P. v. Tena
Filed 9/4/13 P.
v. Tena CA2/6
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
SALVADOR MEDINA TENA,
Defendant and
Appellant.
2d Crim.
No. B241670
(Super.
Ct. No. 2010005964)
(Ventura County)
Salvador Medina Tena
appeals a judgment following conviction of second
degree murder, with a finding of personal use of a deadly weapon during
commission of the crime. (Pen. Code,
§§ 187, subd. (a), 189, 12022, subd. (b)(1).)
FACTS
AND PROCEDURAL HISTORY
In the late afternoon of
February 16, 2010,
Tena sold videotapes outside Santitos restaurant in Oxnard. Javier Orozco Rodriguez, owner of the
restaurant, knew Tena and purchased several videotapes from him that day. Tena appeared to be intoxicated and had a
"little bit [of] trouble walking . . . talking." He informed Rodriguez that he "had
problems" with Candido Monge, an elderly homeless man who frequently
patronized the restaurant. Tena
described Monge as "a rat" and stated: "I am only telling you what will come to
pass."
While Tena and Rodriguez
were conversing, Monge entered the restaurant and ordered dinner. Rodriguez stated falsely that Monge was his
uncle, and asked Tena not to hurt Monge.
Tena did not respond and walked away.
Monge ate dinner and
left the restaurant. Approximately 15
minutes later, he returned and shouted that he had been stabbed. Monge removed his jacket, revealing a knife
handle protruding from his abdomen. He
seized the handle, extricated the knife, and placed it on a table. The knife was a three-to-four inch folding
knife with a serrated edge.
Javier Orozco, the
restaurant owner's son, asked Monge who stabbed him. Monge replied "Chava, the one-eyed
guy." Tena, known by the nickname
"Chava," was blind in one eye.
Orozco telephoned for medical and police assistance. In response to questions from the police
dispatcher, Orozco stated that Chava stabbed Monge because Monge was a
"snitch[]."
Oxnard Police Officer
Crystal Walker arrived at the restaurant and accompanied Monge to the
hospital. In a recorded conversation,
Monge stated that Tena was "hiding" behind a water dispenser outside
a neighboring market and "came and just stabbed him." Monge stated that they had not argued and
that Tena stabbed him "for nothing."
At trial, the prosecutor played the recording of the conversation.
Despite medical
treatment, Monge died from abdominal hemorrhaging as a result of the
stabbing. Laboratory testing revealed
that he had a 0.19 blood alcohol content when he arrived at the hospital.
Police officers obtained
videotapes from surveillance cameras near the water dispensers. The videotapes revealed Tena standing by the
water dispensers, removing a light-colored object from his waistband, and
transferring the object to his right hand.
Tena turned the object in the palm of his hand to "secret[] [it]
from view." He then walked outside
the range of the cameras, but reappeared shortly and walked briskly away. At trial, the prosecutor played a compilation
of the surveillance videotapes.
The day following the
stabbing, police officers found Tena near a rescue mission. He resisted an order to stop and was forcibly
detained.
Following advisement and
waiver of his rights pursuant to Miranda
v. Arizona (1966) 384 U.S. 436, Tena initially denied that he knew Monge and
stated that he did not recall the stabbing.
Later, Tena stated that he had been drunk and that Monge had offended
him. He admitted that he "made a
mistake," and stated "judge me now, whatever has to
happen." Tena repeated that he did
not remember the stabbing because he had been intoxicated. He recalled an argument with Monge prior to
the stabbing, however, and recalled selling videotapes to Rodriguez. Tena also stated that he "gave [his]
life so that others could benefit because this man [Monge] did offend a lot of
people." At trial, the prosecutor
played the recorded police interview.
The jury acquitted Tena
of first degree murder, but convicted him of second degree murder. (§§ 187, subd. (a), 189.) It also found that he personally used a deadly
weapon, a knife. (§ 12022, subd.
(b)(1).) The trial court sentenced Tena
to a prison term of 16 years to life, consisting of 15 years to life for second
degree murder, and one year for personal deadly weapon use. The court imposed a $1,000 restitution fine,
a $1,000 parole revocation restitution fine (stayed), a $40 court security
assessment, and a $30 criminal conviction assessment, and ordered restitution
to the victim's family. (§§ 1202.4,
subd. (b), 1202.45, 1465.8; Gov. Code, § 70373.) It also awarded Tena 811 days of presentence
custody credit.
Tena appeals and
contends that the trial court erred by not instructing concerning
unconsciousness. (CALCRIM No. 626
["Voluntary Intoxication Causing Unconsciousness: Effects on Homicide Crimes (Pen. Code,
§ 22)"].)
In his reply brief, Tena
abandons an argument that the trial court erred by refusing an instruction
regarding voluntary manslaughter based upon a theory of a killing committed
without malice while committing an assault with a deadly weapon. As the parties acknowledge, in
our Supreme Court recently rejected this theory. (Id.
at p. 970 [defendant who kills without malice in the commission of an
inherently dangerous assaultive felony has not committed voluntary manslaughter
because voluntary manslaughter requires either an intent to kill or a conscious
disregard for life].)
Tena argues that the
trial court erred by refusing to instruct regarding voluntary intoxication,
unconsciousness, and involuntary manslaughter.
(§ 192, subd. (b); People v.
Ochoa (1998) 19 Cal.4th 353, 423-424 [defendant who kills while unconscious
due to voluntary intoxication has committed involuntary manslaughter].) He asserts that substantial evidence exists
that he acted in an unconscious state due to voluntary intoxication. Tena points to evidence that he was intoxicated
before the stabbing and he repeatedly informed the interviewing police officers
that he did not remember committing the crime because he was too
intoxicated. He claims the error is
prejudicial, reversible, and denies him due process of law and the right to a
jury determination of every material trial issue.
At trial, Tena requested
an instruction regarding a killing committed while acting in an unconscious
state due to voluntary intoxication.
(CALCRIM No. 626.) After argument
regarding the instruction, the trial court refused to so instruct and stated
that Tena's acts, including "rapidly leaving the [crime] scene," were
"inconsistent with being unconscious and not knowing what's going
on."
CALCRIM No. 626
provides: "Voluntary intoxication
may cause a person to be unconscious of his or her actions. A very intoxicated person may still be
capable of physical movement but may not be aware of his or her actions or the
nature of those actions. [¶]
. . . [¶] When a person
voluntarily causes his or her own intoxication to the point of unconsciousness,
the person assumes the risk that while unconscious he or she will commit acts
inherently dangerous to human life. If
someone dies as a result of the actions of a person who was unconscious due to
voluntary intoxication, then the killing is involuntary
manslaughter. . . ."
For several reasons, the
trial court did not err by refusing the unconsciousness instruction.
A trial court must
instruct regarding involuntary manslaughter based upon unconsciousness whenever
there is sufficient evidence that the defendant was unconscious due to
involuntary intoxication. (
379, 418; People v. Turk (2008) 164
Cal.App.4th 1361, 1371-1372; but see People
v. Boyer (2006) 38 Cal.4th 412, 469, fn. 40 [Dictum that in view of
statutory amendments, voluntary intoxication to the point of unconsciousness
would not prevent conviction of murder based upon an implied malice
theory].) "Due process requires
that the jury be instructed on a lesser included offense only when the evidence warrants such an instruction." (People
v. Gutierrez (2002) 28 Cal.4th
1083, 1145.)
Here the evidence is
insufficient to support instruction with CALCRIM No. 626. No expert or other witness testified that
Tena was so "'grossly intoxicated'" as to be unconscious when he
committed the killing. (
There also is no evidence of Tena's blood-alcohol content or the extent
of his habituation to alcohol. (
887.) Evidence that Tena was intoxicated
prior to the killing (he had a "little bit [of] trouble walking
. . . talking") and that he could not remember the crime is
insufficient to warrant an unconsciousness instruction. (People
v. Halvorsen, supra, 42 Cal.4th
379, 418 [expert testimony that the defendant's blood-alcohol content might
have approached 0.20 at the time of the shootings and that defendant
"habitually drank to excess with resultant memory losses" did not
constitute substantial evidence warranting an involuntary manslaughter instruction
premised on unconsciousness]; Rogers,
at p. 888 ["Defendant's professed inability to recall the event,
without more, was insufficient to warrant an unconsciousness
instruction"].) Moreover, Tena
recalled selling videotapes outside the restaurant and having a conversation
with Monge prior to the stabbing. The
surveillance videotape compilation also depicts Tena handling and concealing
the knife and walking away briskly after he stabbed Monge. The evidence does not permit a reasonable
inference that Tena's voluntary intoxication rendered him unconscious, i.e.,
where he physically acted but was not conscious of acting. (Halvorsen,
at p. 417; People v. Carlson
(2011) 200 Cal.App.4th 695, 704.)
Sufficiency of evidence
to support the instruction aside, 1995 statutory amendments to section 22
(renumbered section 29.4 effective Jan. 1, 2013) preclude a defendant from
relying on his unconsciousness caused by voluntary intoxication as a defense to
implied malice murder. (People
v. Carlson, supra, 200
Cal.App.4th 695, 705.) Section 29.4,
subdivision (b) permits evidence of voluntary intoxication as relevant to
whether the defendant actually formed a specific intent or, when charged with
murder, whether he premeditated, deliberated, or harbored express malice. (
express malice due to voluntary intoxication can still act with implied malice,
which voluntary intoxication cannot negate.
(§ 29.4, subd. (b).) To the
extent that a defendant who is voluntarily intoxicated unlawfully kills with
implied malice, he would be guilty of second degree murder. (Carlson,
at p. 707.) "No reason exists
to carve out an exception where a person drinks so much as to render him or her
unconscious." (Ibid.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
>
Charles W.
Campbell, Judge
Superior
Court County of Ventura
______________________________
Linda C. Rush, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Kimberley J. Baker-Guillemet, Deputy Attorney General, for
Plaintiff and Respondent.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code unless otherwise stated. References to
section 12022 are to the version in effect prior to January 1, 2012.
name="_ftn2" title="">[2] In his appellate briefs,
Tena repeatedly refers to three days of jury deliberation. In fact, the jury received the matter late in
the day of the first day of deliberations, quickly adjourned for the day,
deliberated the entire day the following day, and reached a verdict at
approximately 11:00 a.m. the next day.
