Los Angeles County Super. Ct. No. NA 029308
The opinion of the court was delivered by: Kennard, J.
A jury convicted defendant Eloy Loy of the first degree murder of Monique Arroyo under the special circumstance of a murder committed while engaged in the commission of a lewd and lascivious act on a child under the age of 14. (Pen. Code, §§ 187, 190.2, subd. (a)(17).) After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict and sentenced defendant to death. (Pen. Code, § 190.4.) This appeal is automatic. (Pen. Code, § 1239, subd. (b).) We affirm the judgment.
I. The Facts A. Guilt Phase
The evidence showed that during the night of May 8-9, 1996,*fn1 defendant entered the bedroom of his 12-year-old niece, Monique Arroyo, while she was sleeping. He assaulted her sexually, killed her, and dumped her body in a nearby vacant lot, where it was discovered four days later.
On the afternoon of May 8, defendant went to the Wilmington home of his sister, Rosalina Arroyo, and her family. Rosalina's 12-year-old daughter, Monique Arroyo, also lived at that house. Monique shared an upstairs bedroom with her older sister, Josette. Previously, defendant had lived at that home for a while. At this time, however, he was residing with his brother and sister-in-law, Leonard and Maria Loy, who lived about five to 10 miles from the Arroyo home. Some of the witnesses testified that defendant had not been at the Arroyo house for several weeks before that day, and that he normally was not allowed to go upstairs.
That afternoon, a movie location manager arrived and spoke with Rosalina. The manager arranged to use the Arroyo house in a movie project. Monique was to have an opportunity to appear as an extra in the project. She arrived home from school around 2:45-3:00 p.m., and was excited about the movie opportunity.
Defendant helped Monique's brother, Jose Arroyo, Jr. (Jose), work on a sprinkler system in the front yard. When they finished, defendant and Jose went out drinking beer, using defendant's car, a red Cadillac. After various stops, including one where they put about one dollar's worth of gasoline in the tank, all they could afford at the time, they returned to the Arroyo home. Defendant parked his car on the street. Initially, Jose, who had become intoxicated, refused to get out of the car. Defendant pleaded, "Get out. I have to be at work at six o'clock sharp." Defendant repeatedly said he had to go to work at 6:00 a.m. Around this time, Jose saw his brother Gabriel. Defendant told Gabriel that Jose was drunk and asked for help getting Jose out of the car. Eventually, defendant, Jose, and Gabriel entered Jose's bedroom on the second floor. Normally, defendant was not permitted to go upstairs. By this time, Jose was "really drunk." He lay down and asked Gabriel and defendant to leave his bedroom. It was around 11:45 p.m. They left and Jose fell asleep. To get downstairs from Jose's bedroom, one has to pass by Monique's bedroom.
Gabriel testified that he went downstairs to his bedroom and defendant went downstairs with him. He thought defendant was leaving the house by the front door, but he did not actually see him leave or hear a door close. Gabriel went to bed around midnight. He looked to see that the doors to the outside were closed. The lights were off in the house. Defendant's car was still in front. Gabriel did not hear it leave.
Josette spent that night at her boyfriend's house, so Monique was alone in her bedroom. Monique had occasionally locked her bedroom door, but she stopped doing so because of Josette's complaints. Around 10:00 p.m., Rosalina told Monique to go to bed. Jose Arroyo, Sr., Monique's father, testified that when he went to bed around 9:30 to 10:00 p.m., Monique was already asleep. Rosalina herself went to bed around 12:20 a.m., May 9. Before she did so, she twice checked on Monique, who was asleep in her bedroom. Monique's bedroom door was not locked. Rosalina testified that Monique was wearing blue shorts and what she described as a "tank top" or a "sweater." Jose, Sr., described Monique's clothing as "jeans and a dark sweater or shirt."
Around 1:00 a.m. that morning, Rosalina was awakened by a creak in the stairway that sounded like "footsteps coming up." She "jumped up," went to her door, and yelled out, "Joey [Jose], Gabe, is that you downstairs?" She listened by the door for about three minutes but heard nothing else. Thinking it might have been her imagination, she went back to sleep. The door to Monique's door was still closed.
The next morning, Monique was missing. Her father awoke around 5:30 a.m. and, around 6:05 to 6:10 a.m., noticed that her bedroom door was open and that she was not in the room. He told Rosalina that Monique was not there but then went to work around 6:30. The side door to the house had an inner and an outer door. When Jose, Sr., left, the inner door was open and the outer door unlocked. Members of the Arroyo family looked for Monique but could not find her. Her brother Jose looked in her bedroom. He observed Monique's sheets on the floor in the middle of the bedroom, as if they had been thrown there. Later, Jose found in Monique's closet on the bottom of a pile of clothes the shirt that Rosalina testified Monique was wearing when she went to bed.
Josette arrived home around 7:20 that morning. She observed a sheet from Monique's bed on the driveway. She went upstairs, where Monique's alarm clock was going "full blast." No sheets were on Monique's bed. Some were on the floor. That morning, Josette called the home where defendant was living. Defendant told her that he had gone straight home after leaving the Arroyo house the night before. Josette testified that she checked and determined that none of Monique's clothes or shoes were missing. There was no sign of a forced entry into the house.
On May 12, Monique's nude body was found in a vacant lot about one-half to three-fourths mile from the Arroyo home. The body was badly decomposed and covered with maggots. It had to be identified by dental records. When found, the body was covered by a comforter that had been on Monique's bed, identical to another comforter belonging to Josette. The comforter was not in Monique's room the morning she was discovered missing.
Leonard Loy, with whom defendant was living at this time, testified that the night before Monique was discovered missing, he went to bed around 11:30 p.m. Defendant was not home. Sometime later, Leonard got up and noticed that defendant was not home then either. Maria Loy testified that at 5:35 a.m. that morning, the alarm clock defendant used to wake up in the morning went off. She waited for someone to turn it off. When no one did so, she turned it off herself. Defendant was not home at the time, and his car was not parked in its usual spot. Maria went back to bed, reawakening shortly before 7:00 a.m. This time defendant was home.
Howard Wilson, who lived about two houses from where defendant was living at the time, testified that around 2:30 a.m. on May 9, he observed defendant driving his red Cadillac. Defendant looked at him and drove by very slowly. Defendant's car turned around and passed by a second time, then a third time. Then Wilson observed defendant walking away from his house.
Dr. Lisa Scheinin performed the autopsy. In her opinion, the cause of death was "asphyxia due to compression of the face and/or the neck and/or the body." She testified that asphyxia is "the most common sex-associated way of killing people." Visually, Dr. Scheinin did not observe any obvious signs of injury to the genitalia, but an injury could not be ruled out because the body was badly decomposed. Microscopically, she found bleeding in various areas of the vagina, which was consistent with sexual penetration. No semen was found on the body or the comforter covering it, but that did not rule out sexual activity.
A criminalist compared fibers taken from the comforter that had covered Monique's body with fibers from the carpet in defendant's car. Twenty fibers from the comforter were similar to carpet fibers from the car "in microscopic characteristics and fiber type, the color, and color variation being the fading of the carpet."
A small bloodstain was found on the inside of the trunk lid of defendant's car. Erin Riley, a serologist, performed deoxyribonucleic acid (DNA) analysis of the bloodstain, using the polymerase chain reaction method. She determined that the bloodstain could have been Monique's blood but not defendant's. One person in about 125,000 would match that blood's DNA profile. Blood found on the comforter was consistent with Monique's blood. The comforter also contained faint DNA markers consistent with defendant's DNA. Defendant's left palm print was found on the outside portion of the doorframe of Monique's bedroom.
David Faulkner, an entomologist, examined maggots collected from the body. Based on the development of the maggots, he could estimate how long they had been associated with the body. In his opinion, they had been associated with the body between 3.5 and 3.7 days, meaning that they were deposited on the body sometime between around 10:00 a.m. to 2:00 p.m. on May 9. Because most insects do not fly at night, the body could have been left in that location the previous night.
Several family members testified about the strained relationship between defendant and Monique. Maria Loy, defendant's sister-in-law, testified that about a month before Monique was discovered missing, defendant spoke with her concerning Monique. He was upset about comments Monique had made about him and told Maria, "But you just wait and see. That little brat, I'll get to her. I don't know how, but I'll get to her."
Sara Minor, Monique's friend, testified that she called Monique on the telephone about a week before she disappeared. Monique said she was afraid of her uncle Eloy because he would "make weird looks at her and sneak up to her room and touch her . . . chest and . . . grab her crotch." Monique told Sara not to tell anyone. When she was saying this, Monique "was crying, but not heavily. You could just hear her holding back tears."
The prosecution presented evidence that in 1975 and again in 1981, defendant was convicted of rape, oral copulation, and sodomy. Both victims testified about the crimes. Ramona M. testified that in March 1975, when she was 16 years old, she entered defendant's car. After driving a while, he stopped, locked the car doors, and proceeded to rape and sodomize her and force her to orally copulate him. In the process, he bit her, hit her, kicked her, and choked her with his hand around the front part of her neck. She suffered various injuries. L.S. testified that in November 1980, when she was 32 years old, she went with defendant to his apartment. There, he raped and sodomized her and forced her to orally copulate him. He hit and kicked her and choked her with his hand around the front part of her neck. She suffered broken ribs.
Defendant presented his case both by cross-examining prosecution witnesses and by calling his own witnesses. The defense theory of the case was that defendant had nothing to do with Monique's death. Defendant was taken into custody in this matter sometime before 1:00 p.m. on May 9. Defense counsel suggested that Monique might have run away from home the night of May 8-9 and been killed sometime later, after defendant was in custody.
Defendant presented evidence that did not implicate him in the crime. Hair from the comforter and other items did not match defendant's hair. Two pubic hairs from the comforter did not match either Monique's or defendant's hair. No seminal fluid was found on any of the items of evidence. Tire tracks and shoe prints from the scene where the body was found, including shoe prints on the comforter, and metal scrapings from a nearby fence did not match some of defendant's shoes or his car. Defendant's fingerprints were not found inside Monique's bedroom. Other than the bloodstain inside the trunk of defendant's car, no evidence was found on the car or in Monique's bedroom connecting defendant to the crime. Certain foam samples taken from defendant's car did not match foam samples taken from the comforter.
Kathleen Ledesma, who had called the police to the scene where the body was found, testified that the vacant lot was not readily accessible due to a high fence surrounding it. She said that when the police arrived, they cut through the fence to gain access to the body. A mechanic testified that defendant's car contained only about a gallon of gasoline. It would get around 10-12 miles per gallon. Peter Barton, who owned a business near the vacant lot where the body was found, testified that over the weekend of May 11 to 12, he saw an "odd car" in the area. Other people were also in the area during this time. Barton noticed no unusual smells that weekend. After the body was found, but not before, he smelled the "smell of death" in the area.
Defendant presented evidence of prior statements of Jose and Gabriel Arroyo. Gabriel had told the police that "he believed [defendant] had exited the front door" the night Monique disappeared.
After Monique was discovered missing, her family showed members of the public a photograph of her. Two witnesses testified that they saw a girl who looked like, or could have been, the girl in that photograph -- one at a minimart after midnight the night of May 8-9, and one at a Burger King around 6:00 to 6:30 p.m., May 9.
Dr. Sharon Van Meter reviewed the autopsy report. In her opinion, the body was so badly decomposed that the cause of death could not be determined. She also believed the body contained no physical evidence of a sexual assault.
Defendant elicited testimony on cross-examination of Riley, the serologist, that she tested the bloodstain from defendant's car trunk for seven DNA markers. Monique's blood matched six of the markers. However, because the sample of Monique's blood was degraded, Riley could not confirm that her blood matched the seventh marker. Deleting that marker from the calculation reduced the odds of a random person other than Monique matching that blood sample to one person in 5,100. Additionally, Riley testified that the odds "would be lower in related people." She did not test the blood of Monique's relatives.
Sara Minor, Monique's friend, testified on cross-examination about other statements Monique had made to her in other conversations. Monique said some older boys, around 18 or 19 years old, often came to her house late at night trying to get her to come out of the house.
Leonard Loy testified on cross-examination that defendant occasionally would sleep in his car, and that he was required to go outside to smoke.
Defendant also presented evidence concerning the collecting of the maggot samples that David Faulkner examined.
On rebuttal, a police officer testified that a gap between two fence poles permitted access by foot onto the lot where the body was found. Another pathologist reviewed the autopsy report and disagreed with some of Dr. Van Meter's conclusions. Kathleen Ledesma testified that she had smelled an odor in the area for about three days before the body was found.
On surrebuttal, defendant elicited a stipulation that Ledesma had told the police that she had noticed a strange smell on May 11, but thought nothing of it.
Monique's parents testified about Monique's life and the impact her disappearance and death had on them and the rest of her family.
Gloria M., Ramona M.'s sister, testified further about the 1975 incident in which defendant sexually assaulted Ramona. When Ramona did not return from her drive with defendant, the 19-year-old Gloria went out looking for her. At one point, defendant drove beside her and asked her to enter his car, saying, "You need to get in because if not, you're never gonna see your sister again." When she entered the car, defendant drove her to a field, then told her she would not see her sister again because he had killed her. He tried to grab her, but she "opened the door and . . . rolled out of the car." She got up and ran. Defendant drove towards her and tried to entice her back into the car, but she managed to escape.
The prosecution presented evidence that defendant was convicted of ...