P. v. Pantoja

Filed 2/28/07 P. v. Pantoja CA1/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Having previously obtained the reversal of his conviction of first degree murder for the killing of Maria Montero, defendant Jorge Antonio Pantoja now appeals after the trial court found him guilty of second degree murder. He challenges only the sufficiency of the evidence to support the conviction. We find that the evidence was sufficient and shall affirm the judgment.

Background

On January 22, 2002, defendant was charged by information with the murder of Montero (Pen. Code,  187, subd. (a)) and child endangerment (Pen. Code,  273a, subd. (a)), and it was alleged that he used a deadly weapon in the commission of the killing. (Pen. Code,  12022, subd. (b)(1).) A jury found him guilty of murder in the first degree, and of all other charges, but this court reversed on the ground that the trial court erroneously admitted a declaration Montero had filed approximately two weeks before the killing in support of an application for a restraining order.[1] (People v. Pantoja (2004) 122 Cal.App.4th 1.)

On remand, defendant waived his right to a jury and the case was tried to the court. The following evidence was presented at the retrial. Sergeant Johnson of the Eureka Police Department testified that at approximately 9:30 a.m. on August 30, 2001, he found defendant lying on the floor of Monteros apartment in a puddle of blood, with a knife in his hands. Defendant was attempting to stab himself in the neck with the knife. Johnson ordered defendant to drop the knife, then approached and stepped on his arm and kicked the knife away from him.

Star Lee Bakas, a neighbor of Montero, testified that on the day in question she was in her apartment studying. At approximately 9:00 a.m. she had smoked some marijuana and drunk a beer. Around noon, she saw Montero and Kenia, the then three-year-old daughter of Montero and defendant, walking up the sidewalk of the apartments to check the mail. Bakas saw them return to their apartment, and approximately three minutes later heard horrendous screams coming from Montero and Kenia. She ran to Monteros apartment, knocked on the door and yelled to the landlord to please call 911. It took her a minute, maybe less to get to Monteros apartment. The apartment door was ajar and it opened when Bakas banged on it. She saw defendant lying down with a knife, and Montero on the floor with her back against the couch, and she appeared to be dead. And the little girl was behind the mother on the left-hand side of her, behind her shoulder. When Bakas opened the door, defendant started to sit up. She did not see any injuries on him at that time. She then went to the landlords apartment, approximately 12 to 15 feet away, and bang[ed] on the door screaming Call 911. Hes killed the wife. Theres a baby inside.  When she received no response, she returned to Monteros apartment. Defendant was sitting up, holding the knife and cutting his throat. He then held the knife to his stomach, but Bakas did not observe any bleeding from the stomach. Bakas called to Kenia, who looked frightened, and after about a minute Kenia left the apartment with her. Bakas noticed small splatters of blood on Kenias clothes and face, but did not see any injuries on her.

Kenia was seven years old at the time of the second trial. She testified that on the day of the homicide, she and Montero went shopping. When they returned, no one else was in the apartment. Some time later, defendant arrived. Montero was in the kitchen, and Kenia saw defendant with a knife in his hand. She testified that he cut Montero on her chest and stomach. She did not recall Montero or defendant saying anything, but stated that defendant got Montero out of the kitchen and to the couch by slamm[ing] her. While this was happening, Kenia hid in a closet. When she emerged, she saw her mother. Kenia testified that I got a shirt. And I didnt know what the blood was, so I wiped her. She stated that Montero never held the knife. She was asked Did your mom ever say anything to your dad about hurting him? and replied, No. She didnt have time to say anything. On cross-examination, Kenia testified that she could see through the closet door, and that she stayed in the closet until defendant had left.

Defendant testified that on the day of the killing he went to Monteros apartment to see Kenia. Montero was in the kitchen when he arrived and Kenia was outside in the car. He stated that he did not have a weapon with him and did not go to the apartment intending to kill Montero. He told Montero that I was sad, and I wanted to see my daughter; and she told me that I was not going to see my daughter any more. . . . I felt very badly because she is my daughter. . . . I tell her that in that case what was the purpose of life if I didnt have my daughter. It didnt matter to me to be alive or not. He told Montero that he was going to kill himself. She told me that if I had the guts to do it. . . . She told me to get the knife from underneath the bed, and I went and got the knife from underneath the bed. . . . I put it in my chest; and I tell her that if she was not going to let me see my daughter, I was going to kill myself. . . . I started crying then with her. I left the knife on top of the TV, and I went to the bathroom. I was there crying. And so I came out and she say, Oh, you were saying about killing yourself, doesnt look like you have the guts to do that. And she said, Do it and go and fuck your mother. . . . She gave me the knife. I put it to my chest, and she just push it against me, and I dont remember any more what happened.

When interviewed by the police shortly afterwards, defendant told them that there was another man in Marias life[]that his name was Ramone Garcia and he was guilty of this whole mess. The day before the homicide, defendant told his cousin that he had been told that Montero had applied for a restraining order and asked for child support. This upset defendant. Defendant admitted that the Sunday prior to the homicide, Officer Reyna-Sanchez had explained the restraining order process to him and that the court would make it possible even if [he] and Maria broke up and never got back together, there was still a process by which [he] could see Kenia.

A forensic pathologist testified that he found well over two dozen wounds on Monteros body, of which he isolated six, any one of which would have been fatal. He testified that he recovered the tip of a knife blade from Monteros upper left arm bone. The blade went into the arm and struck the long bone and basically embedded the tip of the knife which broke off and left the tip in the bone. He identified a number of defensive wounds on Monteros hands, consistent . . . with struggle.

Kay Belschner, a senior criminalist, testified that she examined two pieces of Kenias clothing; sweatpants and shoes from defendant; and pants, a top and a brassiere from Montero. She compared blood on the clothing to blood samples obtained from Montero and defendant. She also examined blood stains from the area of the homicide and from the furniture in Monteros apartment. She found defendants blood on his own clothing, his pants, and his shoes. There was one stain on the childs pants that was his type. . . . On [Monteros] clothing there was a stain and a cast-off that were also his type. It was on her left pant leg. On defendants sweatpants she found a variety of blood stains. There is some heavy staining up in the front. There are some smears and wipes. There are some what I would classify as little dribbles. There are a number of spatters that go primarily downward. Many of them go towards the inseam primarily on the left leg. . . . They are on the thigh and the lower calf area. All of the stains on defendants pants were his own blood. The downward direction of the blood stains suggest[s] an interpretation that the person wearing the pants was standing at the time. All of the blood stains on defendants shoes were also his blood, except for one drop that was Monteros. Many of the blood drops on defendants shoes are clear heavy downward drops. They would have come from above the shoe.

Belschner also found one stain of defendants blood on Monteros pants, around the knee of the left leg. She opined that the blood had been flung from an object that had blood on it, such as a knife or a finger. She stated that it was likely that Montero was standing up when the blood was flung onto her pants, and that it was flung from in front of or beside her. She said that it might be possible, but it would be a little less likely that Montero was lying down horizontally at the time the blood was flung. She was asked, [I]n your investigationsand you have had quite a bit of experience with blooddoes it sometimes occur that you dont find blood where you expect it to be . . . ? She replied, Yes, it does. Although she expected to find a significant amount of Maria Monteros blood on Mr. Pantojas pants, the fact that she did not would not invalidate her conclusions. [T]here are probably explanations for why it didnt get on the pants with angles and . . . positioning of people. It might have gone somewhere else and not strictly on the pants. It doesnt change anything about how his blood got on his own pants.

On cross-examination, Belschner stated that although she had tested many of the stains on defendants pants, she had not tested every single stain on the pants. She stated that the drop of defendants blood that was on Monteros pants could have landed there while she was lying down, but with her knee bent. She considered it more likely than not that defendant was at least upright after he did some cutting of his throat.

Officer Honeycutt testified that he first met Montero on April 23, 2001. Although Montero spoke Spanish and the officer spoke English, he observed that Montero was upset and agitated. Honeycutt returned later that evening with Officer Reyna-Sanchez, who spoke Spanish. After speaking with Montero, the officers went to an apartment where they found defendant. Reyna-Sanchez testified that he first met Montero on September 28, 2000, when he accompanied her to her apartment. When they arrived, defendant was there. Reyna-Sanchez told defendant that Montero didnt want him there and that he needed to leave. Defendant was concerned about his visitations with his daughter . . . if he and [Montero] divorced or separated. Reyna-Sanchez next met Montero on April 23, 2001, when he accompanied Honeycutt to Monteros apartment. When they spoke with defendant later that evening, he expressed concern about his ability to visit their daughter because Montero was on the verge of separation, divorce, restraining order.

Reyna-Sanchez also testified that he spoke with defendants cousin, who said that defendant told him the night before the killing that he had learned Montero had started legal proceedings for child custody . . . . Defendant was upset and nervous and concerned about losing his right to see his child. . . . He said he was concerned about the possibility he might do something he might regret.

Officer Martinez testified that he came in contact with Montero in 1999. She was bruised and expressed a fear that defendant would return and attempt to take their daughter away.

The sister-in-law of Monteros brother assisted Montero in applying for a restraining order a day or two before Montero was killed. In the application, Montero also asked for custody of Kenia and child support.

Dr. Jose LaCalle, a cross-cultural forensic psychologist, testified for defendant. He assessed defendant as having a verbal IQ of 74, performance of 77, full scale IQ of 74, which places him in the borderline mentally retarded label. He observed that defendant had a deep distrust of women stemming from an incident in which he was seduced by his uncles wife, and that defendant suffered from depression. LaCalle described defendants relationship with Montero as very problematic, tumultuous. He testified that defendant had some signs of paranoid ideation of mistrusting women, always suspicious of their actions and their motives of the relationship with him, and said that defendant was obsessive.

LaCalle interviewed defendant three times, once in 2001 and twice in 2002. During the second interview, LaCalle reported that defendant told him that when he threatened to kill himself Montero had pushed the knife into his chest, puncturing him, and that she told him that he did not have the balls to do it. During the third interview, defendant told him that Montero had directed him to kitchen knives that were hidden under the bed. LaCalle indicated that [i]f there were evidence that the defendant brought the knife with him, [i]t would indicate premeditation. He also testified that defendant told him that Montero had told him fuck your mother, a phrase which LaCalle opined has a particularly harsh and combative character in . . . some circumstances. He stated that In my experience, I have several cases that a person is dead after saying that. And, because of my knowledge of the Mexican cultural and Latin-American culture, I can assure you are thousands of dead people after that statement.

A forensic pathologist testified for the defense that with medical probability the knife that caused the wounds to defendants chest was in a sharpened state rather than a broken off state. He further opined that the wounds in defendants stomach area were inflicted after the knife had already been damaged . . . . However, he stated that he could not preclude all of the[] wounds being inflicted with the knife with the tip broken. The knife wounds to defendants chest area did not sever any major arteries or blood vessels.

Monteros son testified that he cleaned out Monteros apartment after her death. He found two knives under her bed, one of which was small and plastic and the other approximately 10 to 12 inches long and serrated. He had been in Monteros apartment when she was alive, and had been present while his mother cooked, but he had never before seen the knife that was used to kill her, or one similar to it.

The wife of defendants brother, Alma Pantoja, testified that defendant was often sad and depressive. Defendant told her that on the day of the killing he had asked Montero to see Kenia and she refused to let him. He said that if he could not see Kenia then he was going to kill himself. He said that then he grabbed a knife and put it on his chest. . . . Then he said he didnt have the strength to do it. So he put the . . . knife away. And he walked somewhere else, sat down, and started crying. . . . And shell grab the knife, take it to him, and tell him that if he wasif he has the strength to do it, to go ahead and do it. Then he grabbed the knife again and put it on his chest again. She testified that although she had spoken with defendant several times since Monteros death, he had never said that he was upset at the time of the killing.

Defendants sister also testified. Defendant was living with her in August 2001. Defendant did not tell her about a restraining order. The week before he killed Montero, defendant slept a lot. She said that during that period defendant was in extremely bad shape and that he was crying a lot and wouldnt talk.

The trial court found defendant guilty of second degree murder and found the use of a deadly weapon allegation to be true, but found him not guilty of child endangerment. The court sentenced him to 15 years to life in prison for the murder and a consecutive one-year term for use of a deadly weapon. Defendant timely appealed.

Discussion

Defendants sole argument on appeal is that there is no substantial evidence to support the second degree murder conviction, and that the conviction should be reduced to manslaughter because there is insufficient evidence of malice.

California statutes have long separated criminal homicide into two classes, the greater offense of murder and the lesser included offense of manslaughter. The distinguishing feature is that murder includes, but manslaughter lacks, the element of malice. . . . [] Malice exists, if at all, only when an unlawful homicide was committed with the intention unlawfully to take away the life of a fellow creature ( 188), or with awareness of the danger and a conscious disregard for life [citations]. In certain circumstances, however, a finding of malice may be precluded, and the offense limited to manslaughter, even when an unlawful homicide was committed with intent to kill. In such a case, the homicide, though not murder, can be no less than voluntary manslaughter. [] On several recent occasions, we have explained the relationship between murder and manslaughter, as applied to intentional and unlawful killings.  Murder is the unlawful killing of a human being with malice aforethought. ( 187, subd. (a).) A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of . . . voluntary manslaughter. ( 192.) [Citation.] Generally, the intent to unlawfully kill constitutes malice. [Citations.] But a defendant who intentionally and unlawfully kills [nonetheless] lacks malice . . . when [he] acts in a sudden quarrel or heat of passion ( 192, subd. (a)), or . . . kills in unreasonable self-defensethe unreasonable but good faith belief in having to act in self-defense [citations]. [Citations.] [] These mitigating circumstances reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide [citation].  (People v. Rios (2000) 23 Cal.4th 450, 460, fns. & italics omitted.)

Defendant argues that his testimony established that he went to Monteros apartment to discuss custody arrangements, and not with the intention of harming Montero. He asserts that the physical evidence was consistent with his testimony in that the wounds to his upper chest appear to have been caused by a knife before its tip was brokensupporting his claim that Montero initiated the physical contacts that led to the killing. Finally, he relies on Belschners testimony that the blood spatters on Monteros pant leg [were] consistent with [his] testimony that he was stabbed by Montero while both of them were standing and facing each other. The spatter would not have been on Monteros pants if appellant had stabbed himself only after she was stabbed and was lying on the couch where her body was found.

In reviewing the sufficiency of the evidence, we must determine 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. [Citation.] [T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We  presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.   (People v. Davis (1995) 10 Cal.4th 463, 509.)

While there may be evidence that supports defendants theory of the case, it is hardly conclusive. The trial court reasonably found, based on substantial evidence, that defendant was guilty of murder, not manslaughter. Kenias testimony was that defendant attacked Montero without provocation, and Bakass testimony that she heard screams very soon after seeing Montero and Kenia enter the apartment corroborate Kenias account of the crime. Defendant attacks Kenias credibility because she did not remember being removed from the apartment by Bakas. However, this goes only to the weight of her testimony, and it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. (People v. Jones (1990) 51 Cal.3d 294, 314.) Belschners testimony was not conclusive that defendant sustained his chest wound before he stabbed Montero. The single wound in Monteros back, the multiple wounds to her chest and abdomen, and the numerous apparently defensive wounds to her hands and arms support the inference of a conscious attempt to kill. There was also substantial evidence of motive supporting a finding of malice. Defendant was concerned that Montero would obtain custody of their daughter, and was jealous because he believed she was seeing another man. In short, while the evidence might have supported a finding that defendant acted on sudden provocation or on the unreasonable belief that he was defending himself, there was also substantial evidence that he acted with malice and was guilty of murder.

Disposition

The judgment is affirmed.

_________________________

Pollak, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

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[1] To prove premeditation, the prosecutor had relied on the assertion in the declaration that defendant had threatened to kill Montero. Finding that the declaration was inadmissible under Evidence Code section 1370, and prejudicial, we reversed the conviction.