P. v. Aviles




Filed 3/9/11 P. v. Aviles CA2/7





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS AVILES, Defendant and Appellant.

B219921 (Los Angeles County Super. Ct. No. PA060248)

APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia L. Ulfig, Judge. Affirmed.
Verna Wefald, 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, Susan D. Martynec and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

INTRODUCTION

Defendant Jose Luis Aviles appeals from the judgment entered after a jury found him guilty of murder (Pen. Code, § 187; count 1) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2) and found not true the allegation that he personally used a deadly and dangerous weapon, a dagger, during the commission of the murder (Pen. Code, § 12022, subd. (b)(1)). The trial court sentenced defendant to state prison for a total term of 25 years to life.
Defendant contends the trial court violated his constitutional rights when it refused to admit evidence that the victim had drugs and alcohol in his system at the time of the stabbing and the court refused to allow an expert witness to answer a hypothetical question. We conclude defendant's contentions have no merit and affirm the judgment.

FACTS

A. Prosecution
1. The Murder
On October 18, 2007, defendant lived in Sylmar in a converted garage, which he rented from Gerardo Marquez (Marquez). The garage had its own entrance separate from the Marquez residence.
On two or three occasions, Jose Cesar Diaz (Diaz) visited Marquez and defendant. During these visits, defendant and Diaz drank beer together. Johnny Chavaque (Chavaque), who lived at the Marquez residence, knew defendant and Diaz were friends.
On the evening of October 18, Marquez, his brother Francisco, and Chavaque were in the backyard grilling meat when defendant came home from work. Defendant offered the men beer, and they all drank together.^[1] Marquez thought defendant appeared buzzed but not drunk. After the men finished drinking, defendant turned on music in the garage. Marquez and the others resumed barbecuing.
While the meat was cooking, someone from the house announced that Diaz was at the front door. Marquez walked through his house to the front door but found no one there. By then, Diaz, who was accompanied by his seven-year-old son, B.D., had walked back to the garage where defendant lived.
According to B.D., his father softly knocked on defendant's door three to five times before defendant opened it. Defendant began fighting with Diaz and stabbed him once with a long, pointy metal tool. Diaz never went inside the garage.
Failing to find Diaz at the front door of his house, Marquez returned to the backyard where he observed defendant and Diaz arguing. Francisco heard a commotion and went to the garage. Diaz tried to kick defendant twice but missed both times. Defendant was standing about two feet inside the garage and was holding a towel in one hand.
Marquez separated Diaz and defendant, after which Diaz told Marquez, â€