P. v. Sisneros

Filed 8/15/07 P. v. Sisneros CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from the Superior Court of San Bernardino County. Arthur Harrison, Judge. Affirmed.

Mary Woodward Wells, 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, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Susan Miller, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction^[1]

Defendant shot to death his wife, Jacqueline, and his wifes grandson, Gilbert. The jury convicted defendant of two counts of first degree murder ( 187, subd. (a)) and found true the allegation that defendant personally and intentionally used and discharged a firearm, causing death. ( 12022.53, subd. (d).) The jury also found defendant was legally sane when he committed the offenses.^[2]

The court sentenced defendant to an indeterminate prison term of 100 years to life with the possibility of parole, consisting of four consecutive terms of 25 years to life.

All of defendants arguments on appeal challenge the convictions for first degree murder, specifically: the sufficiency of the evidence; the instruction given on the issue of circumstantial evidence of specific intent; the prosecutors closing argument concerning the mens reas for premeditated first degree murder; and cumulative error. After due consideration of the record and the law, we affirm the judgment.

2. Facts

About 8:40 pm. on March 13, 2002, defendant called the 911 operator and reported he had shot his wife and her grandson. He explained he had unloaded the guns and left them in the front of the house. He would assume a kneeling position with his hands on his head and wait for the police to arrive. He said, I just blew up thats all. I just . . . I shot, I shot him first. The 911 operator asked if he was mad and he responded, Ill explain it to you later. Its been an ongoing thing.

A San Bernardino County Sheriff responded and found defendant kneeling in the driveway with his hands on top of his head and a cell phone and a large flashlight next to him. Defendant offered no resistance to being taken into custody. Defendant had a revolver speedloader on his person.

A girl emerged from the house and said her grandmother and her brother had been shot inside. The officers found the boy and defendants wife dead in two different bedrooms. The officers found unloaded firearms on a picnic table just outside the house.

Amy Gutierrez testified her mother, Rose Marie, and her brother, Gilbert, had been living at her grandmother and defendants house since moving back to California from Arkansas at Christmas time. Amy and her mother lived in two spare bedrooms in the garage. Gilbert lived in the main house.

On the day of the shootings, defendant was working on his camper, going back and forth to the house. About 7:30 p.m., Amy went to sleep with her grandmother. Amy was awakened by a loud, banging noise. Jacqueline got up and turned on a light. Amy stayed under the blankets peeking out. She heard defendant say, Now its your turn. Jacqueline screamed and defendant shot her three times.

Defendant told Amy I know you are under there and I am not going to hurt you. He asked for the grandmothers cell phone because he had disabled the regular telephone. He told Amy he had killed Gilbert and Jacqueline. She asked him why and he responded, Havent you heard the shit that has been going on? Then he called the police. Amy checked on the victims and left the house.

Previously, defendant and Gilbert had argued about leaving on the electricity at the house. Jacqueline had shown Amy some notes in which she wrote about getting a divorce from defendant or about him leaving.

Rose Marie Rodriguez testified that she worked at Wal-Mart from noon to midnight the day of the murders. About 1:00 or 1:30 p.m., Jacqueline came to the store and was upset and nervous. Jacqueline and defendant had been bickering and arguing. Gilbert and defendant also bickered. Rose Marie spoke to Gilbert by phone at 8:00 p.m. The next call she received was from the police. Rose Marie had told defendant she was planning to move out with her children. She also planned to take Jacqueline but had not told defendant. Rose Marie knew defendant had medical problems and that he was taking medications.

When the detectives began to interview defendant, he initially seemed sleepy. He was a retired auto mechanic. He had been married to Jacqueline for 16 years. On the night of the shootings, defendant was trying to fix his camper truck so he could move to Oceanside or Los Angeles. Jacqueline was going to stay with her grandchildren. They were already separated.

Defendant was frustrated because of problems with the campers carburetor. He had worked on it for two days and Jacqueline was leaving notes for him about packing and leaving the premises. He expressed his frustration about the children and their disobedience and unruliness especially in view of his poor health. He loved his wife so damn much. But Jacqueline was egging him on. She and Gilbert were alternately laughing at him and then ignoring him. To calm down, he took some Valium, hyperdrol, Paxil, and Adavent.

Then he described feeling down in the dumps . . . totally down . . . so silent . . . nobody to talk to . . . nothing . . . so I start thinking that I start sitting there thinking and bad thoughts go through my mind and I just ah out of rage, I get go in, grab the gun [a .9-millimeter Glock] and . . . . He hid the gun behind a small pillow. I went and confront the kid I told him, okay, this is for all the misery that you have caused me flattening my tires and all . . . the other bullshit . . . and I knew it was him because it didnt happen before. . . . Gilbert called him a cocksucker and defendant shot him a few times in the neck and shoulder.

Afterwards he went into Jacquelines bedroom and said this is for all the misery that she has caused me and I shot her with the same gun, also in the neck and shoulder. He told Amy not to be scared because he was not going to hurt her. He got another gun, a .38-special and put both guns unloaded on the outdoor table. Then he called the police using his wifes cell phone. He said he had shot his wife and her grandson and needed an ambulance.

He had intended to shoot them and scare them, not kill them, but Gilberts attitude upset him. He told police he did not want to hurt Amy because she was a nice girl.

A blood sample given by defendant about five hours after the shooting tested positive for various antidepressant and anti-anxiety medications. The police found a torn-up, handwritten note by Jacqueline which according to respondent stated, Joe, I thought this over for a long time. Things will just stay the same. It is better for you to go ahead with your plans and start over.

3. Sufficiency of the Evidence

The evidence at trial portrayed a man afflicted with ill health and brooding over his estrangement from his wife of 16 years and his displacement from his home by his wifes family, particularly her surly grandson. After two days of struggling with mechanical problems with his camper and being needled by his wife about when he would be leaving and teased by both his wife and her grandson, he reacted with extreme measures and tragic results. He downed a cocktail of drugs. Then he entered the house and obtained a Glock .9-millimeter gun. Concealing his weapon behind a small pillow, he methodically executed first Gilbert and then Jacqueline. In both instances, he employed the same chilling phrase, this is for all the misery you have caused.

Defendant contends there was insufficient evidence to support a conviction of first degree murder by premeditation and deliberation. In reviewing a challenge to the sufficiency of the evidence, we review the entire record in a light most favorable to the judgment to determine whether it discloses substantial evidence. (People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)

The California Supreme Court has recently reiterated the elements of first degree murder in detail: Murder that is perpetrated by willful, deliberate, and premeditated killing is murder in the first degree. ( 189.) A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. . . . Deliberation refers to careful weighing of considerations in forming a course of action; premeditation means thought over in advance. . . . The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. [Citation.]

Generally, there are three categories of evidence sufficient to sustain a premeditated and deliberate murder: evidence of planning, motive, and method. [Citations.] When evidence of all three categories is not present, we require either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing. [Citation.] But these categories of evidence, borrowed from People v. Anderson (1968) 70 Cal.2d 15, 26-27 are descriptive, not normative. [Citation.] They are simply an aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse. [Citation.] (People v. Cole (2004) 33 Cal.4th 1158, 1224.)

Our review of the record discloses combined evidence of planning, motive, and method. With respect to motive, there was defendants anger at his wife and his anger at and jealousy of her family. There was also his express statement to both victims that he was retaliating against them for the misery he had suffered. Similarly, he told Amy he was responding to the shit that has been going on.

With respect to planning, the evidence showed defendant was feeling isolated and ostracized by Jacqueline and Gilbert. With no immediate provocation, he determined to go back in the house, retrieve and load his gun, disable the house telephone, and hunt down and ambush both of his victims in their bedrooms. (People v. Morris (1988) 46 Cal.3d 1, 23 (Morris), overruled on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.) In order to accomplish his purpose, he hid the gun behind a pillow and surprised them with a volley of shots.

Finally, as to method, he shot both victims similarly, giving evidence of a deliberate manner of killing. He did not fire wildly at the victims. He acted with lethal purpose, not aiming at the victims feet as he claimed in his police interview was his intent, but firing repeatedly at their vulnerable upper torsos and vital body parts. (Morris, supra, 46 Cal.3d at p. 22; People v. Hawkins (1995) 10 Cal.4th 920, 956; People v. Francisco (1994) 22 Cal.App.4th 1180, 1192.)

A review of the entire record shows there was indeed substantial evidence from which a rational trier of fact could have found beyond a reasonable doubt that defendant committed a premeditated and deliberate murder.

4. Instructional Error

The trial court gave an instruction based on CALJIC No. 2.01, SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCEGENERALLY. Defendant argues the court should have given a pinpoint instruction based on CALJIC No. 2.02, SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE TO PROVE SPECIFIC INTENT OR MENTAL STATE. The Use Note to CALJIC No. 2.02 comments the two instructions should never be given together because CALJIC 2.01 is inclusive of all issues, including mental state and/or specific intent, whereas CALJIC 2.02 is limited to just mental state and/or specific intent. Therefore, they are alternative instructions. If the only circumstantial evidence relates to specific intent or mental state, CALJIC 2.02 should be given. If the circumstantial evidence relates to other matters, or relates to other matters as well as specific intent or mental state, CALJIC 2.01 should be given and not CALJIC 2.02. [Citations.] When the prosecution does not substantially rely on circumstantial evidence to prove guilt, neither instruction is required. [Citation.]

Defendant contends it was error to give the more general instruction because he admitted shooting Jacqueline and Gilbert. Therefore, the only issue for the jury was whether circumstantial evidence showed he had the requisite specific intent to kill, including premeditation and deliberation. The People agree CALJIC No. 2.02 was the more appropriate instruction but argue it was harmless error. Applying an independent review, we agree. (People v. Alvarez (1996) 14 Cal.4th 155, 217.)

No court has held that giving CALJIC No. 2.01 instead of CALJIC No. 2.02 was reversible error: Because the trial court delivered the more inclusive instruction under CALJIC No. 2.01, its refusal to additionally instruct with CALJIC No. 2.02 clearly was not prejudicial error. [Citations.] (People v. Rodrigues (1994) 8 Cal.4th 1060, 1142; People v. Bloyd (1987) 43 Cal.3d 333, 352.) As stated more fully: The only difference between the two instructions is that CALJIC No. 2.02 focuses the jurys attention on the sufficiency of the circumstantial evidence to prove specific intent or a mental state, while CALJIC No. 2.01 broadly covers all circumstantial evidence. In People v. Rodrigues,supra, 8 Cal.4th 1060 . . . the Supreme Court noted . . . the trial courts delivery of the more inclusive instruction (CALJIC No. 2.01) precluded a finding of prejudicial error. (Rodriguez, at p. 1142.) In this case, there is no reasonable probability the jury would have misapplied the rules applicable to circumstantial evidence stated in CALJIC No. 2.01 to the determination whether appellant had the requisite specific intent . . . . Any error was clearly harmless and appellant has failed to carry his appellate burden to show the purported error was prejudicial. (See Rodriguez, at p. 1142; People v. Johnwell, supra, 121 Cal.App.4th at p. 1274, [[t]he failure to give CALJIC No. 2.01, where appropriate, is assessed under the standard of [People v. Watson, supra, 46 Cal.2d at p. 836]].) (People v. Burch (2007) 148 Cal.App.4th 862, 872-873.)

Any failure to give CALJIC No. 2.02 was harmless. It is not reasonably probable the jury failed to apply properly the rules regarding circumstantial evidence to the element of intent for the offenses. Nor does the omission of CALJIC No. 2.02 qualify as federal constitutional error because it resulted in a jury conviction which was not based on proof beyond a reasonable doubt. The error, if any, involved instruction on circumstantial evidence, not on the issue of reasonable doubt, a matter which is covered in CALJIC No. 2.01 and not mentioned in CALJIC No. 2.02. Using defendants reasoning on this point, it was actually more to his advantage to use CALJIC No. 2.01, rather than CALJIC No. 2.02.

5. Prosecutorial Error

Defendant complains of two instances of purported prosecutorial error during rebuttal argument: the use of a personal anecdote involving his children to illustrate premeditation and deliberation; and the prosecutors dismissive comments about defendants mental problems.

As to the latter, defendant focuses on the prosecutors statements that the defense presented no actual evidence of mental problems, only that defendant was taking medications. The prosecutor continued, somewhat inarticulately, with reference to CALJIC No. 8.42, explaining sudden quarrel or heat of passion and provocation, stating it applies to the ordinary reasonable person of average disposition. The fact that he has mental problems is not a subjective standard . . . most people who murder people have problems. Its not a normal response to such things as your wife leaving or being accused of taking a bike. That is not a normal response. The mental aspect is not relevant in this case.

The error identified by defendant is that the test of whether provocation or heat of passion will reduce a homicide to manslaughter is an objective one. (People v. Steele (2002) 27 Cal.4th 1230, 1254.) But the test for mitigation of first degree murder to second degree murder is subjective: The issue is whether the provocation precluded the defendant from deliberating. . . . This requires a determination of the defendant's subjective state. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295.) Therefore, according to defendant, defendants mental problems were relevant.

The difficulty with defendants assertions is he misstates the context of the prosecutors rebuttal argument in which he is clearly discussing the issue of mitigation to manslaughter, not second degree murder, because he goes on to explain: At this portion of the trial . . . the instruction reducing it to manslaughter, again, average disposition. A normal person. What you are doing is you are looking at basically the normal person, not someone who has some mental problems but kind of a vague mental problem. Therefore, the foundation for defendants argument simply does not exist. The prosecutor was arguing about whether defendant could be found to have committed manslaughter, not second degree murder. He did not commit prosecutorial error by misstating the law about second degree murder. (People v. Bell (1989) 49 Cal.3d 502, 538.) Nor, as it follows, has defendant established ineffective assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 688-692; People v. Stewart (2004) 33 Cal.4th 425, 509.)

The second error defendant identifies is the prosecutors use of an anecdote about his daughters to explain the formation of intent. They were quarreling about a pair of sunglasses when he settled the dispute by seizing the sunglasses and snapping them in two. Over defense counsels objection, the prosecutor argued that he formed motive and intent in that brief episode, which he compared to defendants conduct. He also used the story to question the degree of defendants remorse.

On appeal, defendant protests that the prosecutors story again misstated the law by suggesting the elements of premeditation and deliberation can be satisfied by rash, impulsive behavior. (People v. Bell, supra, 49 Cal.3d at p. 538; People v. Marshall (1996) 13 Cal.4th 799, 831.)

We do not find the prosecutors story to be a very compelling factual analogy to defendants shootings. The jury may certainly have found it equally unpersuasive and rejected it. But, in the context of the whole argument and the instructions, we see no reasonable likelihood the jury construed the prosecutors remarks as defendant suggests. (People v. Wilson (2005) 36 Cal.4th 309, 337.) Therefore, defendant fails to establish prosecutorial misconduct. (People v. Cole (2004) 33 Cal.4th 1158, 1202.)

6. Disposition

In the absence of error or prejudicial error, we find no cumulative error. We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Ramirez

P. J.

s/Hollenhorst

J.

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

^[2] The insanity proceedings are not relevant to the issues on appeal.