The opinion of the court was delivered by: Nicholson , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Luis Amparan Rodriguez of the first degree murder of Alexandra Cerda.*fn1 (Pen. Code, § 187, subd (a).)*fn2 Defendant appeals contending (1) the evidence was insufficient to prove defendant's intent to kill, (2) the jury was misinstructed under former CALCRIM No. 400 that an aider and abettor is "equally guilty" as the perpetrator, and (3) the trial court erred in failing to instruct the jury on the lesser included offense of manslaughter.
FACTUAL AND PROCEDURAL HISTORY
During the afternoon of July 8, 2007, defendant went to the house of Benigno ("Benny") Sanchez in Sacramento, California. There, defendant hung out with a number of people including Sanchez and Jose David Madrigal. Eventually everyone left the house, except defendant, Sanchez, and Madrigal. Around 9:00 p.m., the victim, Alexandra Cerda, showed up at the house and accepted a beer from defendant.
Around 10:00 p.m., defendant offered Cerda a ride in his van. Cerda accepted, and defendant dropped her off at a gas station at South Watt Avenue and Fruitridge Road. Defendant turned around and drove back to Sanchez's house.
When defendant arrived at Sanchez's house at 10:30 p.m., Madrigal told him that they should go to pick up Cerda. Defendant asked what Madrigal was going to do, and Madrigal responded that he wanted to see if she would have sex with him.
Defendant and Madrigal drove to the location where Cerda had been dropped off, and they found her nearby. Defendant pulled the van over. Madrigal opened a door on the side of the van and told Cerda to get in. Madrigal also told Cerda they would take her home.
Cerda got in and sat in the captain's chair behind the front passenger seat. Madrigal stated he would also ride in the back and asked defendant to turn the volume of the music up. Madrigal got into the captain's chair behind the driver's seat and asked Cerda to have sex with him. Cerda told Madrigal that she did not want to have sex with him. Cerda and Madrigal did not argue.
Madrigal began stabbing Cerda with a 12-inch knife. Defendant testified that Madrigal stabbed Cerda "fast and hard." Cerda screamed as Madrigal stabbed her repeatedly for about 10 minutes while she sat in the seat. Cerda pleaded for Madrigal not to hurt her.
At some point during the attack, Cerda seemed to be able to turn the knife back on Madrigal so that Madrigal sustained a deep cut on his hand. Madrigal knocked her to the floor of the van and kicked her to keep her down. Madrigal stabbed her repeatedly in the stomach.
An autopsy revealed that Cerda was stabbed approximately 120 times. She had been stabbed so many times that "an exact count was difficult to come to." The wounds ranged from shallow to very deep. Among the many wounds on Cerda's body were: a slash on her scalp that was four and one-half inches long and one and one-quarter inches deep; a three-inch-long stabbing cut from the victim's temple to left upper lip; approximately 48 shallow stab wounds on Cerda's left torso from the armpit to the upper hip; dozens of "defensive wounds" on Cerda's arms; a stab wound that punctured her left lung; and multiple neck wounds including a wound that punctured her left jugular vein. The stab wounds puncturing Cerda's jugular vein and left lung each would have been fatal. The jugular wound would have been fatal in approximately five minutes while the lung puncture, by itself, would have caused death in approximately 30 to 45 minutes. All but a few of the 120 stab wounds were inflicted while Cerda was alive. Cerda's body also displayed several contusions, which were consistent with being kicked.
Cerda's injuries were also consistent with a 10-minute struggle during which the victim would have experienced pain from the stab wounds.
Defendant initially testified that he did not hear or see any of the attack occurring immediately behind him. However, he eventually admitted hearing Cerda scream. When defendant looked back, Madrigal had already stabbed her several times. Even so, Cerda was still alive. During the 10 minutes that Madrigal stabbed Cerda, defendant kept driving the van.
After the attack ended, defendant drove toward Highway 50. Once on Highway 50, Madrigal opened the doors and got ready to push the body out of the van as they approached the Highway 99 interchange. Defendant saw that the doors were covered with blood and told Madrigal to close them. They quickly decided to dump Cerda's body at the river instead.
As defendant drove down Old River Road, Madrigal threw Cerda's body out of the van while it was still moving. Cerda was already dead. The van "peeled out" as defendant quickly accelerated to get away.
Defendant and Madrigal went to Eloise Velasquez's house, where Madrigal had been staying for several days. They arrived in the early morning hours of July 9. Defendant saw that the rear interior of the van was soaked with blood. Defendant and Madrigal asked Velasquez for water to wash out the van. The men used laundry detergent and water to clean the inside of the van. Velasquez used peroxide to clean a cut on Madrigal's hand.
Defendant and Madrigal stayed at the house until 10:00 a.m. on July 9, 2007. They decided to head back to Sanchez's house and ended up walking part of the way because defendant's van broke down.
Earlier that morning, Brenda Gage was driving along Old River Road when she saw Cerda's body lying under a tree on the side of the road. Beside the body, Gage saw several objects: a 40-ounce bottle of beer; a CD insert; and a small black case. Sheriff's deputies would ...