[DEPUBLISHED BY ORDER]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
Monterey County Superior Court, Hon. Pamela Butler, Judge (Monterey County Super. Ct. No. SS038586A).
[165 Cal.Rptr.3d 909] Attorneys for Appellant: Cliff Gardner, Under Appointment by the Court of Appeal.
Attorneys for Respondent: Kamala D. Harris, Attorney General, Gerald A. Engler, Sr. Assistant Attorney General, Seth K. Schalit and Catherine McBrien, Deputy Attorneys General.
Defendant was charged with murdering Concepcion Esparza (Concepcion) (count one), Jose Luis Parra Hernandez (Hernandez) (count two), and Luis Orlando Esparza (Orlando) (count three). Following a trial, a jury found defendant Ramon Rios guilty of three counts of first degree murder (Pen.Code, § 187, subd. (a)). It further found that defendant personally used a firearm, namely a nine millimeter pistol, in committing those murders within the meaning of section 12022.5, subdivision (a). It also found true that defendant committed multiple murders within the meaning of section 190.2, subdivision (a)(3), a special circumstance making death or imprisonment in the state prison for life without the possibility of parole the penalty for first degree murder. The trial court sentenced him to three consecutive prison terms, each consisting of life without the possibility of parole plus a four-year firearm enhancement (§ 12022.5, subd. (a)).
[165 Cal.Rptr.3d 910] On appeal, defendant raises multiple contentions. We find no reversible error and affirm.
A. Prosecution's Case in Chief
On the evening of January 6, 1990, defendant Ramon Rios shot his son Orlando, his wife Concepcion, and Concepcion's cousin, Hernandez, in the trailer where defendant lived with his family. At the time of the shootings,
defendant's daughter Lorena Esparza (Lorena) was about 18 years old and in high school, his son Juan Esparza (Juan) was 17 years old, his son Orlando was 12 years old, and his son Jose Ramon Esparza, Jr. (Ramon) was 11 years old. The next youngest was his daughter named Esmeralda, who was about six years old, and his very youngest was his son Miguel, who was three or four years old.
The trailer was located on Silva Ranch off Bitter Water Road in King City. Defendant worked at the ranch as a foreman. Juan also worked on the ranch and helped defendant with irrigation. Defendant carried a gun as part of his job.
Juan and Ramon indicated that Concepcion had drinking problems. Defendant also drank. According to Ramon, defendant and Concepcion fought about her drinking. Lorena said that defendant did not like Concepcion to drink because she became aggressive and provocative. Lorena characterized their relationship as unhappy.
Earlier in the Day
Earlier on the day of the shootings, Rosa Hernandez (Rosa), Hernandez's mother, had been visiting at the trailer and she had helped prepare dinner. Concepcion had driven Rosa back to her house in King City and later returned to the trailer with Hernandez. At trial, Ramon remembered being at his great aunt's house and seeing his mother drinking there. At trial, Juan testified that they saw Hernandez about once a year; he thought that Hernandez lived in Mexico.
On the evening of the shootings, Concepcion and Hernandez were drinking in the trailer. Lorena testified at trial that she was concerned that the presence of Hernandez and their drinking would provoke defendant.
Defendant came home sometime after 9 o'clock in the evening. Everything sounded pleasant at first but then Lorena, who was in her room that she shared with her sister Esmeralda, heard her parents arguing. Juan, who was in his room, also heard the talking turn into arguing. Juan's room was the converted laundry room across the hall from Lorena and Esmeralda's bedroom and Orlando and Ramon's bedroom.
After the shootings, Lorena told Ronald Qualls, a detective in the Monterey County Sheriff's Department, that her parents had been arguing about a relative. Juan told Gary Craft, an investigator with the Monterey County Sheriff's Department, that they had been talking about something related to the family. Ramon testified at trial that he thought his parents were arguing about his mother's drinking.
The arguing escalated and Lorena heard sounds of someone being slapped. After the shootings, Lorena told Detective Qualls that she could hear defendant yelling and things moving and someone falling.
[165 Cal.Rptr.3d 911] In a follow-up interview on January 8, 1990, Lorena told Gary Craft, then an investigator with the Monterey County Sheriff's Department, that she heard Hernandez tell defendant to be quiet or calm down. Juan told Investigator Craft that he heard the sound of his father grabbing his mother. Juan said that he heard defendant say, " Grab something to kill me" and " Here's a potato peeler. Do it with this." Juan said that defendant then came to his door and showed him a cut.
At trial in 2011, Lorena testified that she heard defendant banging on Juan's door and telling him to come out and look at their mother. Juan testified at trial that defendant came into his room, showed his finger to Juan, and said, " Look, she cut my finger." Defendant left and Juan shut his door. Juan heard more arguing and angry talking.
Lorena came out of her room and into the hallway. Defendant was holding a gun in his hand, the barrel up in the air. He said, " Look at your mother," which Lorena understood to be a reference to her mother's intoxicated state. Lorena told defendant to calm down or knock it off. She suggested that he leave. She went back to her room.
Ramon later told Investigator Craft that he had been awakened by his parents arguing and yelling. At trial, he testified that Orlando and he were watching TV in their bedroom and could hear the arguing. Ramon heard things being thrown in the dining room. The trailer was shaking.
Back in her bedroom, Lorena heard more arguing and then one or two gunshots and then a thump.
In his room, Ramon heard gunshots; a bullet came through the wall into his bedroom; Orlando fell from the bottom bunk bed onto the floor. Ramon saw blood coming from Orlando's head, he thought his brother was dead, and he screamed. Defendant came running to his room. At trial, Ramon testified that defendant had a gun in his hand.
Lorena heard defendant calling out to Orlando in an anguished voice; she was scared and stayed in her room. She heard defendant say, " Now you're happy. Look what you've done now." She heard defendant say " something about your fault." Defendant was speaking in Spanish using the feminine form. Then she heard more gunshots; she believed a bullet came through her wall after the initial shots.
Ramon later told Investigator Craft that he had heard Hernandez say at some point, " What did I ever do to deserve this?"
Lorena and Esmeralda got up but Lorena pushed her sister back and she walked toward the door. Lorena heard defendant yelling, " My son. What have I done to him? I killed him." Lorena went out of her room.
Defendant was saying that he shot or killed his son. Defendant seemed unsure whether to leave; Lorena recalled seeing defendant " turn around and look at [her] and then turn around to leave but then turn around" again. Defendant was crying and yelling in anguish as he went back and forth. Ramon saw defendant pass by in the hall and this was the last time he saw defendant.
Ramon told Lorena that Orlando was dead. Juan, who had heard about five to six shots, came out of his room and Lorena told him that Orlando had been shot. Juan saw defendant at the sliding door across from the dining table.
Lorena told Detective Qualls that defendant went out the door very fast. Lorena testified that, before he left, she had been thinking, " [G]o before they come." " But [165 Cal.Rptr.3d 912] then when he shut the door, [she] wanted to tell him to stay."
After the shootings, Lorena told Detective Qualls that she had heard the defendant's truck starting and then being driven quickly away. Ramon told Investigator Craft that he had heard defendant driving away.
Lorena went into her brothers' room and saw that her brother had been shot. Lorena's little siblings told her that defendant had also shot their mother and Hernandez. Lorena went to her mother, kneeled and looked at Concepcion. She heard a gurgling sound.
Meanwhile, Juan went into Orlando's room and saw blood coming from Orlando's head. Ramon was sitting against the bunk bed. Juan picked up Orlando from the floor and lay him on the other bed in the room. At trial, Juan testified that he believed that Orlando was defendant's favorite son.
Lorena went back to Orlando. At this point, defendant was already gone. Orlando had been moved to the bed and Lorena stayed with him on the bed.
After defendant left, Juan saw both his mother Concepcion and Hernandez lying face down on the floor. His mother was near the corner of the dining table. Juan turned his mother towards him and saw blood; she was breathing but appeared unconscious. She had no weapon. Juan held his mother in his arms until she died.
The trailer had no telephone. Juan went to the office outside the trailer and called 911.
Ramon testified that, after defendant had left, Ramon saw his mother and Hernandez. Hernandez was gasping for air.
The Crime Scene Investigation and Autopsy
Sheriff's Deputy Gary Wheelus was dispatched to the scene at about 11:13 p.m. on January 6, 1990. He arrived at about 11:30 p.m. and he was one of the first officers to arrive. Upon entering the trailer, he saw two people with obvious gunshot wounds. He did not notice any weapons near either of the victims. Deputy Wheelus found a boy, who had been shot, moaning and whimpering in the first bedroom down the hallway on the left. The boy was taken to Mee Memorial and later pronounced dead.
Wayne Harvey, a detective with the Monterey County Sheriff's Department, arrived at the scene at about 1:00 a.m. on January 7, 1990. At trial, Detective Harvey did not recall seeing any weapons in the possession of, or near, the adult shooting victims.
Seven Budweiser beer cans were on the dining table; there was a blood stain smear on the tablecloth. A metal potato peeler was found on top of the kitchen counter. The parties stipulated that the peeler tested positive for human blood in 1990 but no DNA typing was done. There were also blood splatters on the counter in the vicinity of the peeler.
Concepcion was found lying on the floor, not far from a hole in the dining table. A bullet had entered through the top of the table and exited the table's edge, passing through the clear plastic covering the tablecloth and the tablecloth. Blood had dripped down and dried on the plastic. Concepcion was wearing a red and black plaid jacket. An unexpended nine millimeter bullet was found by her left foot. The live round was significant to Investigator Craft because it could indicate that " the gun was being locked and loaded" and caused the gun to kick out a live round that had been already loaded.
Hernandez was found lying on the floor near one end of the table.
[165 Cal.Rptr.3d 913] John Randall Hain, a forensic pathologist, testified that he performed autopsies on the three victims on January 7, 1990, the day after the shootings. He saw no evidence that any of the victims was shot from close range.
Orlando had an entrance gunshot wound on the right center back of the top of the head and an exit hole in his scalp in the left center front of the top of his skull. This wound was fatal. Orlando also had a small abrasion, which looked like a wound caused by a gunshot graze, on the inner right foot immediately below the ankle.
Concepcion had four separate gunshot wounds. A bullet had entered her right temple and exited in the area of the left upper cheek. There was a wound caused by gunshot graze " on the inner aspect of the back of the right upper arm." A bullet had entered her right lateral breast area, penetrated the breast, and exited " the inner aspect of the right breast somewhat lower." A fourth wound was caused by a bullet that entered her left forearm and exited the inner side of her wrist. The entry hole had " a very wide marginal abrasion, indicating the bullet was tumbling," which " means it likely went through something else first."
Dr. Hain thought there was a minimum of two different bullets. The wounds to her arm, breast, and wrist could have been caused by the same bullet and they were not fatal. According to Dr. Hain, the wound to her head was " rapidly fatal." It would have caused her to change position immediately, i.e. collapse and lose ...