Patricia M. Murphy, Judge Superior Court County of Ventura (Super. Ct. No. 2008011529)
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
During the course of a sexual assault, Luis Angel Gutierrez murdered his aunt by stabbing her 28 times. A jury convicted him of first degree murder with the special circumstances finding that the murder was committed during the commission of a rape or attempted rape. (Pen. Code, §§ 187, subd. (a); 189, 190.2, subd. (a)(17)(C); 261.)*fn1 . The jury found that he personally used a deadly weapon (§ 12022, subd. (b)(1)) and was over 14 years of age at the time of the offense (Welf. & Inst. Code, § 602, subd. (b)(1)). Appellant was sentenced to life without possibility of parole (LWOP) plus one year on the weapon enhancement (§ 12022, subd. (b)(1)).
He appeals contending that the trial court erred in finding that he waived his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].) He also challenges the LWOP sentence. We affirm.
The victim, Josefina Gutierrez (Josefina), lived in Simi Valley with her husband, sons, and other relatives including appellant.
At 4:20 a.m., on March 16, 2008, Josefina's husband, Abel Hernandez, went to work leaving Josefina asleep in their bed. Appellant took his shoes off and entered the house. Abraham Gutierrez, Abel's nephew, heard someone open Josefina's bedroom door which was unusual because Josefina normally slept in on Sundays. Thereafter, he saw appellant in the kitchen. Appellant's right hand was bleeding. Appellant tried to hide the injury with his jacket sleeve and said that he hurt his hand in a fight. Appellant left about five minutes later.
Jose Luis Mendoza, Josefina's brother, saw blood on the floor and the bedroom door ajar. Josefina was naked, face down on the floor with her legs spread apart. She had a large knife protruding from her back. There were fresh bruises on her face and body and stab wounds to the back, shoulder, hands, chest, face, and neck.
Appellant admitted himself to Los Robles Hospital. Thereafter, he spoke to the police. He said that a Hispanic gang member stabbed him in the hand at a party in Moorpark. A sexual assault nurse examiner found blood on the head of appellant's penis. Josefina's DNA was on his scrotum. Appellant had dried blood all over him.
A crime scene investigator found bloody handprints on Josefina's thighs, blood on the bedroom walls and ceiling, and blood spatter and smears in the bathroom. Appellant's DNA was on Josefina's perianal area, her buttocks and inner thighs, and on the bathroom wall by the light switch. Officers searched appellant's bedroom and found bloody socks, shoes, and jeans. Blood was on the outside and inside of appellant's car and a bloodstained dress shirt was in the car.
Appellant underwent hand surgery and was hospitalized. He was released to the custody of the Simi Valley Police Department three days later on March 19, 2008. Officer Lincoln Purcell read appellant his Miranda rights in the Spanish language. Appellant nodded his head up and down after each advisement indicating he understood his rights. Officer Purcell did not, however, expressly ask appellant to waive the Miranda rights. Nevertheless, appellant showed a willingness to discuss the case and did so for over two hours. Appellant gave conflicting accounts of what happened.
Appellant told Officer Purcell that he attended a birthday party at Erika Gutierrez's house and purchased methamphetamine. After leaving the party 10 to 15 men beat and stabbed him. Appellant sustained a cut to his hand and walked home.
Officer Purcell told appellant that the police had this house under surveillance because of prior drug transactions. He told appellant that the police did not see a group of men harm anyone. Purcell then changed the subject and asked why his blood was in Josefina's bedroom.
Appellant changed his story and said that he arrived home at 5:30 a.m. and knocked on Josefina's bedroom door. The two argued and Josefina attacked him with a knife. Appellant grabbed the knife but Josefina cut him and then stabbed herself.
Officer Purcell told appellant that Josefina was stabbed in the back multiple times before she was stabbed in the stomach. Appellant said that Josefina stabbed herself to falsely incriminate him. After Josefina cut his hand, he grabbed the knife and stabbed her in the back two times. Appellant denied stabbing Josefina in the face or neck or having sex with her.
Officer Purcell asked why blood was on appellant's penis. Appellant said that Josefina sexually assaulted him, took off her nightshirt, and had appellant remove her bra. Appellant fell on top of her after she pulled his pants down. Appellant did not know if his penis penetrated her vagina but ...