P. v. Sarabia

Filed 8/24/07 P. v. Sarabia CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge. Affirmed as modified.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright‑Ladendorf and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

Roberto Sarabia appeals from a judgment after a jury convicted him of two counts of first degree murder. Sarabia argues the trial court erroneously refused to allow a lay witness to testify Sarabia wasnt okay in the head in the days before the killings. We find no error and affirm the judgment as modified to accurately reflect Sarabias presentence custody credit.

FACTS

Sarabia and his wife, Olga, lived together for 27 years. Sarabia, Olga, and their two children lived in a three-bedroom house. In March 2004, Olgas daughter from a previous relationship, Duneli Prieto, moved into Sarabias house along with her husband and three children. In August 2004, Sarabia kicked Olga and Dunelis family out of the house. Olga went to live with Duneli and her family.

In September 2004, Sarabia became convinced Olga was having a relationship with her son-in-laws cousin, Jose Huerta. Huerta was visiting from New Jersey and was staying at the Prieto home. Sarabia was distressed by this discovery.

On September 18, 2004, Sarabia bought a .357 Ruger revolver. He told a man who had a business near his television repair shop that he was planning to sell his house. When the man asked Sarabia what he was going to do after he sold the house, Sarabia replied, I am not at liberty to tell you, but after I sell the house you will know[.] In October, Sarabia told the same man he wanted to fly to New Jersey. He asked whether it was necessary to show identification to purchase a plane ticket or to board a plane. In November, Sarabia began to clear out his television repair shop and when asked why, replied, You will see in a couple of months.

In November 2004, Sarabia asked a receptionist who worked at a business near his television repair shop to printout a map of the closest airport to Hammonton, New Jersey, where Huerta lived. Also in November, Olga was visiting a friend and Sarabia showed up. He called Olga a whore and told her, If you dont change, neither of you will make it to see December, the both of you will pay[.] Olga obtained a temporary restraining order (TRO) against Sarabia. Sarabia attended the court hearing when the TRO was granted.

On November 28, 2004, Olga was taking Huerta to the airport, but they stopped to have breakfast first. After breakfast, as Olga and Huerta were walking to their car, Sarabia walked up to Huerta and shot him five times with the .357 Ruger revolver. He reloaded the gun, chased Olga as she was running away, grabbed her, and shot her two times. Sarabia reloaded the gun again, lifted Olga by the hair, and shot her in the face. Sarabia then went looking for Huerta. A witness heard Sarabia say he wanted to make sure Huerta was dead. Olga and Huerta both died from their gunshot wounds.

When a police car pulled up, Sarabia put the gun on top of Olgas car. He told the officer, [I]t is all right. I did it, and the gun is on top of the car over there. He asked the officers if both victims were dead. When one officer asked another how many bullets were in the gun, Sarabia said he had brought 15 bullets with him. Fifteen live bullets or expended casings were found at the scene. The officers found Sarabias passport and a copy of the TRO in the car Sarabia drove to the scene. Sarabias demeanor remained calm throughout his contact with the officers.

Sarabia was charged with two counts of murder (Pen. Code,  187, subd. (a)), with a special circumstance allegation of multiple murders (Pen. Code,  190.2, subd. (a)(3)). The information also alleged Sarabia personally discharged a firearm causing death in the commission of counts 1 and 2 (Pen. Code,  12022.53, subd. (d)).

At trial, Sarabias defense was that he suffered from severe depression and did not premeditate or intend to kill. The defense offered testimony of a friend Sarabia confided in before the shooting, a family therapist Sarabia visited after his wife left him, and a forensic psychologist who examined Sarabia in jail and testified he was suffering from major depression.

The jury convicted Sarabia on two counts of first degree murder and found true the firearm and special circumstance allegations. The trial court sentenced Sarabia to two consecutive terms of life without possibility of parole for the murders, plus a 50 years‑to-life term for the firearm enhancements.

DISCUSSION

A. Lay Witness Opinion Testimony

Sarabia argues the trial court erroneously excluded testimony of a lay witness about his mental state before the shootings. We find no error.

The defense called Lucia Mascorro to testify. She and her husband were casual friends with Sarabia and Olga for about 10 years. After Sarabia and Olga separated, he came to visit Mascorro frequently. Mascorro testified that prior to the separation, Sarabia was fine[,] but afterwards there was a very strong change in him. In the months before the shooting, Sarabia visited Mascorro almost everyday, cried almost every time he visited her, and was getting very thin. He wanted his wife back and could not live without her. He could not eat or sleep. He complained he was unable to work. Mascorro observed that Sarabia looked very destroyed[,] and he continued to get more depressed as time passed.

Mascorro then testified that around Thanksgiving, Sarabia told her he had thoughts of suicide and Thanksgiving was a difficult time emotionally. Defense counsel asked Mascorro to describe how Sarabia was acting when she saw him lastjust a few days before the shootings. Mascorro replied, That he wasnt okay in the head[.] The court sustained the prosecutions objection to the testimony as speculation. Mascorro then went on to testify that in the days before the shooting, Sarabia behaved even more unusual[,] acted really, really bad[,] and on one visit, he paid Mascorros two children to go to bed so Mascorro could continue to listen to him.

Sarabia contends the court erroneously excluded Mascorros testimony as to her opinion, he wasnt okay in the head[.] The true rule [as to the admissibility of lay witness opinion testimony] is simple and, so far as this state is concerned, well established: to permit, or to refuse to permit, such questions is a matter resting largely in the discretion of the trial court, which discretion will not here be reviewed unless it is made plain that the courts ruling in admitting the evidence has worked an injury. . . . (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 112.)

A lay witness may give opinion testimony if it is based on the witnesss perception and helpful to a clear understanding of his testimony. (Evid. Code,  800.) It is well settled that a lay person may give his opinion as to the sanity of a person whose sanity is in question providing it is the opinion of an intimate acquaintance. (Evid. Code, 870.) Naturally following, a qualified lay witness may give an opinion as to mental condition less than sanity. (People v. Crosier (1974) 41 Cal.App.3d 712, 723.) However, [a] lay witness may testify in the form of an opinion only when he cannot adequately describe his observations without using opinion wording. [Citation.] Whenever feasible concluding should be left to the jury; however, when the details observed, even though recalled, are too complex or too subtle for concrete description by the witness, he may state his general impression. [Citation.] (People v. Sergill (1982) 138 Cal.App.3d 34, 40.)

Here, Mascorro was able to describe her observations about Sarabia in detail. She observed he was increasingly emotional and getting thinner. He was unable to eat, sleep, or work. He looked, destroyed. Sarabia appeared to Mascorro to be more depressed, and acting even more unusual[,] in the days before the shooting. Her opinion that Sarabia wasnt okay in the head was not necessary for a clear understanding of her testimony. (Evid. Code, 800.) Because it was possible for Mascorro to convey what she observed, the court did not abuse its discretion by excluding her one answer using conclusory terms.

Moreover, a lay witness opinion as to sanity of another is no stronger than related facts upon which the opinion rests. (People v. Carskaddon (1932) 123 Cal.App. 177, 182.) As stated above, Mascorro was permitted to give a lengthy testimony about the conduct and appearance she had observed.

The main thrust of Sarabias argument is that Mascorros proposed statement he was wasnt okay in the head is equivalent to saying he was irrational, which has been permitted in lay witness testimony. (People v. Manoogian (1904) 141 Cal. 592, 595.) But, a clear distinction exists between a witnesss opinion as to sanity and their observation of the appearance of irrationality. (Id. at pp. 595-599.) Testimony based on the observation by a witness that a person appeared rational or irrational is permitted because it does not elicit the opinion of the witness. Therefore, Mascorros opinion Sarabia wasnt okay in the head went beyond her observation and was properly excluded.

Even were it error to exclude the proffered testimony, we cannot say the error was prejudicial. Sarabia contends the error must be reviewed under the Chapman harmless beyond a reasonable doubt standard (Chapman v. California (1967) 386 U.S. 18, 24), because exclusion of Mascorros testimony deprived him of his federal constitutional right to present a defense. We disagree. [T]he trial courts ruling did not constitute a refusal to allow defendant to present a defense, but merely rejected certain evidence concerning the defense. Accordingly, the proper standard of review is that enunciated in People v. Watson [(1956)] 46 Cal.2d 818, 836. (People v. Bradford (1997) 15 Cal.4th 1229, 1325; Cal. Const., art. VI, 13.)

In addition to Mascorros testimony, a forensic psychologist who examined Sarabia in jail testified Sarabia suffered from major depression. A family therapist Sarabia visited after his wife left him also testified about sessions she had with Sarabia and his mental state. Thus, all of the objective facts observed by Mascorro and the opinion of a psychologist and family therapist on Sarabias mental illness were presented to the jury.

Furthermore, the evidence refuting Sarabias defense, i.e., the evidence of premeditation and deliberation, was overwhelming. Sarabia purchased a gun shortly after he discovered his wife was seeing Huerta. He threatened his wife stating he would take action before December. He prepared to sell his house and close his store. He learned how to buy a plane ticket and researched the closest airport to the city where Huerta lived. When he went to kill Olga and Huerta, he had his passport in the car with him. Mascorros lay opinion Sarabia wasnt okay in the head simply would not have made a difference. Thus, even if the trial court erred, we cannot say there was a reasonable probability Sarabia would have received a difference verdict. (People v. Watson, supra, 46 Cal.2d at p. 836.)

B. Presentence Custody Credit

Sarabia was awarded 719 days presentence custody credit for actual days in custody. He contends he is entitled to one additional day of actual time credit. The Attorney General concedes Sarabia is entitled to credit for 720 actual days in presentence custody. They are correct, and we will modify the judgment accordingly.

DISPOSITION

The judgment is modified to reflect Sarabias presentence custody credits include 720 days of actual credit. We direct the clerk of the superior court to prepare an amended abstract of judgment to reflect the modified award of presentence custody credits and to forward a copy to the Department of Corrections and Rehabilitation, Division of Adult Operations. As modified, the judgment is affirmed.

OLEARY, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

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