P. v. Contreras

Filed 2/27/06 P. v. Contreras CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Patricia Cookson, Judge. Affirmed.

I.

INTRODUCTION

Raymond John Contreras shot his estranged wife, Margye Vettel Contreras (Vettel), and also shot Vettel's mother, Irene Paulson (Irene), Vettel's brother, William Paulson (William), and her divorce lawyer, Robert Mehall. Vettel and Irene survived the shootings, but William and Mehall died. After the shootings, Contreras attempted to carjack one car and successfully carjacked a second car.

In an amended information, the People charged Contreras with two counts of first degree murder (Pen. Code,^[1] § 187, subd. (a)) (counts one and two); two counts of willful, deliberate, and premeditated attempted murder (§§ 664, 187, subd. (a), 189) (counts three and four); one count of attempted carjacking (§§ 664, 215, subd. (a)) (count five); and one count of carjacking (§ 215, subd. (a)), (count six). With respect to the two murders, the People alleged the special circumstances of multiple murder (§ 190.2, subd. (a)(3)) and murder by means of lying in wait (§ 190.2, subd. (a)(15)). In addition, the People alleged the following sentence enhancements: intentionally and personally discharging a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) and personally using a firearm (§ 12022.5, subd. (a)(1)) (counts one and two); intentionally and personally discharging a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), personally using a firearm (§ 12022.5, subd. (a)(1)), and personally inflicting great bodily injury (§ 12022.7, subd. (e)) (counts three and four); personally using a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)(2)) (count five); and personally using a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)(2)) (count six).

A jury found Contreras guilty on all counts, found true all of the alleged special circumstances, and also found true all of the alleged sentence enhancements. The trial court sentenced Contreras to two terms of life without the possibility of parole (counts one and two), two terms of life with the possibility of parole (counts three and four), four terms of 25 years to life on the section 12022.53, subdivision (d) firearm enhancements (counts one, two, three, and four), two five year upper terms on the section 12022.7, subdivision (e) great bodily injury enhancements (counts three and four), and a term of 19 years and two months (counts five and six). The court specified that all terms were to be served consecutively with other terms imposed.

On appeal, Contreras claims the trial court erred in failing to instruct the jury on the lesser included offense of attempted voluntary manslaughter, pursuant to CALJIC No. 8.41, with respect to count three charging him with attempted murder of Vettel; erred in failing to instruct the jury pursuant to CALJIC No. 8.73 that it could consider evidence of Vettel's provocation in determining whether Contreras was guilty of first or second degree murder in the killings of William and Mehall; and violated his constitutional right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) by imposing upper term and consecutive sentences on the basis of facts not found by the jury or admitted by him.

We affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Contreras and Vettel's household

Vettel met Contreras in September 1998 and married him in July 1999. Contreras was previously married to Rhonda Contreras (Rhonda). Contreras had a son, Zachary, from the prior marriage and Vettel had a daughter, Stephanie, from a previous relationship. In September 2000, Contreras attempted suicide. After the suicide attempt, Vettel found prescription drugs in various locations around their house. In May 2001, Contreras, Vettel, and Stephanie lived in a house in Alpine (Alpine house or house) that Irene owned.

Throughout 2001, Contreras and Vettel had problems in their marriage, partially due to Contreras's drug problem. Toward the end of 2001, Vettel told Contreras that she intended to end the marriage. In early May 2002, Vettel decided to file for divorce.

B. The days before the shootings

Near the end of May 2002, Vettel told Contreras that she wanted him to leave the Alpine house. On the evening of June 1, Contreras was lying in bed with Vettel. He told Vettel, "Remember, until death do us part." Vettel was frightened. The next night, Vettel slept in Stephanie's room. The following day, June 3, Vettel moved out of the Alpine house and stayed with a friend.

On June 4, Vettel met with Mehall in order to initiate divorce proceedings and to discuss obtaining a restraining order against Contreras. At the conclusion of their meeting, Mehall instructed Vettel to return to his office the next day to sign various legal documents.

Later that afternoon, Contreras telephoned Vettel and told her that she would have to take Zachary to school the next morning. Vettel responded that she would not do so and told Contreras that he would have to make alternative arrangements. In response, Contreras told Vettel that if she was going to involve the children in their disputes, he was going to repossess a truck he had been allowing Stephanie to use. Contreras went to Vettel's place of employment and announced his intention to repossess the truck. Vettel was concerned because Contreras appeared to be angry. Vettel telephoned both the sheriff's department and Stephanie, and then drove to the house where Stephanie was babysitting. When Vettel arrived, Contreras was already there.

San Diego County Deputy Sheriff Joel Turner responded to Vettel's telephone call. After arriving at the scene, Turner spoke with Contreras, who was standing in the driveway outside the house. Turner then went into the house to speak with Vettel. Turner noted that both Vettel and Contreras were very upset. Turner placed Contreras in his patrol car in an attempt to defuse the situation. Turner informed Contreras that his driver's license had been suspended for failing to pay child support and told Contreras that he was going to impound a second truck Contreras had been driving. Turner impounded Contreras's truck and issued him a citation for driving with a suspended license. Contreras was allowed to leave the scene.

C. The day of the shootings

On June 6, Contreras met with attorney Cynthia Baker at 10:00 a.m. and again at approximately 1:00 p.m. to discuss her representing him in connection with his divorce from Vettel. After their conversations, Baker filed an ex parte application seeking temporary possession of the Alpine house. Upon filing the application, Baker learned that Vettel had already obtained a removal order requiring Contreras to leave the Alpine house, and a domestic violence restraining order prohibiting Contreras from coming into physical contact with Vettel. Baker testified that she spoke with Contreras on the telephone between 4:00 and 4:30 p.m. after she learned of the restraining order and the removal order.

At approximately 4:45 p.m. that afternoon, Vettel met with Irene, William, and Mehall at a restaurant located approximately two miles from the Alpine house. While she was at the restaurant, Vettel received a telephone call from a coworker, Rene Stanton. Stanton told Vettel that Contreras had called their workplace that day. Contreras asked Stanton to tell Vettel that he would not be home until 6:25 p.m. and that Vettel would have to go to the Alpine house to feed the animals. Vettel and the others decided to leave the restaurant and continue their meeting at the Alpine house. The group left at approximately 5:00 p.m. in separate cars. Each took approximately five minutes to get to the house.

D. The shootings

When Vettel, Irene, William and Mehall arrived at the Alpine house, as they were getting out of their cars, Vettel saw Contreras in the driveway holdings two black bags and pointing a gun at them. Contreras put the bags down and ordered everyone to the center of the driveway. Contreras pointed the gun at Irene and told her she would be the first to go. Contreras ordered Vettel to throw him her car keys and said that the two of them were going to go somewhere. After Vettel threw her car keys to Contreras, as she was preparing to get into a car, Irene told her not to go. Irene suggested they all go inside the house and talk. Contreras threw down the keys in agreement.

Contreras followed Vettel, Irene, William and Mehall into the house. As soon as Contreras entered the house, he began shooting. Mehall and William were fatally wounded. Vettel and Irene suffered gunshot wounds, but survived.

E. Contreras's escape

Contreras fled the scene in Mehall's car. At approximately 5:50 p.m., Contreras pulled up next to a car that was parked in a carport. While holding a gun in one hand, Contreras banged on the window of the car and screamed at the driver to get out of the car. Contreras left the scene in Mehall's car when the father of the driver ran toward Contreras from a nearby apartment.

At approximately 6:00 p.m. that night, Contreras stopped Mehall's car next to William Sanders, who was sitting near his truck outside his house. Contreras got out of Mehall's car, pulled out the two black bags he had been carrying, pointed a gun at Sanders, and demanded Sanders's truck. Sanders eventually complied and Contreras drove away in Sanders's truck.

Contreras drove Sanders's truck to the Mexican border and parked it near a pedestrian crossing point. He dropped the two black bags next to the border and walked across the border into Mexico.

F. The investigation and Contreras's arrest

Police discovered Contreras's truck parked in the driveway of a neighbor of the Alpine house. Upon entering the Alpine house, the police discovered a number of writings on the walls, on photographs and on mirrors. Among the writings was one that stated, "Steph's mouth got mommy killed." The police also discovered the bags Contreras had dropped near the Mexican border. Among the items discovered in the bags was a note that stated, "Mom, Dad, I'm truly sorry. I hate the thought of hurting someone else, but Margye [Vettel] and Stephanie deserve to die. But I hope I only paralyze them so they can remember how much of an ass I was, or I mean, the way they treated me when you weren't around."

Contreras was arrested by Mexican authorities after he attempted to commit suicide. American authorities took custody of Contreras in January 2003.

G. Defense evidence

Contreras testified at his trial. After Contreras and Vettel married, they moved into the Alpine house. Contreras testified that he and Vettel reached an agreement with Irene in the summer of 2001 to purchase the Alpine house from her for $178,000. Contreras further testified that he had invested approximately $30,000 of his own money in the Alpine house and that he had also personally made significant physical improvements to the house. Contreras testified that, at some unspecified point in time, the house was appraised at $450,000.

Contreras testified that "[p]robably a couple of weeks before June," he and Vettel had a conversation regarding how the marital property should be divided in the divorce. Contreras allegedly told Vettel that he wanted $100,000 from the Alpine house. Vettel rejected this proposal and said that the two would split the money they had in the bank, which was approximately $5,000, and that Contreras could have back some stock he had purchased. Contreras felt degraded by Vettel's proposal. This was the only conversation Contreras and Vettel had regarding a potential property settlement in the divorce.

Contreras also testified that some of Vettel's friends had told him that Vettel usually took advantage of people with whom she lived and that she had taken advantage of her ex-husband. In addition, Contreras testified that he felt that Rhonda had taken advantage of him in their divorce.

Contreras also testified regarding the June 4 incident involving the impounding of his truck. Contreras claimed that Deputy Turner called him a "loser" and put him in the back of his patrol car. Contreras said that he was in the back of the patrol car for approximately five to ten minutes and that he believed he was handcuffed during this period. Contreras's son witnessed the incident, which caused Contreras to cry. Contreras blamed Vettel for the incident because Vettel was responsible for paying all of their bills, including his child support payments. Contreras believed that Vettel had either failed to pay the child support payment and/or that she had failed to inform him of the notice of the suspension of his driver's license. Contreras testified that he had a long history of abusing prescription pain medications. On the day of the shootings, he started the day by taking various pain medications and went to work at 5:15 a.m. Later that morning, he met with Attorney Baker. After meeting with Baker, Contreras went to the Alpine house. He parked his truck at a neighbor's house because he intended to confront Vettel and he did not want Vettel to see his truck when she came home.

While he was at the Alpine house, Contreras took additional pain medications, passed out several times, and wrote notes throughout the house expressing his anger. At some point, he called Vettel's workplace to inform her that she had to feed the horses at their house. Contreras expected Vettel to come home alone. Contreras testified that he intended to shoot Vettel, but that he did not intend to kill her. He also intended to commit suicide in her presence.

When Vettel did not come home alone, Contreras "freaked out." Contreras testified on direct examination that after he and the group entered the house, he just began shooting. He said he did not recall shooting each person. On cross-examination, Contreras said he started shooting because he thought William was moving toward him.

H. Procedural history

In June 2004, the People filed an amended information charging Contreras with the murders, attempted murders, attempted carjacking, carjacking and the associated firearm and great bodily injury sentence enhancements and special circumstances discussed in part I, ante.

The court conducted a jury trial in June 2004. Near the end of the trial, the court held a jury instruction conference with counsel outside the presence of the jury. Defense counsel requested that the court instruct the jury pursuant to CALJIC No. 8.42, which sets forth the elements of a heat of passion killing caused by provocation. Although it is not entirely clear from the record, it appears defense counsel was requesting that the court instruct the jury pursuant to CALJIC No. 8.42 with respect to count three, which charged Contreras with the attempted murder of Vettel. The People objected to the requested instruction.

The court initially stated that it would sustain the People's objection because there was no "evidence before [the court] that Margye Vettel did anything to provoke the murders." After further argument from the parties, the court questioned whether the instruction was duplicative of other heat of passion instructions the court intended to give. It appears the court was referring to the fact that the court intended to give CALJIC No. 8.42 in connection with a voluntary manslaughter instruction relating to the two murder counts. The court ultimately sustained the People's objection.

The court instructed the jury regarding: (1) the elements of the lesser included offense of second degree murder, with respect to the two murder counts (CALJIC No. 8.30) (2) the elements of the lesser included offense of voluntary manslaughter, with respect to the two murder counts (CALJIC No. 8.40), (3) the elements of heat of passion and provocation (CALJIC Nos. 8.42, 8.43, 8.44) and (4) the elements of attempt (CALJIC No. 6.00). The court's instructions regarding heat of passion and provocation did not reference specific counts. However, the court gave heat of passion and provocation instructions immediately after the instructions on voluntary manslaughter pertaining to the murder counts. Further, although the court did not give a specific instruction regarding attempted voluntary manslaughter, the court did inform the jury three separate times during the course of its instructions that attempted voluntary manslaughter was a lesser included offense of counts three and four, the attempted murder counts. Among the verdict forms given to the jury was a form that allowed the jury to find Contreras guilty of the lesser included offense of attempted voluntary manslaughter on count three, which charged him with the attempted murder of Vettel.

The jury found Contreras guilty as charged on all counts, and found true all of the alleged firearm and great bodily injury enhancements and the alleged special circumstances. The trial court sentenced Contreras as set forth in part I, ante.

III.

DISCUSSION

A. The trial court was not required to instruct the jury on the lesser included offense

of attempted voluntary manslaughter pursuant to CALJIC No. 8.41, with respect

to count three

Contreras argues that the trial court erred in failing to instruct the jury pursuant to CALJIC No. 8.41 on the lesser included offense of attempted voluntary manslaughter with respect to count three, in which he was charged with the attempted murder of Vettel. Contreras argues that there was substantial evidence from which the jury could have concluded that he acted in the heat of passion when he shot Vettel, based on the fact that he "had been degraded and humiliated by [Vettel] over time." In response, the People argue that the trial court adequately instructed the jury as to the lesser included offense of attempted voluntary manslaughter with respect to count three.

We conclude that there was no substantial evidence that Vettel provoked Contreras. Accordingly, there was no substantial evidence to support an attempted voluntary manslaughter instruction with respect to count three. Therefore, the trial court did not err by failing to instruct the jury pursuant to CALJIC No. 8.41 as to that count.^[2]

…….Continue in part II ………….

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^[1] All subsequent statutory references are to the Penal Code unless otherwise specified.

^[2] In view of our conclusion, we need not consider the parties' arguments pertaining to whether the trial court adequately instructed the jury regarding the lesser included offense of attempted voluntary manslaughter as to count three. Further, although the court erred in instructing the jury that it could convict Contreras of attempted voluntary manslaughter with respect to this count because there was no substantial evidence to support such an instruction, that error was not prejudicial to Contreras, since the jury convicted him of attempted murder on this count. (See People v. Johnson (1993) 6 Cal.4th 1, 43 [concluding that, because evidence of provocation was insufficient, "trial court's instruction on manslaughter was inappropriate and unnecessary, though obviously not prejudicial to defendant"].)