P. v. Puga

Filed 3/16/06 P. v. Puga CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

On July 26, 2002, appellant John Paul Puga killed Patricia Saldana (Patricia). He stole her car and fled to Texas, where he was arrested.^[1] Appellant was convicted after jury trial of first degree murder and vehicular theft (Pen. Code, § 187, subd. (a) & Veh. Code, § 10851, subd. (a)), and sentenced to 25 years to life imprisonment plus three years.

Appellant challenges the sufficiency of the evidence proving premeditation and deliberation. He also contests the admissibility of portions of the investigating officer's testimony on redirect and a correctional officer's testimony about an incident of misconduct during appellant's pretrial incarceration. All of these arguments are unconvincing. We will affirm.

FACTS

I. Prosecution Evidence

Patricia and her 14-year-old daughter, R., lived in a single-family house in Bakersfield. In addition to her employment with the Department of Rehabilitation, Patricia owned a small credit counseling business. To keep in touch with her daughter and manage her business, Patricia always carried her cell phone and pager.

Patricia was involved in a long-term romantic relationship with a married man, Dale Cortez.^[2] They typically met at her house two or three times per week and they spoke on the telephone several times a day. Their last act of sexual intercourse occurred on July 18. Patricia customarily wore a ring Cortez had given her a few years before her death.

Patricia met appellant in March while socializing with friends at a restaurant. Appellant was at the restaurant with some members of his work crew. Appellant told her that he lived in Texas but was working in Bakersfield. He also said he was single and did not have any children. In fact, appellant was married to Angela and has six children.

Patricia drove to Texas and visited appellant in April. During this visit, she telephoned friends and complained that appellant took her car and left her stranded at a hotel. Patricia was also upset when she learned appellant was married and was taking court-ordered spousal abuse classes.

Appellant subsequently was arrested in Wyoming. Patricia wired him $500 for bail. On June 28, she filed a legal action against him seeking $500 in damages.^[3]

Patricia purchased a new silver Lexus sedan about three weeks before her death. Friends and family members testified that she kept the car in immaculate condition and would not allow anyone to borrow it.

On July 21 Patricia picked appellant up at Los Angeles International Airport with the intention of allowing him to stay at her house for a few days. Patricia told friends and R. that appellant was waiting for his work crew to arrive and he needed a place to stay until the weekend. R. and her cousin, A., testified appellant slept in a spare bedroom. Appellant did not rent a car during his visit.

Patricia planned to take appellant to a hotel on July 26. She and R. were going to leave that weekend for a cruise to Mexico.

A few days after appellant arrived, R., A., and Patricia's friend Crystal Cullen all observed what appeared to be a bite mark on Patricia's arm. They also noticed that Patricia was not wearing the ring Cortez had given her, which was unusual.

Appellant asked R. and A. whether Patricia knew a man named Eddie. R. testified appellant appeared jealous when he asked this question.

Patricia became fearful of appellant during this visit. She told Cullen that she was uncomfortable with his behavior. She telephoned a friend who was a California Highway Patrol officer, Sergeant Alfredo Lopez, and asked him to run a criminal history check on appellant.

On July 24 or 25 Cortez learned appellant was staying at Patricia's home during a phone conversation with her. Cortez was concerned because she was whispering. He repeatedly asked if he could come over and make appellant leave. Patricia refused his assistance. He drove to her house but decided not to interfere and left. He called Patricia and ended their relationship.

On the morning of July 26, Patricia took R. and A. (who had slept over) out to breakfast. Appellant remained at home. Patricia dropped A. off at A.'s stepmother's workplace and then took R. to a friend's house. R. and the friend were going to see a movie together. Patricia planned to pick up the girls after the movie.

Patricia went to work for a few hours. She paid a condolence visit at 11:40 a.m. At 12:30 p.m. Patricia telephoned R. to confirm the girls' plans. R. told Patricia she would call her when the movie ended. At 1:00 p.m. Patricia scheduled an appointment with a pest control company to have her house fumigated.

R. called home at 1:30, but no one answered. She called back a few minutes later and appellant answered the phone. He told her that Patricia had left for the store. R. said she would call Patricia on her cell phone. Appellant replied that Patricia had left her cell phone at home. R. was surprised because Patricia was expecting R. to call her and Patricia never left home without her cell phone.

R. called Patricia's cell phone and pager numerous times but never received an answer. The friend's mother eventually picked up the girls at the movie theater. She drove R. home around 6:15 p.m. R. had a key and let herself inside the house.

Patricia's car and appellant's belongings were gone. R. could not find her mother's purse or cell phone. R. noticed the couch in the living room had been moved and a decorative pillow was missing. Her mother's bed was unmade and the comforter was missing. R. later found it in the washing machine; it was wet.

R. telephoned her grandparents. As the evening progressed, family and friends began searching for Patricia. They called the police after discovering a blood stain on the living room carpet underneath a chair.

Patricia's body was found during the morning of July 27. She had been wrapped in a comforter and placed on the roof of her patio enclosure. A tree obscured her body from view.

The missing decorative pillow and four napkins clumped together were found in the kitchen garbage bag. The pillow and napkins were encrusted with blood. Detective John Soliz testified the pillow also was stained with human tissue. Bits of paper towel were found in the blood stain on the living room floor. Bloodstains were found on a chair. Patricia's purse was found under her bed. Her pager, checkbook and wallet were inside. However, the pager had been turned off. Patricia's cell phone was missing. Although Patricia had gone to the ATM that day, her wallet did not contain any cash.

Patricia's cell phone was still being used and it was traced across Arizona, New Mexico and into Texas. Appellant was using the phone to call Angela and others.

Appellant was arrested later that day at a motel in Odessa, Texas. Prior to his arrest, appellant was observed talking on a phone as he walked in and out of his motel room. He continually looked around, as if watching for someone.

Patricia's Lexus was parked in the motel's parking lot. A duffle bag was found in the trunk. It contained a copy of the complaint Patricia had filed in small claims court and a Western Union receipt showing Patricia had wired appellant $500.

In addition to Patricia's Lexus and her cell phone, appellant had Patricia's camera, remote garage door opener and house keys in his possession.

Pathologist Dr. Armand Dollinger performed the autopsy. Patricia had suffered at least two facial blows immediately prior to her death. Her nose was broken, her lips and left eye were bruised. She had blood drainage into her left ear canal. She had gastric contents in her lungs, larynx and trachea. This indicates Patricia had vomited and then aspirated the material. Dr. Dollinger opined Patricia's death resulted from asphyxia due to aspiration of gastric contents with blunt force facial trauma. He testified Patricia's physical condition was entirely consistent with being repeatedly punched in the face and then smothered with a pillow.

Patricia's vaginal and anal swabs revealed the presence of semen. Appellant's DNA profile matched the semen samples. There was no evidence of another male contributor to the samples.

Appellant has been convicted of vehicle theft and felony domestic violence.

Appellant has two ex-wives, Anita and Angela. Both of them testified he was physically abusive and they described assaults during which he beat and smothered them.

Anita testified she was briefly married to appellant in 1996. She decided to move out because appellant was seeing Angela. While she was packing, appellant grabbed her hands. He threw her on the bed and covered her face with a pillow. She could not breathe. She fought back and escaped. Just as she reached the back door, appellant's parents arrived and he left.

Angela testified she married appellant in 1998 and started divorce proceedings in June 2002. On June 4, 2000, they argued while they were at a friend's apartment. Both of them were intoxicated. She went outside. Appellant picked her up and carried her into the bedroom. He punched her four times in the face. He covered her mouth with his hand so she could not scream. She could not breathe and choked on blood. Then he let her go. The police took her to the hospital. Her nose was broken and both eyes were bruised. Defendant was convicted of felony spousal abuse as a result of this assault.

On June 29, 2002, he and Angela began arguing during a drive. Both of them were intoxicated. Appellant slapped her. She screamed out the car window for help. Appellant grabbed her by the throat. She could not scream or breathe. He pulled her out of the car and began hitting her. She thought he was going to kill her. Appellant moved out after this assault.

On July 15, 2002, Angela came home around midnight and discovered appellant in the house. He had broken the front door and cut the telephone line. She threatened to call the police. Appellant said he was only there to see their son. After looking at him, appellant left.

II. Defense Evidence

Appellant denied killing Patricia. He testified Patricia offered to let him borrow her Lexus while she was in Mexico. They agreed he would use her car while she was on vacation and would pick up them up at the airport. He said Patricia also loaned him her cell phone and charger because his cell phone had been deactivated for nonpayment.

Appellant testified Patricia came home around 11:00 a.m. on July 26. She left about 45 minutes later to go to the bank and the store. She returned at approximately 2:00 p.m. Appellant told her R. had called and said she did not need a ride because her friend's mom was picking them up from the movie.

Appellant left for Texas that afternoon in Patricia's Lexus. When he left the house, Patricia was alive. He did not beat or smother her. He did not take any money from her purse.

During a phone conversation on the morning of July 27, appellant's sister told him Patricia was dead and the police were looking for him. Appellant stopped at a hotel in Odessa, Texas. His brother Rubin and a friend named Tim met him there. Rubin registered for the room under Tim's name. Appellant was too shocked by Patricia's death to plan whether to turn himself in to the police in Odessa or return to California.

Appellant testified he has not worked since he was arrested in Wyoming. However, he repaid Patricia the $500 she wired him and he does not know why she sued him. Patricia mailed him the paperwork found in the duffel bag before his July visit.

Appellant testified that he did not punch Anita or try to smother her. He testified that Angela's injuries on June 4, 2000, resulted from a fall down the stairs and he did not cover her mouth during this incident. He testified that he might have slapped Angela during the June 2002 incident but he did not beat her or grab her throat. He only held her hands to restrain her because she was hysterical.

Cortez was driving a dark gray Toyota Camry sedan on July 26. One of Patricia's neighbors, Dora Ruiz, testified she drove past Patricia's house on July 26 around 6:25 p.m. and noticed Patricia's car in the garage. Appellant testified a second remote garage door opener was kept in a kitchen drawer and he did not take this remote.

DISCUSSION

I. There is substantial evidence of premeditation and deliberation.

Appellant argues the first degree murder conviction must be reduced to second degree murder because there is insufficient evidence of premeditation and deliberation.^[4] He contends the record does not contain evidence of planning activity or motive and argues the manner of killing does not demonstrate a preconceived design to kill. We disagree. Appellant's selective characterization of the evidence erroneously fails to draw any reasonable inferences in favor of the judgment. When the evidence is properly viewed in accordance with the applicable standard of review, there is ample proof from which a reasonable jury could find beyond a reasonable doubt that appellant premeditated and deliberated the homicide. As will be explained, appellant had numerous motives and his manner of the killing and conduct after the homicide all support the contested finding.

The standard of review is axiomatic: When assessing the sufficiency of the evidence, a reviewing court considers the entire record in the light most favorable to the judgment below to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hawkins (1995) 10 Cal.4th 920, 955.) â€