P. v. Chavez

Filed 5/8/06 P. v. Chavez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

Defendant Enrique Garnica Chavez was convicted after jury trial of first degree murder during the commission of a burglary and a robbery (Pen. Code, §§ 187),[1] robbery in an inhabited dwelling while acting in concert (§ 213, subd. (a)(1)(A)), first degree burglary (§§ 459, 460), vehicle theft (Veh. Code, § 10851, subd. (a)), and misdemeanor falsely identifying himself to a peace officer (§ 148.9). The jury further found that defendant personally inflicted great bodily injury on the victim, who was over 70 years of age, during the commission of the burglary and robbery (§§ 667.9, subd. (a); 12022.7, subd. (c)). The trial court sentenced defendant to an indeterminate term of life without the possibility of parole, consecutive to a determinate term of 16 months in state prison. The court also imposed a $500 restitution fine under section 1202.4, subdivision (b), and a similar but suspended restitution fine under section 1202.45.

Defendant contends on appeal that (1) the murder conviction must be reversed as the victim's family's election to withdraw life support was a superseding cause of the victim's death, and the court erred in failing to instruct the jury on superseding cause; (2) the prosecutor committed misconduct during closing argument; and (3) the court erred in imposing the $500 restitution fine under section 1202.45. We agree with defendant's last argument, but find no other error or misconduct. Accordingly, we will modify the judgment by striking the $500 restitution fine imposed under section 1202.45, and affirm the judgment as so modified.

BACKGROUND

Defendant was charged by first amended information with murder during the commission of a burglary or robbery (§§ 187, 190.2, subd. (a)(17); count 1), robbery in an inhabited dwelling while acting in concert (§ 213, subd. (a)(1)(A); count 2), first degree burglary (§§ 459, 460, subd. (a); count 3), vehicle theft (Veh. Code,

§ 10851, subd. (a); count 4), and misdemeanor falsely identifying himself to a peace officer (§ 148.9; count 5). The information further alleged that defendant personally inflicted great bodily injury upon the victim of counts 2 and 3, who was over 70 years of age. (§§ 667.5, subd. (c)(21); 667.9, subd. (a); 12022.7, subd. (c).)

On January 26, 2005, the court appointed a psychologist to examine defendant pursuant to section 1369, subdivision (a). The parties submitted the matter to the court on March 9, 2005, on the psychologist's report, and the court found defendant competent.

The prosecution's case

At 1:43 p.m. on Saturday, October 25, 2003, Mountain View firefighter paramedics responded to a call from a Jardin Drive residence regarding a possible fall victim. When they arrived they found gardeners working in the yard and 77-year-old Doris Condon lying on the carpet in the living room of the residence, face down. Although there was a lot of blood on the carpet, Condon was able to respond when the paramedics talked to her. They turned her over and found that she had blood coming from her ears and nose, that her eyes were swollen shut, and that she had a large hematoma on her forehead. The paramedics had to move a gray sweatshirt that was lying on the carpet near Condon's face in order to attend to her. Desire Telmont, Condon's housemate, told the paramedics that items in the room were out of place. The paramedics determined that the victim had a head injury. They called the police and an ambulance.

Mountain View police officers responded to the Jardin Drive residence at approximately 2:00 p.m. on October 25, 2003. The officers found a blood-soaked gray sweatshirt on the living room floor. They also found the closet doors in Condon's bedroom open, with a safe leaning against them. A desk in the bedroom had been ransacked, a chair had been overturned, sheets had been pulled off the bed, and there was a purse and an orange on the floor. Orange peels were found on the sidewalk outside the home. The orange peels were collected and were later determined to have DNA from David Olayo on them.

The safe in Condon's room held personal papers, stocks, cash and gold coins. Nothing in the safe was missing, a case of jewelry on top of Condon's dresser was not disturbed, and a cup and envelopes containing cash on the desk above the safe were still there. However, the wallet was missing from Condon's purse. Condon usually kept between $300 and $500 in her wallet.

Eighty-three-year old Telmont had lived with Condon for over 30 years. On October 25, 2003, he left the house around 9:30 or 10:00 a.m. Condon said that she was not going anywhere. Telmont expected the gardeners to arrive around 2:00 p.m. When he arrived home around 1:30 p.m., the gardeners were already there, working in the yard. He entered the house through the side door, and did not see Condon where he expected to find her. He saw things out of place and drawers in his bedroom open. He then found Condon lying in a pool of blood in the living room with one of his gray sweatshirts tied around her neck. He called 911.

Andres Arellano had been doing gardening work for Condon and Telmont every Saturday for several years before October 25, 2003. He would usually arrive around 2:00 p.m. On October 25, 2003, he arrived around 1:00 p.m. with his helper. As he arrived he noticed a man whom he had never seen before, inside the open door of the house, looking out. When the man saw Arellano, he went back inside. While Arellano was working in the yard, he saw a second man walking down the sidewalk, eating an orange. The second man entered Condon's house through the garage door, the same door the first man had looked out of. Arellano saw the second man later leave the house from the same door and walk back the way he had come. He went to a car where a third man was standing, waiting with a car door open. These two men drove away in the car after making two U-turns. Arellano did not see the first man leave the house, and he did not see Telmont arrive. Telmont came out of the house about 15 minutes after the car left, and told Arellano what had happened. Arrellano saw the fire truck and the police arrive, and he talked to the police before he left that day. At trial Arellano identified defendant as the first man, a picture of David Olayo as the second man, and a picture of Jose Sosa as the third man.

Condon was taken by ambulance to the hospital before the police arrived. She had multiple fractures of her facial bones, including to her nose and around her eyes, a neck and a skull fracture, and two rib fractures. She also had contusions of the brain and subdural hemorrhaging. She was initially lucid, but she was nonresponsive the next day, and eventually fell into a vegetative state. On November 28, 2003, Carol Brainerd, Condon's daughter, decided to withdraw life support because doctors told her that Condon would never have any kind of quality of life, and Condon's prior written wishes were that she not be sustained on life support. The pathologist who performed the autopsy determined that the cause of Condon's death was complications of blunt force injuries of the head and neck as a result of a homicide. Shortly after Condon died, officers received information from a concerned citizen that led to the investigation and arrest of defendant, David Olayo and Jose Sosa.

Lilia Olayo had been Condon and Telmont's house cleaner for a number of years. She came every other Thursday. David Olayo, Lilia's brother, helped her out sometimes, and Telmont saw Olayo at the house three or four times before October 25, 2003.

Marcela Ramirez reported her 1994 Ford Escort stolen the morning of November 26, 2003. Officers found the car parked in front of a residence in San Jose. While watching the car on December 3, 2003, an officer saw defendant walk up to it, get in, and drive away. The car was stopped and defendant was arrested. Defendant said that his name was Leonel Cantor. He was interviewed at the San Jose jail. He was read his Miranda[2] rights and said that he understood them and was willing to talk. Defendant said that he bought the car for $100 two days before from a person named Carlos, and that he knew the car was stolen. Through defendant's fingerprints, officers subsequently learned that defendant's real name is Enrique Chavez.

Jose Sosa was arrested on December 6, 2003, and David Olayo was arrested on December 7, 2003. On December 8, 2003, defendant was brought to the Mountain View police station. He was put in an interview room with Olayo, and the two of them were alone together for about 20 minutes. During their conversation, which was videotaped, Olayo told defendant that during his police interview â€