(Super. Ct. No. 08F06621)
The opinion of the court was delivered by: Butz , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Jose Camdelario Duarte was convicted of first degree murder (Pen. Code, § 187, subd. (a))*fn1 with a deadly weapon enhancement (§ 12022, subd. (b)(1)) and arson of an inhabited structure (§ 451, subd. (b)). The trial court sentenced defendant to 34 years to life in state prison.
On appeal, defendant contends the trial court erred in denying his request to instruct on voluntary manslaughter as a lesser included offense of murder. We shall affirm.
On August 10, 2008, at about 2:00 a.m., security guards reported an apartment fire at the Tamron Ranch apartment complex in Sacramento. Firefighters soon arrived and extinguished the fire. Fire officials found the body of Alicia Ray inside one of the apartment's bedrooms. An arson investigator determined the fire was set intentionally. The point of origin was a mattress, and the fire could have been started by a cigarette lighter.
An autopsy determined that Ray died before the fire. The cause of death was ligature strangulation. A partially burned, used condom was found under Ray's body. There was no testable semen in the condom, possibly due to its burnt condition. A used condom and a blue "Rough Rider" condom label were found in the kitchen, wrapped in a paper towel. A DNA profile of the semen in this condom was impossible because there was no sperm in the semen. Multiple latent finger prints were found in the apartment, some of which were defendant's.
Defendant had two interviews with the police after Ray's body was found. He told the police that he did not kill Ray. Defendant said he had known Ray for a few years and reestablished contact with her after she recently returned from Texas. He had a girlfriend, India Love, and a young child with her, while he viewed Ray as his mistress. Regarding Ray, defendant said, "I don't love that bitch." According to defendant, Ray was supporting herself by stripping for men she met through Craigslist.
On the evening of Ray's death, defendant stopped at her apartment after work to have sex with her; he left her apartment between 12:00 a.m. and 12:15 a.m. He got dressed while still wearing a condom, and assumed it had fallen off at some point.
As he was leaving the apartment, defendant saw a man pull up in a white car and walk into Ray's apartment. He thought the man was one of Ray's clients. Defendant waited outside to see if Ray was okay. After 30 or 40 minutes, defendant pushed the unlocked apartment door open with his knuckles; he saw Ray bent over and first thought she was having sex. The man who drove up was also there. Defendant then had a gut feeling "[l]ike something is wrong but he's killing her." Defendant stayed in the apartment for about 30 seconds before leaving. The man left about 30 to 45 minutes later. Defendant then walked up to the ...