P. v. Chades

Filed 10/11/06 P. v. Chades CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Affirmed.

Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Deputy Senior Assistant Attorney General, and Steve Oetting, Supervising Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction

A jury convicted defendant Karen Denise Chades of first degree murder (Pen. Code, § 187) for strangling 67-year-old Sesario Roque. The trial court sentenced defendant to 25 years to life. On appeal, defendant claims there was insufficient evidence to support that the killing was deliberate and premeditated. Defendant also claims that the trial court failed to instruct adequately on the provocation that could reduce first degree murder to second degree murder.

We conclude that there was substantial evidence to support the jury’s verdict of premeditated murder. We also conclude that the court had no sua sponte duty to provide an additional instruction and that the instructions on the lesser offense were adequate when viewed as a whole. We affirm the judgment.

2. Factual and Procedural History

Sesario Roque, who was known as “Rocky,” lived several houses down the street from defendant’s mother and stepfather, Marie and Andres Gallegos. Roque frequently visited the Gallegoses’ home and drank beer with Andres Gallegos.

On September 24, 2002, defendant came over and was cooking dinner for her mother’s birthday party. Earlier in the morning, Roque came over and started drinking beer. Roque drank beer throughout the day. During the party, there was an argument and physical altercation between defendant’s stepfather and nephew. Defendant decided to leave the party with Roque until things calmed down. They left about 9:45 p.m.

At 11:30 p.m., Roque’s neighbor, Charles Morgan heard loud music coming from Roque’s garage. Morgan went to Roque’s house and noticed him dancing with defendant in the garage. When he asked defendant to turn down the music, defendant said “If you don’t get out of my yard, I’ll call the police.” Morgan repeated his request to Roque, who told defendant to turn down the music. Later that night around midnight, Morgan saw defendant leave and return wearing a change of clothes.

When Tammy Everett, defendant’s live-in girlfriend, returned home at 10:30 p.m., she noticed a message on her answering machine from defendant asking for a ride home. Defendant called again about 10 minutes later. Everett drove to defendant’s mother’s house in an effort to find defendant, but could not locate her. After returning home, Everett noticed that defendant had left another message stating that she had gone to Roque’s house. Everett used the callback feature to call defendant. Defendant answered the phone and Everett, who was upset about wasting gas, told defendant to stay at Roque’s house.

Shortly before 1:00 a.m. on September 25, 2002, defendant called Everett and left a message instructing Everett to put defendant’s clothes in the truck of her car. While Everett was outside putting defendant’s clothes in her car, defendant called and left another message stating that Roque had grabbed her breast. Defendant called again and spoke with Everett. Everett asked to speak with Roque. Everett told Roque that defendant had a girlfriend and that his behavior was disrespectful. Everett also told Roque to give defendant some money for a taxi. After speaking with Roque, Everett asked him to put defendant on the phone. But Roque never did and left the line open.

For the next 20 minutes, Everett overheard defendant screaming at Roque about a red bra. Roque had stolen defendant’s red bra from her mother’s house. Defendant called Roque “a fucking pervert” and said to him, “I can’t believe you’re doing this. Why would you do this to me? My family is going to disown you.” Everett heard scuffling noises in the background, as though the two were struggling. At some point, Everett also heard defendant say, “back off.” The line was disconnected at around 1:50 a.m.

Everett again used the callback feature and was able to reestablish the open line. About a couple minutes later, defendant picked up the phone and asked, “you haven’t left yet?” Everett asked for directions and then drove to Roque’s house.

Everett arrived at Roque’s house about 2:40 a.m. Defendant was standing outside. The shoulder strap of her dress was torn. As they walked into the house, defendant said, “Rocky, Tammy’s here.” They went to the garage, where Roque was laying facedown on the floor. There was also a red bra on the floor. When Everett commented that Roque did not appear to be breathing, defendant called out his name and took his pulse. Defendant said that Roque had a pulse and turned him over to attempt cardiopulmonary resuscitation (CPR).

Everett initially suggested that they call 911, but later told defendant to call her mother. When defendant’s mother did not answer the phone, defendant and Everett drove to her house. At the house, defendant called 911 and reported that a man tried to rape her and that he needed an ambulance.

Shortly after 3:00 a.m., Sergeant Kurtis Lackman and other officers found Roque’s body laying on the floor of his garage. They noticed that the floor was wet and the garage smelled of chlorine or bleach. There was blood on some areas of the floor and the wall of the garage. There also was blood on the base of a broom, which appeared to have been used to strike Roque. Roque’s shirt was crumpled around his shoulders, which indicated that someone had dragged his body by his shirt. The officers noticed blood inside Roque’s pockets, which were turned inside out. He had less than $2 in change in his pocket. Roque’s wallet, which was in the kitchen, had only a dime in it. It appeared that someone had gone through it and placed his credit cards and other items in the billfold portion of the wallet. There was blood on a couple items in the wallet.

After calling 911, defendant and Everett went to Cindy Bell’s house. Defendant did not stay at her mother’s because there was an outstanding warrant for her arrest for a probation violation. Although Everett later went to the local police station, the officers were unable to provide assistance because the homicide occurred outside their jurisdiction. Everett and defendant went to Everett’s apartment. Two detectives arrived at Everett’s apartment to arrest defendant on the outstanding warrant. Defendant climbed out the bedroom window and the officers followed after her. They apprehended her as she was trying to run to her car.

During her police interview, defendant admitted that she twice wrapped the red bra around Roque’s neck. Roque said, “Oh, my God.” The first time occurred while they were standing and defendant briefly held the bra around Roque’s neck. A few minutes later, while they were on the ground, defendant held the bra around Roque’s neck for about 30 seconds. Defendant said that she stopped choking Roque when he gasped.

The autopsy revealed that Roque’s death was caused by ligature strangulation. The marks on the neck indicated that he was strangled from behind. Roque was five feet one inch tall and weighed 118 pounds. Roque’s blood alcohol content was .29 percent. While a normal person usually becomes unconscious after 30 seconds of pressure and dies after two and a half to three minutes, someone in Roque’s condition may have died in less time. Roque also had a number of blunt force injuries on his head, neck, torso, chest, abdomen, arms, and legs. He had bruises and abrasions all over his face and two of his teeth were loose.

Defendant testified on her own behalf and explained that she defended herself against Roque’s sexual advances. Roque tried to kiss her twice. She told him to “knock it off.” According to defendant, Roque continued his advances by bear hugging her while his penis was erect. Although she admitted hitting and kicking Roque, she denied using the broom. She also admitting holding the red bra around Roque’s neck, but only for three seconds. She denied trying to steal Roque’s money.

3. Sufficiency of the Evidence

Defendant claims that there was insufficient evidence to prove that the killing was deliberate and premeditated.

In evaluating a claim of insufficiency of the evidence, the appellate court must review the whole record in the light most favorable to the judgment and determine whether it discloses substantial evidence--i.e., evidence that is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Combs (2004) 34 Cal.4th 821, 849; People v. Johnson (1980) 26 Cal.3d 557, 576-578.) Because it is the exclusive province of the trier of fact to determine the witnesses’ credibility and resolve factual conflicts, the appellate court must not reweigh the evidence and substitute its own factual determinations. (People v. Jones (1990) 51 Cal.3d 294, 314.) Moreover, even if there is evidence in the record that reasonably supports a contrary finding, we must affirm the conviction if substantial evidence supports the factual findings and verdict. (People v. Bean (1988) 46 Cal.3d 919, 932-933; People v. Little (2004) 115 Cal.App.4th 766, 771.)

The jury found defendant guilty of first degree murder. Deliberate and premeditated murder requires more than an intent to kill. (People v. Cole (2004) 33 Cal.4th 1158, 1224.) The People also must show that the killing was deliberate (i.e., the result of a careful weighing of considerations) and premeditated (i.e., thought of in advance). Deliberate and premeditated murder arises out of a cold, calculated judgment, rather than a rash impulse. (Ibid.) “Generally, there are three categories of evidence sufficient to sustain a premeditated and deliberate murder: evidence of planning, motive, and method. [Citations.] When evidence of all three categories is not present, ‘we require either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing.’ [Citation.] But these categories of evidence, borrowed from People v. Anderson (1968) 70 Cal.2d 15, 26-27, [] ‘are descriptive, not normative.’ [Citation.] They are simply an ‘aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.’ [Citation.]” (Cole, supra, 33 Cal.4th at p. 1224.)

According to defendant’s testimony, the killing resulted from a rash impulse as she defended herself against Roque’s sexual advances. The prosecutor argued, however, that even if Roque inappropriately touched defendant on the breast, the record contained no other evidence that Roque made any additional advances. The telephone messages referred only to the single inappropriate contact. The prosecutor argued that defendant’s attack was an unprovoked reaction to discovering that Roque had taken her red bra.

Even where there is little or no evidence of planning, a first degree murder conviction may be upheld if there is some evidence of motive in conjunction with evidence that the killing was done in a deliberate manner. (See People v. Cole, supra, 33 Cal.4th at p. 1224.) The manner or method killing alone, if particularly strong, may suffice to support a conviction for deliberate and premeditated murder. (See People v. Memro (1995) 11 Cal.4th 786, 684; People v. Davis (1995) 10 Cal.4th 463, 510.)

In this case, the motive was defendant’s anger over the stolen bra. Everett overheard defendant screaming at Roque, calling him a “fucking pervert” and telling him that her family would disown him. Defendant’s words indicated both her anger and sense of betrayal upon discovering that a close family friend had violated her trust.

The manner of killing also indicated that the killing was the product of reflection. Defendant hit and kicked the victim, struck him with a broomstick, and strangled him with the red bra. The autopsy report indicated that Roque had a number of bruises and abrasions all over his body. Roque’s death, however, was not caused by the multiple blows. Death was caused by the further act of strangulation. “Ligature strangulation is in its nature a deliberate act.” (People v. Bonillas (1989) 48 Cal.3d 757, 792.) Particularly, in this case, defendant strangled the victim not only once, but twice. After trying the bra the first time, minutes later, defendant used the bra again and held it around Roque’s neck for at least 25 seconds. The marks around Roque’s neck also suggested that he was strangled from behind. This evidence, along with evidence of Roque’s compromised state, showed that defendant not only was reacting to Roque’s unwanted advances, but instead was carrying out a brutal attack.

Based on the evidence presented at trial, the jury reasonably could have rejected defendant’s version of the attack. Defendant’s testimony at times contradicted the physical evidence. Defendant denied using an object to hit Roque, but the officers noticed a lot of blood on the base of a broom found in the garage. Defendant explained that Roque’s wallet fell out of his pocket during the struggle, but the blood on the items and the condition of the wallet indicated that someone had gone through it. Defendant also denied making an attempt to clean the blood in the garage. The evidence, however, contradicted her testimony. Roque’s neighbor, Charles Morgan, who saw Roque and defendant dancing, did not notice the garage being wet or the smell of bleach. After the killing, the officers noticed both the wet garage floor and the chemical odor. The blood stains in the garage also indicated that someone had attempted to clean the garage. Based on these discrepancies between defendant’s testimony and the other evidence presented at trial, the jury could have rejected defendant’s other self-serving descriptions.

In particular, the jury could have rejected defendant’s portrayal of Roque as the aggressor. The victim may have engaged in some inappropriate behavior, but the evidence also suggested that he was significantly impaired. Roque’s blood alcohol content was .29 percent. The jury reasonably could have inferred that defendant persisted in her attack against a man who, for all practical purposes, was incapable of defending himself, at least not effectively.

Defendant cites People v. Rowland (1982) 134 Cal.App.3d 1, but that case is easily distinguishable. In Rowland, there was no evidence that the defendant had any motive for killing the woman that he had brought home. (Id. at p. 9.) Also, while the cause of death was ligature strangulation, there was no evidence that the strangulation was the result of a preconceived plan, as opposed to a spontaneous reaction. (Ibid.)

In this case, as discussed above, there was evidence that defendant was angry at Roque for taking her bra. The record also indicated that the strangulation likely occurred after the victim was severely incapacitated because of his drunken state, bloodied from being beaten with a broomstick, and then strangled from behind with the bra, which was the very thing that angered her in the first place. Unlike in Rowland, the ligature strangulation in this case showed that the killing was deliberate and premeditated.

We conclude that substantial evidence supported the jury’s verdict for first degree murder.

4. Provocation Instruction

Defendant claims that the trial court erred in failing to instruct the jury that provocation, even if inadequate to reduce the crime from murder to manslaughter, may negate the element of deliberation and premeditation required for first degree murder. Defendant therefore claims that the court should have instructed the jury that provocation could have justified a verdict on the lesser-included offense of second degree murder.

A trial court has a sua sponte duty to instruct on all general principles of law that are closely and openly connected with the facts in the case. The court’s duty to instruct on general principles includes the duty to instruct on all the elements of the charged offense and all lesser-included offenses. (See People v. Moon (2005) 37 Cal.4th 1, 25; People v. Cummings (1993) 4 Cal.4th 1233, 1311.) In evaluating a claim of instructional error, we must consider the instructions as a whole and determine whether there is a reasonable likelihood that the jury applied the given instructions in a way that offends the Constitution. (People v. Reliford (2003) 29 Cal.4th 1007, 1013.)

In this case, the trial court instructed the jury on the elements of first degree murder, second degree murder, and voluntary and involuntary manslaughter. The court, therefore, satisfied its obligation to instruct on the general principles of law. If defendant sought further clarification or amplification, she should have requested an additional instruction. (People v. Mayfield (1997) 14 Cal.4th 668, 778.)

In Mayfield, the California Supreme Court specifically held that the trial court had no sua sponte duty to provide additional explanation as to how provocation bears on the element of first and second degree murder. (People v. Mayfield, supra, 14 Cal.4th at p. 778.) “CALJIC No. 8.73 is a ‘pinpoint’ instruction [citation] that relates particular facts to an element of the charged crime and thereby explains or highlights a defense theory. [Citation.] The trial court is not required to give such an instruction on its own initiative, and if the instruction as given is adequate, the trial court is under no obligation to amplify or explain in the absence of a request that it do so. [Citations.] Because the instruction as given was adequate [citation], and because defendant did not ask the trial court to clarify or amplify it, defendant may not complain on appeal that the instruction was ambiguous or incomplete.” (Id. at pp. 778-779.)

As in Mayfield, the court in this case instructed the jury with CALJIC No. 8.73, which itself is a pinpoint instruction. No additional instruction was required. In failing to request further clarification or amplification below, defendant has waived the right to assert this issue on appeal.

In her reply brief, defendant alternatively argues that her trial counsel provided ineffective assistance in failing to request the proper instructions. To establish constitutionally ineffective representation, a defendant must show both deficient performance and a reasonable probability of prejudice--i.e., probability sufficient to undermine confidence in the outcome. (People v. Gray (2005) 37 Cal.4th 168, 206-207; People v. Davis (2005) 36 Cal.4th 510, 551.) If the defendant fails to demonstrate prejudice, there is no need to determine whether counsel’s performance was deficient. (Davis, supra, at p. 551.)

Here, defendant cannot demonstrate prejudice because the instructions as a whole required that the jury determine whether the crime committed qualified as a deliberate and premeditated killing, without the existence of some other condition or circumstance, such as provocation, that would negate deliberation. The court instructed the jury with CALJIC No. 8.42, that a killing resulting from the heat of passion or provocation sufficient to arouse an ordinary person to act can reduce the crime from murder to manslaughter. Although this instruction applied an objective standard, the court also gave CALJIC No. 8.73, which applies to the degree of murder and does not include the same limitation. As given, CALJIC No. 8.73 states: “If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation.”

The court also provided instructions to ensure that the jury would consider defendant’s subjective mental state in making its decision on the degree of murder. The court instructed the jury with CALJIC No. 8.20, which included the following paragraph: “If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.” The court also gave CALJIC No. 8.71, which required that, if the jury had a reasonable doubt as to whether the murder was of the first or second degree, it must give defendant the benefit of the doubt and return a verdict of murder in the second degree.

As we noted in Fitzpatrick, “[u]nder this combination of instructions, the jury had to find premeditation and deliberation before it could reach a verdict of first degree murder. It also had to find that the intent to kill was not formed under a condition which precluded deliberation.” (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295 [fn. omitted].) Because the instructions required that the jury determine defendant’s subjective mental state before reaching its verdict, the absence of an additional instruction on the role of provocation did not undermine confidence in the outcome. We conclude that defendant has failed to demonstrate prejudice and, therefore, cannot show that she received constitutionally defective representation.

5. Disposition

We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Ramirez

P. J.

s/Hollenhorst

J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.