P. v. Lozano-Marquez

Filed 3/30/06 P. v. Lozano-Marquez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(San Joaquin)

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Defendant, Elias Lozano-Marquez, was convicted by a jury of the second degree murder of his wife, Maricruz Lozano. (Pen. Code, § 187.)^[1] He was sentenced to state prison for an indeterminate term of 15 years to life. Defendant raises various evidentiary and instructional claims on appeal, which we reject. We shall affirm the judgment.

FACTS

We summarize the evidence in the light most favorable to the judgment. (People v. Catlin (2001) 26 Cal.4th 81, 120.)

A. The Underlying Offense

On March 22, 2003, paramedics responded to defendant's house in the city of Manteca based on a 911 call. They found defendant's wife, Maricruz, lying on the floor of the living room. Maricruz was not breathing and her heart had stopped. Efforts to revive Maricruz with CPR were unsuccessful. Maricruz was taken by ambulance to the hospital where she was pronounced dead.

An autopsy of Maricruz the next day revealed the following injuries: a torn earlobe, dentures worn for missing upper teeth, a laceration closed with staples on her head, 26 documented contusions or bruises on her body, blunt force lacerations of the inferior vena cava vein going back to the heart and one of the veins and the renal artery going to the kidneys, a laceration of the liver almost severing the two lobes of the liver, bruising of the spleen and a broken sternum. The pathologist measured approximately a quart and a half of blood that had gathered inside Maricruz's abdominal space. The pathologist opined Maricruz died of blood loss due to the laceration of her veins, artery, and liver caused by blunt force trauma. She probably lived a very short time after the laceration of her liver. This kind of extreme trauma was not possible from a fall and was inconsistent with someone standing on Maricruz. The injuries were consistent with someone being beaten to death, specifically being kicked multiple times.

Toxicology tests were run on Maricruz. Maricruz's blood-alcohol level was 0.13 percent. She had .06 milligrams per liter of cocaine and .57 milligrams per liter of methamphetamine in her system. The pathologist agreed some possible effects of taking methamphetamine included aggression, violence, and psychotic behavior. While alcoholics often have bruises and missing teeth, Maricruz had bruising consistent with defensive-type posturing.

Maria Lozano, defendant and Maricruz's daughter, who was nine years old at the time of her mother's death, testified regarding the events of the day her mother died. As it was a Saturday, Maria had gone into her parent's bedroom and asked defendant to make pancakes for breakfast. Maricruz came into the kitchen as defendant was making the pancakes. Maricruz was angry. She and defendant started arguing. At one point Maricruz threw the pan that was on the stove at defendant, burning defendant on the arm. Later Maria saw defendant and Maricruz arguing in their bedroom. She saw Maricruz break a bottle over defendant's head. Maricruz then left the room and defendant, after a minute or two, got up and went to the bathroom. Sometime thereafter Maria heard more arguing. Maria looked out of her bedroom and saw Maricruz on the floor on her back with defendant standing in front of her with his foot on her neck or stomach. She talked to her mother after the argument to see if she was okay. Maricruz talked a little bit and Maria went back into her bedroom to play.

Maria saw Maricruz with a knife during one of these incidents. Initially Maria said she saw Maricruz with the knife at the point defendant pushed Maricruz to the ground and put his foot on her stomach, but later she said she saw the knife in the morning and the incident where defendant had his foot on Maricruz was in the afternoon. Maria said Maricruz did not have the knife in her hand when she was lying on the ground.

Elias Alex Lozano, defendant and Maricruz's son, who was 10 years old at the time of Maricruz's death, was also home for a portion of that Saturday. He testified defendant and Maricruz had a fight in the morning in the living room and in the kitchen. He saw defendant slap or punch Maricruz and Maricruz hit back. The fight stopped after one of his sisters came. Maricruz sat in the kitchen crying. Elias left the house with some friends. When he came home, he saw Maricruz lying on the floor. He thought she was sleeping and he went back to his parents' bedroom where he found defendant and his sister, Maricruz. Elias returned to the living room because his mother, Maricruz, was not getting up. At that point she was cold. He started shaking her. They put her on the couch and Elias went to get help from a neighbor.

Defendant's neighbor, Linda Balchunas, testified she saw the paramedic vehicles outside defendant's house. She asked defendant, who was outside, what had happened. He said he did not know. Later an ambulance driver came up to them and said Maricruz had a heart attack. Defendant responded, â€