P. v. Nunez
Filed 12/12/13 P. v. Nunez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff
and Respondent,
v.
FRANCISCO ARTURO NUNEZ,
Defendant
and Appellant.
B241377
(Los
Angeles County
Super. Ct.
No. VA118284)
APPEAL from a judgment of the Superior
Court of Los
Angeles County, Dewey Falcone,
Judge. Affirmed as modified.
Ava R. Stralla, 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 David E. Madeo, Deputy Attorneys
General, for Plaintiff and Respondent.
_________________________
Defendant
and appellant, Francisco Arturo Nunez, appeals his conviction for attempted
murder, aggravated mayhem, torture and corporal injury to a child’s parent,
with a great bodily injury enhancement.
(Pen. Code, §§ 664, 187, 205, 206, 273.5, 12022.7).
of life.
The
judgment is affirmed as modified.
Viewed
in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence
established the following.
On
the afternoon of January 1, 2011,
Maribel Rebolledo, who has a child with defendant Nunez, visited him at his
residence in Hawaiian Gardens. Nunez lived in a detached garage next to a
house. Rebolledo testified that when she
arrived, Nunez and two friends were celebrating New Year’s Day. Rebolledo had not seen Nunez for a while, but
that day they were getting along: “I
remember everything was right the whole way, like we weren’t arguing or
anything. It was a nice conversation.†Rebolledo testified she was not depressed or
suicidal that day. After Nunez’s two
friends left, he and Rebolledo remained in the backyard by themselves.
Sometime
that evening, while she was still visiting Nunez, Rebolledo was severely burned
after having been doused with gasoline.
Rebolledo testified she had no memory of how this happened. She only remembered the ambulance taking her
to the hospital, where she remained in intensive care for more than six
months. She had sustained third degree
burns from the top of her head to her waist; there were burns on her chest,
stomach, neck, ears, arms and legs. All
her fingers had to be amputated. By the
time of trial, she had undergone several surgeries and was scheduled for more.
Los
Angeles County Sheriff’s Detective Dana Duncan, an arson investigator,
responded to the hospital within 30 or 40 minutes of the first
911 call. When Duncan
entered the emergency room, there was a very strong smell of gasoline and burnt
flesh: “The burned flesh, burned hair,
and gasoline are just permeating the entire emergency room.†“And I pretty much followed my nose right up
to her hair, and . . . I noticed that her hair was still wet with
gasoline, and it was very, very strong right on the top of her head and
. . . the gasoline was actually [dripping onto] the sheet that she
was laying on.†Duncan testified
Rebolledo had been “terribly burned, from the top of her head to about her belt
line.†The inside of her nostrils had
been burned black, indicating she had “breathed in flame.†The tops of her ears were gone, as were her
eyebrows and eyelashes. Her eyelids,
nose and lips were extremely red. Her
skin was black and “falling off onto the gurney. It was sloughing off.†Her palms were extremely swollen and horribly
burnt, which Duncan testified was consistent with Rebolledo having tried to put
out the fire with her hands. The skin on
both hands had “degloved,†which means “[t]he upper layer of the skin
. . . inverts and pulls off the hand itself, and it looks like a
glove.â€
Duncan
went from the hospital to Nunez’s residence.
Nunez was gone. On the driveway
leading to the backyard there was a synthetic welcome mat or rug which had been
“melted almost into a ball.†There was
human hair, a melted cigarette pack and a cigarette attached to the rug and,
next to it, there “appeared to be . . . the skin of a breast sloughed off onto
the driveway.†Lying on the grass, three
or four feet away, was a cigarette lighter.
The skin of a hand that had degloved was on the ground. The entire area smelled of gasoline, but
Duncan could not find any gasoline container.
There were numerous beer and liquor bottles strewn throughout the backyard. At the entrance to Nunez’s garage Duncan
found a gold plastic headband and a purple shirt. There was burnt skin on the floor near the
bed and a purple bra on the couch.
Duncan
explained that a lit cigarette thrown into a pool of gasoline will not ignite
the gasoline because the cigarette is not hot enough. An open flame has to reach approximately
500 degrees in order to ignite gasoline vapors and start a fire.
The
police found Nunez about two months later at the Mexican border. When he was apprehended, his left arm, from
the wrist to the shoulder, had “severe deep tissue burns.†Duncan opined Nunez’s injury had been caused
by “a combination of flashback and a flammable substance [like gasoline] on the
skin.†Flashback occurs when an open flame
is applied to a flammable substance and “it suddenly ignites and
. . . people lose hair and . . . singe eyebrows, things
like that.†There were no burns on
Nunez’s palms, which showed “he never attempted to put this fire out with his
hands.†There were “protective patterns
on [Nunez’s] palms†that were consistent with having his hands closed around
something. In contrast, Rebolledo’s
hands were “very swollen red and moist†and her palms were “horribly burnt,â€
indicating she had tried to put out the flames with her hands.
Los
Angeles County Sheriff’s Detective Derek Yoshino, Duncan’s supervisor,
testified he also smelled the strong, unique odor of gasoline coming from
Rebolledo in the emergency room. Yoshino
opined the injuries to Nunez’s arm and hand were the result of being burned by
a flame or a fire. The fact there was no
fire damage to the palms of Nunez’s hands meant “the skin [of his palms] was
not at any point directly impinged against flame.†“There’s only two ways that a person is not going
to sustain a burn. We call them
protective patterns. Protective patterns
means either there’s something shielding it, directly protecting it from the
flame itself. So that could either be
clothing or that could be a hard object or something that is not highly
combustible, or it could be that it’s completely protected in the sense that
the flames can’t get into the inside of the palms because the fingers are
protecting it.†He opined the burns on
Nunez’s arm were “very consistent with flash burns from a gasoline type
fire.â€
It
was stipulated that clothing found at the scene had gasoline on it but had not
been burned. It was also stipulated that
Nunez had been convicted of a domestic violence offense (§ 273.5) arising
out of an incident in 2002.
Nunez
did not testify or present any evidence.
CONTENTIONS
1. There was insufficient evidence to convict
Nunez of any crime.
2. The trial court erred by refusing to instruct
the jury on voluntary intoxication.
3. The trial court erred by not instructing the
jury, sua sponte, on accident as a defense.
4. Nunez’s conviction must be reversed for
cumulative error.
5. Nunez is entitled to additional presentence
custody credits.
1. There
was sufficient evidence to sustain Nunez’s convictions.
Nunez
contends there was insufficient evidence to sustain any of his convictions
because there was no direct evidence he set Rebolledo on fire, and the
circumstantial evidence did not support a reasonable inference he had done so. This claim is meritless.
a. Legal
principles.
“In assessing a claim of
insufficiency of evidence, the reviewing court’s task is to review the whole
record in the light most favorable to the judgment to determine whether it
discloses substantial evidence – that is, evidence that is reasonable,
credible, and of solid value – such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.
[Citation.] The federal standard
of review is to the same effect: Under principles
of federal due process, review for sufficiency of evidence entails not the
determination whether the reviewing court itself believes the evidence at trial
establishes guilt beyond a reasonable doubt, but, instead, whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
[Citation.] The standard of
review is the same in cases in which the prosecution relies mainly on
circumstantial evidence. [Citation.] ‘ “Although it is the duty of the jury
to acquit a defendant if it finds that circumstantial evidence is susceptible
of two interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court[,] which must be convinced
of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably
justify the trier of fact’s findings, the opinion of the reviewing court that
the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment.†’ [Citations.]†’ [Citation.]â€
(People v. Rodriguez (1999) 20
Cal.4th 1, 11.)
The reviewing court is to presume the existence of every
fact the trier of fact could reasonably deduce from the evidence. (People
v. Ochoa, supra, 6 Cal.4th at p. 1206.)
“[E]ven though the appellate court may itself believe that the
circumstantial evidence might be reasonably reconciled with the defendant’s
innocence, this alone does not warrant interference with the determination of
the trier of fact.†(
118.) It does not matter that contrary
inferences could have been reasonably derived from the evidence. As our Supreme Court said in
1, while reversing an insufficient evidence finding because the reviewing court
had rejected contrary, but equally logical, inferences the jury might have
drawn: “The [Court of Appeal] majority’s
reasoning . . . amounted to nothing more than a different weighing of
the evidence, one the jury might well have considered and rejected. The Attorney General’s inferences from the
evidence were no more inherently
speculative than the majority’s; consequently, the majority erred in
substituting its own assessment of the evidence for that of the jury.†(Id.
at p. 12, italics added.)
b. Discussion.
Nunez
argues: “There was no evidence presented
that appellant was the cause of [Rebolledo being doused with gasoline]. The prosecution’s interpretation is that appellant
doused her with gasoline and lit the flame that caused the fire. But, at trial, there was no evidence
presented that appellant was the cause of the flame that ignited the vapors. The only evidence presented was the testimony
from the deputies that appellant had to have been close to the gasoline vapors
that ignited because of the injuries he sustained to his arms and his
forearms. That appellant sustained these
injuries did not only support the prosecution’s theory that appellant ignited
the vapors . . . .
Another entirely reasonable inference is that he was standing nearby
when the vapors ignited. [¶] It is a reasonable interpretation that
appellant could have doused Rebolledo with gasoline. Just as reasonable an interpretation is that
it was Rebolledo alone who doused herself with gasoline.
. . . The evidence
presented did not show that Rebolledo was set on fire but that she caught fire
– and there was no evidence to establish who did it or how it happened.†“A reasonable interpretation of the evidence
is that someone lit a cigarette with a lighter which caused the fire. But, again, the real question is who?â€
Nunez’s
argument is unpersuasive. Even if there
are two equally reasonable interpretations of what happened in a particular case,
that would be a question for the jury, not this court. “ ‘ “If the circumstances reasonably
justify the trier of fact’s findings, the opinion of the reviewing court that
the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment.†’ [Citations.]†’ [Citation.]â€
(People v. Rodriguez, supra, 20
Cal.4th at p. 11.) In this case,
however, there is little doubt the jury’s interpretation of the evidence was by
far the more reasonable.
Nunez’s
recounting of the evidence is deficient in several respects. There was in fact evidence showing he was the
one who lit the gasoline on fire; it is just that this evidence was
circumstantial rather than direct. In
addition, Nunez is ignoring both the consciousness of guilt evidence of his
flight from the scene, and the Evidence Code section 1109 propensity
evidence that he had previously been guilty of domestic violence. Nunez’s argument at trial in support of his
motion to dismiss for insufficient evidence (§ 1118.1) was that Rebolledo
accidentally spilled the gasoline on herself and then accidentally set herself
on fire while trying to light a cigarette.
But, as the Attorney General points out, the evidence showed “Rebolledo
was not simply splashed with gasoline; she was doused with so much
. . . it saturated her hair and remained dripping off her body when
she was brought into the emergency room.â€
This evidence tended to show there had been no accident.
Moreover,
although Rebolledo had been drenched with gasoline, no gasoline container was
found at the crime scene, indicating someone removed it. As Rebolledo and Nunez were apparently the
only people present when the fire occurred, and since Rebolledo could not have
removed the gasoline container, Nunez must have taken it when he fled.
There
was clearly sufficient evidence to sustain Nunez’s convictions.
2. Trial
court properly refused to instruct on voluntary intoxication.
Nunez contends the trial court
erred by denying his request to have the jury instructed on voluntary
intoxication in an attempt to negate the specific intent elements of attempted
murder, aggravated mayhem and torture.
This claim is meritless.
a. Background.
Rebolledo
testified she and Nunez had been drinking before the fire occurred, and
Detective Duncan found numerous beer and liquor bottles strewn around the
backyard. Defense counsel asked the
trial court to instruct the jury on voluntary intoxication, but the court
refused because there was insufficient evidence Nunez had been
intoxicated: “The victim did
testify that the defendant had been drinking a lot, and there was evidence
about bottles of beer and/or liquor bottles being in the yard, but there was no
evidence of any amount of liquor consumed other than drinking a lot[,] or how
it may have affected Mr. Nunez. So
the court cannot say that the victim’s statement that the defendant had been
drinking a lot would warrant an instruction on intoxication because there’s
nothing that indicates to the court that drinking a lot in any way affected the
sobriety of Mr. Nunez.â€
b. Legal
principles.
Section 29.4, subdivision (b), provides:
“Evidence of voluntary intoxication is admissible solely on the issue of
whether or not the defendant actually formed a required specific intent, or,
when charged with murder, whether the defendant premeditated, deliberated, or
harbored express malice aforethought.â€
However, “[a] defendant is entitled to [a voluntary intoxication]
instruction only when there is substantial evidence of the defendant’s
voluntary intoxication and the intoxication affected the defendant’s ‘actual
formation of specific intent.’ †(
635, 677; see People v. Seaton (2001)
26 Cal.4th 598, 666 [defense counsel’s failure to request intoxication
instruction could not have been prejudicial because, although defendant smoked
cocaine and drank gin, beer and wine before committing the offense, the
evidence “did not strongly suggest [these intoxicating substances] prevented
him from forming the intent to commit these crimesâ€]; People v. Williams, supra, 16 Cal.4th at p. 678 [intoxication
instruction unwarranted because “no evidence at all that voluntary intoxication
had any effect on defendant’s ability to formulate intentâ€];
1181 [intoxication instruction unwarranted where no evidence defendant’s beer
drinking “had any noticeable effect on his mental state or actionsâ€].)
The evidence here showed only that Nunez
had consumed some unknown quantity of alcohol; he does not cite any evidence
showing he was intoxicated or that his thought processes had been distorted.
The
trial court did not err by refusing to instruct the jury on voluntary
intoxication.
3. Trial
court did not err by failing to instruct on the defense of accident.
Nunez
contends the trial court erred by not instructing the jury, sua sponte, on an
accident defense. Alternatively, he
claims defense counsel was ineffective for not requesting the instruction. These claims are meritless.
Section 26
provides: “All persons are capable of
committing crimes except those belonging to the following classes: [¶] . . . [¶] Five – Persons who committed the act or made
the omission charged through misfortune or by accident, when it appears that
there was no evil design, intention, or culpable negligence.†However, “[a] claim of
accident . . . is not an affirmative defense that can trigger a
duty to instruct on the court’s own motion.â€
(People v. Jennings (2010) 50
Cal.4th 616, 674-675) “In
. . . , the Supreme Court affirmed a felony murder conviction
with a true finding the killing occurred during the course of a robbery,
rejecting a claim the trial court erred by failing to instruct on accident as a
defense where, in the process of stealing the victim’s car, the defendant ran
over her. ‘That the law recognizes a
defense of accident does not, however, establish that trial courts have a duty
to instruct on accident sua sponte.’ â€
(People v. Petronella (2013)
218 Cal.App.4th 945, 962.)
In
any event, without Nunez’s testimony there was no substantial evidence to
support an accident defense. Indeed, the
Attorney General convincingly argues that even had Nunez testified to a “two
accident†scenario, it would not have been believed: “Under an accident theory, appellant would
have had to light a cigarette lighter right next to Rebolledo, who had without
his knowledge somehow been doused with gasoline all over her body, thereby
causing her to ignite. . . .
[N]o reasonable juror could believe that Rebolledo’s body was
accidentally doused with gasoline, such that her hair was saturated, and that
then appellant, unaware that Rebolledo was covered in flammable liquid, accidentally
lit an open flame directly next to her.â€
Finally,
any error would have been harmless because, in connection with finding Nunez
guilty of attempted murder, aggravated mayhem and torture, the jury had to find
he acted with a specific intent to injure Rebolledo, a conclusion entirely at
odds with an accident defense. (See
1303, 1314-1316, disapproved on other grounds in People v. Anderson, supra, 51 Cal.4th at p. 998, fn. 3 [any
error in failing to instruct on accident defense was harmless because jury
found defendant guilty of attempted murder].)
4. Cumulative
error.
Nunez contends that, even if
harmless individually, the cumulative effect of these claimed trial errors
mandates reversal of his convictions.
Because we have found no errors, his claim of cumulative error
fails. (See People v. Seaton, supra, 26 Cal.4th at p. 639;
335.)
5. Presentence
custody credits.
Nunez contends, and the Attorney
General agrees, he was improperly denied any presentence custody credits
because the trial court apparently believed none could be earned by a defendant
sentenced to an indeterminate life term.
(See People v. Duff (2010) 50
Cal.4th 787, 793 [“The circumstance that a defendant is sentenced to an
indeterminate sentence does not preclude the earning of presentence conduct
credit.â€].)
An
incorrect calculation of custody credits results in an unauthorized sentence,
which may be corrected at any time. (
267, 270.) Because Nunez was convicted
of violent felonies, his presentence custody credits are limited to
15 percent of the presentence custody credits he would otherwise have
earned. (§ 2933.1, subd. (a).) Nunez was entitled to 455 days of actual
credit plus 68 days of conduct credit, for a total of 523 days of
presentence custody credit.
DISPOSITION
Affirmed
as modified. The judgment is modified to
reflect an award of 523 days of precommitment conduct credit and, as
modified, the judgment is affirmed. The
trial court is directed to prepare and forward to the Department of Corrections
and Rehabilitation an amended abstract of judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN,
P. J.
We concur:
CROSKEY,
J.
ALDRICH,
J.
name="_ftn1" title="">[1] All further
references are to the Penal Code unless otherwise specified.
