P. v. Lopez

Filed 8/31/09 P. v. Lopez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, Judge. Affirmed with directions.

David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant, Rodney Lopez, of two counts of attempted murder (Pen. Code, 664/187, subd. (a)),[1] during which he used a deadly weapon ( 12022, subd. (b)(1)) and inflicted serious bodily injury ( 12022.7, subds. (a) & (e))[2] and two counts of battery ( 243, subd. (d)), during which he used a deadly weapon. In bifurcated proceedings, the trial court found true an allegation that defendant had suffered two strike priors ( 667, subds. (b)-(i)).[3] Defendant was sentenced to prison for two consecutive terms of twenty-five years to life, plus seven years, and appeals, claiming the evidence of intent is insufficient to support his attempted murder convictions and the jury was misinstructed. We reject his contentions and affirm, while directing the trial court to correct errors in the abstract of judgment and minutes of the court trial on defendants priors.

Facts

Defendant and his almost 61-year-old[4] girlfriend had been cohabitating off and on for five years. Although he was sober the majority of the time, he would go on drinking binges. The girlfriend said that when defendant drank, he was cruel and mean to her.[5] On July 1, 2004, the girlfriend locked defendant out of her house because he was drinking. Without the girlfriends knowledge or permission, defendant stayed in a shed out back of the girlfriends house during his exile.

On July 5, 2004, the girlfriend was waiting until her 59-year-old sister[6] and grandniece returned from lunch before going outside into her back yard to put out the trash because she feared defendant may be lurking around her home. In late April, she had locked defendant out because of his drinking and he had kicked her door and banged on her window when she would not let him back inside. He had told her that he would break her neck and kill her for not letting him in. She had called the police and had him arrested, but three or four weeks after his release from jail, she had taken pity on him and allowed him to return to her home, only to kick him out again July 1. On July 5th, she went out back with the trash and heard a noise inside the shed, so she opened its door. Defendant was inside, watching television. The girlfriend commented that it was hot in the shed and if defendant stopped drinking (she had smelled alcohol on him), he could come inside her house where it was cool. She asked defendant if he was still drinking and he did not reply. She told him hed have to leave because he was drinking and he laughed at her. She told him to leave between 4 and 10 times. He lit her blouse on fire with the butane lighter he was holding in his hand, burning her arm. She threw the rind of a half of a melon he had eaten at him. He threw the half of the melon he had not consumed at her and she ran, but defendant caught up with her. He slammed and held her against the lattice work on her back patio. She grabbed a metal rake to get him off her. They struggled over it and he slammed it against her left cheek. He held the rake against her throat, pinning her to the lattice work. He let go and she ran into the kitchen of her home, where her sister and grandniece were. She told her sister that she had told defendant he could not stay there because he was drinking and he was fighting her. Her sister asked the girlfriend if she wanted defendant to leave and the latter said she did.

The sister went into the back yard with the girlfriend and the grandniece following her. The sister asked defendant what he had done to the girlfriend and he replied that he had done nothing, adding that she fell on the rake. The sister told defendant to leave. He said he would not and they couldnt make him. The sister said shed call her son to help her. Defendant grabbed the sister by her hair, pulled her down, gritted his teeth and said, Im going to kill you, you mother fucker. He bent the sister over a work bench, she screamed to be let go, and he gritted his teeth and called her names. The sister grabbed defendants pony tail and told him to let her go. He called her more names. The girlfriend hit defendants chest and arm twice with her fists, trying to make him let go of her sister. While holding on to the sisters hair with one hand, defendant grabbed the girlfriend and held her by her neck in a headlock with the other arm. The girlfriend yelled at defendant to let the sister go and she hit him on his side, but he did not release either.

Defendant kept telling the sister that he was going to kill her. The sister got a rounded putty knife from the nearby work bench and tried to scratch defendants side with it, but it was too dull, and defendant grabbed it and threw it down.

The grandniece called 911 on a cordless phone. After some conversation with the dispatcher, she dropped the phone, screamed at defendant to let the sister (her grandmother) go, grabbed the sister, yelled for help, then, grabbed a mop handle and hit defendants bare back 5-10 times, telling him to stop. He did not. She got a knife from the work bench and held it up, pointed at defendant, telling him to stop, but she was unwilling to use it on him and began to cry. Defendant told her he was going to kill her. The sister told her granddaughter to go down the street and get help, so the latter left, putting the knife on a ledge next the driveway in the front of the house.

The sister got free of defendants grasp by letting him pull her hair out by the root and she ran around the work bench. Defendant released the girlfriend, picked up a four foot aluminum mechanics level and, holding it with both hands, brought it down on the top of the sisters head from above his head. The sister blacked out and collapsed. Defendant hit her again with the level and told her not to get up. He hit her with the level about 4 timeseach time she tried to get up. He told her not to get up and said each time he hit her, Im going to kill you, mother fucker. Defendant, who was wearing shoes, put his foot on her chest and stomped it three or more times. She rolled onto her side and into a ball and he kicked her back, near her spine, and her side.

As he did this, the girlfriend jumped on his back and held on to his neck, but this did not deter defendant. Defendant reached around and grabbed the girlfriend and held her by her neck. Defendant picked up a rock the size of a grapefruit that had some cement stuck to it and hit the girlfriend with everything he had four or five times in the head while holding her in a head lock and saying each time he was going to kill her before the bloodied rock slipped from his hand.

The sister got up and defendant hit her so hard with the level that he knocked her into another shed on the property. Still, she got up again and came outside while defendant yelled at her that he was going to kill her if she moved. He then threw a rusty baseball size metal object at her, hitting her so hard in the face above her eye that the force knocked her down. She was gushing blood from this injury and the one on the top of her head caused by the level.

The women in succession had gotten a hold of a large framing hammer and had told each other to hang on to it because defendant had said that if he got it, he would kill them.[7] Defendant got it from the work bench after hitting the girlfriend in the head with the rock and hit her on the top of her head with it. She feigned being dead. Defendant looked at her, and then dropped her to the ground.

A neighbor, whom the grandniece had summoned, appeared carrying a two-by-four board. He asked defendant what he had done. Defendant calmly said he was going to kill the girlfriend and the sister. Defendant cursed at the neighbor and took off. The neighbor carried the women into the house, where paramedics later treated them. The girlfriend asked the neighbor and the paramedic if she was going to die.

The sister testified that almost every other statement defendant had made to her during the assault was that he was going to kill her. The girlfriend testified that defendant told her twenty times before he began hitting her with the rock and the framing hammer that he was going to kill her.

The girlfriend had had neck surgery in 1996[8] and was still taking muscle relaxers for muscle spasms in her neck and shoulders at the time of this incident. As a result of defendants attack, she suffered a concussion, multiple abrasions, bruises and a burn to the arm and had her five centimeter head wound closed with staples. She had a brain bruise from which her doctor told her she would never recover and she still, at the time of trial, almost two years after the incident, had trouble walking. The sister, who suffered chest pain, had received staples and sutures for her multiple head wounds, including a six centimeter (a little over two inch) laceration. She had nerve damage in her head and back that was still being treated at the time of trial. Before this incident, she had suffered a heart attack and a stroke and was on medication for hypertension and for her heart.

Defendant was found by police hiding under a blanket in a shed on the property next door. He had clothing on he was not wearing during the incident. He later told police that he was the victimthat the women had attacked him and he hit them one or two times, and not very hard, in self defense and he had no idea how their heads became split open.

Issues and Discussion

1. Insufficient Evidence of Intent to Kill

Defendant acknowledges that he threatened both women during the incident. However, he asserts that viewed in the context of the surrounding circumstances, a reasonable person would not have inferred [that] his threats were a true expression of his intent. The evidence permitted only a single inferencethat his threats were mere bluster. Therefore, let us examine the circumstances that confronted each victim.

The girlfriend was an almost 61-year-old disabled woman who continued to take medication for her neck condition at the time of the incident. There can be no doubt that she was afraid of defendanthe had a history of being cruel and mean to her when he was drinking. She had called the police and had him arrested 20 times because of his behavior and he had recently been to jail after trying to force his way into her home and threatening to kill her.[9] She was so afraid of him that she would not even go out into her own back yard to take out the trash during the day without someone else being present because she was afraid he might be lurking about.

During the incident, defendant slammed her against the lattice work and held her there, hit her in the cheek with a metal rake and held it against her throat, held her neck in a headlock, hit her with everything he had four or five times in the head with a grapefruit sized rock, and hit her on the top of her head with a large framing hammer. Her injuries have been listed above and defendant does not contest the jurys finding that she sustained great bodily injury.

The sister was 59 years old and had suffered a heart attack and a stroke and was, at the time of the incident, still being treated for hypertension and a heart condition. Defendant grabbed her by the hair and bent her over the work bench. He hit her four times with a four foot long mechanics level which he brought down on her from over his head, once knocking her into a shed. He stomped her chest three or more times and kicked her spine and side. He threw a rusted baseball sized piece of metal at her so hard that he knocked her down and cut her face near her eye.

He was as undeterred in his attack on the two women as someone on methamphetamineneither the grandniece calling the police, hitting him with a mop handle, threatening him with a knife or going to get help stopped him. Neither did his girlfriend hitting him, jumping on his back and trying to cut him with a putty knife. The only thing that stopped him from continuing to beat his girlfriend in the head with the grapefruit-size rock was the fact that it became so slippery with her blood that he was no longer able to hold it. Only her feigning her own death stopped him from continuing to beat her in the head with the large framing hammer. Finally, even the presence of the neighbor, wielding a two-by-four board, did not deter defendant, who repeated his intent to kill both women.

Therefore, we disagree with defendants assertions that the circumstances permitted only the inference that his threats to kill the women were mere bluster. It was pure luck only that one or both of them did not die during the attack.

Defendant contends that the evidence shows he did not intend to kill either woman because his use of the level on the sister occurred only after he lost control of both women and the hammer. We have addressed his incorrect interpretation of the record on this point in our statement of facts. Moreover, his use of the level followed his initial attack on the girlfriend, his refusal to leave her property even though he was told to many times and his holding both women against their will and threatening to kill them.

The fact that at one point, defendant made a conditional threat to the sister, i.e., that he would kill her if she moved, does not persuade us that the evidence of his murderous intent was lacking. After all, he had delivered, by that time, countless unconditional threats to kill both women.

Finally, the fact that defendant did nothing to the grandniece does not persuade us that the evidence of intent was lacking. When the grandniece attacked defendant, he had his hands fullliterallyhe was holding on to both of the senior women. Moreover, in the grandniece, defendant was up against someone who could easily defend herself, unlike the aged and infirmed victims.

2. Jury Instructions

a. Heat of Passion

After his arrest, the defendant claimed that he was the victim. He said the injuries to the women came from him defending himself from their attacks on him, but he had no idea how their heads got split open because he only hit them once or twice and did not do so very hard. Elaborating, he said that the girlfriend came to the shed and asked him what was going on and he told her to leave him alone. She picked up the half of the melon he was not then eating and threw it at him. He asked her why the fuck she did that, and she replied, Fuck you. She would not get away from him, grabbed a rake and swung it, hitting his forearm. This angered him and he grabbed the rake and threw it. He then grabbed her by both of her arms and yelled at her to stop. The girlfriend yelled for the sister, and the latter came out of her trailer and threatened to have her son kick [defendants] fucking ass and kill him. The sister swung the framing hammer at defendant. In self defense, he picked up the level and raised it in the air to block a blow by the sister. As he held the girlfriend back with one hand, he hit the sister on the top of her head with the level held in the other hand. The grandniece charged and tried to swing a knife at him, but he back kicked her to keep her away from him and he threatened to kill her. The sister, who still had the hammer, threatened to kill defendant. She charged at defendant with the hammer, but he managed to take it from her. These statements by defendant were testified to by the officer who arrested him and questioned him at the station. Defendant did not testify at trial, thus, his version of the events was not subject to cross-examination.

The jurors were instructed on attempted voluntary manslaughter based on imperfect self-defense as a lesser offense of the charged attempted murders. Defendant here claims that they should also have been instructed, sua sponte, on attempted voluntary manslaughter based on heat of passion.

Defendant contends that there was substantial evidence at trial that he acted under heat of passion based on the fact that his girlfriend was once again throwing him off her property and she threw a melon half or melon rind (depending on whether one believed his statements or her trial testimony) at him. The only problem with this is that while such acts might cause a reasonable person to get angry, defendant, in his statement to the police, did not say that he did what he did because he was angry. Rather, he said he did it because he was defending himself from their attack on him. Moreover, the allegation which the jury found true with respect to both women was that defendant used a level, hammer or rock on them. In his statement, defendant owned up only to using the level once, on the sister. His statement contained no heat of passion defense to what he did to the girlfriend because he did not admit hitting her with a level, hammer or rock. Therefore, the trial court had no sua sponte duty to instruct the jury on heat of passion attempted voluntary manslaughter.

Contrary to the assertion in defendants reply brief, aside from defendants statements, there was no evidence that the women initiated the physical confrontation. Defendant did that when he refused to leave the girlfriends property and burned her with his lighter and, again, when he refused repeated demands to leave the property and assaulted the sister by grabbing her hair and holding her against her will.

b. Voluntary Intoxication Instruction

Defendant claims that his trial counsel was incompetent for failing to request an instruction on voluntary intoxication. He was not. The only evidence that defendant had been drinking at all on the day of the incident was the girlfriends testimony that he smelled of liquor. For some who routinely went on drinking binges, this is meaningless as it does not describe any degree of effect his imbibing had on his behavior. Defendant, himself, did not claim to police that he was intoxicated and his detailed description of what occurred suggests that he was not. Contrary to defendants claim, his inability to account to the police for the nature and extent of the womens injuries, like his hiding out in the neighbors shed after the incident, suggests more of an effort to deny responsibility than the memory impairing effects of alcohol intoxication. In order to prevail on an incompetency of counsel argument, defendant bears the burden of showing a reasonable probability he would have enjoyed a better outcome had his attorney done what he now suggests he should have. (Strickland v. Washington (1984) 466 U.S. 668, 687, 688.) Given the lack of evidence that defendant was intoxicated, he cannot carry this burden.

Disposition

The trial court is directed to amend the abstract of judgment to show that this was a jury, not a court trial, and the five year enhancement under count 1 was pursuant to section 12022.7, subdivision (e), rather than section 12022.7, subdivision (f) as the abstract currently states. The trial court is further directed to amend the minutes for June 13, 2006, to show that the court found true that defendant had suffered two strike priors, not one, as the minutes currently state. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

MILLER

J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] One of the true findings was based on the fact that the infliction of injury occurred under circumstances involving domestic violence.

[3] The minutes incorrectly state Court finds PRIOR/strike true.

[4] She turned 61 two days after the incident.

[5] She testified that she had called the police on defendant 20 times, they arrested him, but they always let him go.

[6] The sister was living in a trailer in the girlfriends back yard. Before this incident, she had thought of defendant as a friend.

[7] The sister testified that before defendant hit her on the head with the level, the girlfriend had gotten the hammer, which defendant and the sister then also grabbed and the three struggled over it. She went on to say that defendant let go of the hammer when she pulled out of his hold on her hair, leaving her hair with him. She said that then defendant let go of the girlfriend, and picked up the level and began hitting the sister with it. She testified that at some point other than when defendant had knocked her into the shed with the level she saw him beating the girlfriend in the head with the hammer. She did not testify about what had happened earlier to the hammer when defendant had released it, (the girlfriend testified neither she nor the sister came into possession of any weapons after she tried to scratch defendant with the putty knife and she denied struggling with the sister and defendant over the hammer) therefore, there is no basis in the record for defendants assertion that he hit the sister for the first time, doing so with the level, because he felt threatened by the womens unfettered possession of the hammer. Based on our review of the record, it appears the girlfriends testimony is more believable than the sisters. If the women truly had possession of the hammer, they would not have left it on the work bench for defendant to pick up later and use on the girlfriend. Even the sister had testified that they had told each other that if defendant got hold of it, he would use it to kill them.

[8] She was on disability due to this condition.

[9] The fact that defendant did not actually attempt to kill the girlfriend on this occasion does not necessarily show that he lacked the intent to kill her. It may have been due to the fact that the police responded to her call for help before he had a chance to try to carry out his threat to kill her.