P. v. Enciso

Filed 10/23/06 P. v. Enciso CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI , § 6 of the Cal. Const.) Affirmed in part and reversed in part.

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Kelley A. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Fausto Enciso appeals his second degree murder conviction, contending insufficiency of the evidence to support the subjective component of implied malice, prosecutorial misconduct during closing argument, and trial court error in concluding he was presumptively ineligible for probation under Penal Code section 1203, subdivision (e)(3) (all further statutory references are to this code), without any findings by either the court or the jury. Agreeing with the last argument, we reverse the trial court’s denial of probation and remand the matter for resentencing. We affirm the judgment in all other respects.

FACTS

One day in April 2003, at about 12:30 p.m., defendant went to the apartment of his son’s fiancée, Rhiannan Vitier, to talk to her about her drug use. When Vitier began punching him, defendant grabbed her from behind and placed his hand over her mouth and nose. A struggle ensued and they fell to the floor, with defendant on top of her. Defendant believed she had lost consciousness because she had stopped struggling as soon as they hit the floor. Nevertheless, he continued to hold his hand over her mouth and nose for three to five minutes as he lay on top of her. The cause of death was later determined to be asphyxiation caused by compression to the victim’s face.

At about 1:30 p.m., defendant walked into the La Habra Police Department and told a service aid that he needed to speak to someone about a homicide. When the aid asked him to wait in the lobby while she asked an officer to come speak to him, defendant “seemed kind of upset and . . . asked . . . if [she] was basically going to let him get away . . . .” He told her “that he just killed somebody and [she] was going to let him walk out the front door.” Defendant was interviewed by a detective and arrested at the conclusion of the interview.

DISCUSSION

1. Substantial Evidence of Implied Malice

Defendant contends the evidence was insufficient to establish the subjective component of implied malice, requiring reversal of his second degree murder conviction. We disagree.

“In reviewing the sufficiency of the evidence . . . ‘the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We ‘”presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 509.)

Second degree murder requires the specific intent of malice, which “may be express or implied. Malice is express ‘when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.’ (§ 188.) It is implied ‘when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.’ (Ibid.) More specifically, ‘malice is implied “when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.” [Citation.]’ [Citation.]” (People v. Robertson (2004) 34 Cal.4th 156, 164.)

The only aspect of this definition challenged by defendant is whether he knew his conduct endangered Vitier’s life. Defendant argues there was insufficient evidence from which the jury could infer he knew she “was going to die or that his conduct had a high probability of causing her death . . . .” He points to evidence that methamphetamine found in Vitier’s blood “could have shortened the amount of time it took her to lose consciousness and die,” that he did not know how long he held his hand over her mouth as he lay on top of her or whether his hand also covered her nose, and that he “lied in the police interviews because he thought that was what the police wanted to hear.” He also argues “conduct after the incident showed a panicked man who didn’t call 911 because he believed that someone else would . . . [and that w]hen the panic subsided, [he] turned himself in because he knew he had hurt [Vitier], not because he knew he had killed her.”

But there was also contrary evidence, which defendant ignores. This includes evidence that the cause of death was determined to be asphyxiation caused by compression to Vitier’s face, and the testimony of defendant’s own forensic toxicologist that he “didn’t see anything in the [coroner’s] reports that would suggest the methamphetamine played any part in [Vitier’s death].” It also includes evidence defendant told detectives that when he grabbed the victim from behind, he placed his hand over her mouth and nose, and when they fell to the floor with him on top of Vitier, he believed she had lost consciousness, yet he continued to hold his hand over her mouth and nose for three to five minutes. As for his conduct after the incident, there was evidence he dragged Vitier to the bed and “put some pillows on her head,” and that he did not call 911 because he panicked thinking the police were coming, not because he believed someone else would call. With respect to whether he knew he had killed Vitier when he turned himself in, rather than merely injuring her, he told the service aid that he had information about a homicide and when asked to wait in the lobby, accused her of letting him “walk out the front door” after he said “he just killed somebody.” From this evidence, the jury could reasonably infer that defendant knew his conduct endangered Vitier’s life and acted with conscious disregard.

It is the exclusive province of the jury to determine witness credibility and resolve factual conflicts, and we may not reweigh the evidence and substitute our own factual determinations. (People v. Jones (1990) 51 Cal.3d 294, 314.) Even if evidence exists that reasonably supports defendant’s position, we affirm the conviction because substantial evidence supports the jury’s finding that defendant acted with implied malice. (People v. Bean (1988) 46 Cal.3d 919, 932-933.)

2. Prosecutorial Misconduct

Defendant contends “[t]he prosecutor committed misconduct in closing argument by repeatedly misstating the law so as to make a voluntary manslaughter verdict appear to be an undeserved vindication of [defendant’s] killing of [Vitier].” He claims such statements violated his right to due process. But defendant failed to object to any of the statements that he now claims constituted misconduct. “As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Because defendant failed to make any timely objections or request admonitions that could have cured any errors, he has waived his claim of prosecutorial misconduct.

Defendant argues his attorney was ineffective for not objecting and “actually endorsing the prosecutor’s misstatements about voluntary manslaughter.” (Underscoring omitted.) To prevail on an ineffective assistance of counsel claim, a defendant must show that (1) “counsel’s performance fell below a standard of reasonable competence” and (2) “prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543, 569; Strickland v. Washington (1984) 466 U.S. 668, 687-688 [104 S.Ct. 2052, 80 L.Ed.2d 674.) Thus, “[e]ven where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, ‘”’but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”’ [Citations.]” (People v. Anderson, supra, 25 Cal.4th at p. 569.)

On appeal, a defendant seeking to prove an ineffective assistance of counsel claim must meet a demanding standard. “If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Where failure to object is the basis of the claim, the defendant’s burden is no less. “‘[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings.’” (People v. Riel (2000) 22 Cal.4th 1153, 1197.) “An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 540.)

To determine whether “counsel’s performance fell below a standard of reasonable competence” (People v. Anderson, supra, 25 Cal.4th at p. 569), we examine the prosecutor’s statements that defendant contends should have been objected to because they “repeatedly misstate[ed] the law on voluntary manslaughter.” (Underscoring omitted.) These asserted misstatatements fall into three categories: (1) describing voluntary manslaughter as “a legal fiction”; (2) arguing the reasonable element of voluntary manslaughter was “based on a reasonable person’s standard, [i.e.,] would a reasonable person in your situation have killed?”; and (3) advising the jury that a voluntary manslaughter verdict would give defendant “a bump, or a break.” We address each category in turn.

The prosecutor’s comments about giving defendant a bump or a break “can be excused as vigorous argument.” (People v. Najera (2006) 138 Cal.App.4th 212, 220.) “But describing voluntary manslaughter as a legal fiction[, which the prosecutor did on at least two occasions], was misleading, if not inaccurate.” (Ibid.) As we recently stated, “Whether technically accurate or not, referring to voluntary manslaughter as a legal fiction misleadingly suggest[s] it is not a real crime. The jury likely would not have understood the concept of a legal fiction or the difference between a legal fiction and a fiction as understood in everyday life. Describing voluntary manslaughter as a legal fiction could have led the jury to believe it was not a real crime and should not be considered seriously.” (Id. at p. 221.) Defense counsel thus should have objected to these statements.

He also should have objected to the prosecutor’s statements limiting “the jury’s consideration of a voluntary manslaughter verdict to situations where an ordinary reasonable person would have killed.” These statements were incorrect and misleading because “[a]n unlawful homicide is upon ‘a sudden quarrel or heat of passion’ if the killer’s reason was obscured by a ‘”provocation”‘ sufficient to cause an ordinary person of average disposition to act rashly and without deliberation. [Citation.] The focus is on the provocation--the surrounding circumstances--and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion.” (People v. Najera, supra, 138 Cal.App.4th at p. 223.) Because the prosecutor’s description of voluntary manslaughter was inaccurate, we agree defense counsel should have objected and should not have endorsed the misstatements by stating the prosecutor “accurately described first degree murder, second degree murder, manslaughter, [and] voluntary and involuntary manslaughter.”

Nevertheless, we conclude defendant was not prejudiced by the alleged misconduct or defense counsel’s failure to object and endorsement of the prosecutor’s misstatement. We have already determined substantial evidence exists to support the verdict against defendant. In addition, the trial judge instructed the jury that it “must accept and follow the law as I state it to you, regardless of whether you agree with it. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.” The court then proceeded to instruct the jury on voluntary manslaughter and heat of passion. The written instructions were made available to the jury and the jury was told it could address any question it had to the court. No questions were sent to the court. Absent any indication to the contrary, we presume the jury followed the court’s instructions and not counsel’s argument. (People v. Boyette (2002) 29 Cal.4th 381, 436; People v. Najera, supra, 138 Cal.App.4th at p. 224.)

3. Eligibility for Probation

Citing People v. Lewis (2004) 120 Cal.App.4th 837, defendant asserts the court erred in finding him presumptively ineligible for probation under section 1203, subdivision (e)(3). The Attorney General responds defendant has waived the issue by failing to object to the “the probation report or the trial court’s inclination to follow that portion of the report.” Without deciding whether a waiver occurred, we exercise our discretion to consider the issue on appeal. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)

Lewis held that a defendant is rendered presumptively ineligible for probation under section 1203, subdivision (e)(3) only if he intends to cause great bodily injury or torture. (People v. Lewis, supra, 120 Cal.App.4th at p. 853.) The word “willful,” as used in section 1203, subdivision (e)(3), “requires the defendant’s intent to cause great bodily injury or torture, not merely that the crime resulted in great bodily injury or torture. [Citation.]” (People v. Lewis, supra, 120 Cal.App.4th at p. 853.) The Lewis court reasoned that section 1203, subdivision (e)(3) differs in this way from section 12022.7, which requires only general intent to commit the underlying felony. (People v. Lewis, supra, 120 Cal.App.4th at p. 853.) Because the sentencing court there “was not asked to find and did not state on the record” that the defendant “intended to inflict great bodily injury,” the appellate court remanded for a new sentencing hearing. (Id. at p. 854.)

Here, the probation report stated, and the court agreed, “defendant is presumptively ineligible for [p]robation pursuant to . . . section 1203[, subdivision] (e)(3), unless the court finds unusual circumstances to exist.” As in Lewis, the court made no finding as to defendant’s mens rea, but merely stated “this is not an unusual case, [and] it does not appear the defendant would qualify for probation. The court does so determine and probation is denied.” Under Lewis, a remand is warranted.

The Attorney General maintains that “there was substantial evidence that [defendant] acted with express malice when he committed second degree murder” and “commit[ted] a crime that required him to have the intent to inflict great bodily

injury. . . . . . . . . . In light of the evidence presented . . ., it is reasonable to infer the court found [defendant] intended to kill [Vitier] when he held his hand over her nose and mouth for several minutes after she lost consciousness.” Whether the court could have inferred that intent is a different inquiry from whether the court actually made the necessary finding. It did not.

DISPOSITION

The trial court’s denial of probation is reversed. We remand for a new probation and sentencing hearing at which the trial court should determine whether defendant is presumptively ineligible for probation, including a finding on the record whether defendant intended to inflict great bodily injury. In all other respects, the judgment is affirmed.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

FYBEL, J.

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