(Super. Ct. No. 09F02510)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Convicted of the first degree murder of his son, defendant Gerardo Valencia Villa appeals. He contends: (1) a search of his home violated his Fourth Amendment rights; (2) the trial court erred by excluding some of the evidence of the victim's propensity for violence; (3) the court erred by excluding some photographs of defendant and the victim; (4) the jurors may have misunderstood the law supporting the defense's heat-of-passion theory; (5) the court did not sufficiently instruct the jury on subjective heat of passion; (6) the evidence was insufficient to support the first degree murder verdict; (7) the court improperly instructed the jury on consciousness of guilt; and (8) the alleged errors were cumulatively prejudicial. Finding no prejudicial error, we affirm.
In April 2009, defendant was living with his girlfriend Janet Sartain in the home of Janet's elderly mother, Frieda Sartain, in Sacramento. Defendant's son Alex, the murder victim, also lived in the home. Defendant is five feet, ten inches tall and weighs about 240 pounds, according to the probation report. Alex was six feet, two inches tall, and weighed 372 pounds.
On April 3, 2009, defendant's other son, Gerardo, Jr., married Kassandrea. After the wedding, which took place in the morning, the family partied and drank. That evening, the party continued at defendant's home. While they were partying, Alex looked for his two Chihuahuas in the backyard. When he found them, he grabbed them by their necks, causing them to yelp. Defendant saw Alex's treatment of the dogs and became angry, saying to Alex, "What is wrong with you?" Alex sharply responded, "Wait till you see what I do to them now."
Alex took the dogs to his bedroom and later returned to where the others were. Defendant saw Alex and said, "What's wrong with you? You're just like your mother." This angered Alex because he was upset about things his mother had done. Alex moved toward defendant and challenged, "Hit me, go ahead and hit me." Defendant grabbed Alex by the throat, but Janet jumped between them and broke it up before anything further occurred.
The next day, April 4, Janet arrived home from work at around 7:00 p.m. She told defendant that Alex had to move out of the house.
Also that evening, at between 10:13 p.m. and 10:36 p.m., Alex and Gerardo, Jr., corresponded by text messages:
Alex: "Dad just said he would knock me out and kill me."
Gerardo, Jr.: "Yup, on the phone with me. We just talked. He thinks you killed the dogs."
Alex: "Why would you talk to him?"
Gerardo, Jr.: "Because I just wanted to know what he had to say."
Gerardo, Jr.: "He called me like 10 minutes ago and when we were on the phone, he was saying that he was going to knock you out and all that and when he said that, I told him bye."
In the 10-minute phone conversation with Gerardo, Jr., defendant said, "I haven't heard from those little dogs yet. He is so crazy, I think he killed those dogs. If he killed those dogs, I'll kill him."
After defendant spoke to Gerardo, Jr., on the phone, defendant wrote a note to Alex. He told Alex that he had to move out. Defendant also gave Alex instructions on handing over keys and other matters that would attend Alex's moving out. Defendant first left the note in the living room for Alex to find, but then took the note out to the garage.
Defendant and Janet talked and drank in the garage. They decided to go to Alex's room to check on the dogs. Defendant said he needed to protect himself, and Janet said, "[O]f course you do." Defendant armed himself with a knife that was approximately 14 inches long.
Defendant knocked firmly on Alex's bedroom door, and Alex opened the door. Defendant saw that the dogs were in the room and were unharmed. Defendant and Alex began to argue. Alex moved toward defendant, and defendant stabbed Alex in the belly.
Alex said, "I can't believe you did that, Dad." He then walked out of the house and down the street where he collapsed in the driveway of another home. He died the next morning at 1:44.
The forensic pathologist who conducted the autopsy found that there was one exterior wound but two different tracks inside the body, indicating that the knife was partially removed and redirected. One of the wounds was upward from the belly, through the liver and the diaphragm and into a lung, a total of about 13 inches. The other wound was more left to right into the heart sac.
The district attorney charged defendant by information with one count of murder (Pen. Code, § 187, subd. (a)), with an allegation that defendant personally used a deadly weapon (Pen. Code, § 12022, subd. (b)(1)). A jury found defendant guilty of first degree murder and found true the personal weapon use enhancement. The trial court sentenced defendant to an indeterminate term of 25 years to life, plus a one-year determinate term for the personal weapon use enhancement.
Defendant contends that the search of his residence violated his Fourth Amendment right to be free of unreasonable searches. The contested search occurred during the night and was followed by a later search done pursuant to a warrant, which defendant did not contest. Specifically, defendant claims that the consent given by Frieda Sartain, the owner of the residence, for the search during the night was involuntary because she suffers from dementia. The contention is without merit because there is sufficient evidence to sustain the trial court's determination that the consent was voluntary.
A. Facts from the Suppression Hearing
Frieda Sartain was 80 years old at the time of the murder, and she owned the residence where the victim was stabbed.
In the suppression hearing, Deputy Kevin Darling testified that he escorted Frieda Sartain to a patrol car and put her in the backseat. As Deputy Darling spoke to her, he noticed that her speech was slurred and she appeared tired. She told him that she had taken her "evening medications," which made her sleepy. She responded appropriately to the deputy's questions about her name and birth date, and she was able to identify the people in the house. She said that defendant and Alex fought and yelled at each other all the time and that they were yelling at each other that night. Deputy Darling did not notice any cognitive limitations except for those identified as being caused by the medication, although he noted that she had difficulty giving a detailed statement. He did not remember anyone telling him that she suffered from dementia, even though Janet may have told another officer about Frieda's dementia when the officer first contacted Janet.
Deputy Darling filled out a department-issued consent form and explained to Frieda that the form was to obtain her consent to search the residence. It appeared to Deputy Darling that Frieda understood what he was saying and that she understood he was asking her to give consent to search the residence. She signed the form. On cross-examination, Deputy Darling clarified that he had her sign the consent form before he took her statement.
The defense called Frieda to testify in the suppression hearing. The prosecution objected, stating that she presently did not have capacity to testify. But the court overruled the objection. On the stand, Frieda was able to give her name, but was not able to answer other basic questions, such as the current date. The court then found that she would not be able to testify competently about the events around the time of the murder.
Cheryl Stockholm, who is Frieda's daughter and Janet's sister, testified that Frieda suffers from dementia, with a gradual decline over the past 10 years. She believed that Frieda's condition at the time of the suppression hearing, in October 2010, was "pretty close to the same" as her condition at the time of the murder, April 2009. In April 2009, Frieda knew she was living in her own home, but she may not have been able to give the address. At the time, she still recognized people, including her relatives.
The defense also introduced a DVD recording of an interview of Frieda in the early morning hours of April 5, 2009, at the station. During the interview, Frieda was able to give her name and relate some details about the fight between defendant and Alex; however, she made some inconsistent statements.
When we review a trial court's ruling on a motion to suppress evidence under Penal Code section 1538.5, we examine the factual findings of the trial court under the familiar substantial evidence test. "[W]e view the record in the light most favorable to the trial court's ruling, deferring to those express and implied findings of fact supported by substantial evidence. [Citations.]" (People v. Jenkins (2000) 22 Cal.4th 900, 969.) If the court's findings are supported by the record, we independently apply the relevant legal principles to those facts and determine whether, as a matter of law, the search or seizure was unreasonable. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.)
A search conducted pursuant to valid voluntary consent does not violate the Fourth Amendment. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222 [36 L.Ed.2d 854, 860]; People v. Garcia (1964) 227 Cal.App.2d 345, 350.) Voluntariness is a question of fact determined from the totality of the circumstances. (Schneckloth v. Bustamonte, supra, at p. 227.) Impairment of the person's mental faculties should be considered, along with all other circumstances, in assessing the voluntariness of the consent. (People v. James (1977) 19 Cal.3d 99, 116, fn. 14.) However, evidence of some impairment, alone, does not necessarily establish involuntariness. (People v. Garcia, supra, at pp. 350-351.) We apply an objective standard to whether the consent is valid. (People v. Gurley (1972) 23 Cal.App.3d 536, 555.) In other words, we determine whether it was reasonable for the officer to conclude, based on the circumstances, that the consent given was voluntary.
Here, Deputy Darling's determination concerning the voluntariness of Frieda's consent to search was objectively reasonable. Frieda owned the house. She responded appropriately to questions about her name and who lived at the residence. Her speech was slow and slurred, but she was able to respond to questions. Although another officer may have been notified that Frieda suffered from dementia, that knowledge alone was not sufficient to establish that the consent was involuntary. The fact that a person may have limited cognitive abilities does not establish involuntariness, but instead is a factor in determining voluntariness. (People v. Garcia, supra, 227 Cal.App.2d at pp. 350-351.)
While there was some evidence of Frieda's confusion caused by dementia, there was also evidence that she knew who she was and that this residence was hers, and she was able to respond to basic questions. Deputy Darling's personal observation of Frieda was that she understood that she was giving consent to search the residence. Based on these circumstances, we conclude that Frieda's consent to search the residence was voluntary and, therefore, the search did not violate defendant's Fourth Amendment rights.
We must also discuss two stray contentions defendant makes with respect to the consent issue. In his opening brief, defendant faults the trial court for not observing the DVD recording of the interview of Frieda at the station in the early morning hours of April 5, 2009. The court stated that it had reviewed "most" or "a substantial part" of the interview and "got a good sense of her cognitive abilities in the course of that interview." We perceive no error in the trial court's course of action. It reviewed the interview, as requested, before ruling on the suppression motion.
In his reply brief, defendant contends that we should preclude the People from arguing that Frieda was competent enough to give her consent to search the residence on April 4, 2009, because 18 months later, on October 10, 2010, the People argued to the court that Frieda did not have the capacity to testify in the suppression hearing. This contention is both too late (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [points raised for first time in reply brief are forfeited]) and not well taken. There is no rational reason to judicially preclude different arguments about a person's mental capacity at points in time that are 18 months apart.
Defendant moved in limine to introduce evidence of Alex's propensity for violence. The trial court ruled that most of the evidence could be introduced, but the court excluded evidence, under Evidence Code section 352, that Alex molested children at his mother's in-home daycare and threatened to kill one victim and blow up that child's home if the child said anything about the molestation.
On appeal, defendant contends the exclusion of this evidence concerning child molestation and threats was an abuse of discretion. We conclude that the trial court did not abuse its discretion.
The motion to introduce evidence included eight separate instances concerning Alex's propensity for violence:
(1) In 2000, a juvenile court petition alleged that Alex molested children attending his mother's in-home daycare and that he threatened to kill one of the victims and blow up the victim's house if the victim said anything about the molestation. The petition was resolved when Alex admitted child annoyance (Pen. Code, § 647.6), which is not a crime of violence.
(2) In 2007, Alex grabbed a knife and said that he was going to kill his mother. The incident resulted in a ...