P. v.
Filed 9/11/12 P.
v. Zamora CA2/6
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
ROBERT ZAMORA,
Defendant and
Appellant.
2d Crim.
No. B231703
(Super.
Ct. No. 2009045826)
(Ventura County)
Robert Zamora appeals a
judgment following conviction of first degree murder, with findings that he
personally used a deadly and dangerous weapon, personally inflicted great
bodily injury upon the
victim, and committed the murder during a robbery. (Pen. Code, §§ 187, subd. (a), 189,
12022, subd. (b)(1), 12022.7, subd. (a), 190.2, subd. (a)(17)(A).)
personal infliction of great bodily injury, and modify the sentence to reflect
a one-year determinate term for personal use of a deadly weapon, but otherwise
affirm.
FACTS
AND PROCEDURAL HISTORY
In the early evening of December 15, 2009,
Mark Thomas, Jr., his father, and several friends found the body of Stanley
Parker lying in the street behind an industrial park on Arundell
Circle in Ventura. Parker had been stabbed repeatedly and his
throat had been cut. His backpack, a
bank debit card, and some coins were near his body which continued to bleed
from his wounds. The men reported the
finding to the police emergency dispatcher who called for paramedics and police
assistance.
Zamora
and Parker were friends and longtime employees of Spring Industries, a spring
manufacturing company, located in the Arundell
Circle industrial park. Parker did not have a vehicle, and Zamora
and other employees frequently drove him to a bus stop. At times, Parker lived with his sister in Thousand
Oaks or in a mobile home
parked in the Springs Industries parking lot.
On December 15, 2009,
Springs Industries paid its employees early.
During a lunch break, Zamora
and Parker went to an Oxnard
liquor store and cashed their paychecks before returning to work.
At the end of the
workday, employee Charles Smith asked Zamora
if he could borrow $20 as he was unable to cash his paycheck. Zamora
offered him a $100 bill and instructed him to obtain change at the nearby
Chevron gasoline station. Smith left
Spring Industries at 4:30
p.m. and arrived at the Chevron gasoline
station at 4:35 p.m. Zamora
and Parker arrived shortly thereafter in Zamora's
Ford Ranger truck. Parker walked inside
the station's convenience store and purchased cigarettes and a drink. Smith gave Zamora
$80 in change from the $100 bill. Zamora
informed Smith that he was driving Parker to the mall – a location where Parker
sometimes made a bus connection.
Approximately one hour
later, Thomas, his father, and their friends found Parker's body. They walked near the body to determine if
Parker was alive. One man stepped in
blood that had pooled around the body and left his footprints.
Ventura Police Officer
Michael McCaskill arrived at the crime scene at 5:46 p.m. He saw that blood and urine continued to flow
from Parker's body and that there were bloody footprints nearby. Other police officers arrived shortly
thereafter and, among other things, took photographs of the crime scene, the
bloody footprints, and the shoe soles of Officer McCaskill, the paramedics, and
the men who found Parker's body.
The bushes near Parker's
body were not disturbed. Near Parker's
body, police officers found his backpack, eyeglasses, lighter, cap, and coins,
but not his wallet or the murder weapon.
Doctor Janice Frank, the
Ventura County Chief Medical Examiner, performed an autopsy and determined that
Parker died from multiple stab wounds, including a "devastating"
incised neck wound that severed his carotid artery, larynx, and esophagus. The wounds were inflicted "every which
way," implying that the physical relationship between Parker and his
assailant changed constantly. Parker had
defensive wounds on his hands, wrist, and forearm, and abrasions on his knees
and elbows consistent with falling to the ground.
Doctor Frank removed and
examined Parker's clothing during the autopsy.
In his clothing pockets, she found an earnings statement from Springs
Industries for $767.65, a crushed box of cigarettes, and a broken glass pipe
that may have been used to smoke cocaine.
Zamora lived with his
erstwhile girlfriend, Paula Edwards, and her mother in an apartment on Channel
Islands Boulevard. He agreed to pay
one-third of the monthly rent, but frequently did not pay his share. At times, he gave Edwards his portion of the
rent, but would request its return a short time later. Zamora explained to Edwards that he
"owed money to people."
Approximately six months
prior to Parker's death, Zamora moved from the apartment because Edwards would
not lend him $260. He stated that he
"owed some people money" and would not return until he paid the
debt. Zamora returned to the apartment
within several weeks and stated that he "wouldn't owe people money
again." On December 10, 2009,
Zamora requested a loan from Edwards's deferred compensation account because he
again owed a debt. Edwards declined to
invade her account, but gave Zamora $260.
On December 15, 2009,
Zamora picked up Edwards from her workplace about 4:45 p.m. His knuckles were abraded and he stated that
he had injured them at work that day.
Zamora dropped off Edwards at their apartment and stated that he had to
pay a debt. Approximately five to ten
minutes later, he returned to the apartment and went upstairs and took a
shower. When Zamora returned downstairs,
he took a trash bag from the kitchen and suggested that they "do some
laundry" at the nearby Laundromat.
He went upstairs and returned with a bag of clothing.
At the Laundromat,
Zamora placed the clothing inside the washing machine while Edwards obtained
coins and detergent. While the clothing
(including Zamora's tennis shoes) was laundered, Zamora returned to the
apartment. He instructed Edwards to
stand in front of the washing machine.
She noticed that the water was a "pinkish color" and that
there appeared to be blood in the clothing.
When Zamora returned, he suggested that they purchase food from a nearby
restaurant and leave the clothing at the Laundromat. The following day, Ventura Police Officer
Daniel Stegner accompanied Edwards to the Laundromat where they found Zamora's
clothing in a basket.
Police officers examined
the interior of Zamora's truck and found blood on the seat and driver's
door. Laboratory testing of the swabbed
samples obtained from the truck interior revealed the DNA of the samples to be
that of Parker. Comparison of the bloody
shoe prints in the photographs of the crime scene with the soles of Zamora's shoes
provided "very strong support" for the conclusion that Zamora's shoes
made the shoe prints. Forensic scientist
Kristin Rogahn opined that Zamora's shoes likely were inked in Parker's blood
because his shoes were very worn and unlikely to have caused so many footprints
had he stepped in the blood only once.
Forensic laboratory
testing of Parker's and Zamora's blood samples revealed the presence of
marijuana cannabinoids. Analysis of
Parker's urine also revealed that he had ingested cocaine within 48 hours of
his death. Analysis of Parker's blood
did not reveal cocaine metabolite, however, indicating that he had not ingested
the drug immediately preceding his death.
Zamora testified that
after leaving the Chevron gasoline station, he and Parker went to Oxnard to buy
illegal drugs. Zamora was unable to find
a drug supplier, however, and Parker suggested that they drive to the Arundell
Circle industrial park and buy cocaine from a homeless man there. Zamora returned to the industrial park and
Parker pointed out the homeless man, a Caucasian man with blonde hair who was
wearing soiled clothing. Parker and the
homeless man walked out of sight. When
Parker did not return, Zamora drove to find him. Instead, he found Parker's lifeless
body. Zamora testified that he tried to
pick up Parker, but he appeared to be dead.
Frightened and panicked, he walked back and forth near the body. He stated that he did not summon police
assistance because it looked like "a drug deal went bad."
Zamora testified that he
did not kill Parker and denied owing money to anyone. Zamora admitted that he spent $100 to $150 on
marijuana and crack cocaine each week.
He stated that he used money from his paycheck as well as Edwards's
money to buy drugs. Zamora admitted that
he had "a significant crack cocaine problem" in December 2009, and
that he owed "a lot of money to a lot of people."
During an interview with
police officers, Zamora stated that he did not see Parker again after dropping
him off at the Chevron gasoline station and that he did not take his bloody clothing
to the Laundromat. The officers then
brought Edwards into the interview room and left Zamora and Edwards alone. Zamora stated to Edwards that she should not
have informed police officers about the bloody clothing at the Laundromat, and
that he might have seen Parker's killer.
He then asked if she thought he "should confess." Zamora also stated: "Baby, I saw somebody do it and I
couldn't stop them because they were – they were going to try and kill
me." Zamora later stated that the
prosecutor "will never be able to convict me without a murder
weapon," and that if he admitted his presence at the crime scene, he might
be spared the death penalty.
The jury convicted
Zamora of first degree murder and found that he personally used a deadly and dangerous
weapon, personally inflicted great bodily injury upon the victim, and committed
the murder during a robbery.
(§§ 187, subd. (a), 189, 12022, subd. (b), 12022.7, subd. (a),
190.2, subd. (a)(17)(A).) The trial
court sentenced Zamora to an indeterminate term of life without the possibility
of parole, and to a four-year determinate term for the personal weapon use and
great bodily injury allegations. The
court ordered him to pay a $10,000 restitution fine, a $10,000 parole
revocation restitution fine (stayed), a $30 court security fee, a $400 criminal
conviction assessment, as well as restitution to the victim's family. (§§ 1202.4, subd. (b), 1202.45, 1465.8;
Gov. Code, § 70373.) The court
awarded Zamora 437 days of presentence custody credit.
Zamora appeals and
contends that: 1) insufficient evidence
supports the judgment, and 2) the trial court improperly calculated the
determinate term.
DISCUSSION
I.
Zamora argues that he
has been denied due process of law under the California and federal Constitutions
because the judgment is not supported by sufficient evidence.
First, Zamora asserts
that the prosecutor did not establish that he killed Parker, only that he had
the opportunity to do so. (
831, 838 ["No one witnessed the shooting, no one placed defendant in the
apartment at the time of the shooting, no one saw defendant with a weapon, and
no one identified defendant with any particular weapon"].) He points out that there is no evidence that
he quarreled with Parker and contends there is no evidence that he had a motive
to kill him. Zamora points to evidence
that he had been paid on December 15, 2009, and therefore had funds to pay his
rent and other debts. He adds that
police officers did not recover the knife that was used to kill Parker.
Second, Zamora argues
there is no evidence that he robbed Parker, asserting that he was not found in
possession of Parker's property. He
contends that Parker may not have possessed money on his person at the time of
his death because he might have placed it in his mobile home.
Third, Zamora contends
the prosecution did not establish that he formed the intent to rob Parker
before killing him. (
1032, 1077; People v. Davis (2005) 36
Cal.4th 510, 564-565 ["an intent to steal that arises after the infliction of the fatal wounds cannot support a
felony-murder conviction"].)
Finally, Zamora argues
there is insufficient evidence of premeditation and deliberation, asserting
that the killing was a "mindless frenzy." He claims that no category of evidence set
forth in People v. Anderson (1968) 70
Cal.2d 15, 26-27, was proven.
In reviewing the
sufficiency of evidence to support a conviction, we examine the entire record
and draw all reasonable inferences therefrom in favor of the judgment to
determine whether there is reasonable and credible evidence from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. (People v. Streeter (2012) 54 Cal.4th 205, 241.) Our review is the same in prosecutions
primarily resting upon circumstantial evidence.
(Ibid.) "'An appellate court must accept logical
inferences that the jury might have drawn from the evidence even if the court
would have concluded otherwise.'" (
Our review does not redetermine the weight of the evidence or the
credibility of witnesses. (
1129, overruled on other grounds by People
v. Rundle (2008) 43 Cal.4th 76, 151.)
Circumstantial evidence
may be sufficient to connect a defendant to a crime and may prove his guilt
beyond a reasonable doubt. (
504.) If the factual findings are
reasonably supported by the evidence and all reasonable inferences therefrom, the
opinion of the reviewing court that the circumstances might support a contrary
finding does not warrant reversal of the judgment. (Ibid.)
Sufficient evidence and
reasonable inferences therefrom establish that Zamora robbed Parker and killed
him during the robbery.
Coworker Smith saw
Zamora and Parker together at the Chevron gasoline station, and Zamora informed
Smith that he was driving Parker to the mall.
Within an hour, passers-by found Parker's body in the industrial park. Bloody footprints at the crime scene matched
the soles of Zamora's shoes recovered from the Laundromat the following
day. Based on the number of footprints
at the scene, Zamora's shoes were likely inked in blood more than once. Parker's blood was inside Zamora's truck (the
seat, door handle, and steering wheel) and had soaked through Zamora's
clothing. Forensic analysis established
that Zamora's shoes had blood splatter above and in front of the shoes that was
not consistent with his walking through blood.
Zamora also had cuts on his knuckles when he picked up Edwards at her
workplace.
Following the crime,
Zamora showered and laundered his bloody clothing at the Laundromat, thereafter
abandoning it. He instructed Edwards to
stand in front of the washing machine to prevent others from seeing the
blood. Zamora also lied to police
officers; he stated that he left Parker at the Chevron gasoline station and
denied visiting the Laundromat. Zamora
informed Edwards that "they will never be able to convict me without a
murder weapon." It is a reasonable
inference from his statement that Zamora knew police officers did not recover
the murder weapon because he had disposed of it.
Although Zamora's motive
is not an element that the prosecution was required to establish, evidence establishes
that he was spending $100 to $150 weekly on marijuana and crack cocaine. He testified that he had a
"significant" crack cocaine problem and that he owed "a lot of
money to a lot of people." Days
prior to Parker's murder, Zamora asked Edwards to invade her deferred
compensation account and lend him money.
On the day of Parker's
murder, Zamora and Parker cashed their paychecks at a liquor store, so Zamora
knew that Parker had a large amount of cash.
At the Chevron gasoline station, Parker later purchased cigarettes and a
drink. Police officers recovered neither
currency nor a wallet from Parker's body or his backpack. His debit card lay near his body, permitting
the reasonable inference that Zamora had rummaged through his clothing. When Zamora returned home that evening, he
paid Edwards his share of the rent and left the apartment "to pay someone
some money." Moreover, analysis of
money recovered from Zamora at the police station disclosed the presence of
blood. Thus, there is substantial evidence
that Zamora murdered Parker in the course of robbing him.
There are also
reasonable inferences from the evidence that Zamora intended to rob Parker prior to killing him. Zamora was in debt and had a significant
crack cocaine problem. He knew that
Parker had a large amount of money from cashing his paycheck. Direct evidence of the defendant's mental
state is "rarely available" except through his testimony, and thus
must be established circumstantially. (
558.)
Moreover, there is
sufficient evidence to support Zamora's conviction of a premeditated and
deliberate killing. (§ 189.) "Premeditation" means "thought
over in advance" and the process does not require any extended period of
time. (People v. Halvorsen (2007) 42 Cal.4th 379, 419.) "Deliberation" refers to careful
weighing of considerations in forming a course of action. (Ibid.)
In People v. Anderson, supra,
70 Cal.2d 15, 26-27, our Supreme Court identified three categories of evidence
relevant to determining premeditation and deliberation: planning activity, motive, and manner of
killing. (People v. Streeter, supra,
54 Cal.4th 205, 242.) "'However,
these factors are not exclusive, nor are they invariably
determinative.'" (
The factors merely guide the reviewing court in assessing whether the
evidence supports an inference that the killing occurred as the result of
preexisting reflection rather than an unconsidered or rash impulse. (Ibid.)
Here there is sufficient
evidence of each factor. Zamora drove
Parker to the industrial park after most of the businesses had closed for the
day. He had a knife with him and knew
that Parker had a substantial sum of money from his paycheck. Zamora's motive for the killing was to obtain
money to pay his debts and support his drug addiction. As for manner of killing, Zamora slit
Parker's throat, cutting through his neck to his spine, ensuring that he would
die and be unable to identify him.
People v. Blakeslee, supra,
2 Cal.App.3d 831, does not assist Zamora.
There, the defendant, accused of killing her mother, was at the crime
scene before and after the killing. (
occasion, gave a false alibi, and lied about her brother's rifle. (Id.
at p. 838.) The murder weapon was not
recovered or otherwise connected to her.
(Id. at p. 840.) The reviewing court concluded that the
evidence was insufficient and that defendant's brother had equal opportunity
and motive to commit the crime. (
Our Supreme Court has
distinguished Blakeslee,
stating: "When we decide issues of
sufficiency of evidence, comparison with other cases is of limited utility,
since each case necessarily depends on its own facts." (People
v. Thomas (1992) 2 Cal.4th 489, 516.)
Here the circumstances indicating Zamora's guilt are stronger than those
in Blakeslee. Zamora's footprints were found at the crime
scene, his knuckles were injured, Parker's blood was on his clothing and in the
interior of his truck, blood was found on money taken from him at the police
station, and he made statements to Edwards implying guilt. In our analysis, we focus on the evidence
presented at trial rather than evidence that was not presented. (People
v. Story (2009) 45 Cal.4th 1282, 1299 ["The Court of Appeal erred in
focusing on evidence that did not exist rather than on the evidence that did
exist"].)
II.
Zamora points out that
the trial court erred by imposing a one-year sentence for the personal
infliction of great bodily injury because section 12022.7, subdivision (g)
provides that the sentence enhancement does not apply to murder. He adds that the court erred by sentencing
him to a three-year sentence for personal use of a knife, instead of the prescribed
one year. (§ 12022, subd. (b)(1).) The Attorney General concedes.
The trial court shall
amend the abstract of judgment to: 1)
strike the three-year sentence for the great bodily injury allegation, and 2)
reflect a one-year determinate term for the personal use of a deadly weapon. The court shall forward the amended abstract
to the Department of Corrections and
Rehabilitation. The judgment is
otherwise affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
>
Charles W.
Campbell, Jr., Judge
Superior
Court County of Ventura
______________________________
Carol K. Lysaght, 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, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising
Deputy Attorney General, Eric E. Reynolds, Deputy Attorney General, for
Plaintiff and Respondent.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code unless stated otherwise
to sections 12022 and 12022.7 are to versions in effect prior to repeal
effective January 1, 2012.
