P. v. Duarte
Filed 2/26/13 P. v. Duarte CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THIRD APPELLATE DISTRICT
(Sacramento
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE CAMDELARIO DUARTE,
Defendant and Appellant.
C069087
(Super. Ct. No. 08F06621)
Following
a jury trial, defendant Jose Camdelario Duarte was convicted of first degree
murder (Pen. Code, § 187, subd. (a))
with a deadly weapon enhancement (§ 12022, subd. (b)(1)) and arson of an
inhabited structure (§ 451, subd. (b)).
The trial court sentenced defendant to 34 years to life in state
prison.
On
appeal, defendant contends the trial court erred in denying his request to
instruct on voluntary manslaughter as a lesser included offense of murder. We shall affirm.
FACTUAL BACKGROUND
On August 10, 2008, at about 2:00 a.m., security guards reported an apartment
fire at the Tamron Ranch apartment complex in
the fire. Fire officials found the body
of Alicia Ray inside one of the apartment’s bedrooms. An arson investigator determined the fire was
set intentionally. The point of origin
was a mattress, and the fire could have been started by a cigarette
lighter.
An
autopsy determined that Ray died before the fire. The cause of death was ligature
strangulation. A partially burned, used
condom was found under Ray’s body. There
was no testable semen in
the condom, possibly due to its
label were found in the kitchen, wrapped in a paper towel. A DNA profile of the semen in this condom was
impossible because there was no sperm in the semen. Multiple latent finger prints were found in
the apartment, some of which were defendant’s.
Defendant
had two interviews with the police after Ray’s body was found. He told the police that he did not kill
Ray. Defendant said he had known Ray for
a few years and reestablished contact with her after she recently returned from
Texas. He had a girlfriend, India Love, and a young
child with her, while he viewed Ray as his mistress. Regarding Ray, defendant said, “I don’t love
that bitch.†According to defendant, Ray
was supporting herself by stripping for men she met through Craigslist.
On the
evening of Ray’s death, defendant stopped at her apartment after work to have
sex with her; he left her apartment between 12:00
a.m. and 12:15 a.m. He got dressed while still wearing a condom,
and assumed it had fallen off at some point.
As he was
leaving the apartment, defendant saw a man pull up in a white car and walk into
Ray’s apartment. He thought the man was
one of Ray’s clients. Defendant waited
outside to see if Ray was okay. After 30
or 40 minutes, defendant pushed the unlocked apartment door open with his
knuckles; he saw Ray bent over and first thought she was having sex. The man who drove up was also there. Defendant then had a gut feeling “[l]ike
something is wrong but he’s killing her.â€
Defendant stayed in the apartment for about 30 seconds before
leaving. The man left about 30 to 45
minutes later. Defendant then walked up
to the apartment, looked in, and saw flames starting to pick up. He felt Ray was dead, but did nothing to help
her. Defendant did not see the man well
enough to describe him.
During
the interview, defendant had a packet
of cigarettes and a lighter in his pocket.
Using
Ray’s e‑mail accounts, police determined that she scheduled a meeting
with a man named Isaac Utter on the night she died. Utter told police he responded to Ray’s Craigslist advertisement
for adult services. He arrived at Ray’s apartment in a maroon
sedan at around 11:30 p.m., agreed
to pay $40 for a lap dance, and later paid an additional $40 for a “hand
job.†Utter used a Rough Rider brand
condom, which Ray wrapped in a paper towel and took to the kitchen.
1999 had rendered him sterile. Utter
engaged in small talk with Ray before leaving; he noticed she was using her
cell phone at the end of the visit.
Text
messages between Ray and defendant indicated that defendant was outside Ray’s
apartment during Utter’s visit. When
Utter showed up, Ray texted “He’s here,†and defendant replied, “so am I.†Defendant also texted that he had seen Utter
and that he was outside Ray’s apartment.
When Ray texted defendant that Utter was giving her $80, defendant asked
what for; Ray responded it was not for intercourse. Defendant later asked whether the session was
over; Ray replied that she was done and waiting for Utter to leave. At 12:49 a.m.,
Ray texted that Utter had left, and defendant replied, “K.â€
Police
also found texts between Ray and defendant on the days before her death. Defendant had advised Ray on pricing for her
adult services, and promised to buy her a smart phone when she got more
clients. Defendant told Ray he planned to
post Ray on an escort Web site so he could get enough money to gain custody of
his daughter. Defendant told Ray he
“need[ed] to get more chicks than one.â€
The texts also showed that defendant and Ray got into an argument a few
days before her death, with defendant telling Ray that if she disrespected him,
he would “beat [her] ass.†Defendant
moved his texts with Ray to the trash section of his cell phone after police
contacted him on the morning of Ray’s death.
Testifying,
defendant said he first met Ray in 2006, and kept in touch with her after she
moved to Texas. When Ray returned to Sacramento
the two began a sexual relationship.
Defendant knew Ray made money through adult services; he gave her advice
on how to sell her services because it advanced his own sexual interests. He took none of Ray’s profits, as
prostitution was immoral and he detested pimps.
Defendant wanted to be with Ray and eventually start a family with
her.
On the
night Ray died, defendant went to her apartment but stayed outside when he saw
Utter enter the apartment at around midnight. Defendant entered the apartment when Utter
left, after 30 to 45 minutes. He and Ray
talked for about 15 to 20 minutes and then had sex; he left at around 1:50 a.m.
As he was leaving, defendant saw another client pull up to the
apartment.
Defendant
waited outside the apartment until 2:20 a.m. Concerned for Ray, defendant entered the
apartment and saw the man with Ray.
Defendant did not intervene because he thought Ray was getting paid for
“kinky†sex. He left the apartment and
waited for about 20 minutes. Seeing
flames coming from the apartment, defendant went in; he saw Ray lying on the
floor but did not help due to fear for
his own safety. He then left the scene.
Defendant
admitted calling Ray’s cell phone at 3:00 a.m.,
after the fire, and to leaving a voicemail stating he had been at her apartment
but she did not answer the door. He had
hoped Ray would answer in spite of what he had witnessed.
On
rebuttal, a detective testified that Ray’s e‑mail accounts showed no
appointments after Utter’s on the night she died.
DISCUSSION
Defendant
contends the trial court committed prejudicial error in declining his request
to instruct on voluntary manslaughter as a lesser included offense. We disagree.
A trial
court must instruct the jury on a lesser included offense whenever there is
substantial evidence that the defendant is guilty of the lesser offense. (People
v. Breverman (1998) 19 Cal.4th 142, 154-155, 162 (Breverman).) In this
context, substantial evidence is that which a reasonable jury could find persuasive. (People
v. Halvorsen (2007) 42 Cal.4th 379, 414.) Instructions on lesser included offenses need
not be given where there is no evidence that the crime was less than that
charged. (Breverman, supra, at p. 162.)
In assessing a claim of failure to instruct on a lesser included
offense, “we review independently the question whether the trial court failed
to instruct on a lesser included offense.â€
(People v. Cole (2004)
33 Cal.4th 1158, 1215.)
The court
must instruct on voluntary manslaughter as a lesser included offense of murder
where there is substantial evidence from which the jury could reasonably
conclude the killing was committed in a sudden quarrel or in the heat of
passion. (Breverman, supra, 19 Cal.4th at pp. 163-164 [voluntary
manslaughter instruction was required where there was evidence that a sizeable
group of young men, armed with dangerous weapons and harboring a specific
hostile intent, trespassed upon property occupied by the defendant and smashed
his vehicle, and the defendant’s statement to police reflected his fear and
panic].)
The
standards for voluntary manslaughter upon a sudden quarrel or heat of passion
are stated in Breverman, supra,
19 Cal.4th at page 163, and reiterated in CALCRIM No. 570, which says
in relevant part: “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/her) 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. [¶] . . . [¶] It is not enough that the defendant simply
was provoked. The defendant is not
allowed to set up (his/her) 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, in the same
situation and knowing the same facts, would have reacted from passion rather
than from judgment.â€
The trial
court denied defendant’s request to instruct on voluntary manslaughter as a
lesser included offense to murder.
Defendant argues there was sufficient evidence to show that defendant
killed Ray out of jealousy. In support
of his claim, defendant notes that on the day before her death, he sent Ray a
text asking if there is anything she needed to tell him before their
relationship went any further. Ray had
been mad at defendant because she was getting harassing messages from his
girlfriend, but defendant reassured Ray they were still “together.†The texts also indicated Utter was the first
client Ray entertained at her apartment, and defendant grew impatient while
waiting outside for Utter to finish.
Defendant also testified that he wanted to hurry up so he could get home
to his girlfriend Love, and Love had been “lighting up†his phone that
night. From this, defendant concludes
there was sufficient evidence of jealousy, which can support heat of
passion.
“Generally,
when a defendant completely denies complicity in the charged crime, there is no
error in failing to instruct on a lesser included offense.†(People
v. Gutierrez (2003) 112 Cal.App.4th 704, 709.) Thus, instruction on voluntary manslaughter
or attempted voluntary manslaughter as a lesser included offense to murder or
attempted murder is not warranted when the defendant denies killing or
attacking the victim. (
Defendant
attempts to distinguish these cases by noting dicta in Sinclair stating: “There are
no doubt other scenarios in which a defendant’s under-oath denial she or he
committed a homicide may be colored by other testimony, which creates
substantial evidence sufficient to support manslaughter instructions.†(Sinclair,
p. 1020.) Assuming without deciding
that the Sinclair dicta is correct,
it has no application to this case.
There is no evidence that defendant was jealous of Ray’s vocation. The texts show defendant gave her advice on
how much to charge for her services, would reward her for getting more clients,
and would put her on an escort service Web site to get more clients. While defendant testified to his disapproval
of prostitution and pimping, he nonetheless allowed it to advance his own
sexual interests. Also, the texts show
defendant intended to use money from Ray’s business to get custody of his daughter.
There is
no evidence that defendant, who told police regarding his relationship with Ray
that “I don’t love that bitch,†was jealous of Ray’s vocation or her performing
a sex act on Utter while defendant waited outside her apartment. The trial court did not err in denying the
requested instruction on voluntary manslaughter.
DISPOSITION
The
judgment is affirmed.
BUTZ , Acting P. J.
We concur:
MAURO , J.
MURRAY , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code in effect at the time of the offenses.
