December 27, 2013
The PEOPLE, Plaintiff and Respondent,
Ramon Esparza RIOS, Defendant and Appellant.
[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 consciousness, which made him " lean to the probability" that the head shot occurred second.
Dr. Hain did not identify any bruising on Concepcion attributed to a beating.
Detective Qualls, who attended the autopsy performed by Dr. Hain, testified that Concepcion's red and black plaid jacket had a bullet hole; wood splinters caught in the fabric matched the " splintering" found on the floor by the table.
Hernandez had two entry wounds and two exit wounds. One bullet entered Hernandez's upper left back in the upper shoulder blade area. It went through his left chest, perforated his upper left lung, and exited the left center of his upper chest. Another bullet entered his left flank, traveled through the center of his body, hit his aorta, the largest blood vessel in his body, and exited his right flank. After this wound, Hernandez would have collapsed after about 10 seconds and " bled out rapidly." But he could walk or crawl for about 10 seconds. Dr. Hain lacked sufficient information to form an opinion as to which injury occurred first.
The boys' bedroom adjoined the dining area; the bedroom contained a bunk bed and another bed with not much space between. A photograph of the crime scene showed some blood spattering on the lower bunk. There was also some blood spatter and a blood stain on the bed across from the bunk bed.
In the dining area, bullet holes indicated that one bullet had penetrated the top of a dining room cabinet, gone through the wall, and exited into the boys' adjoining bedroom. Another bullet had entered the same dining room wall higher up and exited into the boys' bedroom as well. There was also a bullet hole in the far wall of the boys' bedroom.
Using an antenna as a probe, investigators determined the two bullets' direction of travel. The lower bullet had passed through the dining room cabinet and traveled through the wall into the adjoining boys' bedroom; a spent bullet was located under the carpet in that bedroom. Investigator Craft believed that the trajectory [165 Cal.Rptr.3d 914] of that bullet was consistent with a bullet striking Orlando's foot.
The upper bullet had traveled through that dining area wall into the adjoining boys' bedroom, passed through the bunk bed frame, and continued through the far wall into the girls' adjoining bedroom. A bullet was found in the girls' bedroom. In Investigator Craft's opinion, the path of that bullet was consistent with Ramon's testimony that Orlando was sitting on the bunk bed watching TV and Dr. Hain's testimony that a bullet traveled through Orlando's head.
Two bullet holes were found in the sliding glass door next to the dining area. A slug was found lodged in the lower-half of front door. Detective Harvey testified at trial that, based on its trajectory and where it lodged, it was his conclusion that the door was opened when the bullet was fired.
Six shell casings and a live bullet were recovered inside the house. Five shell casings were found outside the house but they were not all nine millimeter.
Three bullet casings were collected from the top of the dining table. Another casing was found on the seat of a chair near the cabinet and the table; two more casings were found nearby on the floor. One of the two bullet casings on the floor was found at the leg of a chair and the other was found closer to the entrance to the hallway. In Investigator Craft's opinion, the gun had to be in that room because it ejected or " kick[ed] out" the casings to the right and if defendant had been in the hallway, the casing would have kicked out in the hallway.
Investigator Craft believed the casings on the table may have reflected the shooting of Concepcion and the casings found on the floor may have reflected
the shooting of Hernandez. It was his belief that one bullet went through the table and struck Concepcion's arm, breast, and then wrist. In his opinion, those wounds and the splintering put her down at the level of the table. A likely scenario is that another bullet then struck her head, she dropped and the bullet ended up in the far door. The blood evidence for Concepcion was found near her body, which indicated that she was shot in that general area. In his view, the physical evidence indicated that Concepcion was retreating; no shiny object was found close to her body. The blood evidence for Hernandez was found near his body.
In Investigator Craft's opinion, six bullets were fired during the incident based on the number of shell casings that were found. The bullets resulted in six bullet paths causing each of the three victims to sustain two sets of wounds.
Concepcion's blood alcohol level was .22, almost three times the legal limit to drive. Hernandez's blood alcohol level was .07, just under the legal limit to drive.
Defendant's Relationship with Concepcion and Prior Domestic Violence
After the shootings, Investigator Craft learned from Lorena and Juan that their parents had been having problems for the past month or so. Lorena also said that her parents had previously argued and fought. She indicated that she was familiar with her mother being slapped and beaten. Juan was familiar with the sounds of his parents arguing and fighting. He said that defendant had previously hit his mother.
Ramon testified at trial that he had seen his parents arguing a lot and throwing stuff at each other and, although he had not seen defendant hitting his mother, he had seen bruises on his mother. One of the main things they argued about was his mother's drinking.
[165 Cal.Rptr.3d 915] At trial, Juan recalled his mother being taken to a hospital after an incident involving his father. He remembered being taken to a shelter for abused women but he did not know the reason why he was taken there. He also remembered that his father had been in jail.
Defendant Rios and Concepcion had separated for a period.
Lorena testified that Concepcion could be provocative and defendant was always warning her to " shut up." Concepcion sometimes tried to hit defendant too. Concepcion had a bad temper.
Defendant's Statements after Being Returned to the United States in 2010
Martin Sanchez, an investigator with the Monterey County District Attorney's Office and a life-long and fluent Spanish speaker, took custody of defendant Rios from federal marshals on November 24, 2010 at the San Jose Airport. Defendant had arrived on a flight from Mexico City. The first interview, which occurred while they were driving from San Jose to the Monterey County jail, was not recorded. Defendant had told Sanchez that he could not read or write. Sanchez found that defendant had a good understanding of the case and a good recall. Sanchez interviewed defendant Rios several times.
Defendant said that he had a Beretta nine millimeter automatic, which he had bought about 15 days before the shootings. He stated that the gun held 15 bullets, 14 in the magazine and one on top in the chamber. Defendant claimed that he always kept the safety on. Defendant had two .22 rifles and an R14. Defendant had started handling guns and rifles when he was about 12 years old.
On the day of the shootings, defendant Rios had been drinking after work and before going home. Defendant and Adan Flores had shared a 24-pack and defendant may have drunk " a little more" than Flores. According to defendant, he arrived home at about 6:30 in the evening with another 12-pack of beer and his Beretta. The gun was loaded with one magazine and he had another magazine in his pickup truck.
Defendant told Investigator Sanchez that, although he rarely chambered a bullet on top, that day his gun had a bullet chambered on top and 14 bullets in the magazine. That meant that, aside from the safety, the gun was ready to fire. Rios told Sanchez that he did not know why he had the gun ready with a bullet on top that day.
When he arrived home, Concepcion and Hernandez were drinking beer and invited him to have a drink with them. He had a beer with them. He said that he did not recognize Hernandez. Defendant claimed not to have seen Hernandez since 1971 and it occurred to him that Hernandez was his wife's lover.
Defendant acknowledged in an interview that, after a short time, his wife and he were arguing and yelling loudly. Defendant recalled Lorena coming out and telling him to calm down. He claimed that, at that point, his gun was in his waistband.
Defendant said that his wife asked him to lend her the gun because she wanted to shoot it. Defendant stated that she really liked to shoot. Defendant indicated that Hernandez approached him and said, " Lend it to me."
In one interview, defendant indicated that Hernandez tried to take his gun away and, as defendant pulled back, his finger hit the trigger and a shot was fired. In a later interview, defendant explained that he lowered the safety because Hernandez wanted to grab his gun from him and defendant said to himself, " [L]et's see [165 Cal.Rptr.3d 916] what happens." Defendant said that he was not thinking of killing his child or his wife. Hernandez tried to grab for the gun and, as defendant was pulling away, the gun went off.
Defendant told Sanchez that he heard something fall in Orlando's room and he went to look; he saw blood pouring out of Orlando. According to defendant's statement, after the first shot was fired, Lorena came out of her bedroom into the hallway. Defendant was angry and began yelling at his wife Concepcion. He yelled, " I killed my son." Defendant told Lorena that he had killed her brother. Defendant was crying, cussing at Concepcion and Hernandez, and yelling, " Look what you have done."
In one interview, defendant said that his wife grabbed a knife and went after him, yelling " you son of this and that," and she hit him. Defendant later claimed that he saw his wife had a knife or something shiny in her hand; she was coming towards him and cussing at him. He felt even angrier. He was crying and yelling at her that it was her fault that he killed Orlando. He shot her multiple times and she fell. Defendant Rios showed Investigator Sanchez how far apart Concepcion and he had been standing and the investigator estimated the distance to be about 10 feet.
Defendant recalled that Hernandez tried to push him to get out of the trailer and Hernandez headed toward the door. Defendant recalled saying, " Where are you going, you son of a bitch." He was angry and said, " You're also at fault. Where the fuck you going?" He shot Hernandez in the back or side. After being shot, Hernandez asked defendant why defendant had shot him.
In the interviews, defendant indicated that, as Juan was running to the office to make a phone call, defendant was getting into his pickup truck. He loaded the second magazine in the gun. Defendant drove away. After leaving his pickup truck at the graveyard across from Adan's house, defendant walked to Adan's house and borrowed Adan's car. Defendant headed toward Los Angeles on " the 101."
Defendant stated that he took " the 46" to " the 5" and, near " the 5," he saw a highway patrol car with lights and siren on and he drove into a gas station. He had his loaded gun with him. The officer drove into the gas station and defendant thought that, if the officer began investigating him, he was " going to shoot him with all [his] ammo" and kill him. Although defendant had
killed his wife, son, and another man, he did not think of turning himself in and telling the officer what happened. The officer left and defendant drove to Los Angeles.
From Los Angeles, defendant went to Mexicali and then to San Luis Rio Colorado, Mexico. Defendant was born in Ixtlan del Rio, Nayarit; he was not a U.S. citizen.
During an interview, Investigator Sanchez told defendant that blood had been found on the door of his truck. Defendant said that he had not touched either his son or his wife after shooting them. Defendant indicated that the blood was his and he was bleeding because " the kid grabbed [his] hand." At trial, Sanchez reported that a manual for a Beretta gun was found in defendant's truck.
Investigator Sanchez told defendant that a second bullet was found in Orlando's foot during the autopsy, defendant insisted that he had initially fired only one shot. Defendant admitted that when he discovered that he shot his child, he became angry and shot his wife and the other " guy."
Defendant was arrested in Mexico. He had remarried. When asked if that relationship [165 Cal.Rptr.3d 917] was also violent, defendant answered, " [J]ust lately, yes."
At one point, defendant Rios acknowledged that he had committed a crime and he agreed that he had decided to accept the consequences.
Defendant admitted that he had hit and beaten Concepcion at times. He stated that his children could be trusted to always tell the truth and they were being honest when they said that he was violent with his wife.
Defendant stated that his wife Concepcion would sometimes get jealous because he worked late. He would arrive home late and drunk and she would get mad. She would be drunk too. Sometimes his wife scratched him, pulled his hair, ripped his clothes.
Defendant recalled that one time, when he was with a woman who was just a friend, his wife hit him. He was " really mad" and he pushed her down the stairs; his wife suffered a broken leg. He took her to a hospital.
Defendant recalled a different occasion in March 1988 that involved an altercation with his brother-in-law; they both had knives. Defendant had just gotten off work and his brother-in-law and his wife were " drunk." Defendant had already had a beer too. His wife had told her brother about her broken leg and he was waiting for defendant. Defendant took a chair and knocked
the knife from his brother-in-law's hand. Defendant " was going to cut [his] brother-in-law" and his wife " took the knife from the edge and [he] pulled it and cut her." Defendant ended up in jail. Silva, defendant's boss, got him out of jail and defendant went to live at Rancho Silva.
Defendant left his family and they were unable to pay the rent. His wife and the children went to a women's shelter. Later he " took her back."
The Gun and Bullets
Investigator Sanchez explained that if the chamber of a Beretta 92 F model is empty and its magazine is full, the gun cannot fire until the slide has been pulled back and a bullet is loaded into the chamber. Even then, the gun will not fire until the safety is off.
Sanchez further explained that one of several ways that a live round can end up at a crime scene is if a shooter forgets that there is already a live bullet in the chamber and cocks the gun, which kicks out a live bullet.
B. Defense Case
Defendant Rios testified in his own defense. In 1990, he worked on the Silva Ranch in King City. He was an irrigation foreman. Defendant initially lived in a smaller trailer, which was located next door to the larger trailer in which he was living at the time of the shootings. He moved into the larger trailer after the tractor foreman who had lived there was fatally shot by his wife. Defendant indicated that the woman and his wife were " together sometimes" and his wife had threatened him a number of times.
On cross-examination, defendant agreed that he was worried that the two women were plotting against him. He was also worried that his wife might shoot him one day because he was abusive to her and threatened her. He acknowledged that the woman who had shot her husband was never charged with murder because she had acted in self-defense.
On redirect examination, defendant stated that Concepcion had threatened to kill him on about three occasions. Defendant said that Concepcion had tried to shoot him with a rifle. In that instance, she was [165 Cal.Rptr.3d 918] jealous and she said that defendant was with one of Adan's sisters-in-law. Defendant did not actually observe this incident but one of his brothers had taken a .22 away from Concepcion and then told defendant what happened.
When defendant and his wife Concepcion lived in Salinas in a two-story apartment, there had been an incident in which she had broken her leg. It
occurred after he arrived home at about 11 p.m. and she was drunk. They started to argue. According to defendant, he told Concepcion that he was going to sleep and he did not want to argue. He went up the stairs and she followed him and they argued. Defendant shoved her and she broke her leg. Defendant took her to the hospital.
In another incident, defendant arrived home to find his wife and his wife's brother drunk. Defendant thought his wife had told her brother that he had previously hit her. His brother-in-law was angry because he did not like defendant hitting his sister. Defendant's brother-in-law pulled out a knife and came at him; defendant picked up a chair and caused the brother-in-law to drop his knife. Defendant then tried to stab his brother-in-law with another knife. According to defendant, Concepcion tried to grab his knife and cut herself.
Defendant conceded that in 1988, he was arrested for stabbing his wife with a knife and he pleaded guilty. As a result of that conviction, the judge told him he could not possess guns anymore.
Defendant and his wife had separated for a period of time; he lived in the small trailer on Silva Ranch and she lived with the children in San Lucas. According to defendant, they reconciled on the condition that she would not drink. She started drinking again. Some days she was okay but other days she was not.
Defendant thought that during 1989, the year prior to the shootings, he had hit his wife. His wife had told defendant that she did not want him to hit her anymore.
Defendant testified that he had been handling guns since he was about 13 or 14 years old. He had a .22 and a 30-30 shotgun when he was growing up. He had used shotguns and handguns and he liked to hunt. He knew how to handle guns safely. Defendant agreed that a safety rule is that you do not take the safety off unless you are ready to shoot the gun and you do not put your finger on the trigger unless you intend to fire the gun and he knew these rules in 1990. He acknowledged if he put his finger on the trigger he was intending to fire the gun.
Defendant had purchased a Beretta handgun from a friend about a month before the January 6, 1990 shootings. At that time, he believed that it was illegal for him to buy a gun. He could clean the Beretta and take it apart. Prior to January 6, 1990, he had fired the gun only on New Year's. The safety mechanism was working properly on the evening of January 6, 1990.
After work on the evening of June 6, 1990, defendant gave some workers a ride to town. A friend and he bought 12-pack of beer, which they
drank at the friend's house. On cross-examination, defendant acknowledged he split a 24-pack with Adan and he drank more than half of it. He estimated that he drank about 14 beers.
According to defendant, he then went to a liquor store and bought another 12-pack of beer. Afterward, he drove to " check the water and some pumps." He was drinking his beer. He had his Beretta gun on the seat of the vehicle. For self-defense reasons, he always carried the gun at night when working. He stated that people would come onto the ranch property [165 Cal.Rptr.3d 919] and steal tractor batteries and other material. He claimed that, on the evening of the shootings, he saw a car coming, so he stopped and turned off the vehicle's lights and cocked his gun and put a bullet on top. It turned out to be a friend. After recognizing his friend and speaking to him, defendant proceeded to check the pump and reservoirs. Then he went home.
When he arrived home, defendant placed the gun, which was loaded, in his belt behind his back underneath his shirt. He ordinarily left the gun in his vehicle and he did not know why he did not do so on the night of the shootings.
On January 6, 1990, defendant did not know that Hernandez was in the trailer with his wife. He carried four cans of beer that were still full and a half-full can of beer that he was drinking into the trailer. Concepcion and her cousin Hernandez were at the kitchen table. Defendant did not recognize Hernandez whom he claimed to have last seen when Hernandez was a boy. Defendant greeted them and Hernandez said " hi." Defendant went by the table and Concepcion shook her head and gave him an angry, " dirty" look. Defendant initially testified that he did not know whether she was angry at him for being drunk. He later stated that she was angry because he came home late and he was drunk.
Defendant put his four cans of beer into the refrigerator. He saw about eight beer cans on the table; Concepcion was " really drunk." He was angry that Concepcion was drinking. He had already warned her that he did not want to see her drunk around the house. Defendant finished his open can of beer and threw it away. He agreed that he probably had drunk about 22 beers. Defendant did not realize who Hernandez was; defendant thought Hernandez was Concepcion's lover, which also made him angry.
Defendant testified that Concepcion and he began arguing over her drinking. At that point, defendant's gun was in the small of his back in his belt, the butt was sticking out, and his shirt was untucked. They were cussing at each other. Defendant denied hitting Concepcion but he admitted pushing her because he was " already fed up" and " already angry." Concepcion had asked
defendant where he had come from and he told her " not to be bothering" him. He said that he pushed Concepcion when he saw that she was going to grab a knife, which had a black handle and a blade about five inches long, from the table. Concepcion fell to the ground and " she made a lot of noise" " [b]ecause a chair fell over."
When asked on cross-examination why he believed his wife was " going to try to pick up ... a knife," defendant said because they were arguing and saying, " Fuck you," and, " Fuck you," back and forth." He testified that she said, " I'm going to kill you." Defendant then indicated that he had forgotten about that threat before lunch (during direct examination).
On redirect-examination, defendant indicated that a blue-handled knife, which was marked as an exhibit, was similar to the knife that was on the table during the incident. The knife displayed at trial had a six and a half inch blade and the knife, including the handle, was about ten and a half inches long.
After defendant had pushed Concepcion and she had fallen, Lorena came out and told defendant to be quiet. Defendant told Lorena to " look at her mother" and her mother " was really drunk." Lorena went back to her room.
Defendant initially testified that Hernandez got up and picked up Concepcion but he later testified that he did not see how she got up. Defendant agreed that [165 Cal.Rptr.3d 920] Hernandez tried to get in the middle and stop the argument between Concepcion and defendant.
Hernandez came toward defendant and told defendant to let him have the gun. Hernandez grabbed defendant's shirt. Defendant turned and faced Hernandez. Defendant became angry and thought that Hernandez wanted to kill him with the gun. He was concerned that his wife might be planning on killing him just like the wife of the previous occupant of the trailer.
Hernandez was arguing for defendant to give him the gun and trying to take the gun. Defendant was swearing and " telling him off." Defendant said to Hernandez, " You want the gun in order to kill me." Hernandez said, " I want to see it." Defendant refused to let Hernandez have the gun and defendant claimed that it was at this point that he took the gun out. Hernandez grabbed his hand and tried to take the gun away; they struggled. Defendant said, " Let go of me, you son of a bitch" " [b]ecause I'm going to shoot...."
On cross-examination, defendant admitted that Hernandez did not want defendant to have the gun because defendant was beating Concepcion and he
was afraid of what defendant was going to do with the gun. Defendant said that he pulled out his gun because Hernandez wanted to take his gun away.
On cross-examination, defendant admitted that instead of giving the gun to Hernandez, defendant threatened Hernandez with the gun. Defendant admitted that, although his finger was not on the trigger at first, he did put his finger on the trigger because he was very angry. Defendant believed that he took off the safety. Defendant admitted that he intended to shoot Hernandez. He admitted that he pulled the trigger twice because he wanted to kill Hernandez. Defendant acknowledged that Hernandez held the gun away and prevented defendant from shooting him.
The gun went off while they were struggling and defendant heard something fall in a bedroom and a cry. Defendant went to the bedroom's doorway, still holding the gun in his hand, and saw he had shot his son and his son was bleeding. This made defendant angrier; he blamed his wife and Hernandez. Defendant was very angry and sad and he " started crying and screaming" that, because of them, he had killed his son.
Defendant testified that he saw Concepcion come out from the kitchen holding something shiny in her hand. He testified that he thought Concepcion had grabbed the knife with the five-inch blade and was trying to kill him. She stabbed at him and he sustained " a little cut" to the back of his left hand. He saw that she had a vegetable peeler. She stabbed at him again and cut his left hand again.
Defendant pushed Concepcion, she went sideways and stumbled or fell, and, as she was getting up, he fired his gun twice. When he first fired at her, they were about six or seven feet apart. Defendant was very angry and he felt desperate because he had killed his son. He was yelling, cussing, and telling them see what you have done, you " son of a bitches."
On cross-examination, defendant indicated that he had turned the gun on Concepcion after seeing that Orlando had been shot and telling Concepcion that it was her fault that their son had been shot. Defendant conceded that he was not afraid that Concepcion was going to kill him with a potato peeler. He was asked, " So when you shot her, it wasn't because you had to?" He replied, " No. It's just that ... by then I was very angry. But— because of the boy who was dead. That's why."
[165 Cal.Rptr.3d 921] When defense counsel asked on redirect in essence whether defendant shot his wife because he thought Concepcion was attacking him with the potato peeler with the intent to kill him, defendant replied, " Well, to be perfectly honest, at that moment I was very angry because I had just shot my son. I did not know what to do."
On recross-examination, defendant indicated that, when he shot Concepcion, he had pushed her, she was about seven feet away, and he knew that she had only a potato peeler in her hand. He admitted that, when he then shot his wife in the head, he was trying to kill her. He was very angry and he " lost his head."
Defendant recalled that Hernandez grabbed his arm and pushed him a little on his back and passed behind him. Defendant was feeling " [a] lot of anger" because Hernandez " was the one at fault" for the killing of his son. Defendant yelled in part, " Where are you going, you son of bitch? It is your fault that I killed my son." Seconds after shooting his wife, defendant shot Hernandez, who was about eight to 10 feet away. He was shooting toward the door. Defendant believed that the first shot struck Hernandez in the side and Hernandez remained standing. After the second shot, Hernandez fell. Defendant believed that he had shot Hernandez again when Hernandez was on the ground.
On cross-examination, defendant agreed that Hernandez had angered him and caused him to shoot his son by accident when defendant was trying to shoot Hernandez. Defendant admitted that, when he shot Hernandez, Hernandez was going away from him and trying to escape. Defendant was trying to kill Hernandez because he was angry. Defendant conceded that all Hernandez had done to him was try to take the gun away from him when defendant was threatening his wife. During recross-examination, defendant admitted at one point that he had shot Hernandez in revenge but then he said that he did not remember.
Defendant indicated that Lorena came out of her room after the shooting was over. Defendant was feeling " very bad," angry and desperate. He walked toward the hallway and told Lorena that he had killed her brother because of her mother; he had the gun in his hand. Defendant then walked toward the door.
On cross-examination, defendant confirmed that he had told Juan that Concepcion had cut him but defendant said he made that statement when Juan was at the door and ready to leave, not earlier in the evening as Juan had testified. Juan left and defendant presumed that Juan was going to call the police from the office. Defendant left the trailer and drove away in his truck.
Defendant drove to King City and parked the pickup truck. He crossed the street and went to borrow a car from his coworker Adan. Adan lent him a Bronco. When he was leaving King City, he put a new magazine in the Beretta. Defendant drove south on Highway 101 and then took Highway 46 at Paso Robles.
On Highway 46, he was stopped at a gas station and he saw a police car with sirens blaring. Defendant was concerned when the vehicle stopped; the officers looked at him. He was filling the Bronco with gas; his gun was in the middle of his back in his waistband and his shirt was outside his pants. An officer was talking on the radio and walking around. The police car left and headed north; defendant drove southbound toward Los Angeles.
On cross-examination, defendant denied that he was ready to kill the highway patrolman at the gas station to avoid arrest. He admitted he was willing to shoot if an officer tried to arrest him but he was [165 Cal.Rptr.3d 922] not going to kill the officer. On redirect-examination, defendant said he was thinking of dying when he saw the CHP officer. On recross-examination, he admitted that he thought he " might just take [the officer]" with him.
He arrived in Los Angeles, where he stayed for about two days, and then his cousins gave him a ride to Mexicali, Mexico. From there, he traveled to San Luis Rio Colorado, Mexico, where an uncle lived. Defendant used the name Pedro Macias, he lived on a ranch, and he remarried. In 2010, defendant was arrested in this matter by Mexican authorities; he was transported to San Jose, California. Defendant recalled being questioned by investigators and he testified that he answered them honestly.
C. Prosecution's Rebuttal Case
Investigator Craft testified regarding a photograph that showed a potato peeler and some blood on the kitchen counter. There was also a blue-handled knife, like the one shown to defendant, on a different area of the counter in a corner of the kitchen.
Craft was also the investigator of the prior shooting that occurred in that trailer. The single shot in that case was fired into the mattress in a bedroom and did not cause any other bullet holes. The woman who had shot her husband was not charged.
Investigator Craft described the difference between a Beretta's single-action pull and double-action pull. In single action mode, the hammer is already cocked and it takes very little pressure to pull the trigger, which causes the hammer to drop and the gun to fire. If the shooter racks back the slide to lock and load a round and then puts on the safety, or de-cocking device, the hammer drops. When the safety is then taken off, the gun is in double-action mode and the shooter must pull the trigger all the way back to cock the hammer and fire. A double-action pull is not as easy as a single-action pull; it requires at least double the force of a single-action pull. Craft
further explained that the safety on the gun is a " rotating pivot and typically a thumb can easily" take off the safety.
A. Admission of Propensity Evidence [**]
B. Alleged Instructional Error
3. Instruction on Voluntary Intoxication
Defendant complains that the trial court's intoxication instruction " precluded the jury from considering intoxication in connection with provocation and imperfect self-defense." As defendant correctly points out, " [e]ven if the court has no sua sponte duty to instruct on a particular legal point, when it does choose to instruct, it must do so correctly." ( People v. Castillo (1997) 16 Cal.4th 1009, 1015, 68 Cal.Rptr.2d 648, 945 P.2d 1197.)
In this case, the trial court instructed: " You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill or defendant acted with deliberation and premeditation.... You may [sic] consider evidence of voluntary intoxication for any other purpose."  This is standard [165 Cal.Rptr.3d 923] language contained in CALCRIM No. 625.
Defendant asserts that the court's instruction improperly limited the jury's consideration of the evidence of his intoxication, which was relevant to whether he had acted in the heat of passion and whether he held a subjective belief that imminent danger necessitated the use of deadly force. He points to
People v. Cameron (1994) 30 Cal.App.4th 591, 36 Cal.Rptr.2d 656, in which a defendant was convicted of second degree murder. ( Id. at p. 594, 36 Cal.Rptr.2d 656.)
In Cameron, the appellate court concluded that the trial court prejudicially erred by giving a voluntary intoxication instruction that implied that evidence of voluntary intoxication should be disregarded in determining whether the defendant acted with actual knowledge that his conduct endangered life and conscious disregard for life. ( Id. at pp. 594, 600, 605, 36 Cal.Rptr.2d 656.) The court stated: " Intoxication is a circumstance from which the jury might find that defendant's act in response to the provocation should be attributed to passion rather than judgment." ( Id. at p. 601, 36 Cal.Rptr.2d 656.) The court also said: " Proof of intoxication tends to support a claim of honest but mistaken belief in an imminent aggravated assault, providing a reason to account for the defendant's objectively unreasonable belief [in the need to defend himself]." ( Ibid. )
At the time of defendant Rios's trial in 2011, former section 22, subdivision (b), as amended in 1995 provided: " Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought. "  (Stats.1995, ch. 793, § 1, p. 6149, italics added.) That 1995 amendment of former section 22 effectively abrogated [165 Cal.Rptr.3d 924] People v. Cameron, supra, 30 Cal.App.4th 591, 36 Cal.Rptr.2d 656, the case upon which defendant relies. At the time of defendant's trial, evidence of voluntary intoxication was not admissible
under former section 22 on the issue whether a defendant acted with implied malice regardless of the relevancy of that evidence to such mental state.
We do recognize, however, that former section 22 permitted evidence of voluntary intoxication to be admitted on the issue of whether a defendant, charged with murder, " harbored express malice aforethought." (Stats.1995, ch. 793, § 1, p. 6149.) Malice aforethought is " express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." (§ 188, italics added.) The " word ‘ unlawfully’ modifies the word ‘ intention’ so that [section 188] requires an intent to act unlawfully or, put in everyday language, the defendant must have a wrongful intent." ( In re Christian S. (1994) 7 Cal.4th 768, 778, 30 Cal.Rptr.2d 33, 872 P.2d 574.) " ‘ ... Generally, the intent to unlawfully kill constitutes malice. (§ 188; People v. Saille (1991) 54 Cal.3d 1103, 1113[2 Cal.Rptr.2d 364, 820 P.2d 588]...; see In re Christian S. (1994) 7 Cal.4th 768, 778-780[30 Cal.Rptr.2d 33, 872 P.2d 574]....) " But a defendant who intentionally and unlawfully kills [nonetheless] lacks malice ... when [he] acts in a ‘ sudden quarrel or heat of passion’ (§ 192, subd. (a)), or ... kills in ‘ unreasonable self-defense’ — the unreasonable but good faith belief in having to act in self-defense [citations]." ( [ People v. Barton (1995) 12 Cal.4th 186,] 199[47 Cal.Rptr.2d 569, 906 P.2d 531]....)' ( People v. Breverman (1998) 19 Cal.4th 142, 153-154[77 Cal.Rptr.2d 870, 960 P.2d 1094]....)" ( People v. Rios (2000) 23 Cal.4th 450, 460-461, 97 Cal.Rptr.2d 512, 2 P.3d 1066, fn. omitted; see People v. Moye (2009) 47 Cal.4th 537, 549, 98 Cal.Rptr.3d 113, 213 P.3d 652 [heat of passion and imperfect self-defense are " ‘ theories of partial exculpation’ that reduce murder to manslaughter by negating the element of malice. [Citation.]" ].)
Thus, " intent to kill" does not always equate to express malice because a person can intend to kill yet not act with express malice as in the case of voluntary manslaughter committed with intent to kill. (See People v. Bryant, supra, 56 Cal.4th at pp. 968, 157 Cal.Rptr.3d 522, 301 P.3d 1136 [" A defendant commits voluntary manslaughter when a homicide that is committed either with intent to kill or with conscious disregard for life— and therefore would normally constitute murder— is nevertheless reduced or mitigated to manslaughter. [Citation.]" ], 970 [voluntary manslaughter requires either an intent to kill or a conscious disregard for life].) By referring to " intent to kill" rather than to express malice or its legal equivalent (" intent to unlawfully kill" ), the trial court's voluntary intoxication
instruction failed to properly inform the jury that it could consider evidence of defendant's voluntary intoxication on the issue whether or not defendant killed with express malice. (But [165 Cal.Rptr.3d 925] see People v. Turk (2008) 164 Cal.App.4th 1361, 80 Cal.Rptr.3d 473 ( Turk ), 1381-1384 [CALCRIM No. 625 correctly states the law]; People v. Timms (2007) 151 Cal.App.4th 1292, 1298, 60 Cal.Rptr.3d 677 [stating, without any analysis concerning " intent to kill" language in section 22, CALCRIM No. 625 is " true to section 22, as amended" ].) The trial court's instruction that " [t]he defendant acted with express malice if he unlawfully intended to kill" did not cure the defect because it left the jury unaware that it could fully consider evidence of defendant's voluntary intoxication on the question of whether the killings had been carried out with express malice, not merely on the narrower issue of " intent to kill." (But see Turk, supra, 164 Cal.App.4th at pp. 1382-1383, 80 Cal.Rptr.3d 473.)
Although we find the court's voluntary intoxication instruction constituted error, it does not require reversal. The instruction allowed the jury to consider evidence of defendant's voluntary intoxication with regard to premeditation and deliberation. The jury was instructed that " [t]he defendant acted deliberately if he carefully weighed the considerations for and against his choice and knowing the consequences, decided to kill." It was also told that " [a] decision to kill made rashly, impulsively or without careful consideration is not deliberate and premeditated." (Italics added.) As the trial court instructed, to find that defendant killed in the heat of passion, the jury had to conclude that " the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment." (See People v. Breverman (1998) 19 Cal.4th 142, 163, 77 Cal.Rptr.2d 870, 960 P.2d 1094.) By convicting defendant of three counts of first degree murder in light of the intoxication evidence, the jury impliedly resolved that defendant did not act rashly but rather he deliberated and premeditated. Thus, the jury necessarily decided that defendant did not have the state of mind required for killing in the heat of passion.
The court also fully instructed on voluntary manslaughter based on a killing in imperfect self-defense. Its instructions described the requisite state of mind: " The defendant acted in imperfect self-defense if, one, the defendant actually believed he was in imminent danger of being killed or suffering great bodily injury. And, two, the defendant actually believed that the immediate use of force was necessary to defend against the danger." The court told the jury: " In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant."
At trial, defendant acknowledged that Hernandez had merely tried to take the gun away from him when defendant was threatening his wife Concepcion and Hernandez did not want defendant to have a gun because defendant was
beating Concepcion. Defendant admitted he was not afraid that Concepcion was going to kill him with a potato peeler. After shooting Concepcion, defendant shot Hernandez as he tried to leave.
" [T]he Watson test for harmless error ‘ focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.’ ( Breverman, supra, 19 Cal.4th at p. 177[77 Cal.Rptr.2d 870, 960 P.2d 1094]...; see [165 Cal.Rptr.3d 926] People v. Prince (2007) 40 Cal.4th 1179, 1267-1268[57 Cal.Rptr.3d 543, 156 P.3d 1015]....)" ( People v. Beltran (2013) 56 Cal.4th 935, 956, 157 Cal.Rptr.3d 503, 301 P.3d 1120.) Given the court's proper instructions and the ample evidence of murder, including defendant's own statements and testimony, it is not reasonably probable that defendant would have obtained a more favorable outcome had the court properly informed the jury that evidence of defendant's voluntary intoxication could be considered in deciding whether he acted with express malice. (See People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243; see also People v. Mendoza, supra, 18 Cal.4th at pp. 1134-1135, 77 Cal.Rptr.2d 428, 959 P.2d 735; Cal. Const., art. VI, § 13.)
Defendant has not argued and the record does not show that there is a reasonable likelihood that the jury applied the challenged instruction in a way that violated the federal Constitution. (See Estelle v. McGuire (1991) 502 U.S. 62, 71-73, [112 S.Ct. 475], 116 L.Ed.2d 385; see also Middleton v. McNeil (2004) 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (per curiam).)
C. Alleged Ineffective Assistance of Trial Counsel [***]
The judgment is affirmed.
WE CONCUR: RUSHING, P.J., PREMO, J.