(Super. Ct. No. SF112270A)
The opinion of the court was delivered by: Hoch , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Jesse Refugio Tellez stabbed his wife to death in their neighbor's front yard while she held their three-year-old son in her arms. The jury trial was bifurcated into a guilt phase and a sanity phase. In the guilt phase, the jury found defendant guilty of first degree murder (Pen. Code, § 187)*fn1 and child endangerment (§ 273a, subd. (a)). The jury also found that defendant personally used a knife during the commission of the crimes. (§ 12022, subd. (b)(1).) In the sanity phase, the jury found that defendant was legally sane when he committed these crimes. Thereafter, the trial court found that defendant had a prior conviction for first degree burglary, a serious felony offense (§§ 667, subds. (a)-(i), 1170.12), and sentenced him to state prison for an indeterminate term of 50 years to life plus a consecutive determinate term of 18 years.
Defendant's contentions on appeal are limited to the guilt phase of the trial. He claims the trial court prejudicially erred by declining his request to instruct the jury on (1) involuntary manslaughter based on mental illness, and (2) involuntary manslaughter based on unconsciousness caused by voluntary intoxication. We conclude that the evidence was insufficient to support an instruction on involuntary manslaughter based on mental illness or based on unconsciousness caused by voluntary intoxication. And even if there was error in failing to give the requested involuntary manslaughter instructions, we conclude that any error was harmless. By finding defendant guilty of first degree premeditated murder and rejecting the lesser included offenses of second degree murder and voluntary manslaughter, the jury necessarily concluded that neither his mental problems nor his voluntary intoxication prevented him from forming the intent to kill his wife and premeditate her death. Accordingly, we affirm the judgment.
Defendant and Tevanie Tellez*fn2 married in 1997. Their daughter Adrianna was born the same year. Their son Phillip was born in 2006. Defendant and Tevanie argued "quite a bit" during the marriage. Defendant "drank heavily" and was quick to lose his temper, both when he was drinking and while sober. Defendant was verbally abusive to Tevanie. He regularly told her to "go fuck herself," called her demeaning names in Spanish, and told her that "she had an ugly rat's nest in her hair."
Defendant was also physically abusive and threatened Tevanie's life. In 2003, when Adrianna was six years old, she witnessed defendant throw a beer bottle at her mother. As Adrianna explained, while her parents were "screaming and arguing," defendant "lost his temper really bad" and threw the bottle at her mother. Tevanie ducked and the bottle shattered against a wall. On another occasion, around the same time period, defendant told Tevanie's brother, Kevin Lantz, that he would kill Tevanie if she ever left him. Defendant was "calm and serious" when he made the threat.
During the summer of 2008, defendant and Lantz had a conversation in defendant's driveway while defendant loaded his vehicle with provisions. Phillip was in the vehicle. As Lantz explained: "[H]e told me directly that I need to watch out, we are all going down, and he's not gonna be around for it. And he got kind of irate and started saying my sister was a snitch." Defendant then took two-year-old Phillip to Mexico without telling Tevanie or anyone else in the family where they were going.
About a month later, Tevanie discovered where defendant had taken their son. Lantz drove Tevanie and Adrianna to Mexico to see Phillip, stayed for a couple days, and then brought Adrianna back to California. Tevanie decided to stay in Mexico with defendant and Phillip. About two months later, Lantz brought Adrianna back to Mexico to stay with her parents and brother while defendant and Tevanie made plans to bring the entire family back to California. When Lantz and Adrianna arrived, they noticed that Tevanie had a black eye and the side of her face was also bruised.
About a month later, Tevanie brought Adrianna and Phillip back to California and stayed with Lantz until defendant also returned from Mexico. The family then moved into a duplex on South Veach Avenue in Manteca.
About a month before the murder, defendant asked Adrianna what she would do if her mother died and defendant went away. Defendant was not drunk when he asked her the question. Nor had he and Tevanie been arguing. Around the same time period, a mail carrier heard defendant and Tevanie arguing in the carport. When he approached, he saw defendant with his hands around Tevanie's neck. The mail carrier asked if Tevanie was okay. Defendant removed his hands and went inside the duplex. Tevanie responded: "[E]verything is good, don't worry about it, it's all right." On another occasion, the mail carrier saw Tevanie with a black eye. And on other occasions, he saw bruises on her arm.
Defendant murdered Tevanie during the early morning hours of July 2, 2009. He stabbed her to death while she held three-year-old Phillip in her arms and while 12-year-old Adrianna screamed for help.
The events leading to the murder began the day before. Tevanie's cousin, Cervantez, brought his son over to defendant's duplex. Cervantez's son, Little Jeramie, was about a year older than Phillip. That afternoon, defendant told Cervantez that he "wanted to get out of the house" and the men left to go to a sports bar. A few hours later, after sharing a couple pitchers of beer, defendant and Cervantez returned to the duplex. About 30 minutes later, they again decided to leave. This time, they drove to a house in Lathrop where Cervantez was staying.
At the house, defendant and Cervantez each drank a 32-ounce beer. According to Kenneth Fink, the owner of the house, defendant "had a pretty good buzz on" and was "slurring his words," but was not "falling down" drunk. According to James Bergen, another resident of the house, defendant was "calm, just sitting there talking," but did appear to be intoxicated and annoyed Bergen by "talking nonsense." As Bergen explained, "out of nowhere," defendant asked him if he had ever killed a cow and then described how it felt and sounded to stab a cow.*fn3 Bergen confirmed that defendant was not "having a hard time walking" while he was at the house.
Around midnight, defendant and Cervantez returned to the duplex. Phillip and Little Jeramie were already asleep. Cervantez decided to allow his son to ...