P. v. Pelayo
Filed 12/6/12 P. v. Pelayo CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
EDGAR EDUARDO PELAYO,
Defendant and Appellant.
B235429
(Los Angeles
County
Super. Ct.
No. BA376850)
APPEAL from
a judgment of the Superior Court
of
County. Sam Ohta,
Judge. Affirmed.
Verna
Wefald, 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, Scott A. Taryle and
Kimberley J. Baker-Guillemet, Deputy Attorneys General, for Plaintiff
and Respondent.
_________________________
Edgar
Eduardo Pelayo, also known as Jose Bonilla and Edgar Bonilla, appeals from the
judgment entered upon his conviction by jury of
appellant used a dangerous weapon, a knife, within the meaning of section
12022, subdivision (b)(1). The trial
court found to be true the allegations that appellant had suffered a prior
felony strike within the meaning of sections 1170.12, subdivisions (a) thorough
(d) and 667, subdivisions (b) through (i) and a prior prison term within the
meaning of section 667.5, subdivision (b).
After denying appellant’s Romero
the trial court sentenced him to an aggregate state prison term of 32 years to
life. Appellant contends that (1) there
is insufficient evidence to support his conviction of second degree murder, and
(2) the trial court abused its discretion in denying his Romero motion.
We affirm.
FACTUAL BACKGROUND
Background
In October
2010, appellant lived in a multi-level apartment on Winona Boulevard with his
sister, Anna, and his younger brother, 32-year-old Phillip Pelayo (Phillip)
(appellant and Phillip collectively “the brothersâ€). Jaime Ruiz (Ruiz), appellant’s 31-year-old
nephew lived across the street with his family.
Ruiz’s living room window had a clear view of the brothers’ apartment.
In the afternoon of October 10, 2010, the brothers were
in their apartment, drinking alcohol and watching football. Between 4:00
and 4:30 p.m., Ruiz went to their
apartment to ask Phillip for a ride to the market, as Ruiz did not have a
car. Appellant was downstairs in the
living room and appeared intoxicated and anxious. He demanded Ruiz drive him to “score some
drugs.â€
Ruiz went upstairs to Phillip’s
bedroom. Phillip was lying in bed. Ruiz asked him for a ride to the store, but
Phillip said he was “buzzed.†Ruiz said
that he would walk. According to Ruiz,
Phillip was not a violent person or a violent drunk. Ruiz had never seen him violent with
appellant.
When Ruiz went downstairs to leave,
appellant was at the foot of the stairs and again asked for a ride. He appeared to need drugs badly. Ruiz told him he would not take him anywhere. Appellant told Ruiz to wait while he went
upstairs to get the car keys and said, “You know you’re going to take me,
fucking asshole.†He touched Ruiz’s
shirt. Ruiz responded, “There you go
with that bullshit again.†Ruiz told
appellant he was leaving and walked back to his apartment. It took Ruiz a minute or so to walk across
the street, and as he did, he heard appellant yell loudly, “fuck.â€
Petros Agazaryan (Agazaryan) lived
next door to the brothers. A six to
seven foot chain-link fence separated their properties. On the afternoon of October 10, 2010, Agazaryan was on the ground
floor balcony with his children. He
heard one of the brothers say, “I’m trying to sleep.†He then heard them fighting and what sounded
like glass breaking and the word “motherfucker†exchanged. A fan fell from the brother’s second floor
window onto his property, in front of his balcony. He screamed for the brothers to be careful
and threw the fan back over the fence.
One of the brothers yelled “sorry†from the window.
Shortly after arriving back at his
apartment, Ruiz looked out his window and saw Phillip staggering down the
driveway with blood on his shirt, holding his chest. Ruiz ran to Phillip, who collapsed, falling
face first. Appellant was walking three
to five feet behind Phillip.
Ruiz turned Phillip over, lifted
his shirt and saw two stab wounds. Ruiz
asked appellant, “What the fuck did you do to him.†Appellant responded, “I barely touched
him.†Ruiz tried to put pressure on the wounds. Appellant made no attempt to help save
Phillip. Instead, in response to Ruiz’s
last statement, appellant swung at him, grazing the top of his head. Ruiz ducked, got up and hit appellant
twice. Appellant fell to the ground, hit
his head on a parked truck, the right side of his body hitting the ground.
Appellant got up and went into his
apartment, and Ruiz resumed helping Phillip.
Appellant reemerged from the apartment wearing a different shirt. He did not speak with anyone or ask how
Phillip was doing. He ran up the street,
chased by Ruiz. Ruiz caught and tackled
appellant. They rolled on the ground
until appellant pushed Ruiz aside, got up and continued running. Ruiz eventually lost sight of appellant, and
then kept calling appellant’s cell phone, which calls were unanswered. Later, appellant called Ruiz back and said,
“You fucking bitch. Fucking snitch. You’re going to snitch on me?†Appellant then hung up the phone. Ruiz called him back, but appellant did not
answer.
Phillip was transported to the
hospital and died.
Appellant’s flight and arrest
Appellant
ran to an old friend, Edward Macias’s (Macias), house. He was in a daze and appeared distraught,
confused and intoxicated. He had a few
scratches on his face and had blood on his shirt. He told Macias that he had gotten into a
fight with his brother and stabbed him with a knife. He said that Phillip “got in his face,†they
argued, and appellant lost it and “just stuck him in the side.â€
Appellant
told Macias that Macias had to take him to the bus depot. Appellant did not appear to Macias to be in
his right mind. Macias told him that he
needed to go to the police. Appellant
said he would, but first needed time to think.
Macias took him to the bus.
Appellant demanded money from Macias, who gave him $70. At the bus station, Macias bought one ticket
to Calexico, in appellant’s name. Appellant
objected, and Macias put the ticket in Macias’s name. Appellant told Macias that he loved
Phillip. When Macias got home he saw a
mug shot of appellant on the television, asking that anyone with information
contact the police. Macias immediately
did so.
On October 11, 2010, shortly after
midnight, Officer Jose Loera, of the San Bernardino Police Department was
directed to apprehend appellant from a bus bound for Mexico. He boarded the bus in San Bernardino and, based
on the description he had received, approached appellant, who said, “I’m the
one you’re looking for.â€
Crime scene investigation
Criminalist Erol Ergun (Ergun)
recovered “a knife with red stains and about a five-inch blade with a black
handle†from the kitchen floor. The
blood on the knife matched Phillip’s blood.
Blood was found in the kitchen, in the first floor bathroom and leading
outside the apartment. No blood was
found upstairs. A pair of blue shorts
and black Nike Air shoes were found with red stains on them. The shoes screened positive for blood.
Detective Timo Illig responded to
the crime scene that evening. He
believed that there had been some kind of struggle in the brothers’
bedroom. The police found a fan on
Phillip’s bed that was missing a fan cover and that was still spinning. A fan cover was leaning against the fence in
the yard below. A lampshade was on the
bed and a broken wooden, rosary was on the floor to the right of the bed. The lamp was outside on the ground near the
fan cover.
Appellant had a bruise on the left
side of his back and a mark on his left arm.
The autopsy
The autopsy
on Phillip revealed two fatal
stab wounds to his chest. The stab
wound that was higher on the chest cut through bone in the rib cage, tore the
pericardial sac around the heart and made three unconnected cuts inside the
heart, the deepest of which was three and one-half inches. These three wounds could have occurred if the
knife was pulled out a bit, moved and reinserted or if Phillip had moved his
body.
The second
stab wound went through Phillip’s diaphragm and cut the left side of his
liver. In order to pierce the diaphragm
and strike the liver, a degree of force would be required because “the
diaphragm is a very tough muscle, and it’s very difficult to get through. Even with a scalpel blade, you have to use
force to, obviously, cut it.†Phillip
also had what could have been “defensive†injuries to his
consistent with his having punched someone or something. Phillip’s blood alcohol level was .17.
DISCUSSION
I. Sufficiency of the evidence
A. Contention
Appellant contends that there is
conviction of second degree murder. He
argues that there was “absolutely no evidence presented of express malice†and
insufficient evidence of implied malice, as there was no evidence of “what
appellant was thinking at the time of the fight or what precipitated the
fight . . . [or] that appellant knew his conduct endangered
life and acted with a conscious disregard for life.†He therefore asks that we reduce his
conviction to voluntary manslaughter. We
find that there was sufficient evidence to support the second degree murder
conviction and therefore decline to reduce it.
B. Standard of review
“In assessing the sufficiency of
the evidence, we review the entire record in the light most favorable to the
judgment to determine whether it discloses 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.
[Citations.]†(People v. Bolin
(1998) 18 Cal.4th 297, 331; People v.
Hovarter (2008) 44 Cal.4th 983, 996–997.)
We resolve all conflicts in the evidence and questions of credibility in
favor of the verdict, and indulge every reasonable inference the jury could draw
from the evidence. (People v. Autry (1995) 37 Cal.App.4th
351, 358.) This standard applies
whether direct or circumstantial evidence is involved. (People
v. Catlin (2001) 26 Cal.4th 81, 139.)
C. Elements of second degree murder
Murder is the unlawful killing of a
human being with malice aforethought. (§
187, subd. (a).) Second degree murder is
the unlawful killing of a human being with malice aforethought that is not willful,
deliberate and premeditated. (§§ 187,
subd. (a), 189; People v. Nieto Benitez (1992)
4 Cal.4th 91, 102.)
Malice may be express or
implied. (§ 188; People v. Nieto Benitez, supra, 4 Cal.4th at p. 102.) Express malice exists when there is a
“deliberate intention unlawfully to take away the life of a fellow
creature.†(§ 188.) Implied malice exists “when no considerable
provocation appears, or when the circumstances attending the killing show an
abandoned and malignant heart†(§ 188), or when one deliberately commits an
intentional act naturally dangerous to human life knowing “‘that his conduct
endangers the life of another and who acts with conscious disregard for
life.’†(People v. Lasko (2000) 23 Cal.4th 101, 107; People v. Martinez (2003) 31 Cal.4th 673, 684.) Implied malice requires that the defendant act with a wanton
disregard for the high probability of death (People v. Schmies (1996) 44 Cal.App.4th 38, 46, fn. 4), thereby
requiring a subjective awareness of a
high degree of risk. (
296, disapproved on other grounds in People
v. Sanchez (2001) 24 Cal.4th 983, 991, fn. 3.) It is not enough that a reasonable person would have been aware of the risk. (People
v. Watson, supra, at pp. 296–297.)
Malice may be, and usually must be, proved by
circumstantial evidence. (See People
v. Lashley (1991) 1 Cal.App.4th 938, 945–946; People v. James (1998) 62 Cal.App.4th 244, 277.) “One who intentionally attempts to kill
another does not often declare his state of mind either before, at, or after
the moment he shoots. Absent such direct
evidence, the intent obviously must be derived from all the circumstances of
the attempt, including the putative killer’s actions and words. Whether a defendant possessed the requisite
intent to kill is, of course, a question for the trier of fact.†(People
v. Lashley, supra, 1 Cal.App.4th at pp. 945–946.)
D. Evidence of express and implied malice
sufficient here
Though conviction of second degree
murder requires no proof of actual intention to take life (People v. Butts (1965) 236 Cal.App.2d 817, 827), there is ample
circumstantial evidence here of such intent to kill (express malice), as well
as awareness of the risk to life and action in conscious disregard of it
(implied malice).
At the time of Phillip’s murder,
appellant was anxious and in need of drugs.
He asked his nephew Ruiz, who had come to the brothers’ apartment from
his residence across the street, to take him to purchase drugs, but Ruiz
refused. Appellant became angry. Phillip was upstairs lying in his bed and was
“buzzed.†When Ruiz left the brothers’
house, appellant headed upstairs.
Agazaryan, the brothers’ next door
neighbor, heard one of the brothers, presumably Phillip, who was in bed, yell,
“I’m trying to sleep.†He then heard
yelling and glass breaking and the word “motherfucker†exchanged. He saw a fan come flying from the brothers’
second floor window onto Agazaryan’s property.
When Ruiz arrived back at his
apartment, from his window he saw Phillip exit his apartment holding his chest,
followed closely by appellant. Ruiz ran
to Phillip who collapsed and fell.
The nature of
Phillip’s wounds fully support an inference that appellant intended to kill him
or acted with the subjective awareness of the risk that he might do so, even if
that was not his intention. Appellant
stabbed Phillip not just once but twice in the chest area, known to house vital
organs. The deepest of the cuts was
three and one-half inches. One stab
struck Phillip’s heart and the other struck his liver. Both stab wounds required substantial force
to pierce through bone in the rib cage and cartilage and cut the heart three
times, suggesting more than an effort to simply fend off an attacker. The stab wound that caused three separate
cuts to Phillip’s heart, according to the medical examiner, was consistent with
pulling the knife out a bit and then moving and reinserting it. This type of forceful attack with deep
thrusts of the knife into Phillip supports an inference that it was an attempt
to inflict deadly injuries and did not appear to be minor defensive cuts aimed
at dissuading an aggressor. Phillip also
had what could have been defensive wounds on his arms and hands and abrasions
on his face.
Just as
shooting at a person from very close range is a strong indicator of an intent
to kill (People v. Chinchilla (1997)
52 Cal.App.4th 683, 690; People v. Lashley, supra, 1 Cal.App.4th at p. 945 [“The very act of firing a
.22-caliber rifle toward the victim at a range and in a manner that could have
inflicted a mortal wound had the bullet been on target is sufficient to support
an inference of intent to kill. . . .†Shooting at point blank range “undoubtedly
creates a strong inference that the killing was intentionalâ€]), so too is
forcefully stabbing a person in areas of the body known to house vital
organs. When it is proved that the
defendant assaulted the victim with a dangerous weapon in a manner endangering
life and resulting in death, “‘malice is implied from such assault in the
absence of justifying or mitigating circumstances.’†(Jackson
v. Superior Court (1965) 62 Cal.2d 521, 525.)
Appellant’s conduct after the
stabbing further buttressed the jury’s finding of intent to kill Phillip or
conscious disregard for Phillip’s life.
As Phillip staggered out of the apartment with appellant close behind,
appellant showed no remorse or concern for the brother he later claimed to
love. Appellant made no effort to render
aid to Phillip and even distracted Ruiz, who was aiding Phillip, by swinging
his fist at Ruiz when Ruiz asked appellant what he had done. After Ruiz hit appellant twice, appellant
went inside his residence, changed his clothes, and fled to a friend’s house,
reflecting a consciousness of guilt. He
admitted to his friend that Phillip “got in his face,†they argued and
appellant “lost it†and “just stuck him in the side.†Appellant attempted to flee to Mexico but was
arrested when his bus was intercepted by a San Bernardino police officer. When the officer boarded the bus, appellant
said, “I’m the one you’re looking for.â€
These facts fully support the jury
finding beyond a reasonable doubt that appellant had either express or implied
malice when he stabbed Phillip multiple times.
II
Romero motion
A. Background
Appellant’s criminal record as
reflected in the probation report was as follows: (1) May 1987 conviction of possession of
a controlled substance (Health & Saf. Code, § 11350, subd. (a)) for
which he received 36 months probation, (2) December 1989 conviction of
kidnapping (§ 207, subd. (a)) for which he received five years probation on
condition he serve 365 days in county jail, (3) August 1989 conviction of
battery (§ 242) for which he received 24 months summary probation with 12 days
in county jail, (4) September 1992 conviction of theft of personal
property (§ 484, subd. (a)) for which he received 24 months summary probation
and one day in jail, (5) April 1994 conviction of driving under the influence
(Veh. Code, § 23152, subd. (a)) for which he received 60 months summary probation
and 68 days in county jail, (6) November 1996 conviction of obtaining telephone
service by fraud (§ 502.7, subd. (a)(5)) for which he received four years in
state prison, (7) January 2005 conviction of battery of former spouse for which
he received 36 months summary probation and 180 days in county jail, and (8)
March 2005 conviction of assault with a deadly weapon (§ 245, subd. (a)(1)) for
which he received three years state prison.
In this matter, appellant was
convicted of second degree murder, with a trial court finding that he had
suffered a prior felony strike and prior prison term. The trial court sentenced him to an aggregate
sentence of 32 years to life calculated as follows: 15 years to life for the murder, doubled to
30 years to life as a second strike, plus one year for the deadly weapon use
enhancement (§ 12022, subd. (b)(1)) and one year for the prior prison term
enhancement (§ 667.5, subd. (b)).
At the sentencing hearing,
appellant spoke on his own behalf and stated:
“To my sister Anna and Carlos, I’m very sorry for that incident that
happened that day. I know it was a
tragic day for them, too, and especially the rest of my family. I wish I could remember what happened that
day, but I can’t. I know I’m supposed to
protect my brothers and I’m the one that hurt him and I’m wrong for that. I just want them to know that I’m always
going to love him no matter what, and I accept the punishment that is going to
be given to me today, your Honor. And I
just want to apologize to them for this tragic event.â€
Appellant filed a
1989 prior strike for kidnapping. While
acknowledging that the present offense was serious, he argued that the prior
strike was remote in time, he was only 20 years old at the time of that
offense, it was comparatively minor resulting from an argument with his
girlfriend for which he was only sentenced to probation, he was a 40-year-old
diabetic who would not survive in jail, and he was remorseful for his actions. The prosecutor objected to dismissing the
strike.
The trial court denied the
discretion to dismiss a prior strike. It
considered the circumstances of the current offense, the nature and
circumstances of the prior offense and appellant’s background, character and
prospects. While the trial court
acknowledged that the prior felony strike was old, it also observed that
appellant had sustained numerous misdemeanor and felony violations since then,
including a domestic violence conviction in 2005. The court stated: “Although the strike prior within the realm
of kidnapping may have been less aggravated, the nature and circumstances of
his current conviction, the murder, is substantial and weighty.†The trial court also found that the defendant
was “a repeat offender of crimes of violence.â€
Appellant contends that the trial
court abused its discretion in denying his Romero
motion. He argues that the trial
court failed to consider his poor health and addictions as well as his extreme
remorse.
C. Standard of Review
We review the trial court’s
discretion. (People v. Williams (1998) 17
Cal.4th 148, 158; Romero, supra, 13 Cal.4th at p. 504.) Where the record indicates that the trial
court balanced the relevant facts and reached an impartial decision in
conformity with the spirit of the three strikes law, we will affirm the trial
court’s ruling, even if we might have ruled differently in the first instance. (People v. Myers (1999) 69 Cal.App.4th
305, 310.) “‘[A] decision
will not be reversed merely because reasonable people
disagree. “An appellate tribunal is
neither authorized nor warranted in substituting its judgment for the judgment
of the trial judge.â€â€™â€ (People
v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978 (Alvarez).) The trial court “is presumed to
have considered all of the relevant factors in the absence of an affirmative
record to the contrary.†(People v.
Myers, supra, at p. 310.)
D. Applicable principles
Section 1385 provides in part: “The judge . . . may, either
of his or her own motion or upon the application of the prosecuting attorney,
and in furtherance of justice, order an action to be dismissed.†(§ 1385, subd. (a).) Romero held that trial courts have
authority to strike a prior conviction pursuant to section 1385. (Romero,
supra, 13 Cal.4th at pp. 529–530.)
In deciding whether to do so, the trial court must take into account the
defendant’s background, the nature of his current offense and other
individualized considerations. (Id.
at p. 531.) Determining what
constitutes “‘in furtherance of justice’†entails consideration “‘“both of the
constitutional rights of the defendant, and the interests of society
represented by the People, . . .†. . . At the very least, the
reason for dismissal must be “that which would motivate a reasonable
judge.â€â€™â€ (Id. at
pp. 530–531.) Thus, in deciding
whether to strike a prior conviction, “the court in question must consider
whether, in light of the nature and circumstances of his present felonies and
prior serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the
scheme’s spirit, in whole or in part, and hence should be treated as though he
had not previously been convicted of one or more serious and/or violent
felonies.†(People v. Williams,
supra, 17 Cal.4th at p. 161.)
“‘The burden is on the party
attacking the sentence to clearly show that the sentencing decision was
irrational or arbitrary. . . .
In the absence of such a showing, the trial court is presumed to have
acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on
review.’†(Alvarez,
contrary, that the trial court considered all relevant criteria (
Cal.App.4th 822, 836) and knew and applied the correct statutory and case law (
1416, 1430).
Striking a serious felony is an
extraordinary exercise of discretion and is reserved for extraordinary
circumstances (see People v. Philpot (2004)
122 Cal.App.4th 893, 905), such as where the trial court is not aware of its
discretion or considers impermissible factors.
(Ibid.) It only occurs when reasonable minds could
not differ that the criminal falls outside the spirit of the three strikes
scheme. (People v. Carmony (2004)
33 Cal.4th 367, 378.)
We conclude that the trial court
did not abuse its discretion in denying appellant’s request to dismiss his
prior felony strike. First, we observe
that the trial court was fully aware of its discretion to dismiss the prior
strike and thoroughly articulated the appropriate legal analysis required in
making the determination of whether to do so.
Thus, this is not one of those extraordinary cases in which the
the record reflects that the trial court was unaware of its discretion to
dismiss a prior felony strike. (
Cal.App.4th at p. 905.)
The trial court appropriately
considered the seriousness of the charged offense, indicating that it was at
the top of the list of serious offenses.
While it acknowledged that the prior felony strike might not have been
the most serious of offenses, it noted that the record before the court did not
fully indicate the underlying facts of that matter. Simply because the prior strike was remote in
time did not mandate its dismissal. No
case law compels a judge to strike a prior conviction because it is old. (See People v. Gaston (1999) 74
Cal.App.4th 310, 320 [reversed trial court order striking a 1981 prior
conviction as an abuse of discretion because of the defendant’s “unrelenting
record of recidivism,†characterizing him as “the kind of revolving-door career
criminal for whom the Three Strikes law was devisedâ€].)
While appellant’s criminal record
is not the worst that unfortunately has come before us, there were regularly
committed crimes over the years, several of which involved violence, including
2005 convictions of battery of a former spouse and assault with a deadly weapon.
We agree with the trial court that this
is not the type of record that removes appellant from the spirit of the
three-strikes law.
Appellant argues
that the trial court failed to consider appellant’s poor health, addictions and
his extreme remorse. Simply because the
trial court did not specifically refer to those factors in explaining its
decision does not mean that it did not consider them. The trial court “is presumed to have considered all of the
relevant factors in the absence of an affirmative record to the contrary.†(People v. Myers, supra, 69 Cal.App.4th at p. 310.) These factors had been brought to the trial
court’s attention in the briefing and oral argument. Further, the trial court was well justified
in giving no credence to appellant’s new-found remorse expressed minutes before
he knew he was going to be sentenced, when that remorse was nowhere to be seen
when appellant failed to aid his dying brother, or reflect even the slightest
concern for what he had done.
DISPOSITION
The
judgment is affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
P. J.
BOREN
_______________________________,
J.
CHAVEZ
title="">
[1] All
further statutory references are to the Penal Code unless otherwise indicated.
The jury found appellant not
guilty of first degree murder.
name="_ftn2" title="">[2]
13 Cal.4th 497 (Romero).
