Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA351561, Charlaine S. Olmedo, Judge.
Law Offices of Robert C. Kasenow, II and Robert C. Kasenow, II for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Blythe J. Leszkay and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Dominador Oro entered the apartment of his former girlfriend, sprayed her with pepper spray and restrained her with handcuffs, threatened to sexually assault and kill her, and released her several hours later after she promised to marry him and have children with him immediately. He was convicted of eight criminal offenses and sentenced to 24 years to life in prison. On appeal, Oro contends that insufficient evidence supported his convictions for attempted murder, attempted rape, and attempted sodomy; that the jury should have been instructed on attempted voluntary manslaughter as a lesser included offense of attempted murder; and that the jury committed misconduct. The Attorney General asserts that fees required by Government Code section 70373 were not imposed with respect to counts 2 through 8. We modify the judgment to impose these fees but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
V.J. and Oro dated for more than five years after they met during their military careers. In November 2008 V.J. broke off their relationship. Oro’s behavior changed after the break-up, and V.J. began to fear him. She refused to tell him where she was moving and did not want him to know where she lived. She kept the key and lease information for her new apartment in her car rather than taking it into the apartment she shared with Oro.
Once she moved into the apartment, V.J. became concerned about the locks on the apartment door. The landlord had told her that she should use only the deadbolt lock, but V.J. found that a number of times when she returned home both locks were locked. Her landlord attributed it to the age of the locks. V.J. did not connect the lock incidents with Oro because she felt confident that he did not know where she lived. Inside her apartment, in a prominent place, was V.J.’s work schedule.
In January 2009, V.J. traveled to another state to visit an ex-boyfriend. She returned early in the morning on January 12, 2009, and left her bags on the floor, unpacked. The following day—when her schedule indicated she was off work—she was napping at home in the afternoon when Oro entered the apartment. He accused V.J. of having traveled to see her ex-boyfriend, then sprayed her with pepper spray. V.J. screamed and put her hands over her face; Oro tackled her and they fell on her bed. Oro placed a handcuff on her left wrist and put a gun to her head. Oro told her to stop screaming or he would shoot her. V.J. complied.
V.J. continued to struggle with Oro, but he eventually succeeded at handcuffing both her hands behind her back. He told her to sit at the edge of the bed; she panicked and resumed screaming. Oro wrestled with her and subdued her by placing a pillow over her head.
Oro then told V.J. calmly that “he was very hurt and upset that [she] didn’t give him a second chance” and that she “had to die.” She asked why he had not already killed her, and he responded, “Well, don’t worry. I am going to kill you. First I am going to rape you. Then I am going to sodomize you, and then I am going to kill you.”
As she sat listening to Oro, V.J. noticed that her right handcuff was loose and managed to work her hand free. She waited for an opportune moment as Oro questioned her about her visit to see her ex-boyfriend, during which he asked if she had sexual intercourse with him and posed other questions asking for details of that encounter. She did not try to attack or flee at that time because she believed he would have shot her. Oro told her that he had been to her home before, that he had taken her underwear, knew about her trip, and had searched her bag. He turned on her computer and played a video recording of intimate activity between Oro and V.J. that V.J. had believed to have been erased. Oro told her that this was what she would be doing that day before she died.
Oro became concerned that someone might have called the police due to V.J.’s screams. He pulled the linens from V.J.’s bed, rolled them up, and stuffed them under the door as a temporary barricade, commenting that it would slow the police down enough for him to kill them both before the police entered. As Oro worked, V.J. saw the gun on the floor. Believing this to be her best opportunity, she grabbed the gun, aimed it at him, and pulled the trigger. The gun did not fire, so she hit him in the head with it until he wrested it from her hand.
As he overpowered her, Oro and V.J. fell onto the bed. He lay on top of her and said, “Look what you did. You broke my tooth. I am bleeding.” Oro tried to re-cuff V.J.’s right hand, and in the struggle they fell to the floor. Oro sat on V.J.’s back, sprayed her with pepper spray, and commanded her to give him her hand. She was laying on her right hand so that he could not place it in handcuffs; her left hand was bent behind her back. He pulled some hair out of her head and sprayed her again with pepper spray. V.J. grabbed the canister and threw it out of reach, then placed her right hand back underneath her. Oro began hyperextending her left arm and pulling back her fingers to cause her to give him her hand. V.J. sustained permanent damage to her arm, wrist, and hand.
Because Oro was bleeding profusely, V.J. hoped that he would lose consciousness, and tried to buy herself time by asking him to let her breathe. They struggled for approximately half an hour before Oro succeeded in placing her right hand back in the handcuffs. During the struggle, V.J. screamed and kicked the walls and floor in the hope that someone would hear her.
At that point, Oro helped her up and took her into the bathroom so he could clean himself up. V.J. sat on the edge of the bathtub as Oro looked at himself. He asked her if she would like him to uncuff her, and she responded affirmatively. He said that he would remove the handcuffs if she agreed to four conditions: (1) they get married immediately; (2) she stop using contraception and get pregnant immediately; (3) she eliminate her contacts and give him control over her finances; and (4) she break off all contact with her ex-boyfriend. Drawing on the military training she had received on how to survive being captured, V.J. agreed and told him it was a great idea in order to keep him calm. She attempted to appear convincing and even kissed him. She agreed to watch a movie with him later that night. Once V.J. agreed to his demands, Oro became content. He eventually removed the handcuffs and she helped him to clean himself up.
Afterwards, Oro asked V.J. if she would consider having sexual intercourse with him that night. V.J. suspected that her feelings were clear from her expression because he assured her that they had the rest of their lives for that. Oro began cleaning up the apartment and talking about how he would come back that night and move in. V.J. watched him walk around, wiping blood off the walls, putting things in bags, unloading beer from a cooler he brought, and removing items from his pockets and putting them in the cooler. She saw him take a taser and condoms from his pocket, and empty his weapon and place the magazine in the cooler with the other items. Oro discarded the shirts he was wearing that had become bloody, threw away the pepper spray canister, and took the trash out to the apartment dumpster.
Oro was at V.J.’s apartment for approximately four and a half hours. When he left, V.J. went to a neighbor’s house, the police were called, and she went to the hospital to have her injuries treated. She returned home to find that Oro had come back to her apartment and left her a note.
V.J. later discovered that spyware had been installed on her computer that forwarded her e-mails and chat messages to a third party.
Police recovered the bloody linens and clothing from the trash at V.J.’s apartment building, and found in V.J.’s apartment condoms, a canister of mace, and gloves. The police searched the location where Oro was staying and found the cooler containing a semiautomatic weapon and bloody magazine, ammunition, a passport, handcuffs, a taser, a boarding pass, and a rifle. In Oro’s wardrobe police found ammunition, cord, a product for tying things down, and gloves. The handcuff case and taser box were in the garage, and bloody jeans were found in his car. Police also recovered a key to V.J.’s apartment from Oro.
Oro was charged with nine offenses: attempted premeditated murder (Pen. Code, §§ 664/187); criminal threats (§ 422); assault with a firearm (§ 245, subd. (a)(2)); attempted forcible rape (§ 664/261, subd. (a)(2)); attempted sodomy by threat (§ 664/286, subd. (c)(3)); first degree burglary (§ 459); false imprisonment by violence (§ 236); corporal injury to a former cohabitant (§ 273.5, subd. (a)); and assault with intent to commit a felony (§ 220, subd. (a)). Numerous enhancements were alleged. Oro elected not to testify at trial. He was convicted on all but the final count and was sentenced to 24 years to life in prison. Oro appeals.
Unless otherwise indicated, all further statutory references are to the Penal Code.
DISCUSSION
I. Sufficiency of the Evidence of Attempted Murder
Oro contends that the evidence was insufficient to prove that he intended to kill V.J., that he committed any act in furtherance of the intent to kill, or that the attempted murder was committed willfully and with premeditation and deliberation. “When a jury’s verdict is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support it, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury.” (People v. Brown (1984) 150 Cal.App.3d 968, 970.) We review the record in the light most favorable to the judgment and determine whether it discloses substantial evidence such that a rational trier of fact could find Oro guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We conclude that the evidence is sufficient to sustain Oro’s conviction.
Oro first claims that there was insufficient evidence to permit a jury to conclude that he intended to kill V.J. He was in her apartment for four and one-half hours, and during that time, Oro argues, he did not carry out his threat to kill V.J. despite having a gun and ammunition with him. He argues that this case is similar to People v. Miller (1935) 2 Cal.2d 527, 532, in which the California Supreme Court concluded that evidence of an armed defendant’s silent approach towards the victim without pointing his weapon could have been motivated either by the intent to kill or the intent to demand that the victim be arrested by the constable, and that therefore the defendant’s conduct did not constitute an attempt to commit murder.
Here, in contrast to the equivocal evidence of intent in People v. Miller, supra, 2 Cal.2d 527, the evidence was sufficient to permit the jury to conclude that Oro intended to kill V.J. Oro clearly articulated his intent to kill V.J. once he had raped and sodomized her, and he explained to her that she had to die. He took direct steps toward accomplishing the intended killing: Oro entered her apartment with a handgun and ammunition; sprayed V.J. with pepper spray and restrained her with handcuffs; held the gun to her head; and told her that he would kill her once he was finished sexually assaulting her. V.J. struggled with and then outwitted Oro, but that he did not ultimately kill her does not mean, as he suggests, that he was really there to win her back rather than to kill her. The evidence was sufficient to permit the jury to conclude that Oro intended to kill V.J. and that he took direct steps to accomplish that goal.
Next, Oro argues that the evidence was insufficient that the attempted murder was committed willfully and with premeditation and deliberation. This argument is meritless. There was evidence that Oro carefully planned his attack on V.J., making a copy of her apartment key, planting spyware on her computer, installing a video on the computer that he would later force her to watch, purchasing supplies such as pepper spray, and preparing for the attack by bringing a loaded gun, a taser, pepper spray, handcuffs, and condoms. This evidence clearly permitted the conclusion that Oro engaged in planning, premeditation, and deliberation.
II. Attempted Voluntary Manslaughter Instruction
Oro argues that if the evidence was sufficient to support a conviction for attempted murder, the court should have instructed the jury on the lesser included offense of attempted voluntary manslaughter. A trial court must instruct on lesser offenses when there is substantial evidence that the defendant is guilty only of the lesser offense. (People v. Prince (2007) 40 Cal.4th 1179, 1265.)
We see no evidence here that would permit a jury to find that Oro committed attempted voluntary manslaughter but not attempted murder. Oro contends that it was his “anger” at V.J. for going to visit her ex-boyfriend that prompted him to enter her apartment on her return, and that he was acting under the “stress” of this at the time he entered her home. Although Oro sets forth the law relating to provocation and heat of passion, he does not actually claim that he was acting under the heat of passion—nor can he, for an ex-girlfriend’s travel out of state to see another ex-boyfriend hardly constitutes the kind of provocation that would be sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, and from passion rather than judgment. (See People v. Lujan (2001) 92 Cal.App.4th 1389, 1414-1415 [it is not a provocative act to become involved in a new relationship months after the old one ended and citing cases holding the same concerning jealousy over new relationships].) Moreover, even if this travel to see an ex-boyfriend could possibly be considered a provocative act, Oro did not attack V.J. until more than 24 hours after her return—more than enough time for any purported passion to cool. As Oro has not demonstrated that there was any sufficient evidence that he committed attempted voluntary manslaughter rather than attempted murder, there was no reason to give attempted voluntary manslaughter instructions.
III. Alleged Jury Misconduct
As part of a motion for new trial, Oro submitted a declaration by a deputy public defender who overheard jurors responding to questions from defense counsel after the jury was excused. He wrote, “As I passed by, I distinctly and clearly heard at least one of the jurors state that we had ‘no choice’ but to convict him (the defendant) because he did not testify.” This comment caught the attorney’s attention and he stopped to listen. He wrote, “The comment about having ‘no choice’ but to convict because the defendant did not testify was again stated and agreed to by other jurors, ” and “The jurors indicated that since the defendant did not testify they had to convict him.” Defense counsel characterized the conversations and provided additional details in the moving papers and in argument, but he did not submit a declaration to provide evidence to support his statements.
We note that in the opening brief on appeal, Oro relied on statements made in the motion for a new trial rather than on the declaration presented to the trial court.
The trial court denied the motion for a new trial based on juror misconduct. The court explained that the only evidence before the court of what occurred was supplied by the public defender and that the statement about having no choice was “somewhat an ambiguous statement because it also implies and you can infer and I am inferring at this point that what they’re saying is without an alternative presented to them, they believed the evidence that was presented to them, and therefore they had no choice but to go with what was presented to them and what they found believable. And that doesn’t necessarily mean they ignored the instruction that... they were not to consider that he did not testify.” Defense counsel responded, “Of course, ” but urged the court that his impression was really that the jury had ignored the instruction: “The way it was said, the manner, the demeanor, I really believe that they ignored the jury instruction.” The court said, “[B]ecause the issue here was mental intent, without anything more specific, I’m not sure how a lay person would necessarily express their viewing the evidence as being overwhelming or sufficient without anything more to contradict that. And the only thing we do have to contradict a mental intent is a statement from a person as to what they... intended at that time. [¶] So as I stated, I think the statement is vague in the context of this case, and it does not necessarily imply a disregard for my instructions or the law.”
We review the trial court’s denial of the motion for a new trial for an abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1063.) There was no abuse of discretion here. The only statement in evidence here—the assertion that the jury had to convict because the defendant did not testify—in the context of this case is a rational description of the jury’s proper deliberation process. Having accepted V.J.’s account of the event, an account bolstered by the physical evidence to which the investigating police officer testified, the jury was unlikely to do anything other than to convict Oro without some other explanation of his intent in breaking into the apartment and attacking V.J. besides his stated intent to rape, sodomize, and murder her. Evidence of an intent different from the intent Oro had articulated contemporaneously with the crimes could only have come from Oro himself, and he chose not to testify. Accordingly, once the jury had decided to accept the evidence presented, without testimony concerning intent from Oro, the conviction naturally followed. We agree with the trial court’s interpretation that the statement attested to in the declaration was a lay assessment of the strength of the evidence rather than a confession of disregard for jury instructions, and find no abuse of discretion in denying the motion for a new trial due to the absence of evidence of jury misconduct.
IV. Sufficiency of the Evidence of Attempted Rape and Attempted Sodomy
Oro challenges the sufficiency of the evidence to support his convictions for attempted rape and attempted sodomy. He contends that absent his statement during the crimes that he was going to rape and sodomize V.J., there was no evidence of this intent; he denies that bringing condoms leads to the inference that he was going to commit either crime; and he claims that there was no evidence of any acts taken to accomplish the crimes beyond merely preparatory conduct. The evidence was sufficient to permit the jury to conclude that Oro attempted to rape and sodomize V.J. He broke into her apartment with a gun, pepper spray, handcuffs, and condoms, attempted to immobilize her with the pepper spray and the handcuffs, declared that he was going to rape and sodomize her before killing her, and played a video of a sexual act he was going to force her to complete before he killed her. These acts demonstrated his intent, went beyond acts merely preparatory for a crime, and constituted a direct movement after the preparation that would have accomplished the crime if not frustrated by the extraneous circumstance of V.J.’s physical and verbal resistance. (See People v. Carpenter (1997) 15 Cal.4th 312, 387 [defendant’s pointing a gun at victim’s head and ordering her to do what he said went beyond preparation and constituted direct acts toward the commission of a rape for the purposes of an attempted rape conviction], superseded by statute on other grounds as recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.)
V. Failure to Impose Court Facilities Assessment on Each Count
The Attorney General observes that the trial court imposed the $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) only once. The court should have imposed this fee in conjunction with each count on which Oro was convicted, including the stayed counts. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3.) The abstract of judgment must be modified to impose these mandatory assessments on counts 2 through 8.
DISPOSITION
The judgment is modified to impose the criminal conviction assessment mandated by Government Code section 70373, subdivision (a)(1) on counts 2 through 8. The clerk of the superior court is ordered to prepare an amended abstract of judgment reflecting the imposition of these additional assessments and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: WOODS, Acting P. J., JACKSON, J.