P. v. Sevilla

Filed 2/5/09 P. v. Sevilla CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael Latin, Judge. Affirmed.

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * * *

Appellant Miguel Angel Sevilla was sentenced to 26 years to life in prison following his conviction for first degree murder and personal use of a knife. He contends that (1) there was insufficient evidence to establish first degree murder under either of the theories utilized by the prosecution, premeditation and deliberation, or torture, and (2) the jury was given confusing instructions regarding the effect of provocation on the ability to form premeditation and deliberation. We find no error and affirm.

FACTS

The murder victim, Kenneth Kitching, was a 35-year-old gay male who lived alone in an apartment in North Hollywood. He was known to frequent a park next to his apartment building. Appellant, who was 21 years old, lived in the area with his mother and stepfather. Appellant played soccer with friends at the park and also used illegal drugs there.

On the morning of August 25, 2002, Kitching visited his estranged wife and arranged to go to the movies with her on the following Saturday.

According to telephone records, on August 26, 2002, at 8:13 a.m. and 8:25 a.m., two brief telephone calls were made from the telephone in Kitchings apartment to the cell phone registered to appellants stepfather.

Around 10:00 a.m. on August 26, 2002, a building maintenance worker named Pablo Benitez went to Kitchings apartment to perform some plumbing repairs. No one answered when Benitez knocked on the door. When he used a key to unlock the lock on the doorknob, someone on the other side of the door immediately locked the deadbolt lock on the upper part of the door. Benitez used a key to unlock the deadbolt lock and discovered that the lock on the doorknob was locked again. The pattern of the locking and unlocking of the two locks repeated several times before Benitez left, announcing that he would return the next day.

The following day, August 27, 2002, Benitez returned to Kitchings apartment around 10:00 a.m. No one answered when he knocked on the door. The lock on the doorknob was locked, but the deadbolt lock was not engaged. Benitez went inside briefly and performed the plumbing repair. He noticed that the door of the hall closet was open and a bunch of clothes was stuffed in it, but he did not investigate further. When he left, he locked the door behind him.

Two days later, on the morning of August 29, 2002, Benitez and the apartment buildings manager entered Kitchings apartment, as appellants employer had called to inquire why Kitching had not come to work. Benitez and the manager observed that there was a foul odor in the apartment and blood was coming out of the hall closet. They called the police.

Police officers found Kitchings partly decomposed naked body in the closet, wrapped in bedding materials. He had a single, potentially fatal stab wound in his stomach. His hands were tied behind his back, his feet were tied together, and his knees were bent. Ligatures were wrapped around his neck and also around his body, from near his feet up to his torso. The ligatures were made from shoelaces and the cords of stereo equipment in the apartment. A cloth was tied around his mouth like a gag. Underneath that cloth, a sock was stuffed in his mouth. The cause of death was asphyxiation, as the sock obstructed Kitchings airway.

Subsequent testing showed that Kitchings DNA was on a knife that the police found on the kitchen table in the apartment. Appellants DNA was on a bag of Cheetos and a red condom that were recovered from a trash can in the apartment. There was no sperm or semen on the red condom, but there was sperm inside a used blue condom that was recovered from the bedding materials around Kitchings body. Appellants DNA was inside the blue condom, and Kitchings DNA was on the outside of it.

On December 9, 2002, Police Detective Juan Rodriguez and another detective interviewed appellant at the North Hollywood police station. Appellant provided a saliva sample and the telephone numbers for his home and his mothers cell phone. He said he met Kitching at the park where he played soccer. Appellant needed money for drugs at the time. At first, he denied going to Kitchings residence. Then, he said he went there one time at Kitchings invitation, and Kitching performed oral sex on him. Then, he said he went there five or six times, over the space of about nine months, and Kitching paid him each time for that sex act. He never had anal sex with Kitching. He said he last saw Kitching a few days before July 15 of 2002.

Almost a year later, on December 2, 2003, Detective Rodriguez interviewed appellant again, this time in Honduras. Appellant basically repeated his previous statement. He again said that, after he met Kitching at the park, Kitching paid him with money or drugs in exchange for his allowing Kitching to perform oral sex on him. Appellant said he never performed oral sex on Kitching, and Kitching never mentioned anal sex. They used condoms that Kitching supplied. Appellant used crack (cocaine) and speed, and Kitching would give him crack before their sexual activity. He again denied being in Kitchings apartment in August 2002, even though Detective Rodriguez told him his DNA had been found there and calls were made from that apartment to the cell phone of appellants mother on the morning of August 26, 2002. He had not known that Kitching had AIDS. When Rodriguez asked him if he thought he did not know what he was doing because of the drugs he consumed, he responded, No, yes.

About two and a half years later, on July 26, 2006, appellant was arrested in Texas and informed that he was under arrest for murder. On July 31, 2006, he escaped from custody, was found hiding near the jail in Texas, and was returned there. He was soon transported in custody back to the Los Angeles area.

On August 15, 2006, appellant confessed to killing Kitching during a third interview, this time with Detectives Steve Castro and Kirpatrick at the North Hollywood police station. The interview, which was conducted in Spanish, was recorded. The jury at the trial received a transcript with an English translation.

In the confession, appellant said that Kitching was a homosexual whom he met when he went to the park to smoke crack. His friends had told him that they were having sex with Kitching in exchange for drugs or money. Kitching invited him to come to his house to get high on crack. When they got there, appellant smoked crack that Kitching gave him. Appellant willingly allowed Kitching to orally copulate him, but he became angry when Kitching asked him to perform anal sex on Kitching.^[1] He was under the influence of the crack he had smoked, and he heard a voice that told him to kill Kitching.

Appellants confession continued: I was going to kill him [and] send him to hell.  [] . . . [] . . . I was going to kill him and I did kill him. He tied up Kitching and grabbed a knife from the kitchen. He put the knife at Kitchings neck and told him he was going to kill him to hell. Then, he stabbed Kitching in the stomach two to four times.^[2] Something . . . inside said kill him and I killed him. Kitching asked him, [W]hy are you killing me[?] He tied up Kitchings mouth and put something into it so he would not hear him. He wore gloves during the stabbing and washed the knife off afterwards. [A]fter a while, he fell asleep. When he awakened in the morning, he knew Kitching was dead, as Kitchings body felt hard. He dragged Kitching into the closet. Someone tried to open the door of the apartment, but he prevented that person from entering. When the person went away, he left the apartment, locking the door behind him. He took with him Kitchings DVD player and some movies, so he could sell them and purchase crack.^[3] He sold the DVD player, bought crack, and went to the park to smoke it. At that time, he was strung out from smoking 12 rocks of crack a day. Two rocks cost $20. He would steal from his mother and from the streets to support his habit.

Appellant further explained that after he was interviewed about this case in Honduras, he was deported from that country. He had been falsely accused of killing someone else in Honduras, and then was set free. He said he was telling the truth during this interview because his case was a lost cause, and he knew he had to pay for killing Kitching. He had not known that Kitching had AIDS when he killed him, but now that he knew that fact, he thought the devil told him to kill Kitching. If he had known that Kitching had AIDS, he would have killed him faster.

DISCUSSION

1. Sufficiency of the Evidence of First Degree Murder

The prosecution had two theories for first degree murder, which were that (1) the murder was willful, deliberate, and premeditated and (2) the murder was committed by torture. Appellant contends that there was insufficient evidence for first degree murder under either of those theories. Utilizing the appropriate standard of review (People v. Catlin (2001) 26 Cal.4th 81, 139), we find substantial evidence to support appellants conviction under both of those theories.

A. Premeditation and Deliberation

Appellants discussion of this issue focuses on whether there was sufficient evidence of planning, motive, and manner of killing, the three basic categories of evidence for premeditation and deliberation utilized in People v. Anderson (1968) 70 Cal.2d 15, 26-27. Appellant stresses, for example, that he utilized a knife and binding materials that were inside the apartment when he killed Kitching, which suggests he did not decide to kill Kitching until after he entered the apartment. Appellant also recognizes, however, that Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation. (People v. Perez (1992) 2 Cal.4th 1117, 1125; see also People v. Young (2005) 34 Cal.4th 1149, 1183.) Here, we find sufficient evidence of premeditation and deliberation through the combination of (a) the description of appellants thoughts and behavior that he provided in his confession, and (b) the condition of Kitchings body when it was found.

Premeditation and deliberation do not require much time [citation], for  [t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. [Citation.] (People v. Lenart (2004) 32 Cal.4th 1107, 1127.)

Appellant said at one point in his confession that he decided to kill Kitching before he went to the apartment.^[4] Most of his statement indicated, however, that he decided to kill Kitching when, after he voluntarily allowed Kitching to perform oral sex on him, he became enraged because Kitching asked him to perform anal sex on Kitching.

Whether the decision to kill was made before or after appellant entered the apartment, he had sufficient time to premeditate. He confessed that, after he decided to kill Kitching and send him to hell, he announced that fact to Kitching while holding the knife at Kitchings throat. Although appellant told the detectives he had smoked crack and heard a voice that told him to kill Kitching, the manner of killing showed that he had the mental clarity and took the time to gather up cords and shoelaces in the apartment and use those materials to elaborately tie up Kitchings hands, feet, and body. He then inflicted a potentially lethal stab wound to Kitchings stomach and asphyxiated him by gagging him and stuffing a sock in his mouth. He said he wore gloves at the time of the killing and cleaned off the knife afterwards, which further indicated preparation and a cold and calculated mental state.^[5] He then remained in the apartment for many hours and did not leave until he verified that Kitching was dead the next morning.

Based on the combination of the above circumstances, we are satisfied that there was sufficient evidence of premeditation and deliberation.

B. Torture

Murder by torture requires a killing committed with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain for the purpose of revenge, extortion, persuasion, or for any other sadistic purpose. (People v.Chatman (2006) 38 Cal.4th 344, 389; see also People v. Proctor (1992) 4 Cal.4th 499, 530.) The jury may infer the intent to inflict extreme pain from the circumstances of the crime, the nature of the killing, and the condition of the body. (People v. Chatman, at p. 390.) Here, appellant was infuriated by Kitchings request for anal sex. He bound Kitching thoroughly, so Kitching could not use his hands. He then inflicted a single stab wound in Kitchings stomach that was deep enough to be potentially lethal. Such a wound would have caused extreme and prolonged pain. So that he would not have to listen to Kitching, appellant stuffed a sock in Kitchings mouth, blocking Kitchings airway, and causing his death. He watched Kitching suffer and stayed in the apartment until the next morning when he was sure Kitching was dead. We therefore find ample evidence to support a finding of first degree murder through torture.

2. CALCRIM Nos. 522 and 570

The trial court gave Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM Nos. 522 and 570 at defense counsels request. Appellant contends that the trial court should have modified the instructions sua sponte to avoid confusion about the requisite mental state that arose from the combination of them.^[6]

CALCRIM No. 522 told the jury that provocation could reduce the degree of murder from first degree to second degree, and also could reduce murder to manslaughter.^[7]

CALCRIM No. 570 explained how a sudden quarrel or heat of passion could reduce a crime from murder to voluntary manslaughter. It included use of an objective standard for that purpose, as the jury was to consider the effect of the provocation on a person of average disposition.^[8]

Appellant argues that, although the two instructions correctly stated the law, the combination of them left an erroneous implication that an objective standard should also be used to determine whether provocation reduced the murder from first degree murder to second degree murder. He argues that, since the defendants subjective mental state is utilized for that purpose (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296), the trial court had a duty to clarify the difference in the two requirements for the jury.

We reject appellants argument for several reasons.

The first reason is that clarifying language was not requested when the instructions were requested, so the claim has been forfeited. (People v.Mayfield (1997) 14 Cal.4th 668, 778.)

The second reason is that, even if the claim had been preserved for appeal, it lacks merit because the instructions did not preclude the jury from giving weight to any evidence of provocation that existed in deciding whether there was premeditation. (People v. Rogers (2006) 39 Cal.4th 826, 880.)

A third reason is that, even though the trial court decided to err on the side of caution and instruct on provocation, at defense counsels request, there was no evidence of provocation, such as heated words or a physical struggle. (People v. Fitzpatrick, supra, 2 Cal.App.4th at p. 1296, quoting People v. Wickersham (1982) 32 Cal.3d 307, 329; People v. Ward (2005) 36 Cal.4th 186, 214-215.) Kitching did not use or threaten force. He engaged in consensual oral sex with appellant, in exchange for money and drugs. He then requested a different consensual sex act, anal sex. Appellant could simply have said no. Instead, he gathered binding materials, elaborately tied up Kitching, put on gloves, stabbed him, and asphyxiated him. As there was no evidentiary basis for provocation, there was neither error nor prejudice when the trial court failed to modify the instructions on provocation. (People v. Wharton (1991) 53 Cal.3d 522, 572; see also People v. Ward, supra, at p. 215.)

Finally, based on the lack of evidence of provocation, we reject appellants related claim that his counsel was ineffective for failing to request modification of the instructions on provocation. (Strickland v. Washington (1984) 466 U.S. 668, 697.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur: RUBIN, Acting P. J. ONEILL, J.^*

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^[1] In this interview, unlike the two previous interviews, appellant said that the day he killed Kitching was the only time that Kitching performed oral sex on him.

^[2] According to the coroner, however, Kitching was stabbed only once.

^[3] The case was not prosecuted on a felony-murder theory.

^[4] That statement by appellant came when Detective Castro asked him why he went to Kitchings house. Appellant responded, Because he told me one time and he asked me if I wanted to smoke rock and I told him yeah. And I went and I told him that ‑‑ I knew him [sic: then?] that I was going to kill him.

^[5] During final argument, the prosecutor stressed that appellants use of gloves showed that he considered the consequences of his acts.

^[6] The instructions were referred to below as 5.70 and 5.22.

^[7] CALCRIM No. 522 stated: Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.

^[8] CALCRIM No. 570 stated, in its entirety: A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [] The defendant killed someone because of a sudden quarrel or in the heat of passion if: [] 1. The defendant was provoked; [] 2.  As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; [] AND [] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [] Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation or reflection. [] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [] It is enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts. []  The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.

^* Judge of the Ventura County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.