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People v. Moore

California Court of Appeals, Third District

November 29, 2016

THE PEOPLE, Plaintiff and Respondent,
PAUL ROGER MOORE, Defendant and Appellant

         APPEAL from a judgment of the Superior Court of Colusa County, No. CR53504, Jeffrey A. Thompson, Judge.

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         Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.


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         [210 Cal.Rptr.3d 772] RAYE, P. J.

          A jury convicted defendant Paul Roger Moore of first degree murder based exclusively on circumstantial evidence that he built and planted a victim-activated bomb in an irrigation pump he knew the farm foreman and eventual victim, Roberto Ayala, would activate. Paul insists it was his first cousin Peter who had the motive and violent disposition to murder Roberto, a man who had claimed his father's and uncle's affection and devotion. Paul's narrative of family intrigue has all the earmarks of a Shakespearean tragedy and makes for compelling drama. Nevertheless, on the narrow legal questions presented, we find substantial evidence to support the verdict and no abuse of discretion in admitting evidence or denying the defense request for surrebuttal closing argument, and therefore affirm the judgment.


         On July 16, 2011, Roberto picked up his seven-year-old son, bought him lunch, and drove to one of the Moore brothers' rice fields to adjust the irrigation pump. His son heard a loud explosion and saw his father on fire. He ran to help him, but his father was unresponsive. He could not retrieve his father's cell phone because his father was on fire. He ran for about two miles to get help.

         Roberto Ayala died instantly from an explosive device that he unknowingly detonated at chest level. His body was still burning when the firefighters arrived. There were pieces of metal shrapnel in his chest, neck, and brain. The perforating shrapnel- or fragment-related injuries occurred immediately before the fire-related injuries. The forensic pathologist who performed the autopsy opined that the cause of death was explosive shrapnel injuries and high-voltage electrocution.

         But the fire and law enforcement officials who performed the initial investigation did not know a bomb had been planted in the irrigation pump. Their investigation focused on whether the explosion was an accident. The first responders believed Roberto's truck had been moved because the broken glass was located about 11 feet away and a piece of glass was in the rear tire tread.

         Roberto's death occurred against the backdrop of great family disharmony and dissension between the two principals in this deadly drama, Peter and Paul, cousins whose fathers were the sons of Richard and " Mimi" Moore, owners of an 1,800-acre farm near Colusa.

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         Neither cousin was happy with his place within the family hierarchy. Peter insists that on his deathbed his grandfather expressed his desire for Peter to farm the walnut orchards. But abused and ostracized by his father Gus, whom family members called " Grumpy," Peter was not allowed to farm and instead spent 21 years earning a living in a landscape business he apparently loathed at times. He had been angry and upset with the Moore family since he was 12 years old. Peter tried to convince his grandmother Mimi to disinherit his father, confident that his Uncle Roger would be more fair. On several occasions, he physically threatened to harm, among others, his father, his uncle, and Roberto Ayala. Indeed, shortly before the explosion, Roberto had injured his shoulder and Peter declared that " [w]hen his wing is better, he's all mine." He was upset that Roberto spent Father's Day with Gus and that they were together all the time.

          [210 Cal.Rptr.3d 773] Paul is Roger's son. Paul appears to have suffered more quietly than his cousin. But in a document entitled " My Life" that he stored on his computer, Paul complained bitterly about his life growing up on the farm. He felt mistreated by everyone, including Peter. During tomato harvest, he wrote, he drove the " shitty" tractor, but " pussy" Peter was allowed to drive the tractor with an air-conditioned cab because otherwise Peter was a " prick to work with." Employees, including Roberto Ayala and Roberto's brother Eduardo, were given liberties he was not, such as drinking on the job, taking farm vehicles and equipment for personal use, and getting paid during the winter. Meanwhile, he was treated worse than any employee, worked harder, but was never given a raise. He wrote that his father thought he was stupid, but continually raved about Roberto's intelligence. In describing his life, he pondered what he had done to be treated so poorly by his own family.

         While Peter and Paul have very different dispositions, they share similar grievances and similar life trajectories. Clearly, they both had hoped to assume managerial positions on the farm. Their hopes had not materialized. They attempted other ventures that failed--Paul in construction, Peter in starting a sod business. Both suffered physically. Paul injured his back and had to give up construction. Peter had his stomach removed and lost almost 50 pounds.

         Most significantly, they shared their animosity toward Roberto Ayala. Roberto had worked for the Moore brothers for 19 years. He was the farm foreman. He was responsible for regulating the water levels on the rice fields. Clearly, over the years he earned the trust and respect of Roger and Gus. There were disagreements where Roger took Roberto's advice over that of his son or nephew. For example, Roberto traveled with Peter to a seminar about operating a sod business, but when Peter expressed interest in purchasing a harvester, Roberto alerted Roger, and Roger disapproved of the purchase.

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Similarly, when Roberto and Paul disagreed about a design for a mud chisel, Roberto's idea garnered Roger's blessing. Paul complained that Roberto was accorded special privileges, such as keeping sheep and goats by the farm workshop, drinking beer while working or after work, and driving company vehicles home. According to Peter, the Ayala brothers agitated Paul and he remarked, " Those son-of-a-bitches, they are trying to take over my life. I'm going to get that F'er." Peter testified that Paul was severely depressed and he was afraid he was suicidal.

         These facts, in large part, form the basis for Paul's arguments at trial and on appeal.



         Peter or Paul: Substantial Evidence to Support the Verdict

         There was no direct evidence of who designed, constructed, or placed the explosive device. There were no eyewitnesses, no confessions, no admissions, and no fingerprints or DNA evidence found on any of the parts of the explosive device found at the scene of the murder. Defendant insists there is no substantial evidence that he murdered Roberto Ayala, and the weak circumstantial evidence of his guilt is insufficient to sustain the verdict in the context of the more compelling evidence that his cousin Peter was the perpetrator.

         Defendant does not quarrel with the limited scope of appellate review of an insufficiency claim. He acknowledges, as he must, that our task is to review the whole record in the light most favorable to the [210 Cal.Rptr.3d 774] jury verdict to determine whether it discloses substantial evidence--evidence that is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. ( People v. Davis (2009) 46 Cal.4th 539, 606 [94 Cal.Rptr.3d 322');">94 Cal.Rptr.3d 322, 208 P.3d 78].) We are not at liberty to reweigh evidence or revisit credibility issues. ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [26 Cal.Rptr.2d 23');">26 Cal.Rptr.2d 23, 864 P.2d 103].) If the verdict is supported by substantial evidence, we must defer to the trier of fact; yet a verdict cannot be sustained based on " 'suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.'" ( People v. Morris (1988) 46 Cal.3d 1, 21 [249 Cal.Rptr. 119, 756 P.2d 843].)

         In sum, there is an abundance of circumstantial evidence that either Peter or Paul, or perhaps Peter and Paul together, built and planted the bomb that

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killed Roberto Ayala. We will review that evidence in two steps: first, we will outline the evidence of solid, credible value the jury could have reasonably relied upon in finding Paul guilty of murder beyond a reasonable doubt. And second, we will test the substantiality of that evidence in light of the entire record, that is to say, in light of the compelling circumstantial evidence that Peter, not Paul, blew up Roberto Ayala.

         A. Circumstantial Evidence Against Paul

         1. Opportunity and Familiarity

         Paul returned to work on the farm a few years before the explosion. He took on additional responsibilities as his back healed, and by July 2011 Roger had decided to bring on Paul as a 50 percent partner of his half of the farm operation.

         During his apprenticeship, Paul worked alongside Roberto. In fact, after Roberto injured his shoulder, Paul accompanied him on occasion to the irrigation pumps to adjust water levels. In early July, Paul was asked to drive out to the rice field to turn on the water pump without Roberto. From this evidence, the jury could reasonably infer that because Paul was familiar with Roberto's routine, he could specifically target Roberto by placing the bomb in an electrical pump panel he knew Roberto would be operating. He was familiar, therefore, not only with Roberto's working routine, but also with the operation of the pump.

         2. Unique Skill Set

         Paul told investigators that his electrical experience was limited to fixing an electrical outlet and that he had no experience working on the pump control panels. According to the testimony offered by his father, his son, and his ex-father-in-law, that was a lie.

         Paul's son Gunner testified that when Paul was young, he rewired the light switch in his bedroom so he could turn off the light from his bed, but if a person did not flip the switch in a particular way, he or she would be shocked. Later, as a father, Paul taught Gunner how to hardwire electronics to his car battery so he would not have to use the cigarette lighter to power the electronics in his car. Gunner believed his dad could repair just about anything and could " make something out of nothing." One of Paul's favorite hobbies, according to Gunner, was assembling and flying radio-controlled airplanes.

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         Gunner also reported that, according to his dad soon after the explosion, his grandfather " feared that there was a booby trap in the switch" and stated that " someone must have been a genius to be able to do that, some type of electrical genius."

         Roger attested to his son's aptitude for building things, albeit the examples he cited [210 Cal.Rptr.3d 775] were not electric. He testified Paul constructed a rice roller and a fertilizer aqua bar in the farm workshop.

         Over defense objection, Paul's ex-father-in-law testified that Paul apologized to him for tapping his daughter's telephone when they were going through a divorce, putting some kind of recorder under her modular home so he could monitor conversations. The wiretapping occurred in 1995 or 1996. He also testified that Paul and a friend created an acetylene bomb by combining acetylene gas and oxygen in a balloon. The bomb exploded, injuring Paul and his friend. That explosion occurred in about 1991.

         From this evidence, the jury could reasonably infer that Paul had both the aptitude and unique skill set needed to build the type of explosive device that killed Roberto Ayala. To be sure, Paul had demonstrated an advanced mechanical aptitude and an understanding of electrical currents.

         3. Evidence From the Investigation

         July 18: Two days after Roberto Ayala's death, Paul delivered to investigators a piece of metal he found in a canal near the explosion. He pointed out that the markings or threading on the metal indicated to him the explosion was not an accident. According to Paul, something had been placed at the pump to cause the explosion. He told investigators he had operated the panel five days before the explosion, and he drew an accurate picture of the panel.

         On that same day, Paul cast aspersions on Peter. The jurors could have found his behavior odd, even calculated to focus the investigators' attention on his cousin. He showed them copies of text messages he had received from Peter in which Peter expressed his displeasure with the condition of the fields and suggested the field manager (Roberto Ayala) should be fired. The investigators would later discover that Paul had deleted individual text messages he had sent to and received from Peter. Paul told the investigators that Peter had been around the explosion site one day before the explosion.

         August: On August 11 the investigators were informed that the chemical testing of the fragments from the explosion indicated the presence of nitroglycerine, a chemical used in explosives. This information was not disclosed to the public.

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         The next day, the investigators at the Colusa County Sheriff's Department received a letter with a postmark from Sacramento that they learned was processed by the postal service in West Sacramento. The delivery and return addresses were printed label strips made with a label maker. Eight stamps were attached for postage. The text of the letter was a photocopy of the original; it too contained printed label strips made with a label maker. The letter read:

         " I am responsible for the panel explosion. I am military trained. Expert in Vietnam devices. I received info and instructions via USPS. Name, age, vehicle I.D. and plate number. Location and meter number for panel. First three fuses, the device had dual triggers and detonators. Trig one, vibration activated. Trig two, drop weight activated upon door opening. Two-inch gallon pipe and quart of gasoline in plastic bottle. Upon detonation gas atomized for millisecond, completed the circuit triggering flashover, thus electrocution, fail safe and no disarming. Lab results will be military-grade powder, black spray-painted epoxy, no DNA. This was an MS-13 [Mara Salvatrucha, a violent gang] job, something about a Mexico deal gone wrong.

         " Why am I helping u? I received another package via USPS, target two, I will not [210 Cal.Rptr.3d 776] take this job because the info I received is wrong. I got name, age, vehicle description, plate number and location. The target is brother of target one and drives Chevy. This vehicle info is the same as the first job. White Ford, same plate number. I finally found the Ford, and now it is driven by some young guy, not the brother. Since I will not take this job, it will soon be reassigned. Someone will take it. The next guy might not catch the error in info and the wrong person will die.

         " I would decline anyway because I saw target two with his girls and that I can't deal with. Target two knows the Mexico connection and that is the reason 4 relocating n will not help target two. They will find him. He needs to be careful. They gave me two months 4 this job. It will be reassigned in five weeks. Whoever is driving the Ford is very much in danger. This was my first and final job. I am sure MS-13 will figure out I tipped authorities and will soon come for me. My house and property are protected, larger devices. I am over this life. God [ sic ] luck. If u come 4 me, call first. I will come peacefully or detonate all the devices."

         Paul, not Peter, used abbreviations such as " u" and " 4" in his text messages. The investigators did not believe that a Mexican gang was involved in the explosion because gangs typically advertise their involvement rather than hide it, to incite fear and command respect.

         On August 15 the investigators received a second letter and a diagram of a bomb. Like the first letter, the text of the second was made with a label maker

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and photocopied. This envelope had a postmark from Colusa. The letter stated: " Ayala was actually warned what would happen if he screwed with these people. He has endangered others in his family. They now want the white Ford F-250 hit. He thought he was safe in the States. Previously driven by target one. They want the brother, but it is now driven by some young guy, or do they want the young guy? This is why I refused this job, but the next guy might kill both to ensure payment. Whoever is driving that white F-250 is in great danger. Another expert will do this job. The money is good. After a career of killing, I want to save a life before I take my life. If u have any questions, place ad in Sac Bee, help wanted, make it the last ad ...

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