Opinion
F078631
03-10-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID AUGUSTINE PEÑA, Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F16907130)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Meehan, J. and Snauffer, J.
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INTRODUCTION
Appellant David Augustine Peña was convicted of the first degree murder of his estranged wife. A Penal Code section 12022, subdivision (b)(1) weapon enhancement also was found true. Peña filed a timely appeal and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
References to code sections are to the Penal Code.
FACTUAL AND PROCEDURAL SUMMARY
Peña was charged on October 5, 2017, with first degree murder and residential burglary. It also was alleged that he personally used a dangerous and deadly weapon, a knife, in the commission of the murder.
Peña was tried by a jury. Testimony at trial established that on the morning of November 29, 2016, Martha Mendiola, Peña's estranged wife, did not arrive at her place of employment. Shortly after 10:00 a.m., Trianna Timberlake, Mendiola's friend and the office manager where she worked, called the California Highway Patrol (CHP) to do a welfare check.
Mendiola's son, Mathew Cardenas, who lived with Mendiola, recalled hearing his mother getting ready for work around 5:30 a.m. that morning. Later that morning, Cardenas received calls from his brother, Robert Garza, and Timberlake stating his mother had not shown up for work.
Cardenas checked their house and saw nothing out of place. He drove her normal route to work, checking to see if perhaps she had car trouble. When he arrived at Mendiola's place of work, he was told law enforcement had been contacted. He returned home.
When Cardenas returned home, he saw what appeared to be blood in the garage and smelled bleach. He pointed this out to the responding CHP officer and the Fresno Police Department (FPD) was called. FPD Officer Kent Pichardo thought it looked like someone had attempted to mop blood off the garage floor; the smear marks went from the house towards the garage door.
Mendiola's friend, Nancy Alejandrez, sent text messages to both Peña and Mendiola. She then called Peña and asked if he had seen Mendiola. Peña replied, "nope."
Thereafter, Alejandrez, Cardenas, Timberlake, and Mendiola's brother, Henry, began receiving text messages sent from Mendiola's phone. The text messages claimed to be from Mendiola; stated that her phone was damaged and could not receive calls; and that she wanted to be alone and there was no cause for concern. The people who received the texts did not believe Mendiola had sent them.
To avoid confusion between Henry Mendiola and the victim, we refer to Henry by his first name. No disrespect is intended.
At 3:56 p.m. that afternoon, Peña texted Alejandrez asking, "Any news[?]" She responded, "No." There were a series of texts between the two where Peña continued to deny knowledge of Mendiola's whereabouts. After Alejandrez learned that Mendiola was dead, she sent a final text to Peña asking, "Why."
Joseph Artellan, a dispatch supervisor for the CHP, testified the CHP can obtain information regarding cell phone pings in exigent circumstances. Artellan submitted a form requesting this information to the carrier. The carrier began providing location data every 15 minutes.
CHP Officer Anthony Arcelus explained that the pings are used to locate a person with a cell phone. The carrier notes the location of a ping with a "distance of uncertainty." The carrier noted the distance of uncertainty was two meters or around six feet.
A ping placed Mendiola's phone in the area of Howard and Dayton streets around 3:21 p.m. CHP Officer Garrett Perez searched the area and found Mendiola's car parked a few blocks away. FPD Officer Eric Santos saw a large item in the backseat of the car but the tinted windows made it hard to discern what it was. Officers broke the driver's side window of Mendiola's car and unlocked the door. They found Mendiola's body wrapped in a tarp in the backseat. There was no pulse and it appeared rigor mortis had set in.
Mendiola's cell phone pings settled at a residence located on east Simpson. Officers went to the residence and saw two women leaving, Megan Gleason and Brittani Bloomer. Bloomer appeared "very nervous" and said, "he's in there." She stated Peña was "bonkers." Shortly thereafter, Jonathan Poppy, Amanda Sullivan, Noe Jaimes, and Peña exited the house. Peña was taken into custody.
It was stipulated Gleason suffered prior convictions.
It was stipulated Poppy suffered a prior conviction. --------
Sullivan, Gleason, and Poppy gave conflicting testimony about whether and when Peña left the house on November 28, 2016. Gleason stated Peña was not in the house when she woke up around 7:00 or 8:00 a.m. on November 29, 2016.
After obtaining a search warrant, officers searched the Simpson address. In one bedroom, officers found a buck knife with blood on the sheath in a dresser drawer; a bag containing a bandana with dried blood under the dresser; and property belonging to Mendiola, including her purse and cell phone, in a hall closet. Bloody rags were found in a bathroom sink and there was blood on a paper plate found in the trash can in the bedroom. Both Cardenas and Gleason identified the buck knife as one that Peña normally wore.
Dr. Venu Gopal conducted an autopsy of Mendiola. He found contusions on her face and upper left shoulder along with abrasions on her ring finger. The abrasions on her finger were consistent with a forceful removal of her ring. The contusions were not consistent with a fall. Gopal determined the cause of death was a stab wound in the back that punctured her lung.
Following his arrest, Peña was advised of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and agreed to speak with officers. The interview was recorded and played for the jury.
In the interview, Peña claimed he had arranged to pick up his property at Mendiola's house and had gotten a ride to that area the night of November 28, 2016. He saw lights on in Cardenas's bedroom. He walked around the neighborhood waiting for Mendiola to wake up, which was around 5:00 a.m. "at the latest." He waited outside all night.
Peña was waiting for the garage door to open so he could collect his belongings. He stated that at 5:13 a.m. the garage door was still closed, so he walked around the block. Upon his return, the garage door was open and Mendiola was lying on the garage floor with a knife in her back. Peña claimed he pulled the knife out and Mendiola stated, "I love you" and asked that he not let her son "see me like this."
Peña claimed he wanted to fulfill Mendiola's dying request, so he wrapped her in a quilt, tied her feet together so she would fit into the car, and placed her in the back seat of her car. He then went into the house and made it look as though she had left for work. After that, Peña drove away in Mendiola's car with her body in the back.
Peña admitted the knife used to kill Mendiola was his and that he carried it on his person. He claimed, however, that the knife recently had been in the garage. He admitted sending text messages to family and friends so they would calm down. He denied killing Mendiola.
Cardenas testified he had seen Mendiola and Peña arguing and yelling, but never saw Peña get physical with his mother. He confirmed that Peña had belongings at the house on November 29, 2016. Cardenas also saw shoe prints in the garage by the refrigerator and freezer.
Henry testified he lived with Mendiola and Peña for two years and saw between 50 and 60 arguments between them. The arguments were related to drugs and Peña's theft of money from Mendiola.
A residential surveillance camera across the street from Mendiola's residence showed a male figure on the sidewalk at 2:15 a.m. The video depicts taillights of a vehicle backing out of what appears to be Mendiola's garage at 6:13 a.m. and then driving away. The video was played for the jury.
Another video, which was played for the jury, showed Peña arriving at a food mart at 7:51 a.m. in Mendiola's car. Yet another video played for the jury showed Peña arriving at a Walmart at 11:28 a.m. Peña claimed in his interview that he bought the tarp in which Mendiola's body was wrapped at Walmart.
Two cell phones belonging to Peña were recovered. On a flip phone, Peña identified Mendiola in his contacts as " 'my wife on paper.' " The flip phone contained draft text messages to Mendiola that had not been sent. One read, "Nothing to live for or lose."
The other phone contained 326 messages between Peña and Mendiola between November 18 and 29. Peña's remarks included that Mendiola condemned his soul "to burn in hell for the sins you committed against our marriage and God." He also told her she "took a dull knife to my chest and tore out my heart." Peña also texted that if she divorced him, "you serve not the will of God."
Mendiola had sent Peña text messages stating, "I love you but I don't need to be with you" and "[Y]ou should have thought about that when you were lying, stealing and getting in my stuff."
On November 25, 2016, Peña texted Mendiola, "Whatever things I left behind, bike, clothes, do what you thinks [sic] best. Don't want or need. Just don't save them for me." On November 26, he texted Mendiola, calling her a "harlot."
On November 27, 2016, Peña texted, "Eye for an eye, tooth for tooth, wife for life. Bye honey, not responsible for nothing." That evening Mendiola sent Peña a text telling him she would leave his "CDs at Nancy's" and that she was seeking a restraining order.
Blood on a shirt at the Simpson address matched Mendiola's DNA. Mendiola's DNA also matched the blood found on the floor of the garage of her residence. Peña's DNA was found on the side door of the garage at Mendiola's house. Peña could not be eliminated as a major contributor to the DNA found on the linen closet door of Mendiola's house. Mendiola could not be eliminated from the female profile of the DNA mixture at the hilt of the buck knife.
At the conclusion of the presentation of evidence, the jury was instructed on the elements of the charged offenses, lesser included offenses, and general legal principles.
The jury found Peña guilty of first degree murder. The section 12022, subdivision (b)(1) allegation was found true. Jurors were unable to reach a verdict on the burglary count. The People moved to dismiss the burglary count and the motion was granted.
On December 28, 2018, the trial court denied probation and sentenced Peña to a term of 25 years to life on the murder conviction. A consecutive, determinate term of one year was imposed for the weapon enhancement. Peña was ordered to pay $7,500 to the Victim Compensation Board. Credits of 759 days were awarded. No other assessments or restitution fines were ordered.
The abstract of judgment accurately reflects the oral pronouncement of judgment. Peña filed a timely notice of appeal.
Appellate counsel filed a motion to augment the record on appeal with a transcript of jury voir dire, which motion was granted. The augmented reporter's transcript was filed on July 19, 2019.
DISCUSSION
Appellate counsel filed a Wende brief on October 15, 2019. That same day, this court issued its letter to Peña inviting him to submit a supplemental brief. No supplemental brief was filed.
After an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.