P. v.
Arriaga
Filed 8/16/12
P. v. Arriaga 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
FERNANDO ARRIAGA,
Defendant and
Appellant.
2d
Crim. No. B233706
(Super.
Ct.
No. VA110148)
(Los
Angeles County)
Fernando Arriaga appeals from the
judgment entered after a jury convicted him of
personally used a deadly weapon (a knife).
(§ 12022, subd. (b)(1).)
Appellant admitted the truth of a prior prison term allegation. (§ 667.5, subd. (b).) The trial court sentenced him to 25 years to
life for the murder plus one year for the deadly weapon enhancement. For the prior prison term enhancement, the
court imposed a one-year prison term but stayed the sentence.
Appellant admits killing the victim
after an argument, but he contends that the evidence is insufficient to support
a verdict of first degree murder. In
addition, appellant contends that the trial
court abused its discretion in admitting the victim's statements about her
relationship with appellant.
As the People concede, the trial
court erroneously stayed the sentence for the prior prison term
enhancement. We order it stricken and
affirm the judgment as modified.
Appellant and the victim, Maria Del
Carmen Ramirez, had a romantic relationship and were living together. They broke up in February or March 2009, and
appellant moved out of Ramirez's apartment.
On April 10, 2009, appellant killed
Ramirez inside her apartment. After the
killing, Ramirez telephoned the police.
The police entered the apartment and saw Ramirez's body on the floor
under a blanket. A "fixed-blade
knife" was on top of the blanket.
Ramirez was naked from the waist down.
At first, appellant denied killing
Ramirez. He told the police that he had
found her body on the floor. Appellant
later confessed to the killing during a recorded interview. He said that, for several hours, he and
Ramirez had been drinking together at her apartment. They argued, and Ramirez did something to
appellant that got him so angry that he killed her. The transcript of the interview does not
indicate what Ramirez did to appellant.
Appellant stated, "[W]hat I have here, this I have here, she did
that to me. She did that to
me." The officer who conducted the
interview testified that appellant's only injury was a scratch or cut on the
ring finger of his right hand. Later in
the interview, appellant said that Ramirez had not scratched him.
Appellant told the officer that he
had found an elastic band in the laundry room and had used it to strangle
Ramirez until she became unconscious.
But he realized that the elastic band was not going to kill her: "[W]ith
the elastic band, I could see that with the band I couldn't do
anything." Appellant stopped
strangling Ramirez and hit her in the face with his fist. "[B]ecause I was so mad, I took all my
anger out on her by hitting her."
Appellant then got a knife from a drawer and cut Ramirez's throat.
Appellant denied stabbing Ramirez or having sex with her. He admitted removing her clothing below the
waist, but did not know why he had committed this act.
Dr. David Whiteman, a forensic
pathologist, opined that the cause of Ramirez's death was "multiple
traumatic injuries." Ramirez's head
had "a number of bruises and lacerations," and her nose was
broken. She sustained internal bruises
to her chest, and one rib was fractured.
"There was a slicing wound to the neck which cut some major blood
vessels, which led to a loss of blood."
This wound was "completely, independently fatal." In addition, Ramirez had "a stab wound
to her rectum." The wound was about
two inches long and three inches deep. All of Ramirez's injuries were inflicted
while she was still alive. Dr. Whiteman
did not find "any defensive wounds on the victim's body." Ramirez's blood-alcohol level was between .21
and .24 per cent.
Evidence
Appellant contends that the evidence
is insufficient to support the jury's first degree murder verdict: "First,
there was insufficient evidence the
murder was deliberate and premeditated.
Second, there was insufficient evidence of malice aforethought, because
the prosecution failed to meet its burden of proving beyond a reasonable doubt
that the killing was not committed in
a heat of passion or upon a sudden quarrel."
"[W]e
review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence - that is, evidence that is
reasonable, credible and of solid value - from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Snow (2003) 30 Cal.4th 43,
66.) We must " ' "presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence." ' [Citation.]" (People v. Rayford (1994)
9 Cal.4th 1, 23.) "[I]t is not
within our province to reweigh the evidence or redetermine issues of
credibility. [Citation.]" (People v. Martinez (2003) 113
Cal.App.4th 400, 412.) '[A]ll conflicts
in the evidence . . . must be resolved in favor of the judgment. [Citations.]" (People
v. Mitchell (1986) 183 Cal.App.3d 325, 329.) "Reversal . . . is unwarranted unless it
appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the
conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th
297, 331.)
"In the context of
first degree murder, ' "premeditated" means "considered
beforehand," and "deliberate" means "formed or arrived at
or determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of
[Citation.] 'The process of premeditation
and deliberation does not require any extended period of time. "The true test is not the duration of
time as much as it is the extent of the reflection. Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at quickly . . .
." [Citations.]' [Citation.]" (People
v. Lee (2011) 51 Cal.4th 620, 636.)
A case on point is
(2009) 46 Cal.4th 1255. There,
"[t]he manner in which [the victim] was killed supported a finding of
deliberation and premeditation, because [she] had been strangled to the point
of unconsciousness and was not breathing vigorously before her throat
was cut . . . . Moreover, even if the
initial strangulation was spontaneous, the additional act of slashing her
throat 'is indicative of a reasoned decision to kill.' [Citation.]" (
point of unconsciousness. He stopped
when he concluded that his attempt to kill her by strangulation was not succeeding. Appellant got a knife from a drawer and cut
Ramirez's throat. This wound was
"completely, independently fatal."
As in Lewis, "even if the
initial strangulation was spontaneous, the additional act of slashing her
throat 'is indicative of a reasoned decision to kill.' " (
Horning (2004) 34 Cal.4th 871, 902-903 ["The manner of killing . . .
shows a calculated design to ensure death rather than an unconsidered explosion
of violence"].) "Thus,
a rational trier of fact could have been persuaded beyond a reasonable doubt
that the killing was willful, deliberate, and premeditated. [Citation.]" (People
v. Lewis, supra, 46 Cal.4th at p. 1293.)
Since the People
proved the elements of deliberation and premeditation, we reject appellant's
contention that "the prosecution failed to meet its burden of proving
beyond a reasonable doubt that the killing was not committed in a heat of passion or upon a sudden
quarrel." Furthermore, the heat of
passion theory did not apply here because there was
adequate provocation. " 'Heat of
only if there is adequate provocation. The victim's conduct 'must be sufficiently
provocative that it would cause an ordinary person of average disposition to
deliberation and reflection.
[Citations.]'
[Citation.]" (
In any event, the
evidence is sufficient to support the first degree murder conviction under a
felony-murder theory. (§ 189.) The jury could have reasonably concluded that
appellant killed Ramirez in the perpetration of the felony offense of sexual
penetration by a foreign object.
(§ 289, subd. (a)(1)(A).)
While Ramirez was still alive, appellant removed her clothes below the
waist and stabbed her with a knife in the rectum. " 'Sexual
penetration' is the act of causing the penetration, however slight, of the
genital or anal opening of any person . . . for the purpose of sexual arousal,
gratification, or abuse by any foreign object, substance, instrument, or
device, or by any unknown object."
(Id., subd. (k)(1).)
Appellant argues that the trial
court erroneously admitted Ramirez's statements about her relationship with
appellant. At trial, defense counsel
objected that Ramirez's statements were inadmissible hearsay. Hearsay is evidence of an extrajudicial
statement "offered to prove the truth of the matter stated." (Evid.Code, § 1200, subd. (a).) Ramirez told Rafael Ramirez, her brother,
that "she had ended the relationship with [appellant], and that she didn't
want anything to do with him." She
told Alma Lopez that "she did not want to be with [appellant]
anymore," and "that on many occasions she [had asked] him to move out
of the house, [but] he didn't want to."
Ramirez told Mirna Roque that she had "broken the
relationship" with appellant and "had to push him" out of her
apartment. "[S]he didn't want to
see him anymore." When Ramirez was
living with appellant, she told Roque that she was scared of him. After the breakup, Roque heard Ramirez
speaking to appellant over the telephone.
Ramirez told appellant "to stop calling her, it was over." Ramirez said, "Please leave me
alone."
title="">[3]
The prosecutor argued that Ramirez's
hearsay statements were admissible under the state-of-mind exception to the
hearsay rule. (Evid. Code, § 1250,
hereafter "section 1250.")
Section 1250, subdivision (a) provides: "[E]vidence of a statement
of the declarant's then existing state of
of intent, plan, motive, design, mental feeling, pain,
or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1)
The evidence is offered to prove the declarant's state
of mind, emotion, or physical sensation at that time or
at any other time when it is itself an issue in the action; or [¶] (2) The
evidence is offered to prove or explain acts or conduct of the
declarant." Section 1250,
subdivision (b) "does not make admissible evidence of a statement of memory
or belief to prove the fact remembered or believed."
The prosecutor argued that Ramirez's
state of mind was relevant "to show that she would not have . . .
consented to any sexual activities with the defendant on the night in
question." Her statements showed
that she "was indeed done with [appellant] as far as any kind of romantic
relationship." Based on the
statements, it is reasonable to infer that Ramirez "would not have taken
her pants and underwear off willingly in an encounter with [appellant]. That she would not be meeting with [him] for
some kind of romantic liaison."
"[Ramirez] had a knife wound to her rectum . . . , and based on
those facts it is extremely relevant that [she] indeed would not have consented
to any kind of sexual relationship with [appellant]."
Defense counsel protested,
"[T]here is no evidence that they had any sexual relationship at all [on
the date that Ramirez was killed]."
Counsel argued that Ramirez's state of mind was not relevant evidence.
The trial court admitted Ramirez's
statements pursuant to section 1250. We
review its ruling for abuse of discretion.
(People v. Guerra (2006) 37
Cal.4th 1067, 1113.) "Under this
standard, a trial court's ruling will not be disturbed, and reversal of the
judgment is not required, unless the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.
[Citation.]" (
The prosecutor was wrong in arguing
that Ramirez's statements were admissible "to show that she would not have
. . . consented to any sexual activities with the defendant on the night in
question." Consent was not an
issue. There was no evidence that
Ramirez had voluntarily removed her clothing below the waist or had voluntarily
engaged in sexual relations with appellant.
Appellant told the police that he had removed Ramirez's clothing but had
not had sex with her.
Nevertheless, Ramirez's statements
were admissible to refute appellant's statement to the police that she had
voluntarily spent several hours drinking with him at her apartment on the day
she was killed. Ramirez's statements
made clear that she wanted no further contact with appellant. Her statements were also admissible to show
that appellant had a motive to kill her because she had terminated their
relationship and wanted to cut off all contact with him. "[T]he People 'were entitled to present
evidence tending to establish motive.
Without persuasive
motive, the jurors might believe there was nothing in the relationship . . .
which would precipitate a murder.'
[Citation.]" (
Cal.App.4th 863, 888-889; see also Rufo
v. Simpson (2001) 86 Cal.App.4th 573, 594 [state-of-mind evidence
admissible because it "explained how [the victim] was feeling about
Simpson, tended to explain her conduct in rebuffing Simpson, and this in turn
logically tended to show Simpson's motive to murder her"].)
In any event, even if the trial
court had abused its discretion in admitting Ramirez's statements, "it is
not reasonably probable that a result more favorable to [appellant] would have
been reached in the absence of the error."
(People v. Watson (1956)
46 Cal.2d 818, 837.) "The evidence
against [appellant] was overwhelming; he was convicted by the words out of his
own mouth." (United States v. Carbone (1st Cir. 1986) 798 F.2d 21, 29.)
Prior Prison Term
For appellant's prior prison term
enhancement (§ 667.5, subd. (b)), the trial court imposed a one-year
prison term and then stayed the sentence.
Appellant contends, and the People concede, that this was error. "Once the prior prison term is found
true within the meaning of section 667.5(b), the trial court may not
stricken. [Citations.]" (People
v. Langston (2004) 33 Cal.4th 1237, 1241.)
Remand is unnecessary here. In
light of the 25 years to life sentence, we are confident that the trial court
would strike the enhancement. We do so
ourselves. (Pen. Code,§ 1260.)
The stayed sentence on the prior prison
term enhancement (§ 667.5, subd. (b)) is vacated and the enhancement is
stricken. The judgment, as modified, is
affirmed. The trial court shall prepare
an amended abstract of judgment and transmit a certified copy to the
NOT TO BE PUBLISHED.
YEGAN,
J.
We
concur:
GILBERT, P.J.
PERREN, J.
Robert J. Higa, Jr., Judge
Superior Court County of Los Angeles
______________________________
Linda A. Romero, 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, Scott A. Taryle, Supervising Deputy Attorney
General, Russell A. Lehman, Deputy Attorney General, for Plaintiff and
Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal
Code unless otherwise stated.
title="">[2] The second argument is based on
(1975) 421 U.S. 684 [95 S.Ct. 1881, 44 L.Ed.2d 508]. There, the Supreme Court held "that the
Due Process Clause requires the prosecution to prove beyond a reasonable doubt
the absence of the heat of passion on sudden provocation when the issue is
properly presented in a homicide case."
(Id., 421 U.S. at p. 704.)
In appropriate circumstances, a heat-of-passion homicide will be reduced
to voluntary manslaughter. (
561-562.)
