P. v. Laboy
Filed 3/7/13 P. v. Laboy CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
CONCEPCION LAZU LABOY,
Defendant
and Appellant.
E054850
(Super.Ct.No.
SWF10000124)
OPINION
APPEAL
from the Superior Court
of
County. F. Paul
Dickerson III, Judge. Affirmed.
Catherine
White, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury found defendant and appellant Concepcion Lazu Laboy guilty as charged of
§ 187, subd. (a)), and further found true the allegation under Penal
Code section 12022, subdivision (b)(1), that defendant personally used a deadly
weapon, namely a knife, in the commission of that crime. The trial court sentenced defendant to serve
a determinate term of one year in state prison on the allegation defendant
personally used a deadly weapon, followed by an indeterminate term of 25 years
to life in state prison on the first
degree murder conviction.
In
this appeal, defendant raises various claims of error, the details of which we
recount below in our discussion of those claims. We conclude, as we explain below, that
defendant’s claims are meritless.
Therefore, we will affirm.
According
to the undisputed facts, defendant and his longtime girlfriend, whom he refers
to as his wife, were drug addicts who had been clean and sober for many years
before relapsing into their addictions.
In an effort to regain their sobriety, they joined the Santa
Ana Restoration Church,
an organization that counsels and assists drug and alcohol addicts. Defendant recounts in detail in his
church involvement entailed. For our
purpose, it is sufficient to note that church members lived together in homes
segregated by sex. Church members were
required to solicit money to fund the various homes and church activities. To that end, members would spend six to eight
hours a day in shopping centers and on the streets asking for donations.
On
January 5, 2010, Roumaldo Huerta, the leader of the church home where defendant
had then lived for about eight months, dropped defendant and another church
member off to solicit money in a shopping area in Temecula. While there, defendant went into a Rite-Aid
and asked a cashier for an ice pick. The
cashier was unsure whether the store carried ice picks, but directed defendant
to the hardware aisle. Defendant left
the Rite-Aid without making a purchase.
Later, defendant went to a Wal-Mart store. A security camera tape shows defendant in the
sporting goods aisle where knives and ammunition are displayed.
Around
5:00 p.m., defendant entered a Big Lots store.
He purchased a kitchen knife for $3.81.
Defendant paid for the knife with money he took from the glass jar that
contained the donations he had solicited that day. Outside in the parking lot, defendant removed
the knife from its plastic packaging, and concealed it somewhere on his
person. A few minutes later, Huerta
arrived in a van to pick up defendant and another church member. Defendant got into the front passenger seat. After Huerta buckled his seatbelt and started
to drive away, defendant attacked him with the knife. Defendant stabbed Huerta 22 times on the face,
neck, and upper torso. Huerta died while
trying to unbuckle his seatbelt and get out of the van.
When
defendant attacked Huerta, the other church member jumped out of the van and
started yelling for help. As shoppers
gathered around, defendant left the knife protruding from Huerta’s shoulder,
got out of the van, and walked around to the driver’s side. He showed his bloody hands to witnesses, and
said, “I just killed this guy.â€
Defendant was standing next to the van when the police arrived. From the backseat of the patrol car after his
arrest, defendant yelled to an officer passing by, “I bought the knife at Big
Lots.â€
Defendant
did not testify at trial. He relied on
the testimony of a fellow church member to argue that Huerta had been abusive
to defendant, and that defendant bought the knife because he was afraid of
him. Defendant also argued that the
killing was the result of provocation by Huerta, as evidenced by defendant’s
voice in the background on a tape of one of the 911 calls in which he can be
heard saying, “[unintelligible] he did to me for 15 months. Push me, push me, push me in a program, you
know? I try to do my [unintelligible]. I got my wife in the program. He, he tried to [unintelligible] with my wife
[unintelligible].â€
title="">[1] From that evidence, and evidence that
defendant had a one-inch cut on his hand, defense counsel argued that Huerta
had provoked the killing, either through long-term abuse of defendant or by
instigating a fight with defendant in the van.
Defense counsel argued defendant killed Huerta as a result of either
that provocation or in self-defense.
Defendant
first contends the trial court committed reversible error by failing to include
the definition of second degree murder in its instructions to the jury. The record reflects the trial court
instructed the jury according to CALCRIM No. 520 and CALCRIM No. 521,
on murder and first degree murder, respectively, but did not include the
optional paragraph in CALCRIM No. 521 that, “The requirements for second degree
murder based on express or implied malice are explained in CALCRIM
No. 520, First or Second Degree
Murder With Malice Aforethought.â€
the trial court for a definition of second degree murder. The trial court responded, “See CALCRIM 520
for a definition of second degree murder.â€
Defendant
argues that the omitted sentence left the jury without any guidance on how to
reach a second degree murder conviction.
Although the trial court omitted that sentence from its original
instructions, it referred the jury to CALCRIM No. 520 in response to the
jurors’ request for a definition of second degree murder. That instruction told the jury, in pertinent
part, that to prove defendant is guilty of murder, “the People must prove
that: [¶] 1. The
defendant committed an act that caused the death of (another person); [¶] AND
[¶] 2. When the defendant acted, he had a state of
mind called malice aforethought.†The
instruction also includes definitions of express and implied malice.
Defendant’s
contrary claim notwithstanding, the trial court in this case instructed the
jury on the elements of the crime of second degree murder. Therefore, we must reject defendant’s first
claim of error in this appeal.
Defendant
next contends the evidence that he committed first degree murder by lying in
wait is insufficient. He further
contends that the defect requires reversal of his first degree murder
conviction. Defendant is incorrect.
The
prosecutor presented two theories of first degree murder to the jury—murder
committed with premeditation and deliberation, and murder committed by lying in
wait. Defendant does not dispute the
evidence is sufficient to support a first degree murder conviction based on the
evidence that defendant premeditated and deliberated before he committed the
murder. Instead, he cites
and contends the error in this case consists of submitting a “legally
insufficient†theory of liability to the jury because the evidence was
insufficient to support a verdict based on lying in wait, and the record does
not disclose whether the jury relied on that theory in finding defendant guilty
of first degree murder. Defendant
misunderstands the holding in that case.
The Supreme Court
explained in People v. Guiton,
inadequacy of proof is purely factual, of a kind the jury is fully equipped to
detect, reversal is not required whenever a valid ground for the verdict
remains, absent an affirmative indication in the record that the verdict
actually did rest on the inadequate ground.â€
(Id. at p. 1129.) But when “the inadequacy is legal, not merely
factual, that is, when the facts do not state a crime under the applicable
statute, [reversal is required], as in Green
[People v. Green (1980) 27 Cal.3d 1],
the Green rule requiring reversal
applies, absent a basis in the record to find that the verdict was actually
based on a valid ground.†(
First
degree murder based on lying in wait is a legally valid theory, but one that
the evidence arguably did not support.
Therefore, the purported inadequacy of proof in this case is
factual. Because the claimed error is
one of factual insufficiency, rather than legal insufficiency, we must affirm
the first degree murder conviction. That
conviction is supported by evidence that defendant premeditated and deliberated
before he killed Huerta, as evidenced by the fact that he bought a knife
shortly before Huerta returned in the van to pick up defendant, and defendant
used that knife to kill Huerta.
Defendant
contends the trial court committed prejudicial error by allowing the prosecutor
to introduce autopsy photographs of the victim over defendant’s objection. We disagree.
At
a pretrial hearing, defendant offered to stipulate that the victim had been
alive before the incident on January 5, 2010, that defendant stabbed the victim
multiple times, and that the stabbing caused the victim’s death. As a result of that proposed stipulation,
defendant argued that the majority of the prosecutor’s photographs were irrelevant
and therefore inadmissible. Defendant
also argued that if offered to prove premeditation and deliberation, the
photographs were cumulative to other evidence on that issue. The trial court accepted the prosecutor’s
offer of proof that a photograph of the victim in the driver’s seat of the van
was relevant to show the victim’s position relative to defendant and explain
how the victim had wounds on the left side of his body when defendant was
seated on the victim’s right. In the
prosecutor’s view, the photograph showed “this wasn’t just a fight going on,
the defendant was reaching over the body.
Otherwise there’s no way for the victim to have suffered this cut mark
over his left ear.†The prosecutor
argued the number of stab wounds depicted in the photographs was relevant to
show “this wasn’t some sort of manslaughter type thing, that this defendant had
actual hatred for the victim that went beyond, you know, just some isolated
argument that led to this stabbing and any sort of manslaughter type defense.†The trial court overruled defendant’s
objection and concluded that photographs of the victim at the scene were
relevant and admissible.
Defendant
also objected to autopsy photographs of the victim on the grounds that they
were cumulative and gruesome, in that one photograph depicts the handle of the
knife sticking out of the victim’s neck, while others show straw-like probes
sticking out of each of the stab wounds.
blow was the last one, the one to the victim’s neck. The trial court again overruled defendant’s
objections, finding that the photographs, although graphic, were probative.
“The
rules pertaining to the admissibility of photographic evidence are well
settled. Only relevant evidence is admissible
[citations], and all relevant evidence is admissible, unless excluded under the
federal or California Constitution or by statute. (Evid. Code, § 351; see also Cal.
Const., art. I, § 28, subd. (d).) Relevant evidence is defined in Evidence Code
section 210 as evidence ‘having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the evidence
tends ‘ “logically, naturally, and by reasonable inference†to establish
material facts such as identity, intent, or motive. [Citations.]’ [Citation.]
The trial court has broad discretion in determining the relevance of
evidence [citations] but lacks discretion to admit
(People v. Scheid (1997) 16
Cal.4th 1, 13-14.)
As
set out above, the trial court in this case reviewed the photographs in
question and found they were relevant to issues in dispute at trial. People
v. Poggi (1988) 45 Cal.3d 306, which defendant relies on to argue
otherwise, is inapposite. In that case,
the trial court permitted the prosecutor over defendant’s objection to
introduce a photograph of the victim standing in front of a Christmas tree to
prove that she had been alive, and an autopsy photograph that depicted an
incision surgeons had made in the victim’s throat in order to perform a
tracheotomy to save her life. The
Supreme Court found the first photograph relevant but inadmissible because the
defendant had offered to stipulate to the fact that the victim had once been
alive. The Supreme Court found the
second photograph was not relevant and therefore was inadmissible because the
wound in the victim’s neck depicted in the autopsy photograph had not been
inflicted by the defendant. (
The
photographs at issue in this appeal were relevant to disputed issues, as
previously discussed, and did not include a photograph of the victim while he
was alive. In fact, the trial court
excluded such a photograph from the evidence in this case. In short, we conclude the trial court did not
abuse its discretion by admitting the challenged photographs into
evidence. But even if we were to
conclude otherwise, any purported error necessarily was harmless. Defendant did not dispute that he stabbed and
killed the victim. The only issue was
his mental state at the time. If
anything, the photographs might have bolstered the defense claim that defendant
acted in a rage after having been provoked by the demeaning way the victim had
treated defendant and defendant’s wife over the course of many months.
As
his final claim on appeal, defendant contends the trial court violated
defendant’s Sixth Amendment right to a jury trial because it did not instruct
the jury that in order to find defendant guilty of first degree murder, the
jury had to agree on the facts of that crime.
Defendant is wrong.
The
Supreme Court recently reiterated, “ ‘[i]t is settled that as long as each
juror is convinced beyond a reasonable doubt that defendant is guilty of murder
as that offense is defined by statute, [the jurors] need not decide unanimously
by which theory he is guilty. [Citations.]’
[Citation.] ‘Not only is there no
unanimity requirement as to the theory of guilt, the individual jurors themselves need not choose among the theories,
so long as each is convinced of guilt.’
[Citation.]†(
153.)
Defendant
concedes that our state Supreme Court has rejected the specific argument he
raises in this appeal that absent a unanimity instruction, the guilty verdict
on the first degree murder conviction violates the constitutional requirement
set out in Apprendi v. New Jersey
(2000) 530 U.S. 466, that a jury must find any fact, other than a prior
conviction, that increases the maximum penalty for a crime. (See People
v. Nakahara (2003) 30 Cal.4th 705, 712-713.) Defendant acknowledges that we are bound by
the decisions of our state Supreme Court (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and he
raises the issue to preserve his rights to further review in
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
KING
J.
name="_ftn1" title=""> [1] The 911 caller testified that defendant said,
“ ‘He was messing with my wife.’
Something about the wife.â€
name="_ftn2" title=""> [2] Defendant contends the trial court omitted
from CALCRIM No. 521 the sentence, “All other murders are of the second
degree.†Although that sentence appeared
in the 2009-2010 version of CALCRIM No. 521, it was eliminated from the 2011
version of CALCRIM No. 521 and replaced with the optional phrase, quoted
(See CALCRIM No. 521 (2009-2010 ed.) p. 271; CALCRIM
No. 521 (2011 ed.) p. 271.)
Defendant’s trial took place in 2011.
Therefore, the trial court would have instructed the jury with the 2011
version of the CALCRIM jury instructions.
