P. v. Lopez

















Filed 12/13/12
P. v. Lopez CA2/8

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
EIGHT




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THE PEOPLE, Plaintiff and Respondent, v. JOSE LOPEZ, Defendant and Appellant.

B233704 (Los Angeles County Super. Ct. No. BA325159)

APPEAL from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Ronald Rose, Judge.
Affirmed as modified.



Donna L. Harris, under appointment
by the Court of Appeal, for Defendant and Appellant.



Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy
Attorneys General, for Plaintiff and Respondent.



* * * * * * *

A jury convicted appellant Jose
Lopez of second degree murder (Pen.
Code, § 187, subd. (a))href="#_ftn1"
name="_ftnref1" title="">[1] and attempted escape (§ 4532, subd.
(b)(1)). At a subsequent sanity phase,
the jury also found him sane at the time of the commission of both offenses.

After a
subsequent bench trial, the trial court found true the allegations that
appellant had been previously convicted of a “strike” offense (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)), a serious felony (§ 667, subd. (a)), and an
offense for which he was committed to the state prison and thereafter committed
another state prison offense within five years of his release (§ 667.5,
subd. (b)).

The trial
court sentenced appellant as follows:
(1) for the attempted escape conviction, the high term of three years,
doubled to six years for the prior strike allegation found true; (2) for the
second degree murder conviction, a consecutive indeterminate term of 15 years
to life in prison, doubled to 30 years to life for the prior strike allegation
found true; (3) for the prior serious felony conviction allegation found true,
a consecutive five-year term; and (4) for the prior state prison conviction
allegation found true, a consecutive one-year term. Appellant’s total state prison sentence is
thus a determinate term of 12 years, plus an indeterminate term of 30 years to
life in prison.

STATEMENT OF FACTS

The
following is a summary of the evidence presented during the guilt phase of
appellant’s trial that relates to the murder of Rosa Ramos. Because the evidence presented during the
guilt phase that relates to the attempted escape conviction is not material to
any issue raised on appeal, we do not summarize it in this opinion. Also,
because appellant raises no issues in connection with either the sanity
phase of his jury trial or the bench trial on the prior conviction allegations,
neither do we summarize the evidence presented during those parts of
appellant’s trial.

A. The Murder of Rosa Ramos

In June 2007, appellant and Rosa
Ramos had been dating for approximately 10 years. The relationship was sporadic because
appellant was “always . . . in jail.” As
of June 23, 2007, the date
of Ramos’s disappearance, appellant and Ramos were living with Ramos’s parents
in the City of South Gate.

On June 23, 2007, at approximately 11:00 a.m., appellant and Ramos argued about
whether they would attend a party given by appellant’s cousin. At about noon,
Ramos told her brother she was leaving to the store. She also asked her father to talk to
appellant because appellant was “acting really weird.” Ramos’s father walked into the garage to talk
to appellant, who was in the driver’s seat of Ramos’s red Thunderbird. He noticed that appellant looked “anxious”
and “different than other times.”
Appellant told Ramos’s father that he and Ramos were going to the store
and would be right back. The two drove
off in Ramos’s car but neither ever returned.


A security
surveillance video showed appellant and Ramos at a gasoline station in Downey
between 3:25 and 3:37 p.m. on June 23.

Sometime
between 2:00 and 4:00 p.m. that day, appellant arrived at the Los Angeles house
of his cousin, Maria Alvarez. He looked
nervous, had stains on his pants, and carried a suitcase. Appellant told Alvarez the stains on his
pants were from his roosters.

Appellant
and Alvarez walked to her laundry room.
There, appellant told Alvarez that he “had to put someone to
sleep.” Alvarez asked appellant if he
was referring to his first wife, Ursula, to which appellant said “no,” “it was
[Ramos].” Appellant told Alvarez that he
“had” to do it because “[Ramos] was messing with the family.” Alvarez did not believe appellant.

Appellant
then asked to borrow Alvarez’s car. She
told him no. At about 4:30 p.m.,
Alvarez drove appellant to an alley at 54th and Main Street, where appellant
got out of the car and walked away.
Appellant told Alvarez he was going to get his car. Appellant left the suitcase at Alvarez’s
house. Detectives later picked up the
suitcase.

At about
10:00 that night, appellant arrived at the Los Angeles house of his aunt, Mercedes
Ortiz. Appellant asked Ortiz for money
and told her he had killed Ramos. Ortiz
told appellant she did not believe him.
In response, appellant walked inside the house and showed Ortiz blood
stains on his pants. Ortiz gave
appellant some money. Appellant changed
from his pants into a pair of shorts.
When appellant left Ortiz’s house, the pants were in a bag in Ortiz’s
laundry room.

>B. Appellant’s
Arrest

On June 24,
2007, at about 2:40 a.m., Madera County Deputy Sheriff Bryan Cutler was patrolling
Highway 99 at Avenue 17, about four to five hours north of Los Angeles. A red Thunderbird passed him at a speed in
excess of 80 miles per hour. Cutler
initiated a traffic stop and approached appellant, who was the driver and sole
occupant of the car.

Deputy
Cutler asked appellant for his driver’s license. Appellant produced a California ID card and
stated he was on parole. Cutler noticed
what appeared to be blood on appellant’s shirt.
Cutler asked appellant about the blood, and appellant told him he had
gotten into a fight with “a guy named Raul.”
Appellant said he was driving to his parents’ house and that his parole
officer knew he was travelling to see his parents.

Deputy
Cutler ordered appellant out of his car.
Appellant was wearing a plaid shirt, cowboy boots, and shorts. Cutler noticed blood on the boots. Before searching the trunk of the
Thunderbird, Cutler asked appellant if he would find anything unusual inside;
appellant said “there might be a little bit of blood in [the] trunk.” Inside the trunk, Cutler found a sweatshirt
with blood stains, clumps of hair, a VCR with blood stains, prescription pill
bottles in appellant’s name, and a claw hammer.
Cutler could also see a pool of wet blood in the wheel well beneath the
spare tire. When asked about the blood
and hair clumps, appellant said Raul was a “long-haired rocker” and had used
the sweatshirt to wipe off his face. He
also said that Raul was bleeding from both sides of his head after the
fight. Cutler arrested appellant, who
was eventually transported to Madera County Sheriff’s headquarters.

C. Appellant’s Admissions

Madera
County Sheriff’s Detectives Zachary Zamudio and Saldivar interviewed appellant
early in the morning of June 24 after obtaining a waiver of his >Miranda rights.href="#_ftn2" name="_ftnref2" title="">>[2]> Appellant told the detectives that the blood
in the Thunderbird’s trunk belonged to Raul, with whom he had fought. When told that Ramos was missing, he said
that she was probably with her friends.
He denied that the blood in the Thunderbird belonged to Ramos. He also said that the last time he had seen
her was at about 11:00 a.m. on June 23 at her house. He denied that he and Ramos went anywhere
together. Appellant told the detectives
he was on psychiatric
medication, and that he took medication because he hears voices.

Los Angeles
County Sheriff’s Homicide Investigator Angus Ferguson and his partner,
Investigator Shipe, interviewed appellant at the Madera County jail on the
night of June 24. Prior to speaking with
appellant, the investigators obtained a waiver of his Miranda rights. Appellant
denied killing Ramos and told the investigators he did not know where she
was. He said that he had last seen her
at her house at about 11:00 a.m. on June 23.


The
investigators told appellant about that the gas station security video. Appellant told them he had dropped off Ramos
at her house after going to the gas station.
After dropping off Ramos, appellant said he went to his cousin’s house
where he got into a fight with his friend Oscar. Initially, appellant said the blood in the
Thunderbird belonged to Oscar. Later,
appellant told the investigators he got into a fight with Ramos, punched her in
the nose and split her lip. Ramos wiped
blood off of her face with his sweatshirt.
Appellant told the investigators that he hears “voices” and that he
punched Ramos because of the voices.
Appellant dropped Ramos off at her house after he punched her.

Appellant
denied that he told his aunt he had killed Ramos. He only told her that he had punched Ramos,
that they had gotten into a “scrap.”

>D. The
Search for Ramos

Investigators
Ferguson and Shipe attempted to locate Ramos.
She left her purse at the house when she left with appellant on June
23. Inside her purse, they found her
wallet containing credit cards and her driver’s license. They attempted to reach her by calling her
cell phone number but were unsuccessful.
They contacted friends and other family members but were unable to locate
her. They also sent teletypes containing
Ramos’s description to Sheriff’s and Coroner’s offices throughout the state, as
well as a “med alert” to area hospitals.


The investigators contacted Ramos’s
credit card companies to monitor account activity, but the cards were not used
after June 23. They interviewed
coworkers who said Ramos was always punctual and a good worker. They also left their business cards with
Ramos’s friends but received no return phone calls indicating contact with
Ramos. Ferguson went to the cell tower
which recorded Ramos’s last cell phone activity. It was located in a vacant lot off the 110
Freeway in Downtown Los Angeles. He
could locate no evidence of Ramos in the vicinity of the cell tower.

E. Forensic Evidence

Investigator
Ferguson recovered the suitcase left by appellant at his cousin’s house. Inside, he found clothing with blood stains
and a pair of eight-inch metal scissors with blood stains.

Because
Ramos was never located, investigators obtained blood reference samples from
her mother and father. Forensic
examiners conducted DNA analysis on blood stains from a number of items: the scissors, the suitcase, a shirt from
inside the suitcase, the VCR found inside the trunk of the Thunderbird, and the
boots and tank top worn by appellant.
The DNA from the blood on the scissors was a mixture of two
persons: the major contributor was
consistent with DNA from a female offspring of Ramos’s parents.href="#_ftn3" name="_ftnref3" title="">>[3] The DNA from the blood on the suitcase,
shirt, and VCR was consistent with a female offspring of Ramos’s parents. DNA from the blood on appellant’s tank top
and on one of his boots was a mixture of two persons. The major contributor in each case was
consistent with an offspring of Ramos’s parents. DNA from the blood on the second boot came
from a single source, and was consistent with an offspring of Ramos’s
parents.

The pool of
blood contained in the wheel well beneath the spare tire of the Thunderbird was
almost two inches in depth. It
appeared to have flown over the VCR and down into the wheel well.

Some of the
blood on appellant’s tank top and boots was in a spatter pattern consistent
with the application of force. Other
stains demonstrated a transfer pattern, consistent with brushing against a
bloody object.

F. Defense Evidence

Appellant’s
sister, Brenda Lopez, testified in his defense.

Ramos had
lived with appellant’s family in Northern California for about a year and a
half while appellant served a term at Vacaville State Prison. Appellant’s family had no issues or problems
with Ramos. After appellant was released
from prison, he and Ramos lived with appellant’s family for about one
month. During that time, appellant took
prescription medications. He also
demonstrated odd behavior: he failed to respond
to questions during conversations, “star[ed] off,” and would suddenly walk away
during the middle of a conversation.
Sometimes, he would chase cars.

After the
month with appellant’s family, appellant and Ramos moved back to Los
Angeles. This was three or four months
before Ramos disappeared.

DISCUSSION

>A. Imperfect
Defense of Another

At the
request of appellant’s trial counsel, the court below instructed the jury with
CALCRIM Nos. 627 (Hallucination: Effect
on Premeditation) and 3428 (Mental Impairment:
Defense to Specific Intent or Mental State). The trial court did not give CALCRIM No. 571
(Voluntary Manslaughter: Imperfect
Self-defense/Defense of Another).
Appellant’s trial counsel expressly stated she was not requesting such
an instruction and, in any event, there was no evidence to support such an
instruction.

On appeal,
appellant contends that the trial court had a sua sponte duty to give CALCRIM
No. 571. He argues that the evidence of
his mental illness, along with the statements to his cousin that he “had” to
kill Ramos because she “was messing with the family,” provided substantial
evidence for the jury to conclude that a mental delusion caused him to kill in
an actual but unreasonable belief in the need to defend some third party.

An actual
but unreasonable belief in the need to defend oneself or another from imminent
danger of death or great bodily injury reduces a killing from murder to
voluntary manslaughter because it negates the mental state of malice
aforethought. (People v. Randle (2005) 35 Cal.4th 987, 990, 994, overruled on
other grounds in People v. Chun
(2009) 45 Cal.4th 1172, 1201.) These
doctrines are commonly known as imperfect self-defense and imperfect defense of
another. (Randle, at p. 994.)

Initially,
the People contend that neither imperfect self-defense nor, by logical
extension, imperfect defense of another, applies where the belief in the need
to defend from imminent harm is based on mental delusion alone. In support of that position, the People cite
to the Fifth District’s decision in People
v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1453 (Mejia-Lenares), which held that mental delusion alone could not
provide a basis for imperfect self-defense.
Appellant acknowledges Mejia-Lenares,
but notes that the Supreme Court has not decided this issue and further argues
that we should disregard Mejia-Lenares
in light of Justice Brown’s concurring opinion in People v. Wright (2005) 35 Cal.4th 964, 975-986 (>Wright) (joined by Justices Baxter and
Moreno).

We need not
reach any issues raised by a comparison of Mejia-Lenares
to Justice Brown’s concurring opinion in Wright. Without so deciding, we assume, for purposes
of this appeal, that Mejia-Lenares
incorrectly restricts application of the doctrines of imperfect self-defense
and imperfect defense of another.
Nevertheless, we conclude that the trial court did not err in this case
because there was no substantial evidence presented which would have justified
such an instruction.

In >People v. Romero (2008) 44 Cal.4th 386,
402-403, the Supreme Court summarized the standards which define the trial
court’s sua sponte obligation to instruct on lesser included offenses:

“A
defendant’s constitutional right to have the jury determine every material
issue presented includes the obligation of a trial court to instruct the jury
on the general principles of law relevant to the issues raised by the
evidence. [Citations.] Thus, a trial court must give ‘“‘instructions
on lesser included offenses when the evidence raises a question as to whether
all of the elements of the charged offenses were present [citation], but not
when there is no evidence that the offense was less than that charged.’”’ [Citation.]
‘As our prior decisions explain, the existence of “any evidence, no matter
how weak” will not justify instructions on a lesser included offense, but such
instructions are required whenever evidence that the defendant is guilty only
of the lesser offense is “substantial enough to merit consideration by the
jury.” [Citations.] “Substantial evidence” in this context is
“‘evidence from which a jury composed of reasonable [persons] could . . .
conclude[]’” that the lesser offense, but not the greater, was committed.’ [Citation.]”

As
mentioned above, both imperfect self-defense and imperfect defense of another
require evidence of imminent danger
of death or great bodily injury. Here,
the evidence cited by appellant shows neither danger of death or great bodily
injury nor that any such danger was imminent.
Viewed most favorably to appellant, the evidence shows only that
hallucinatory “voices” told appellant he “had” to kill Ramos because she “was
messing with the family.” Even if we
accept appellant’s alleged delusional beliefs as being proved, they provide no
evidence (1) that Ramos intended to cause death or great bodily harm to any
family member or (2) that any such intent was in danger of being acted upon
imminently. Although this evidence, if
believed, certainly provides evidence of motive, it provides absolutely no
evidence of legal mitigation in terms of the mental state required for
murder. Appellant’s contention to the
contrary is meritless and we reject it.

>B. The
One-year Prison Prior

Based upon
appellant’s single prior conviction for robbery in 2000, the trial court
imposed both a consecutive five-year term pursuant to section 667, subdivision
(a), and a one-year term pursuant to section 667.5, subdivision (b). Appellant contends, and the People agree,
that the one-year term must be stricken because both enhancements cannot be
imposed for a single conviction. We
agree. (See People v. Jones (1993) 5 Cal.4th 1142, 1153.) Accordingly, the additional one-year term
imposed pursuant to section 667.5, subdivision (b) is stricken. (Ibid.)

C. The Domestic Violence Fund Fine

The trial
court imposed a $400 domestic violence fund fine pursuant to
section 1203.097. Appellant
contends, and the People agree, that such a fine can be imposed only when a
defendant is granted probation. We
agree. (§ 1203.097, subd. (a)(5); see
In re Wagner (2005) 127 Cal.App.4th
138, 147.) Accordingly, the $400 fine
imposed by the trial court is stricken.

>DISPOSITION

The one-year enhancement imposed pursuant to section
667.5, subdivision (b) and the $400 fine imposed pursuant to section 1203.097,
subdivision (a)(5) are both stricken. In
all other respects, the judgment is affirmed.





SORTINO, J.href="#_ftn4" name="_ftnref4" title="">*

We concur:



RUBIN,
Acting P. J.





FLIER,
J.