Aguilar
Filed
1/29/13 P. v. Aguilar CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHNNY AGUILAR, JR.,
Defendant and
Appellant.
F061462
(Fresno
Super. Ct. No. F09903920)
APPEAL from
a judgment of the Superior Court of
Stephen
Greenberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Charles A. French and Craig S.
Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In the early morning hours of July
2, 2009, Mary Bustamonte’s body was found in the burned remains of the motel
room where she had been living. She had
suffered burns to 85 percent of her body, and firefighters initially believed
she had been the victim of an accidental fire.
However, the autopsy revealed that she was a homicide victim – she had
not died from the fire or smoke inhalation, but she suffered blunt force trauma
to her head and internal neck injuries consistent with strangulation. Her blood was found on the shower curtain in
the motel room’s bathroom.
Appellant/defendant Johnny Aguilar, Jr. (defendant), had been staying
with Bustamonte in the motel room. When
another resident noticed smoke emerging from Bustamonte’s motel room, defendant
was walking away from the room and asked the resident if he had a cell phone so
defendant could call 911. The resident
said “no†but directed defendant to the motel’s payphone, where defendant was
later seen holding the receiver. As
firefighters arrived at the scene, the motel’s manager briefly spoke with
defendant and asked him whether Bustamonte was still in her room. Defendant replied: “ ‘She was a few minutes ago,’ â€
and added: “ ‘That’s what karma
gets you.’ â€
At trial, defendant’s mother testified that defendant arrived at her
house. He was sad, crying, and
emotional, and said: “ ‘I killed
somebody.’ †Defendant’s sister testified
that defendant told her that he killed Bustamonte because she was a snitch, and
that he strangled her with the shower curtain, kicked her in the head, and
started the fire to make it appear as if she had fallen asleep while smoking.
After a lengthy jury trial,
defendant was convicted of count I, second
degree murder (Pen. Code, § 187, subd. (a)), and count II, arson of an
inhabited structure (Pen. Code, § 451, subd. (b)). He admitted one prior strike, based on a
juvenile adjudication. Defendant was
sentenced to 15 years to life for second degree murder, doubled to 30 years to
life; plus a consecutive determinate term of eight years, doubled to 16 years
for arson.
On appeal, defendant’s primary issue is that his trial attorney was
prejudicially ineffective for failing to file pretrial motions and raise
hearsay objections to the expected trial testimony of his mother and
sister. Defendant asserts that his
attorney should have reviewed the preliminary hearing testimony of his mother
and sister, in which they made inconsistent claims as to whether they learned
certain details about the murder and arson directly from defendant, or from
defendant’s brother, Elias Robert Aguilar (Elias Robert). There is no evidence that Elias Robert was
involved in the incident, and he never appeared at either the preliminary
hearing or trial. Defendant argues that
his attorney should have relied on the preliminary hearing transcript to object
to the proposed testimony of his mother and sister as inadmissible multiple
hearsay.
Defendant further contends the court should have modified CALCRIM No.
358, as to the jury’s consideration of defendant’s extrajudicial statements;
or, in the alternative, that defense counsel was ineffective for failing to
request modification of the instruction.
Defendant also contends that the court should have excluded alleged
implied hearsay testimony from the investigating officer regarding an aspect of
his investigation. Defendant contends
his convictions must be reversed for cumulative error, and also challenges his
sentence, and the use of a prior juvenile adjudication as a strike.
We will begin with the facts about the homicide and arson from the
trial record. In addressing defendant’s
extensive ineffective assistance claims, we will review portions of the
preliminary hearing and additional sections of the trial record that are
relevant to such claims.
As we will explain, we will reject defendant’s ineffective
assistance/hearsay arguments. His other
contentions also lack merit, and we will affirm the judgment.
PART I
FACTS
In April 2009, Mary Bustamonte moved
into a room at the Sahara Lodge, a two-story motel located on Belmont and Weber
in Fresno. Deborah Johnson, the motel’s
manager, believed that Bustamonte initially lived by herself in room No. 41,
located on the motel’s second floor.
After Bustamonte had lived at the motel for a few weeks, she introduced
defendant to Johnson and said that he was her nephew. Bustamonte said defendant was going to be
visiting her.
Fresno
Police Officer James Barnum testified that Bustamonte had been a paid
confidential informant for the police department since 2008. Bustamonte was a prostitute and had used
drugs. Bustamonte conducted undercover
drug purchases for the police department about 15 to 20 times and was paid for
each successful purchase. Bustamonte
also helped Barnum on about 30 to 40 additional cases, which involved felons
wanted for other types of crimes.
Barnum was successful with his
investigations on “almost every case†involving Bustamonte’s assistance. Barnum continued to work with Bustamonte up
to the week before her homicide. Barnum
believed that she was not using drugs when she worked with him.
Andrew Robert Brand lived on the second floor of the Sahara Lodge. His nephew lived in the second floor room
next to Bustamonte.
Around 5:00 a.m. on the morning of
Thursday, July 2, 2009, Brand went outside his second-floor room to smoke a
cigarette. He saw smoke coming out of
another room on the second floor. Brand
ran downstairs to the manager’s first-floor room, knocked on her door, and told
her that one of the rooms was on fire.
Johnson ran outside and saw smoke coming out of room No. 41, where
Bustamonte lived. The night manager
called the fire department. Other
tenants were knocking on doors to alert the residents about the fire.
Defendant asks Brand for a
cell phone
In the meantime, Brand ran back
upstairs and headed toward Bustamonte’s room.
As Brand rushed to that room, he ran into defendant, who was walking on
the second floor balcony, away from Bustamonte’s room and toward Brand and the
staircase. Brand did not know defendant
and had not previously seen him around the motel.
Brand testified that defendant “asked me if I had a cell phone that he
could use to call 911 to report a fire.â€
Brand testified: “[Defendant]
just seemed like he was in a hurry. Seeming
like he just wanted to call 911, try to get, you know, the Fire Department or,
you know, someone there to take care of the fire.â€
Brand told defendant he did not have a cell phone, but “there was a pay
phone sitting by the old pool†area downstairs.
Brand testified that defendant used the staircase and went down to the
first floor “rather quick.â€
Brand ran to his nephew’s room,
which was located next to Bustamonte’s room.
Brand pounded on the door and screamed for his nephew to wake up. Brand looked downstairs and saw defendant at
the payphone. Defendant was holding the
receiver in his hand, and he looked upstairs at Brand. Brand noticed that defendant was wearing
street clothes and a dark-colored jacket, while the other residents were in
pajamas.
Brand turned back to the fire and saw the smoke emerging from under
Bustamonte’s door. Brand pounded on that
door and yelled, “ ‘Is there anyone in there?’ †No one responded. Brand again looked downstairs and defendant
was gone.
Brand and Garcia see a body
Bobby Garcia, the motel manager’s husband, ran upstairs to Bustamonte’s
room with a fire extinguisher. Brand also
grabbed a fire extinguisher. Both Brand
and Garcia tried to open Bustamonte’s door but it was locked. Garcia kicked down the door.
Brand testified the room was full of smoke and flames, and there were
flames against the back wall. Brand
testified that someone was “[l]aying on a bed†and they “knew there was someone
there.†Brand and Garcia went into the
room and “wiggled†that person’s foot, but the person did not respond. They backed away and tried to use the fire
extinguishers, but they could not control the fire and the flames spread up the
wall.
Brand heard sirens and realized someone had called the fire
department. The firefighters arrived on
the second floor and ordered Brand to get away from the door. Brand testified that he told the firefighters
that someone was on the bed in the burning room.
First responders
Shortly after 5:00 a.m., several
units from the Fresno Fire Department responded to the motel. Firefighters Gabriel Lopez and Chad
Brisendine went upstairs and discovered that Bustamonte’s door was already
open. Firefighter Lopez could see a bed
directly in front of him, against the room’s back wall. There were flames crawling up the wall above
the bed. Brisendine stood behind Lopez
and could not see very far into the room because of the smoke and flames.
Once the firefighters activated their hoses, the water turned the smoke
into steam and left them with “zero†visibility of the room’s interior. While there was still minimal visibility,
Brisendine conducted a quick primary search of the small motel room and
bathroom, and he did not see anyone in the room.
The motel room’s bed consisted of two mattresses and a box spring
resting on two hollow core doors, which served as a bed frame with the attached
headboard. Lopez testified that flames
were coming from underneath the bed, “so we moved the bed and put that fire
out, also.†Brisendine testified the
fire was “kind of lapping out†from the right side and under the bed.
There were flames between the mattress and box spring, so the firefighters
flipped over the top mattress to extinguish the flames, and pulled the bed away
from the wall. Firefighter Lopez
explained: “[I]t took two or three of us
to flip [the bed] over. And at that time
we put more water on it.â€
There was still minimal to zero visibility in the room when the
firefighters flipped over the mattress.
Brisendine testified the mattress felt heavy as they flipped it, and he
thought the weight was from blankets and clothing which might have been on top
of it.
The firefighters discover
Bustamonte’s body
The firefighters extinguished the blaze within a few minutes of their
arrival. As the smoke cleared out, a
fire captain discovered Bustamonte’s body lying on the floor, on the left side
of the bed. None of the firefighters who
had fought the blaze had seen Bustamonte’s body before that moment, and they
did not know if she had been on the bed when they flipped it over.
Defendant’s statements to
Johnson
Deborah Johnson, the motel’s
manager, testified about her encounter with defendant on the morning of the
fire. After Brand woke up Johnson and
told her about the fire, she stayed on the first floor while her husband and
others alerted the motel’s residents.
Just as the firefighters arrived, Johnson realized defendant was standing
next to her.
Johnson testified that she asked defendant if Bustamonte was up in the
room. Defendant replied: “ ‘She was a few minutes
ago.’ †Defendant also said: “ ‘[T]hat’s what karma gets
you.’ †Johnson did not understand
what he meant and thought his statement was weird. Defendant spoke in a normal tone of voice,
and he did not seem concerned. He walked
off the property after making the statement, and she did not see him again that
day.
About a half-hour after Johnson
spoke to defendant, she learned the firefighters found Bustamonte’s body inside
the burned room.
THE INVESTIGATION
The fire investigators
Around 6:00 a.m. on July 2, 2009,
Justin Simmons of the Fresno Fire Department’s Arson Investigation Unit arrived
to inspect the motel room. Assistant
Fire Investigator Floyd Wilding was also present. Bustamonte’s body was still lying on the
floor.
Simmons testified there was significant smoke damage in the main living
area of the motel room, all the way down to the floor, which was uncommon for
such a small room. The smoke damage
indicated that it was “a smoldering type fire, in which the fire smoldered for
a significant period of time before it actually made it to its free-burning
stage, where it actually had an open flame .… And so it just produced a lot of smoke for a
fire that size.†Simmons testified the
smoldering could have lasted for “a period of time,†from a couple of minutes
to “hours,†but he could not give a definite time.
There was fire damage in the southeast corner of the room, particularly
on the bed and headboard. The doors
which had been used as the make-shift bed frame had been charred, which
indicated the fire started above and not below the frame. There was significant fire damage at the head
area of the mattress and box spring, and the center of the headboard. The carpet under the make-shift bed frame and
box spring was not burned.
Simmons testified there was a “V pattern†on the wall behind the
headboard. He explained: “[W]here the fire starts, fire goes up and out
as it burns … you’ll have a pattern on the wall that looks like a V, and that
tells you the fire started around the base of that – or at least when it
contacted that object started near the base and went up and out.â€
An electrical outlet was in the middle of the V pattern above the
headboard. Simmons and Wilding ruled it
out as a source. Simmons and Wilding did
not find any evidence of an accelerant being used to start the fire.
Simmons said investigators found lots of discarded cigarettes,
cigarette butts, a lighter, and matches on the floor. There was an ashtray on the floor near
Bustamonte’s body. There were no smoking
materials on the bed, but the materials could have been burned during the fire.
Simmons said the closet behind the
bed’s headboard showed significant charring, burn patterns, and smoke damage,
but there was no evidence of an ignition source or area of origin inside the
closet.
Simmons testified the fire patterns
suggested the blaze started outside the bathroom. The bathroom’s electrical outlets were
“clean,†and there was no evidence of “shorting†or fire patterns coming from
the outlets.
The initial opinions from
Simmons and Wilding
Simmons testified that when he
examined the scene on the morning of July 2, 2009, he concluded the fire
originated at the head of the mattress, it was slow-moving and smoldering, and
it moved slowly from the point of origin.
“What these fire patterns
indicated to us is the fire started near the head of the bed and smoldered for
a significant part – amount of time searching out oxygen, where fire needs heat
and oxygen in order to, you know, sustain itself. And it burned down through the mattresses to
workout to the box spring, and started to get more oxygen, and then it
progressed to the headboard and the wall behind the headboard, and then also
out toward the foot of the bed.â€
Wilding testified that his initial opinion was that it was a
smoldering-type of fire, consistent with the victim possibly falling asleep
with a cigarette. Wilding explained that
when a fire starts on a bed, it usually “kind of burns from top down. This fire appeared to be smoldering type fire
that wormed its way through the mattresses and then eventually … it managed to
burn all the way through the underneath side of the mattress before it burned
the actual top of the mattress.â€
Detective Gray sees the shower curtain
Also around
6:00 a.m., Detective Gray responded to the motel and inspected room No.
41. The fire department had just
extinguished the fire, and the body was still in the room. Gray testified that the fire initially
appeared to have been an accident.
Gray
inspected the bathroom, and saw a plastic shower curtain hanging from a rod in
the walk-in shower. It was a standard
shower curtain, with individual rings attached to it, and some of the rings
were hanging from the rod.
“All the rings from the right side [of the rod] up to
the end of the shower curtain were attached to the shower curtain itself. The rings to the left side of the shower
curtain were unattached from the shower curtain. They were still on the rod, but they were not
attached to the shower curtain itself.â€
Gray did not seize the shower
curtain at that time, and it remained in the bathroom after the fire personnel
left the area.
title="">[1]
THE AUTOPSY
Later on the morning of July 2,
2009, a few hours after the fire, Dr. Venu Gopal, the chief forensic
pathologist, conducted the autopsy on Bustamonte.
Dr. Gopal testified there were no
visible external injuries around Bustamonte’s neck. However, she suffered several internal
injuries around her head and neck. These
injuries occurred before her death and were consistent with strangulation.
Bustamonte suffered a subgaleal hemorrhage on the left side of her
head, consistent with being caused by trauma from a blunt object or surface,
requiring a minor to moderate amount of force.
She also suffered a subconjunctival hemorrhage inside the eyes,
especially the left eye. This was
consistent with blunt trauma or being hit on the left side of the head. This injury also could have consisted of
petechial hemorrhages, resulting from strangulation or an obstruction around
the neck.
Bustamonte had a hemorrhage on the left horn of the hyoid bone, which
is a “C†shaped bone inside the throat.
The hyoid bone, also known as the wishbone, is “way inside the upper
part of the trachea above the adams apple or the thyroid cartilage.†Such bleeding usually occurs when localized
force or pressure is applied, and it is “very, very significant†for a
pathologist to find a “localized hemorrhage†in that area.
Bustamonte also suffered hemorrhages around the left side of the
thyroid cartilage, which is the Adams apple; and some hemorrhaging around the
Adams apple on the left side. Dr. Gopal
also found hemorrhages in the epiglottis, which is inside the larynx, “and on
the top of that you have what is known as a flap, a cartilage of tissue, I
found some particular hemorrhages on the inner side of the epiglottis.â€
“So this, again, is a localized force causing some
damage to that area of the neck and the soft tissues in that area next to the
hard object, the thyroid cartilage, the force causing rupture and causing this
hemorrhage.â€
Dr. Gopal explained that a moderate
degree of force could have caused the hemorrhages, and they occurred prior to
Bustamonte’s death.
“[T]o get this
type of a hemorrhage by the time this is basically just next to that you have
what is the airway, the windpipe. So
when you have that much injury basically your airway would be blocked. So that causes asphyxia. When there’s no air passage, then there is a
lack of oxygen. And the lack of
oxygen, with the pressure, causes small blood vessels to rupture. And, again, in this I find evidence of small
blood vessels rupture in that area itself on the inside of the vocal box. So that tells me there is a localized force
around the neck causing this injury as far as the petechial hemorrhages in the
epiglottis .…†(Italics added.)
Dr. Gopal testified there were thermal burns from the fire on 85
percent of Bustamonte’s body, including her back, shoulders, scalp, abdominal
area, and upper and lower extremities.
There were heat ruptures on her face, front and back chest, and part of
the extremities. The thermal burns could
have masked any superficial injuries that might have been on the exterior of
her neck.
Dr. Gopal believed that Bustamonte
suffered the thermal burns in and around the moment of her death.
“This is a really difficult case because we have a lot
of factors in this. One is the thermal
burns, and they appear to have occurred in and around death. Mostly just looking at the burns itself,
because of the nature of the burns, because of the gray blisters on these
burns, they almost appear postmortem, but – however, there was some amount of
soot in the trachea, that is fine carbon particles, which are being inhaled by
the person. So that makes it more perimortem because the person could have taken
few breaths before dying.†(Italics
added.)
Dr. Gopal explained there was a small amount of soot and carbon
particles in decedent’s trachea, but there was no carbon monoxide in her
body. He did not believe that her death
was caused by smoke inhalation.
“Usually when you find soot it is accompanied with
carbon monoxide. So I did not have any significant carbon monoxide, that’s the reason
why I’m saying probably she’s almost dead, maybe she did take few breaths. [¶] … [¶] Basically tells us, when I find like this,
there is – the person has not consumed or inhaled any carbon monoxide, which is
also partly soot. And, also, I did not
find any pink discoloration of the internal organs enclosing the trachea, lungs
and the muscles. That also favors – the
entire thermal burns picture tells me it is more of a perimortem or in and
around that type of thermal burns.â€
(Italics added.)
The absence of pink discoloration in the internal organs meant that the
body had not inhaled carbon monoxide.
Dr. Gopal also ordered toxicology tests, which were positive for high
levels of cocaine and cocaine metabolites.
He believed Bustamonte had been using cocaine for some period of time,
hours or days, before her death, but the effect on her depended on her
tolerance levels.
Dr. Gopal’s opinion about
the cause of death
Dr. Gopal testified about his opinion as to Bustamonte’s cause of
death:
“[I]t is a difficult case. The cause of death, because of the cocaine
levels, not knowing her tolerance, whether she’s used to it, or how much she
takes of cocaine, there’s no way we can … form an opinion as to the tolerance
of a person for cocaine.
combined effects of acute cocaine intoxication and strangulation.†(Italics added.)
Dr. Gopal testified that he could
not ignore the internal neck injuries, which were “definitely one of the things
which caused the death. And I have given
opinions as to cause of death just strangulation finding this amount of
injuries in the neck, not taking … cocaine into consideration.†There was no evidence that a ligature was
used to strangle her.
“Q But
irregardless [sic] of the cocaine,
with strangulation?
“A
Dr. Gopal testified that strangulation was a substantial factor to
cause her death. However, he conceded
there was a significant amount of cocaine in her system, and he could not
separate cocaine intoxication from strangulation as the cause of death. He concluded that cocaine intoxication and
strangulation were the “most significant factors.†She was likely incapacitated or in a coma as
the fire started, and could have taken “the last breaths before dying,†which
resulted in the small amount of soot in her trachea.
Dr. Gopal testified the perimortem thermal burns were “really very
minimal†as a factor causing death. The
thermal burns were “more of an arson type .… If somebody had set the fire. I mean, this is a very common thing which I
have in my experience … seen …,†where a fire has been set “to cover-up a
crime. So I don’t know all those
factors.†The coroner’s death
certificate listed strangulation and acute cocaine intoxication as the causes
of death, and omitted any reference to the thermal burns.
Dr. Gopal’s testimony about
his conversation with Detective Gray
Dr. Gopal testified that he performed the autopsy and observed the
internal neck injuries on July 2, 2009, the day of the fire.
Defense counsel asked Dr. Gopal if Detective Gray spoke to him about
the case about three days after the autopsy.
Dr. Gopal replied that he could have talked to Gray, and that was normal
procedure. “Usually detectives … they
call for some of the findings. And I may
tell them what findings I have at the time.
And, as I said, … it is a difficult case. I was also looking for some answers. And I probably could have told them, you
know, what my findings are at that moment.â€
Defense counsel asked Dr. Gopal if he revised his opinion as to the
cause of death after he spoke to Detective Gray, “three days after the
autopsy.†Dr. Gopal said, “No.†He reviewed his notes and did not see any
evidence that he talked to Gray, but he could have talked to him.
Investigator Wilding’s reaction to the autopsy
Fire
Investigator Wilding was present during the July 2, 2009, autopsy, and
testified that Dr. Gopal advised him about the victim’s skull injuries and the
small amount of soot found in the victim’s lungs. At that time, Dr. Gopal did not say anything
about strangulation. As a result of Dr.
Gopal’s information, however, Wilding returned to the motel for further
investigation.
Wilding testified that he spoke to
Dr. Gopal later that same day, or the next day, and Dr. Gopal told him about
the internal neck injuries and possible strangulation as a cause of death.
Wilding
testified that based on the small amount of soot found in the victim’s lungs,
it appeared the victim died before the fire because “it would have been hard to
imagine that it was a smoking-related fire if the victim was deceased prior to
the fire being ignited.â€
Within a day or two of the fire,
Detective Gray was contacted by another detective, who had received a telephone
call that three people had information about defendant and the motel fire: defendant’s mother, Rebecca Aguilar Duarte
(Duarte); his sister, Rebekah “Sweetie†Palacios (Palacios); and a family
friend, Lilliana Alvarez (Alvarez).
On or about July 4 or 5, 2009,
Detective Gray had a brief telephone conversation with Duarte and scheduled an
interview.
On Monday, July 6, 2009, Detective
Gray went to Lilliana Alvarez’s house to interview both Duarte and Palacios.
Gray testified that he initially
interviewed Duarte. Alvarez was present
during that interview. After speaking
with Duarte, Gray separately interviewed Palacios. Palacios was crying and extremely upset, and
said that she did not want to talk to Gray.
Palacios did not appear under the influence of marijuana. Palacios was able to track and appropriately
answer Gray’s questions.
name="_ftnref3" title="">[3]
Gray testified that he also spoke
to Alvarez that day. He could not
remember exactly what Alvarez said, but she never said that she heard defendant
talk about the fire. Gray testified that
“it appeared that everything that [Alvarez] had was hearsay that she was
hearing from Rebecca [Duarte],†and “the information [Alvarez] was providing
was information that Rebecca [Duarte] was saying.†Alvarez was “regurgitating information that
we were talking about and stuff that they had talked about.â€
Detective Gray continues the investigation
Detective Gray testified that when
he was at the motel on the morning of the fire, he initially believed the fire
was an accident. Someone from the fire
department mentioned that the decedent had possibly fallen asleep while
smoking. However, Gray still considered
the incident as a suspicious death and was waiting for the autopsy results.
Detective Gray testified that he
changed his mind about the fire on July 6, 2009, after he interviewed Palacios
and Duarte. Gray received information
that the decedent had been suffocated with the shower curtain.
Later on Monday, July 6, 2009, Gray
went to the coroner’s office and had a brief conversation with Dr. Gopal. Gray told Dr. Gopal that he had information
regarding strangulation and probably blunt force trauma. Dr. Gopal told Gray that he could not provide
the cause of death because he was waiting for the toxicology and other
laboratory reports, to determine the decedent’s carbon monoxide levels.
“Q You spoke
with Dr. Gopal at some point after you had interviewed Rebecca [Duarte] and
‘Sweetie’ [Palacios]?
“A That is
correct. [¶] … [¶]
“Q And did
Dr. Gopal tell you whether or not that information was consistent with the
information that he had found during the autopsy several days prior?
“A Yes, he
did. He
said some of the information I gave him was consistent with the head wounds and
the throat wounds.†(Italics added.)
Defendant’s arrest
Later on July 6, 2009, Detective
Gray instructed officers to go to a residence and question both defendant and
his brother, Elias Robert, about the homicide.
When the officers arrived, defendant answered the door and identified
himself as “Jay.†An officer told
defendant that he recognized him.
Defendant hesitated and again said his name was “Jay,†and he was not
from that area. The officer again said
that he knew defendant’s identity.
Defendant eventually admitted his name, and explained that he had
traffic warrants and did not want to identify himself because he was scared of
being arrested.
Defendant
was taken into custody. The officers
went inside the residence and looked for Elias Robert, a wanted parolee, but no
one else was home.
The
residence was later searched pursuant to a warrant, and the officers seized
several articles of clothing, including a pair of tennis shoes that had been
left outside by the front door, and a sweatshirt that was in a garbage can. No
evidence was found on the clothing to connect defendant to the fire.
Fire Investigator Simmons
Fire Investigator Simmons testified that he initially found the fire
was a slow-moving and smoldering-type fire.
He did not think it was arson and thought it could have started in a
number of ways.
On July 7, 2009, Simmons received
more information about the case from Detective Gray, which helped him “narrow
down†his conclusion about how the fire started, and that it was an intentional
arson fire.
At trial, Simmons testified that in his opinion, the fire was started
“in a willful and malicious act with an open flame device … which would be a
lighter or matches, in lighting common combustible materials, which could be
anything from paper to wood.†Simmons
said his opinion was consistent with someone placing a flammable item, such as
toilet paper, on or in the mattress, and lighting it on fire. On cross-examination, Simmons conceded that a
fire could start if someone was smoking in bed, and the cigarette ignited the
person’s clothing, bed sheets, and covers.
Such a fire would be a smoldering type.
On further questioning, Simmons testified that such a fire would not be
common because a cigarette needed a lot of heat to ignite fabric.
The shower curtain
On July 8, 2009, Detective Gray and a police investigator went back the
motel. Bustamonte’s room had been
boarded up after the fire. The furniture
and debris had been piled in the middle of the room, but the shower curtain was
still hanging from the rod in the bathroom.
The investigator seized the shower curtain. There were six rings that were affixed to the
shower curtain, and the rings were affixed to a rod. The investigator removed the rings from the
rod, then removed the rings from the shower curtain. She did not see any rings on the floor.
A criminalist found blood stains on the shower curtain, and the DNA
profile was consistent with Bustamonte’s DNA.
Defendant was excluded as the source of the blood stains. There were no latent prints on the shower
curtain.
TRIAL TESTIMONY OF
DUARTE, PALACIOS, AND ALVAREZ
We now turn to the trial testimony
of defendant’s mother, Duarte; defendant’s sister, Palacios; and their family
friend, Alvarez; regarding what defendant allegedly said to them about the
motel fire, and the source of their information.
Rebekah “Sweetie†Palacios
(defendant’s sister)
Palacios testified that she did not
want to appear in court against defendant.
Palacios testified about a conversation she had with defendant which
occurred at the beginning of July 2009, when they were both living with
Duarte. When she woke up that day,
defendant was present at their mother’s house.
Palacios and defendant took a walk together in the daytime, and
defendant told her about a fire. The
conversation lasted for about 15 minutes, and no one else was present.
Palacios testified defendant was on crystal methamphetamine when they
talked that day, and he was “not like the way he normally is.†She could tell defendant was high because his
eyes looked different and he acted weird.
Defendant also had used cocaine.
Palacios had smoked marijuana that morning and was high when she talked
to defendant. She was feeling paranoid
and not “in my right state of mind all the time.â€
Palacios testified that as she walked with defendant, he said there had
been a fire at the Sahara Lodge the previous night, and he was there. Defendant said he had been in the room with a
woman and another man before the fire, and they had been using drugs and
getting high. Defendant said the woman
was a snitch, and she had snitched on some drug dealers. Palacios knew that defendant was talking
about “Mary.â€
Palacios testified that defendant said he carried the woman into the
bathroom, he put her in the bathtub, and he wrapped her in a shower
curtain. Defendant said he choked the
woman with the shower curtain. Defendant
said he kicked the woman in the head while she was still in the bathtub.
Defendant said a man walked into the room when the woman was in the
bathtub. Defendant told the man to
leave, and the man left.
Palacios testified that defendant said he placed the woman on the bed
after he kicked her. Defendant said he
“caught the bed on fire.†He made a hole
in the bed and put toilet paper in it, and started a fire with the toilet
paper. Defendant said he left the room
after lighting the toilet paper.
Defendant said Mary was on the bed and unconscious when he started the
fire. Defendant said “he had choked her
and put her to sleep.â€
On direct examination, Palacios
testified that she recalled speaking to Detective Gray about the case, and the
conversation occurred close in time to her talk with defendant. Her memory was better when she spoke to Gray
than at trial. The prosecutor showed her
the transcript of her interview with Gray to refresh her recollection. Palacios testified that defendant said that
when the woman was in the bathroom, he was in the bedroom and heard her making
a snoring sound. Defendant said he went
back into the bathroom and kicked her in the neck.
The prosecutor asked Palacios
whether defendant said anything about a cigarette. Palacios testified that defendant said he put
a cigarette in the woman’s hand so it would look like the cigarette started the
fire on the bed. Defendant said he
didn’t care about what he did because it didn’t mean anything to him. Palacios testified that defendant talked
about the fire “like he would say anything,†like he was “just talking.â€
Palacios’s testimony about the
source of defendant’s inculpatory statements
On both direct and cross-examination, Palacios offered inconsistent
testimony as to whether defendant directly told her certain details about the
murder and arson, or she heard this information from her other brother, Elias
Robert.
title="">[5]
“Q So you heard some information from your
brother, [defendant], who is here in court, and then you heard some other
information from your brother, [Elias] Robert?
“A Yes, I did.
“Q And the part about kicking in the neck,
that was from your brother, Robert?
“A Yes.
“Q That’s fine. [¶] I
just want to concentrate and ask you only about what you brother who is here in
court, [defendant], what he told you; okay?
“A Uh-huh.
Yes.â€
Palacios testified that she told her
mother, (Duarte), and their family friend, Alvarez, what defendant said about
the fire.
On cross-examination, Palacios testified that before she talked to
defendant about the motel fire, she overheard her mother, and her other
brother, Elias Robert, talking about the incident. About one or two hours later, defendant
talked to Palacios about the fire and what he did to decedent. Palacios testified she also talked with Elias
Robert about the fire, both before and after her separate conversation with
defendant.
“[DEFENSE
COUNSEL] So Robert was the one who
told you about the fire; right?
“A Yes.
“Q That was the same day you spoke to
[defendant]?
“A Yes.â€
Palacios testified that during her
initial conversation with Elias Robert, he told her that someone had died in
the fire, but she did not know that person’s identity. When she later talked with defendant, she
believed that a fire occurred, but she did not believe defendant’s statements
about what happened.
“[DEFENSE COUNSEL] When
you’re talking about the details of what you heard, are there details that you
had already heard from your brother, Elias [Robert], before you talked to
[defendant]?
“A Yes.â€
Palacios testified that she did not
see or hear Alvarez at her mother’s house on the morning that defendant made
the inculpatory statements.
On redirect examination, the
prosecutor sought to have Palacios clarify whether she told Detective Gray
about the source of her information about the fire:
“Q Now, when you talked to Detective Gray
did you tell him … the information you got from your brother, the Defendant …,
as opposed to where you got information from your brother, Elias Robert
Aguilar?
“A No.
“Q Ms. Palacios, isn’t it true that as you
were telling … Detective Gray about what your brother, the Defendant …, had
told you, you then also said, and I quote:
[¶] ‘But then later on one of my
brothers told me that he had told him that when he went back to the restroom
that’s how he killed her was that she was – the head was tilted over the
bathtub, and he kicked her two times until it snapped or something like that.’ [¶] Do
you remember that?
“A Yes.
“Q Okay.
So you were telling the detective this information I’m giving you right
now came from my brother, Robert Elias?
“A Yes.â€
The prosecutor reviewed Palacios’s
lengthy statement to Detective Gray, and Palacios testified that she told Gray
that defendant gave her the following information: that the victim was a snitch, “ ‘they
told him to take her out,’ †someone was in the room with him, the victim
was asleep on the bed, defendant ripped off the shower curtain, he wrapped it
around the victim, he started to suffocate her with it, and he told the other
guy to get out of the room; the victim fell asleep, and defendant put her in
the bathtub.
“Q And is
that – and that’s when you were telling Detective Gray that’s what your
brother, [defendant], had told you?
“A I was
telling him the story that I remembered.
“Q
Was that the story that your brother, [defendant], had told you?
“A.
The prosecutor reviewed the rest of
Palacios’s statement to Detective Gray, and Palacios testified that defendant
told her the following information: that
after the victim was in the bathtub, someone knocked on the motel room door and
wanted to get him high. Defendant closed
the bathroom door and let the person in because he wanted to “ ‘take a
hit.’ †Defendant told Palacios
that he could hear the victim snoring in the bathtub so he told the person to
get out of the room. Defendant told Palacios
that he went back into the bathroom and finished her off, and she was already dead
when he put her in the bed. Defendant
said he tried to light the bed on fire so no one would know what happened, but
it wouldn’t start. Defendant said he
made a hole in the mattress, put toilet paper in it, and “ ‘it just went
really fast.’ â€
“Q Okay. And I’m not going to go through it again, but
right after that the interview is that when you then told Detective Gray what
your brother … Elias Robert Aguilar, told you?
“A That’s
what I remember him telling me, yes.â€
Palacios testified she talked to Duarte
later on the same day that she spoke to defendant. She could not remember what she told
Duarte. The prosecutor asked Palacios if
she told Duarte that defendant said he put the victim on the bed and lit it on
fire, the victim kept crying and asking him why he was doing it, and defendant
said she deserved it. Palacios testified
that she made these statements to Duarte, and that defendant gave her that
information.
Palacios further testified that she
talked to Alvarez about the same time that she spoke to Duarte. Palacios testified that she told Alvarez what
defendant had said about the fire.
Palacios testified that when she later drove by the motel and learned
that a woman had died in the fire, defendant’s statements made sense, and she
realized that he had not imagined the fire.
On recross-examination, defense
counsel again asked Palacios about the source of the information she provided
to Detective Gray:
“Q Ms. Palacios, when … you say you told
Detective Gray the story that you remembered … where did you hear that story
from?
“A From my brothers, [defendant] and
Robert.
“Q Your brothers, [defendant] and Robert?
“A Yes.
“Q The details from the story, do you
remember if you got the details from your brother, [defendant], or from your
brother, Robert?
“A I guess both of them.
“Q When you told this story to Detective
Gray, did you tell him details that you got – did you tell him details that you
got from both of your brothers?
“A No.
“Q What details did you tell him?
“A I don’t know.
“Q The details that you told Detective Gray
during the interview, do you remember were you got those details from?
“A No.â€
Rebecca Aguilar Duarte
(defendant’s mother)
Duarte testified that in July 2009,
defendant was living at her house “kind of off and on.†He was also living at Rice Road in a mobile
home. She did not know if he spent any
time at the Sahara Lodge. Duarte once
met Mary Bustamonte when defendant brought her to Duarte’s house.
Duarte did not want to testify in the case. Duarte testified that her “whole family†had
told her not to testify. Since the case
started, “my kids don’t talk to me no more.â€
Duarte testified that she heard about the motel fire “from the
kids.†The prosecutor repeatedly asked
Duarte what defendant told her about the fire.
Duarte said she did not know and could not remember. Duarte testified that she remembered speaking
to Detective Gray about the fire, she was truthful to him, but could not remember
what she said. The prosecutor asked her
to review the transcript of her statement to Gray.
After reviewing the transcript, Duarte testified that defendant arrived
at her house around 7:00 a.m. She had
not seen him for four or five days. He
was sweaty and had tears in his eyes.
Duarte could tell he was “all cracked out†and told him to lie down.
Duarte testified that defendant was sad, crying, and emotional. He often acted that way when he had been
using drugs for a lengthy period of time.
Defendant hugged Duarte, and he said:
“ ‘I killed somebody.’ â€
She did not remember whether defendant said his friend was dead.
Duarte testified that defendant took off his clothes, and she was
“pretty sure†that he threw his sweatshirt in the backyard trash can. He left his tennis shoes in the front
yard. Duarte testified that defendant’s
sweatshirt smelled “like sweat and ugly†because he was high. She did not smell any smoke.
Duarte testified that Lilliana Alvarez was not present when defendant
arrived home and made this statement to her.
Duarte did not believe what defendant said, because he always said
strange things when he was high.
Duarte testified that she later talked to Palacios about the motel
fire. Palacios was scared when they
talked. Palacios told her some things,
but Duarte did not want to know anything else about it. Duarte explained that when defendant was
using crystal methamphetamine, “he always talks about a bunch of stuff, about
weird things … I don’t want to hear it.â€
Duarte testified that they later went to Alvarez’s house. Duarte and Palacios talked to Alvarez. Alvarez drove Duarte past the motel so they
could see if something happened. Alvarez
also called the police.
defendant’s inculpatory statements
Duarte also testified about whether defendant made inculpatory statements
directly to her, or she heard the information from her daughter, Palacios,
and/or her other son, Elias Robert. The
prosecutor asked Duarte if defendant said why he killed the person. Duarte testified: “I don’t think my son exactly told me much of
– I just heard it from the kids.†(Italics added.)
“[THE PROSECUTOR] So
without telling me what you heard .…
[¶] [Y]ou heard some information from your other children?
“A Yes.
“Q And what
– what kids would that be?
“A Well,
Robert and ‘Sweetie [Palacios].’ â€
The prosecutor asked Duarte for more details about
defendant’s statement:
“Q Did [defendant] … tell
you why he killed the woman or the person?
“A I heard because she was
a rat or something, I don’t know.
“Q That’s what he told you?
“A Yes.†(Italics
added.)
The prosecutor asked Duarte if she recalled her statement to Detective
Gray, that defendant acted like it was nothing to him and he “ ‘started
bragging saying that he enjoyed it and that he’ll do it again.’ †Duarte testified that she did not remember
that part of the statement.
“Q Did your
son, [defendant], tell you what the woman was doing when he was killing her?
“A Did he
tell me?
“Q Yes.
“A No.
“Q He did
not tell you?
“A
“Q Okay.
“A
whatever they told me.
“Q So you
did not tell the detective that your son, [defendant], told you, quote, ‘He
said he liked how she was crying and he enjoyed that,’ end of quote?
“A I might
have – I probably told him that, but
that’s what I heard from the kids, yes.â€
(Italics added.)
On cross-examination, defense counsel asked Duarte whether she told
Gray “something that you heard from [defendant] or heard from your other
kids.†Duarte replied “that could be a
‘Yes’ and a ‘No,’ †and explained that “some things the kids told me and
some things – I just talked to [defendant] briefly like a couple words.â€
Lilliana Alvarez
Lilliana Alvarez, Rebecca Duarte’s
friend, testified for the prosecution, and was unable to identify defendant in
the courtroom. Alvarez testified that
she was not at Duarte’s house when defendant arrived home in the morning. However, Duarte and Palacios later visited
Alvarez, and they told her about what defendant said, “[W]hy he do it [
defendant said, so Alvarez drove them past the motel, and they saw that there
had been a fire. Alvarez testified that
Duarte and Palacios stayed with her for a few days because they were scared to
go home, since defendant was at the house.
Alvarez admitted that she
previously gave a statement to the prosecution’s investigator. However, she denied that she said that she
was at Duarte’s house when defendant arrived home that morning, or that she
heard defendant say that he enjoyed killing the lady.
testimony about being threatened
The prosecutor asked Alvarez if
anyone spoke to her about her testimony, and she said that defendant’s mother,
“Becky†Duarte, talked to her. She
described Palacios, defendant’s sister, as “Sweetie.â€
“Q Who was
that?
“A Um –
Becky
“Q Rebecca
or ‘Sweetie’?
“A Rebecca.
“Q What did
she tell you about that?
“A Um – she
told me that – that if I going to come to the court. And I say, ‘No. Why for?’
‘Why?’ ‘I don’t know.’ And she say, ‘Well, you don’t need to go and
talk like shit, you know.’ And she said,
‘You need to keep your mouth closed,’ was the words that she told me. And I saw, ‘Well you tell me that.’ And she
say, ‘Well, my sons, they are Bulldogs.’ †(Italics added.)
Alvarez testified that Duarte spoke
to her about two weeks before the trial, and “Rebecca†said “that I need to
keep my mouth – shut my mouth because the police .… [¶] [T]hey can find shit like that.â€
testimony about the source of her information
Alvarez testified that defendant’s
mother and sister, described respectively as “Becky and ‘Sweetie,’ †told
her that defendant said “how he killed the lady.â€
“[THE PROSECUTOR] Okay. Did you tell my investigator that you heard
[defendant] say that?
“A Not
[defendant], but Becky and ‘Sweetie’.
“Q Okay. Did you tell my investigator that after you
heard the Defendant say that you went home and then Rebecca later came over to
your house?
“A Yes.
“Q Okay. So you did tell my investigator after
[defendant] said that you went home?
“A No, but I
don’t see him. He’s inside of the room.
“Q Okay.
“A And he’s
inside. He’s like crazy.
“Q Okay. So you did not tell my investigator … that
you heard [defendant] say these things?
“A
On cross-examination, defense
counsel asked Alvarez to clarify whether she was at Duarte’s house when
defendant arrived home and made certain statements.
“Q But that
day you hadn’t seen Rebecca’s son, [defendant], at all; is that correct?
“A Yes,
that’s correct.
“Q [D]id
Rebecca talk to you about something that her son, [defendant], said? Without telling me what was said, did you
hear her talking about something like that?
“A Heard,
yes.
“Q Rebecca?
“A Yes.
“Q Yes. [¶]
Okay. Did you hear [defendant],
Rebecca’s son, say anything yourself?
“A No.â€
Lilliana Alvarez’s pretrial statement
District
Attorney Investigator Michael Garcia testified he interviewed Alvarez prior to
trial, and Alvarez said that she heard some information about the motel fire
from Duarte and Palacios. Alvarez said
she was at Duarte’s house on the morning that defendant returned home. Alvarez said she heard defendant talking to
“Sweetie†and the other brother, Elias Robert.
Alvarez said she heard defendant say that he said something to the
effect that “he enjoyed killing the lady and he was going to kill the bitch.â€
Darren Hise, a defense
investigator, went to the motel on July 13, 2009, and investigated room No.
41. There were rodents in the apartment
complex and within the room’s stud walls.
He found cigarette lighters in the living area, and a burned cigarette
in the area of the overturned bed.
Defendant’s testimony
Defendant
testified at trial that he had a prior conviction for assault in 1996 (which
was actually a juvenile adjudication).
Defendant met Mary Bustamonte and her then-boyfriend in 2005. They were not romantically involved. Defendant felt close to her. He thought of her as an aunt, and she
referred to him as her “nephew.â€
Defendant testified that in July
2009, he was “doing loan originations†and “commercial loans.†Defendant did not have a business office or a
business telephone, but he “freelanced†out of other offices.
Defendant testified that he smoked
rock cocaine with Bustamonte. He usually
gave his real estate earnings to Bustamonte, and she purchased drugs for them
to use together. He also used proceeds
from an injury settlement to purchase drugs.
Defendant would stay with Bustamonte in her motel room when they used
drugs. He traveled back and forth
between his mobile home on Rice Road, his mother’s home, and the motel. Defendant knew that Bustamonte was a
prostitute, and he often left the motel room when she had a client.
Defendant testified that he knew
Bustamonte had dealings with the police department. He had seen Officer Barnum “harass her,†and
threaten to “bust†her if she did not work for him. Defendant did not know that she was a
confidential informant. Defendant had no
reason to want her dead.
Defendant
said at the time of the fire, he had been staying with Bustamonte in her motel
room. Around 1:00 a.m. on the morning of
the fire, defendant and Bustamonte had been using rock cocaine with another
man, Sunny Mata. Later on, a male client
arrived for Bustamonte, and defendant left the motel room and went
downstairs. Defendant saw an
African-American man enter Bustamonte’s room.
Defendant testified he stayed
downstairs at the motel with Kenneth “Casper†Mulponce and a woman named
Marilyn, whom he described as “a known alcoholic.†It was still dark. He was downstairs for about three hours,
talking with them and listening to the radio.
Defendant never saw Bustamonte or the man leave the motel room. Defendant briefly left the motel and walked
to a store, and then returned.
When it
started to become daylight, Mulponce and the woman went into their own room,
and defendant walked upstairs. Defendant
noticed smoke coming from under the door of room 41.
Defendant
testified he did not try to open the door to Bustamonte’s room because the
“first thing†that came into his head was that he should call 911. Defendant ran into Andrew Brand, and asked
him whether he had a cell phone to call 911.
Brand said no, but pointed out a phone booth on the first floor, near
the old pool. Defendant said he “took
off†downstairs and called 911. The 911
operator told him to stay on the line.
Defendant saw Brand and the manager’s husband pounding on Bustamonte’s
door with fire extinguishers. The 911
operator told defendant to tell the other people to get away from the burning
building, and he shouted at them to get out of there.
Defendant testified he went back
upstairs and saw Brand, the manager’s husband, and other people coughing from
the smoke. Defendant testified that
Brand had been using a garden hose to fight the fire. Defendant “got the water hose†from Brand and
tried to help put out the fire.
name="_ftnref6" title="">[6] The firefighters told everyone to leave, and
defendant remained on the stairwell until the second fire engine arrived. At that point, the officers erected a
barricade to keep everyone away from the area.
Defendant went downstairs and saw
Deborah Johnson, the motel’s manager.
She asked defendant if Mary was in the room, and defendant said Mary had
been there the last time he saw her.
Defendant testified he did not say anything else to Johnson, and he
never made any remarks about “karma.â€
Defendant
testified that he left the motel because the police were there, and he did not
want to get picked up for his outstanding traffic warrants because he was
supposed to serve 90 days in jail.
Defendant admitted he left even though he did not know what happened to
Bustamonte.
Defendant testified that he walked
to his mother’s home. Defendant hugged
his mother and cried, and they had a brief conversation. Defendant told his mother that “there was a
fire†and “that was my friend’s room that caught on fire.†Defendant also testified that he told his mother: “[T]here was a fire and that my friend, Mary,
was in the room.†Defendant did not know
whether Bustamonte had been in the room, but he “was just feeling emotionalâ€
because he was high.
Defendant testified that he never
told his mother that he had killed somebody at the fire. “I just told her that there was a fire. And that that was my friend’s room.†Defendant’s mother said he smelled since he
had been using drugs for several days.
Defendant took off his clothes, and his mother put them in a plastic bag
because “they really smelled of body odor, sweat of some sort.â€
Defendant testified that his sister
and brothers were at the house. He took
a shower and slept. When he woke up,
everyone was gone except for his sister.
Defendant and Palacios took a walk, but defendant did not tell her about
the fire. Defendant testified he never
made any of the statements attributed to him by Palacios, about choking
Bustamonte and starting the fire.
Defendant testified he walked back
to his mother’s house and they argued about something. Defendant left and walked back to the
motel. He saw Kenneth “Casper†Mulponce,
who told him that Bustamonte had died in the fire. Defendant testified that he “was just numbâ€
when he heard the news.
Defendant
said he cooperated with the police officer who later detained him at his
mother’s house. Defendant admitted that
he identified himself as “Jay Aguilar,†but that was because he had
Detective Gray testified he
interviewed defendant on the afternoon of July 6, 2009, and his prior statement
was inconsistent with some of his trial
testimony. Defendant appeared to be
coherent and gave appropriate answers to questions.
Gray testified that defendant said
that he had been with Bustamonte in her motel room. At some point between midnight and 2:00 a.m.,
defendant left the motel and walked to a store.
When he returned to the motel room, he saw Bustamonte “passed out on the
bed or knocked out on the bed,†and she was asleep.
Gray testified that defendant said
he went downstairs. Defendant said he
saw a number of people walk in and out of Bustamonte’s room, but he did not
know them. Defendant said he had been
downstairs with “Casper†and “Marilyn†before the fire started. Gray determined that there were “two Caspersâ€
who lived at the motel, and he spoke with both of them. The prosecutor asked Gray about his contact
with Kenneth “Casper†Mulponce.
“Q You
were able to find him?
“A Yes.
“Q And
you talked to him?
“A Yes,
I did.
“Q
Mulponce?
“A
“[DEFENSE COUNSEL]: Objection, it’s vague and hearsay.
“THE COURT: Overruled.
“[THE PROSECUTOR]: Q What
did Mr. Mulponce tell you?
“[D
| Description | In the early morning hours of July 2, 2009, Mary Bustamonte’s body was found in the burned remains of the motel room where she had been living. She had suffered burns to 85 percent of her body, and firefighters initially believed she had been the victim of an accidental fire. However, the autopsy revealed that she was a homicide victim – she had not died from the fire or smoke inhalation, but she suffered blunt force trauma to her head and internal neck injuries consistent with strangulation. Her blood was found on the shower curtain in the motel room’s bathroom. Appellant/defendant Johnny Aguilar, Jr. (defendant), had been staying with Bustamonte in the motel room. When another resident noticed smoke emerging from Bustamonte’s motel room, defendant was walking away from the room and asked the resident if he had a cell phone so defendant could call 911. The resident said “no†but directed defendant to the motel’s payphone, where defendant was later seen holding the receiver. As firefighters arrived at the scene, the motel’s manager briefly spoke with defendant and asked him whether Bustamonte was still in her room. Defendant replied: “ ‘She was a few minutes ago,’ †and added: “ ‘That’s what karma gets you.’ †At trial, defendant’s mother testified that defendant arrived at her house. He was sad, crying, and emotional, and said: “ ‘I killed somebody.’ †Defendant’s sister testified that defendant told her that he killed Bustamonte because she was a snitch, and that he strangled her with the shower curtain, kicked her in the head, and started the fire to make it appear as if she had fallen asleep while smoking. |
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