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People v. Abundio

California Court of Appeals, Second District, Fourth Division

December 4, 2013

THE PEOPLE, Plaintiff and Respondent,
v.
JOSE ABUNDIO, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County No. MA047792, Lisa M. Chung, Judge.

Barbara S. Perry, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

WILLHITE, J.

In an unprovoked, premeditated attack, appellant Jose Abundio stabbed marijuana dealer Timothy Wong to death in order to rob him of marijuana appellant could not afford to buy. After appellant’s first jury deadlocked and a mistrial was declared, a second jury convicted him of first degree murder. The jury also found true the special circumstance allegation that he committed the murder in the commission of a robbery, and the allegation that he used a knife. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(17), & 12022, subd. (b)(1).)[1] The trial court sentenced him to life in prison without the possibility of parole, plus one year. On appeal, he contends that his sentence constitutes cruel or unusual punishment under California Constitution, article I, section 17, and People v. Dillon (1983) 34 Cal.3d 441 (Dillon), abrogated on other grounds by People v. Chun (2009) 45 Cal.4th 1172, 1186. We disagree and affirm the judgment.

BACKGROUND

According to Kourtney Garcia, Timothy Wong’s girlfriend, Wong had been selling marijuana for about a year before he died. Before the killing, he had sold marijuana to appellant six or seven times, and there had never been any problem between them. They called each other by familiar names: appellant was “Joe, ” and Wong was “Timmy.”

On the night of the killing, December 19, 2009, around 9:00 p.m., appellant was with three friends, Josue Hernandez, Felix Martinez, and John Bowen, watching television at Bowen’s house on 171st Street in Lake Los Angeles. Appellant borrowed Hernandez’s cell phone, walked around the corner of the house, and made three to five phone calls. He then erased the numbers he had dialed.

Hernandez saw a white sedan pull up and stop in front of Bowen’s house. Appellant walked out to the car and returned to the house about ten minutes later. The car drove away.

The white car observed by Hernandez was Wong’s. According to Garcia, Wong received a phone call from appellant asking to buy marijuana. After Wong and Garcia obtained the marijuana, Wong received another phone call from appellant, and placed it on speaker phone. Wong said, “I got it, ” named a price, and said he would be there soon. Appellant said, “Don’t trip about the price. Just come over.”

Wong and Garcia drove to Bowen’s house on 171st Street. Appellant came out to the car and stood by the passenger side where Garcia was seated. After appellant and Wong discussed the price, appellant said he needed to get change. Although Wong told appellant that he had change, appellant insisted that he needed to go down the street to get change and would arrange to meet Wong later. Appellant also repeatedly asked Wong if Garcia would be present at a later meeting. Further, although Wong and appellant had never hung out socially before, appellant asked Wong if he wanted “to hang out and kick it and drink and smoke.” Wong declined because his family was visiting.

According to Hernandez, when appellant returned to Bowen’s house, he said, “I’m going to kill them.” He added that he wanted to get marijuana and was going to get more than he could afford. Hernandez thought that appellant was joking. Bowen overheard appellant tell Martinez that he was going to jump “Timmy” for marijuana. Bowen did not take appellant seriously and told appellant it was stupid.

Appellant asked Bowen if he could borrow some gloves. Bowen gave him a pair of black wool gloves. Bowen did not consider the request unusual, because appellant had borrowed his clothing before. Appellant then asked Bowen to drive him someplace using Bowen’s girlfriend’s car. Hernandez, Martinez, Bowen, and appellant got in the car, and appellant gave Bowen directions. At first appellant said he wanted to go to the store to get snack food, but while they were driving, appellant said he wanted to go to Wong’s to buy marijuana. Bowen asked, “You are not going to do anything, right?” Appellant said he was not and that he was going to “buy a 40, ” which Bowen assumed meant $40 worth of marijuana. Hernandez and Bowen did not see appellant with a knife.

After driving for about 15 minutes, they arrived at a house. Appellant asked Hernandez to get out of the car with him and told Bowen to park the car down the street. Hernandez and appellant got out of the car, ...


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