on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22].) The statute does not "impose[] greater burdens on the prosecutor" than Brady. (Zambrano, supra, at p. 1135; see also People v. Tillis (1998) 18 Cal.4th 284, 294 ["Section 1054, subdivision (e), precludes us from broadening the scope of discovery beyond that provided in the chapter or other express statutory provisions, or as mandated by the federal Constitution"].)
We independently determine whether a Brady violation occurred but accord great weight to the trial court's factual findings that are supported by substantial evidence. (People v. Jimenez (2019) 32 Cal.App.5th 409, 418 (Jimenez).)
B. Analysis
Defendant fails to argue that the prosecution suppressed any evidence. This alone fatally undermines his Brady arguments. (Jimenez, supra, 32 Cal.App.5th at p. 418 ["On appeal, the defendant bears the burden to establish the components of a Brady violation"].)
Since the lack of suppression is dispositive, we need not address the parties' arguments about the potential prejudice caused by delayed discovery of the Livesey notes.
Moreover, the record establishes that no evidence was suppressed. If the evidence in question "is available to a defendant through the exercise of due diligence[,]" no suppression-and thus, no Brady violation-occurs. (Zambrano, supra, 41 Cal.4th at p. 1134.) "For this reason . . . the prosecutor's Brady obligation may, under proper circumstances, be satisfied by an 'open file' policy, under which defense counsel are free to examine all materials regarding the case that are in the prosecutor's possession." (Zambrano, supra, at p. 1134.) Defense counsel admitted that she had been given multiple opportunities to examine the prosecution file containing the Livesey notes, but failed to do so.
Defense counsel's contention at trial that the prosecution must separate out individual exculpatory materials from the aggregate evidentiary file is incorrect. (Zambrano, supra, 41 Cal.4th at p. 1135 [no Brady violation occurs where the exculpatory information "was in the prosecutor's files, and would have been revealed by a timely, practicable examination of those files pursuant to the prosecutor's multiple invitations"].)
"Because we see no reason to assume the reciprocal discovery statute imposed greater burdens on the prosecutor, we reach a similar conclusion as to defendant's claim of a statutory violation." (Zambrano, supra, 41 Cal.4th at p. 1135.)
DISPOSITION
The judgment is affirmed.
We concur:, CHAVEZ, J. HOFFSTADT J.