(Super. Ct. No. CRF06584)
The opinion of the court was delivered by: Mauro , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Pena Oseguera of first degree murder and found that he personally used a deadly weapon (a knife). The trial court sentenced him to an indeterminate term of 25 years to life in prison for the murder, plus one year for using a deadly weapon.
Defendant contends (1) there is insufficient evidence of premeditation to support the conviction for first degree murder; (2) the trial court provided an inadequate response to a jury question during deliberations; (3) the trial court erred in instructing the jury on flight because defendant did not flee; and (4) the prosecutor committed prejudicial misconduct during closing argument.
We conclude (1) although there is little, if any, evidence of planning, the evidence of motive and manner of killing is sufficient to support defendant's conviction for first degree murder; (2) defendant forfeited his challenge to the trial court's jury response because he affirmatively consented to the response, did not object or request clarifying language during trial, and an objection or request for clarification would not have been futile; (3) the trial court did not err in instructing on flight given the evidence that defendant immediately left the crime scene with his children and considered fleeing to Mexico; and (4) defendant forfeited his claim of prosecutorial misconduct during closing argument because he did not object or request a jury admonition and there is no indication such efforts would have been futile; in any event there was no misconduct because the prosecutor made a fair comment on the evidence.
We will affirm the judgment.
Defendant was married to the victim, Reyna de Pena. They had two minor children together and additional children from other relationships.
On the day of the murder, defendant left work early and went home. His family was at the house, including Reyna, defendant's minor children, defendant's adult daughter Helen Reyes and Helen's husband Jose.
When the telephone rang, Helen answered it. The caller asked in Spanish, "How are you my love?" or something like that. Helen responded, "Who do you want to speak to?" The caller hesitated and then said, "Uh, Juana." Nobody named Juana lived at the house. Helen "told him a couple bad words" and then said, "You know who you're trying to speak with," or something to that effect. Defendant could hear Helen's side of the conversation, but Helen could not remember if she told defendant about the caller's initial comment. After hanging up, Helen said, "He knew who he wanted to speak to" or "He knew where he was calling."
Helen and Jose left a few minutes later. Soon after, according to defendant's statement to the police, defendant approached Reyna in the kitchen and asked her to identify the caller. Reyna said she did not know. When defendant tried to kiss her, however, she told him she "had another man."
According to Yuba County Sheriff's Detective Stephanie Johnson, defendant said he stabbed Reyna three times, twice in the front and once in the back. Defendant told Detective Johnson that he "thought he had missed, so he stabbed [Reyna] again." Reyna died from one of the stab wounds that pierced her heart and collapsed her lung. Defendant testified he did not remember stabbing Reyna.
After the murder, defendant gathered the children and took them to Helen's house. He told Helen that he stabbed Reyna. Defendant asked Helen, "What should I do? Should I leave or what?" He considered fleeing to Mexico but then decided to turn himself in. Defendant asked Helen to take him home.
Defendant and Helen entered through the back door of defendant's home and found Reyna's body on the floor. Helen called 911. A sheriff's deputy responded and asked defendant what happened. Defendant replied, "Me fight with me wife; me stab her."
A jury convicted defendant of first degree murder (Pen. Code, § 187, subd. (a); count I) and found that he personally used a deadly weapon (a knife) (Pen. Code, § 12022, subd. (b)(1)). The trial court sentenced him to an indeterminate term of 25 years to ...