P. v. Fonesca
Filed 7/9/12 P.
v. Fonesca CA2/8
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
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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
THE PEOPLE,
Plaintiff and Respondent,
v.
ALBERTO H.
FONSECA,
Defendant and Appellant.
B236021
(Los Angeles County
Super. Ct. No.
NA084828)
APPEAL
from a judgment of the Superior Court of
County, James B. Pierce, Judge. Affirmed.
Landra
E. Rosenthal, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm,
Deputy Attorneys General, for Plaintiff and Respondent.
* *
* * * * * *
A jury convicted appellant Alberto
H. Fonseca of first degree murder, a
violation of Penal Code section 187, in connection with the stabbing death of
his live-in girlfriend, Mireya Lopez Medina.
special allegation that appellant personally used a deadly weapon, a knife, in
violation of section 12022, subdivision (b)(1).
The
trial court sentenced appellant to an indeterminate term of 25 years to life in
prison for the murder conviction, plus an additional determinate term of one
year for the personal use allegation found true.
On
appeal, appellant raises two, related contentions: (1) the evidence is insufficient to support a
first degree murder conviction and (2) appellant’s conviction should be reduced
to voluntary manslaughter or, at
best, second degree murder. We reject
both contentions and affirm the judgment below.
FACTUAL BACKGROUND
Prosecution Case-in-chief
The Killing of Medina
Prior
to night of the killing, February 17-18, 2010, appellant
and Medina had lived together for approximately six years. At the time of the killing, Medina’s adult son,
Alexis Ramirez, lived with the two in their apartment on Cedar Avenue in
Long Beach.
At
about 4:00 p.m. on February 17, Medina’s neighbor, Nisreen Salameh, heard a man and woman screaming at
each other but could not make out the words because the voices overlapped.
On
the evening of February 17, at about 6:00, Ramirez heard appellant
and Medina arguing for about 40 minutes before he fell asleep in his
bedroom. The argument was loud enough
for him to hear, but not enough for him to hear what was being said.
At
around 9:00 or 9:30
p.m. on February 17, appellant called Medina’s friend,
Graciela Lizaola. Appellant told Lizaola
that he had argued with Medina and had insulted her. He
also told her that Medina was on her way to Lizaola’s house.
At about 10:00
p.m., Medina called
Lizaola and spoke to her over the telephone.
Also
around 10:00 p.m., Medina’s son, Ramirez, woke up to go to work. He left the house at about 10:40 p.m. When he left, appellant was
asleep on the couch.
At
about 12:30 a.m. on February 18, 2010, Medina’s neighbor,
Margaret Herren, heard a single female scream come from Medina’s
house. She heard no male voice. At about the same time, neighbor Salameh
heard a woman scream, “Get out of my house,†approximately four times. She did not hear any male voice.
Ramirez
returned home from work shortly after 7:45 a.m. on February 18. After entering the house, he walked to the
bathroom. He heard snoring coming from
the room shared by appellant and Medina. When he entered the
bathroom, Ramirez saw blood in the sink and on the floor. He noticed that Medina’s
prescription pill bottles were in the bathroom waste basket. He knocked on his mother’s bedroom door, but
got no answer. He tried to open the
door, but it was locked. He forced the
lock open with a credit card and entered the room. He saw his mother on the floor surrounded by
blood. He then saw appellant lying near
his mother, asleep and snoring.
Ramirez
called 911 using his cell phone. Based
upon instructions from the dispatch operator, he left the house and waited for
the police outside. The police
eventually arrived and transported appellant to the hospital.
Long
Beach Police Officer Mark McGuire arrived at the scene to conduct an
investigation. He saw blood stains on
the sink. On the floor of the bathroom,
he saw bloody footprints. He also
observed a blood stain on the outside knob of the door into the bedroom where Medina’s body was
located.
Officer
McGuire entered the bedroom shared by appellant and Medina. Medina was lying on the floor of the bedroom. McGuire observed a machete on the floor near Medina. McGuire later found a second weapon, a
folding knife, under the foot of the bed near Medina’s head. The ceiling, walls, and floor of the bedroom
had blood spatter on them. The back side
of the bedroom door also contained blood spatter, leading McGuire to conclude
that the door was closed at the time of the attack on Medina.
Dr.
Solomon Riley performed the autopsy on Medina.
Medina’s death was caused by multiple wounds from weapons with sharpened
leading edges. According to
Dr. Riley, Medina suffered at least 24 wounds to her head, neck, chest,
arms, and hands, from sharpened edge weapons.
Most of the wounds were incised or “slashing†wounds, consistent with
the machete found at the scene. At least
three of the wounds, though, were stabbing wounds to the chest not consistent
with the machete but consistent with the knife found at the scene.
The
most lethal wound was to Medina’s throat.
It severed her jugular vein and her carotid artery. One of the stab wounds went through her chest
wall and punctured the lining of her lung cavity. Medina also suffered multiple defensive
wounds to her hands and arms, including one that nearly severed her right
middle finger.
Blood
and urine samples were taken from appellant at about 8:50 a.m. on
February 18, 2010. A test of the
blood showed no alcohol in appellant’s bloodstream.
The
urine sample tested positive for tricyclics and methamphetamine. The blood sample tested positive for
tramadol, amphetamine and methamphetamine.
2.
Prior Incidents Between Appellant and Medina
When
Medina’s 19-year-old daughter, Mauren Figueroa, was 12, she saw appellant and
Medina arguing. During the argument,
appellant was on top of Medina, who was trying unsuccessfully to push him
away. Figueroa saw appellant attempt to
open a folding knife. Figueroa jumped on
appellant and bit him on the shoulder, which caused him to get off of
Medina.
Sometime
prior to the date of the killing, Medina’s friend, Lizaola, also saw appellant
“take out a knife†in front of Medina.
Defense Case
Appellant’s Testimony
On
February 17, 2010, appellant went to his gardening job at about 6:00 a.m. At around noon, appellant drank four 24-ounce
beers with his boss’s brother. Appellant
got off work at 3:00 p.m. and took the gardening tools to the garage where they
were stored. There, he drank three more
24-ounce beers. On the way home, he
picked up two 40-ounce bottles of beer.
He began cleaning the house and drinking one beer when he got home. Later, he took a shower. He finished the first 40-ounce beer at about
5:30 p.m.
Around
6:00 p.m., Medina arrived home unexpectedly.
Ordinarily, Medina would call from work and appellant would pick her
up. When appellant asked why she had not
called for him to pick her up, Medina became angry. Appellant tried to touch her but Medina
pushed him away, telling him, “Don’t touch me.â€
Appellant asked Medina if she was cheating on him with another man. Medina told him she was.
Appellant
felt very depressed and cried. Appellant
sat on one couch while Medina sat on the other couch watching television. Eventually, Medina went inside her
bedroom. Appellant began drinking his
second 40-ounce bottle of beer and also began snorting $50 of methamphetamine
that he had purchased earlier.
After
finishing his beer, appellant went to the neighborhood market and bought three
more 40-ounce beers. He drank those
beers and decided to kill himself by taking all of Medina’s medications. He took all of Medina’s medications. He began to feel dizzy and his eyes got
cloudy. He began to feel as if his brain
and heart were going to explode.
Appellant then entered the bedroom to lie down next to Medina because he
wanted to die next to her. As appellant
entered, Medina raised her head, told him he was drunk, and said he should
leave the room. Appellant asked Medina
if she wanted him to leave so that she could sleep with another man. She said, “Yes, for him to sleep in your
place.â€
Appellant
felt his “whole body on fire.†He
reached for the machete that he kept behind the nightstand and hit Medina on
the left side of her neck with it. She
was lying on the mattress when he struck her.
The next thing he knew, he woke up in the hospital.
With
respect to the earlier incident witnessed by Figueroa, appellant denied that he
had a knife. He said the incident was an
argument between him and Medina about picking up clothes around the house. Both he and Medina had their hands on each
other’s shoulders during the argument.
Defense Expert
Dr.
Gordon Plotkin is both a clinical
and forensic psychiatrist, as well as a board certified psychologist. Use of methamphetamine can cause aggressive
behavior and misperception of other people’s actions. Excessive use can cause psychotic episodes,
where the user misperceives events in a paranoid fashion and may even hear
voices. Tricyclics are antidepressant
medications that can cause cardiac episodes as a side effect. Tramadol is an anti-inflammatory drug. Alcohol alone or alcohol combined with
tricyclics can cause “twilight sleep†or “blackouts.†Such a condition is effectively “conscious
sedationâ€: one is able to move and
possibly even converse but is effectively unconscious and will have no
recollection of what occurred.
On
average, alcohol will burn off at the rate of one drink per hour for the
average-sized male.
An
individual with the toxicology of appellant, as determined by the blood drawn
on February 18 at 8:50 a.m., would be under the influence of methamphetamine
between midnight and 1:00 a.m. that same day.
He would also have had tramadol and tricyclics present in his
system. Such a person could demonstrate
the behaviors previously described.
Medina’s Affair
Victor
Granillo had an affair with Medina spanning the year prior to her death.
Prosecution Rebuttal
Officer
McGuire did not see any blood on the mattress.
Although he did see blood on the sheets, comforter, and bed cover, it
was located near the foot of the bed.
DISCUSSION
Sufficiency of the Evidence:
Premeditation and Deliberation
Appellant
initially contends that the evidence is insufficient to sustain the finding of
premeditation and deliberation required for first degree murder. Appellant argues that the evidence shows, at
best a second degree murder and, more likely, only voluntary manslaughter. We disagree.
Standard of Review
An appellate
court reviewing a challenge based on sufficiency of the evidence at trial must
review the entire record in the light most favorable to the People and
determine whether any rational fact finder could have found the essential
elements of the crime beyond a reasonable doubt. (People
v. Davis (1995) 10 Cal.4th 463, 509.)
Put another way, the appellate court reviews the entire record in the
light most favorable to the verdict and determines whether there is substantial
evidence – evidence that is reasonable, credible, and of solid value – such
that a reasonable juror could find the defendant guilty beyond a reasonable
doubt. (Ibid.; see also People v.
Osband (1996) 13 Cal.4th 622, 690.)
When making such an evaluation, the appellate court does not reevaluate
witness credibility or resolve conflicts in the evidence. Such matters are exclusively the province of
the trier of fact below. (
1181.) Further, the reviewing court must
accept logical inferences that the jury might have drawn from any
circumstantial evidence. (
396.)
2.
Murder and Manslaughter
The trial court
instructed the jury on both first and second degree murder, as well as voluntary
manslaughter. The jury rejected both
second degree murder and voluntary manslaughter, and found appellant guilty of
first degree murder.
Murder is the
unlawful killing of a human being with malice aforethought. (§ 187.)
Malice is express when a defendant intends to kill. (§ 189.)
Malice is implied when (1) a defendant intentionally commits an act, (2)
the natural consequences of the act are dangerous to human life, (3) he knows
the act is dangerous to human life, and (4) he deliberately acts with conscious
disregard for human life. (
143.)
In the context
of this case, a murder that is willful, deliberate, and premeditated is of the
first degree. (§ 189.) A “willful†murder is an intentional murder;
in other words, a murder committed with express malice. (People
v. Moon (2005) 37 Cal.4th 1, 29.)
A murder is “premeditated†when it is “‘considered beforehand,’â€
and it is “deliberate†when it is “‘formed or arrived at or determined upon as
a result of careful thought and weighing of considerations for and against the
proposed course of action.’
[Citation.]†(
668, 767.) “The process of premeditation
and deliberation does not require any extended period of time. ‘The true test is not the duration of time as
much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly.’
[Citation.]†(
People v. Anderson (1968)
70 Cal.2d 15, 26-27 (Anderson), sets
forth three types of evidence ordinarily used to establish premeditation
and deliberation: (1) planning activity,
(2) motive, and (3) manner of killing.
Although the Anderson factors
provide, essentially, a “‘synthesis of prior case law,’†they “‘are not a
definitive statement of the prerequisites for proving premeditation and
deliberation in every case.’
[Citation.]†(
To sustain a verdict of first degree murder based upon premeditation and
deliberation, evidence of all three Anderson
categories is not required. (
Provocation, to
the extent that it raises a reasonable doubt about either premeditation or
deliberation, reduces murder from first to second degree. (People
v. Thomas (1945) 25 Cal.2d 880, 903.)
Sufficient
provocation may further reduce a killing from murder to voluntary
manslaughter. In the context of this
case, a killing is voluntary manslaughter, rather than murder, when it occurs
upon a “sudden quarrel or heat of passion.â€
(§ 192, subd. (a).) Under such
circumstances, the malice aforethought required for murder is negated. (People
v. Carasi (2008) 44 Cal.4th 1263, 1306.)
Voluntary manslaughter has two components: (1) the objective component, which is
satisfied if the verbal or physical conduct of the victim would be sufficient
to provoke an ordinary person of average disposition to act rashly or without
due deliberation and reflection, and (2) the subjective component, which is
satisfied if the killer is shown to have acted while under the actual influence
of a strong passion induced by such provocation. (People
v. Moye (2009) 47 Cal.4th 537, 549-550.)
The Evidence Presented
In the immediate
case, the evidence is more than sufficient to sustain the finding of
deliberation and premeditation required for first degree murder. The prosecution presented evidence that
demonstrates all three Anderson
categories.
The evidence presented
demonstrates planning, the first of the Anderson
categories. Dr. Riley effectively
testified that Medina was killed with two separate bladed weapons: some of her wounds were consistent with the
machete found at the scene while others were inconsistent with that weapon but
consistent with the knife found at the scene.
This demonstrates that appellant had access to and made the decision to
use two separate weapons, facts which logically suggest planning. Further, based upon Officer McGuire’s testimony
regarding blood spatter, it was logical for the jury to infer that appellant
closed the bedroom door before attacking Medina. Since there was no one else in the house at
the time of the killing from whom it was necessary to conceal the attack –
which itself would suggest planning – the jury could have inferred that
appellant closed the door beforehand to prevent Medina’s escape. Again, such a fact is evidence of planning.
The testimony at
trial, including appellant’s own, provides evidence of both motive and
reflection upon that motive, the second Anderson
category. Medina admitted her infidelity
to appellant that evening hours before the killing. Inferentially, the two were already arguing
about it six hours prior to the killing when Ramirez was falling asleep. Appellant spoke to Medina’s friend, Lizaola
nearly two hours before the killing and told her that he and Medina had argued
and that he had insulted her. This testimony
allowed the jury to conclude that the attack was not the relatively immediate
and spontaneous result of an admission of infidelity, but rather, the
considered result of an hours-long reflection upon an admission of infidelity.
Appellant
suggests Medina’s taunt, moments before the attack, that he should leave so she
could sleep with another man, provoked him into an unreflecting rage. This argument relies upon the jury having
made a favorable finding regarding appellant’s credibility, something it was
not required to do for two reasons.
First, as the person on trial for Medina’s murder, appellant, as a
witness, inherently presented the issue of bias. Second, appellant’s testimony was not
entirely consistent with other physical evidence presented in the case: (1) his claim that he first struck Medina
with the machete while she was laying on the bed was inconsistent with the
absence of blood on the mattress or the upper portions of the bedclothes and
(2) his description of the amount of alcohol he consumed prior to the killing
was arguably inconsistent with results obtained from blood drawn roughly eight
hours after the killing. These facts
presented the jury with a logical basis to reject self-serving portions of
appellant’s testimony.
Appellant’s
argument also overlooks two logical inferences the jury was entitled to draw
that undercut the theory of unreflecting rage:
prior to the taunt, appellant (1) shut the door to the bedroom,
inferentially to hinder Medina’s escape, and (2) made sure he had access to not
one, but two, bladed weapons. In any
event, appellant’s argument asks us to reweigh evidence and theories already
considered and rejected by the jury.
That is not our duty when evaluating the sufficiency of the evidence in
support of a jury verdict.
Evidence of the
manner of the killing also supports the jury’s finding of premeditation and
deliberation. Appellant himself
testified that his first blow with the machete was to Medina’s neck, logically
a strike that by itself could have caused death. He delivered multiple slashing or striking
blows with the machete to Medina’s neck and head, and three stabbing wounds to
her chest with the knife, logical places to attack if one intended and planned
to kill. Medina suffered multiple
defensive wounds to her arms and hands, facts which inferentially indicate that
Medina resisted appellant’s attack and that a struggle, which was at least
somewhat protracted, occurred. Together
these facts allowed the jury to conclude that appellant, rather than killing in
a relatively short burst of spontaneous rage, made multiple decisions to kill
again and again during a somewhat lengthy struggle.
In his brief,
appellant points to many of the same facts mentioned above, but argues
different inferences more favorable to his position: (1) the machete was always in the room and
thus its availability is not evidence of planning; (2) the provocation of
Medina’s final taunt, coupled with the sheer number of Medina’s wounds, is
consistent with “an explosion of violence,†not a deliberate decision to kill;
and (3) the fact that “his blood was boiling†and that “he felt as if he was on
fire from head to toe†immediately prior to the attack shows conduct in the
heat of passion. These, and presumably
other inferences consistent with conviction of a lesser offense, were
appropriate for the jury to consider. As
indicated above, however, there were counter-inferences and conclusions the
jury could reach as well, which it obviously did in this case. Appellant effectively asks us to reweigh the
evidence and substitute a new conclusion for that reached by the jury. That we will not do. As recounted above, there is ample evidence
to support the jury’s verdict of first degree murder.
B.
Reduction to Second Degree Murder or Voluntary Manslaughter
In the second
part of his brief, appellant essentially repeats his arguments and asks us to
reduce his conviction to second degree murder or voluntary manslaughter. For the reasons discussed above, the jury’s
verdict of first degree murder is fully supported by the trial record. There is no basis to reduce his conviction or
modify the judgment in any way.
DISPOSITION
The judgment
below is affirmed.
SORTINO, J.
name="_ftnref2" title="">*
We concur:
RUBIN,
Acting P. J.
GRIMES,
J.
name="_ftn1" title="">[1]
are to the Penal Code.
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
