P. v. Diaz-Nivarez
Filed 5/22/13 P. v. Diaz-Nivarez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
RICARDO
DAGOBERTO DIAZ-NIVAREZ,
Defendant and Appellant.
G046945
(Super. Ct.
No. 06CF0633)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Richard F. Toohey, Judge. Affirmed.
Lynda A. Romero, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton
and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
*
* *
A jury convicted
defendant Ricardo Dagoberto Diaz-Nivarez of first degree murder. (Pen. Code, § 187, subd. (a).)
court sentenced defendant to 25 years to life.
On appeal, defendant argues insufficient
evidence supports the conviction. We
affirm the judgment.
FACTS
In March 2005, the
victim, Mario Hernandez, was
68-years-old and stood five feet three inches tall. He had just suffered a stroke and had a stent
replaced in his heart, and used a cane to walk.
He sold jewelry, including 14-karat-gold pieces, to clients at their
homes by appointment.
Defendant’s mother,
Rebeca Nivarez, was Hernandez’s customer.
came to her house once a week or once every two weeks to sell jewelry and pick
up payments. Defendant lived in Rebeca’s
garage.
On March 18, 2005,
morning and did not return. That
afternoon, Rebeca pawned $2,500 worth of jewelry.
That evening,
Hernandez’s granddaughter, who had been trying to phone him with no response,
called the police. She obtained from the
phone company a list of Hernandez’s last cell phone calls. She phoned the last phone number Hernandez
had called on March 18. A woman named
Rebeca answered the call and said she had had an appointment with Hernandez to
give him a payment, but he never showed up.
Rebeca also told an officer who came to her home that Hernandez had
failed to show up for the appointment.
Rebeca went to the
apartment of Claudia Diaz. Diaz is
Rebeca’s daughter and defendant’s sister.
Rebeca gave Diaz a bag of jewelry to hold until Rebeca needed it back.
couple of days later, Rebeca retrieved the jewelry from Diaz. Rebeca asked Diaz for Google directions to Colorado. Diaz asked Rebeca if she was running away
from something.
On March 24, Hernandez’s
van was located at a Mission Viejo park after a local
resident reported the vehicle had been parked there since March 18. Inside the van were two plastic gloves, two
bottles (one of which smelled like an accelerant), two boxes of jewelry, and a
yellow rope. One glove contained
defendant’s DNA.
Rebeca left her home and
did not return. Defendant was no longer
living there either. Rebeca’s roommate
and Diaz found a note in Rebeca’s room saying she had gone to Denver,
Colorado to look for defendant.
On February 10, 2006, at the request of police, Diaz
made a covert, recorded call to defendant (who was in Mexico). The recording was played for the jury at
trial. In it, defendant said he was
certain the old man was dead. He said
Rebeca was told by a psychic that the old man was using strong bad witchcraft
on her and defendant. Rebeca put
defendant in a trance with information about the “spell/curse†and said they
had to kill the man. “[T]hat was the
pretext.†Rebeca was there when the old
man was killed. Defendant and Rebeca
acted “with advantage and premeditation,†not in self-defense. Defendant put the body in an apartment
dumpster in Rancho Cucamonga. Defendant scolded Rebeca for taking the
jewelry to Diaz for safekeeping because that was how “things were then shed to
light afterward.â€
Defendant testified on
his own behalf. He was 19-years-old at
the time of the incident.
Prior to the incident,
Rebeca told him that Hernandez was putting a witchcraft curse on them and this
was why they were going through a bad period.
Rebeca said Hernandez had to die for the curse to be broken. Several times Rebeca said Hernandez had to
die. Defendant paid no attention to
Rebeca’s talk about witchcraft, thinking it was crazy.
On the morning of the
incident, defendant came home from his night job cleaning offices. He went to his room (the garage). He saw Rebeca struggling with Hernandez. Hernandez had Rebeca “by the hairâ€; they were
fighting and yelling.
Defendant grabbed a golf
club “that was there†and hit Hernandez two or three times. Hernandez continued to hold Rebeca by the
hair. Hernandez and defendant started to
fight.
Hernandez pulled out a
knife and said he was going to kill defendant and Rebeca. Hernandez tried to stab defendant. Hernandez and defendant started struggling. Defendant bent Hernandez’s hand and stabbed
him twice with his own knife. They kept
on fighting. Hernandez “just never
wanted to stop.†Defendant “saw a light
cable that was there†and — still feeling threatened because Hernandez “never
wanted to stop†and kept on fighting — wrapped it around Hernandez’s neck and
strangled him until he stopped moving.
Rebeca told defendant to
tie up Hernandez, put him in a trash can, and clean the room (garage). Then Rebeca went into the house to cover up
the situation so no one in the home would know what had happened. Rebeca’s roommate and the roommate’s daughter
were home at the time.
Defendant denied having
any intention, or having planned with Rebeca, to steal Hernandez’s
jewelry. After Hernandez’s death, defendant
never saw what happened to the jewelry and never received any money from
Rebeca.
Defendant put
Hernandez’s body in Hernandez’s van and parked it by some apartments. Rebeca said the police would find the vehicle
there, so the next morning she drove the van, with defendant following in
another car, to another city where they threw the body into a dumpster by some
apartments. Rebeca then drove to a park
where she parked the van. Upon their
return home, Rebeca sent defendant to a healer to be cleansed. On defendant’s way home, Rebeca phoned and
told him to “get out of here†because the police had come by looking for
him. She gave him $100 for gas. Defendant drove to Tijuana and then flew to
his father’s house where he told his father what had happened.
Regarding defendant’s
phone call with Diaz, he said he did not act in self-defense because he “had
already realized that all of this was one of [Rebeca’s] plans.†He used the words “premeditation and
advantage†because he heard them from his father, who is an attorney. When defendant told Diaz that Rebeca’s
witchcraft curse was a pretext, he meant that Rebeca was planning something and
tricked him into killing Hernandez.
DISCUSSION
The prosecutor presented
two theories of first degree murder
(premeditated murder and felony murder) and informed the jurors they did
theory to find defendant guilty.
name="_ftnref4" title="">[4] Defendant argues there was no substantial
evidence that (1) he premeditated Hernandez’s murder, or (2) for purposes of
felony murder, that he formed the intent to rob Hernandez before the killing
occurred, that he committed a robbery, or that he killed Hernandez during a
robbery.
First degree murder
includes any “willful, deliberate, and premeditated killing, or [one] which is
committed in the perpetration of, or attempt to
perpetrate, . . . robbery.â€
(§ 189.) “‘An intentional
killing is premeditated and deliberate if it occurred as the result of
preexisting thought and reflection rather than unconsidered or rash
impulse.’†(People v. Jennings (2010) 50 Cal.4th 616, 645.) Felony murder on a robbery-murder theory
poses the question “whether there was substantial evidence to show that the
‘“requisite intent to steal arose either before or during the commission of the
act of force.â€â€™â€ (People v. Sakarias (2000) 22 Cal.4th 596, 619.)
“‘When the
sufficiency of the evidence is challenged on appeal, the court must review the
whole record in the light most favorable to the judgment to determine whether
it contains substantial evidence — i.e., evidence that is credible and of solid
value — from which a rational trier of fact could have found the defendant
guilty beyond a reasonable doubt.’†(
364.) “‘“[T]he relevant question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.â€â€™â€ (People v. Kelly (1990) 51 Cal.3d 931, 956.) We “‘“presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.â€â€™â€ (People v. Rayford (1994) 9 Cal.4th 1, 23.) “Before the judgment of the trial court can
be set aside for insufficiency of the evidence to support the verdict of the
jury, it must clearly appear that upon no hypothesis whatever is there
sufficient substantial evidence to support it.â€
(People v. Redmond (1969) 71
Cal.2d 745, 755.) “The standard of
review is the same when the prosecution relies mainly on circumstantial
evidence.†(People v. Valdez (2004) 32 Cal.4th 73, 104.)
Applying this standard
of review, substantial evidence supports the conviction. Viewing the entire record in the light most
favorable to the judgment, a rational trier of fact could find that, as to
felony murder, substantial evidence shows defendant formed a prior intent to
rob Hernandez. Defendant knew about
Hernandez’s jewelry business and that Rebeca was Hernandez’s customer. Rebeca had an appointment with Hernandez on
the morning he was killed. She pawned
some of his jewelry that afternoon. In
defendant’s recorded phone call with Diaz, he told his sister it was obvious
Hernandez had gold items for sale on that day.
Defendant told Diaz he scolded Rebeca for giving Diaz some of the
jewelry for safekeeping because that was how their involvement in the crime was
detected. Defendant’s trial testimony
provides substantial evidence he had no other motive to kill Hernandez. He testified he had no problem with Hernandez
before the day of the incident. He
further testified he did not take seriously Rebeca’s talk about a curse and
thought his mother was crazy for believing it.
As to premeditated and
deliberate murder, defendant told Diaz that he and Rebeca planned the murder
together and did it with “advantage and premeditation†(a phrase he repeated
three times in the recorded phone conversation). He further said it was not an accident and not
in self-defense. The murder took place
in the garage (defendant’s room), away from other occupants of the house. (People
v. Hovarter (2008) 44 Cal.4th 983, 1019 [choice to commit crime in isolated
or secluded setting suggests premeditation].)
Defendant had a single golf club in the room, although he admitted he
did not play golf. He also had a cable
he used to strangle Hernandez.
DISPOSITION
The judgment is
affirmed.
IKOLA,
J.
WE CONCUR:
RYLAARSDAM,
ACTING P. J.
BEDSWORTH, J.
All statutory
references are to the Penal Code.
The People also charged
defendant with second degree robbery (§§ 211, 212.5) and alleged two special
circumstance enhancements to the murder charge.
On the People’s motion, the court dismissed the robbery charge and the
special circumstance allegations.
by her first name. We mean no
disrespect.
