People v. Selena CA4/1 ( 2015 )

Filed 9/1/15 P. v. Selena CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065100
Plaintiff and Respondent,
v. (Super. Ct. No. SCN305429)
CHRISTOPHER JAMES SELENA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kathleen
M. Lewis, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Collette Cavalier and Arlene A.
Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
Christopher James Selena appeals a judgment following his jury conviction of the
second degree murder of Fernando Arellano. On appeal, he contends the evidence is
insufficient to support the jury's finding that he killed his victim with malice, as required
for second degree murder.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution's case. Selena met Shaquita Martinez in 2005 and they had two
daughters. They lived together in Escondido. In January 2012, Selena was arrested for a
misdemeanor and spent several months in jail. While he was in jail, Martinez began
dating Fernando Arellano, but did not want to tell Selena about her relationship with him.
After Selena's release from custody in April 2012, Arellano initially stopped visiting
Martinez daily at her house, but eventually resumed visiting her there more often.
After Selena's release from custody, a restraining order required him to stay at
least 100 yards away from Martinez and her home. However, he violated that restraining
order four times in April 2012. At about 6:00 a.m. on April 15, Selena entered Martinez's
home looking for his ties. Because Martinez and Arellano were in bed together at that
time, she told Arellano to hide in the bathroom and then made the bed. As Selena entered
the bedroom, Martinez told him her sister was using the bathroom. Selena went
downstairs, but returned and saw Arellano in the bathroom. Selena took Arellano's
laptop computer and cell phone from the nightstand and left the house. After Martinez
called Selena's father regarding those items, Arellano's laptop was returned in a damaged
condition.
On April 16, Martinez's sister saw Selena taking property from Martinez's garage
and called police for violation of the restraining order. On April 22, Selena came to
Martinez's home and asked her whether they could get back together. She refused and
2
closed the door because Arellano was inside her home. From the side of the house,
Selena stated, "I know he's in there." At the time, Arellano was hiding in a closet because
he was afraid of Selena. Selena then threw two bricks through windows and doors,
breaking their glass.
Selena sent text messages to Martinez in violation of the restraining order,
expressing his love for her and stating that he forgets she no longer loves him. One of his
text messages stated: "Turn off my love for you despite all dudes you been with lately.
My love for you was all the way to my core. I'm trying to push it out. Hopping from one
person to the next isn't as easy for me as it is for you. I might not have shown it, but I
loved you deeply. You must be busy. One thing that will cure me is to beat the shit out
of Fernando [Arellano]. Just don't tell on me. He won't be around in five years. I still
will." Another text message he sent her stated: "Can I visit without somebody calling on
me? Is that a yes? You got that little fucking pussy upstairs right. I'm getting more
pissed. Everybody so flakey so I gotta get sneaky huh to get that pussy bastard. You
hiding him upstairs. All right. No warning shots." Martinez did not reply to any of his
text messages.
Noel Rivera was a friend of both Selena and Arellano. After Selena was released
from custody, he went to Rivera's house three times looking for Arellano. On May 3, the
third time, Selena appeared upset and told Rivera to tell Arellano that he (Selena) did not
want to see him at Martinez's house again. He told Rivera he would set Arellano's RV on
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fire. Selena took a knife out of his pocket and told Rivera that if he saw Arellano near
Martinez's house, he was "going to stab him in the eye."1
A few weeks before the killing, Selena told his father he had told Arellano to stay
away from his children or he would stab him in the eye. Two to three weeks before the
killing, Arellano's uncle saw Selena slowly drive several times past the trailer in which
Arellano lived. When his uncle told Arellano about Selena's driving by his trailer,
Arellano appeared "a little nervous."
On May 4, Martinez went to the home of Richard and Millie Montanez because
her home's hot water heater was broken. Richard and Millie went to Martinez's home and
saw Arellano there. There was tension between Martinez and Arellano because she had
loaned him $300 to $400 for methamphetamine and he apparently had not given her the
drugs or returned her money. When Martinez asked Arellano about the money, he did
not take her seriously and she threw a pizza at him in anger. Arellano got mad and called
someone to come over to the house and slap Martinez.2 Martinez was angry with
Arellano and asked him to leave her home. When he refused, Martinez called Selena,
who did not answer, and left a message for him, stating: "You promised me you want to
do something and you haven't taken fucking action yet. I'm going to have to do it
myself."
1 Richard Faucher, Rivera's neighbor, testified Rivera described the knife Selena
pulled out as a Roman gladius or a short sword with a white handle. However, at trial
Rivera testified the knife was a table or butter knife.
2 Millie testified Arellano then told the person, "Nevermind."
4
At about midnight, Martinez returned to Richard and Millie's house because she
did not want to be around Arellano. Arellano later arrived at their house to get Martinez.
Arellano and Martinez walked home together, joking and laughing.
At 3:23 a.m. on May 5, Martinez called Selena and told him "he was still there and
he wouldn't leave the house."3 She told Selena that Arellano owed her money, had not
paid her back, and told some girl to come over and slap her. Selena asked her, "If I come
over there, are you going to tell [i.e., call the police again]?" At that time, Arellano was
sitting on the bed in the master bedroom, administering first aid to his finger and fixing
his rosary. Martinez ran water in the bathtub and fell asleep in it. When she woke up,
she heard scuffling and grunting in the master bedroom. She saw Selena lunge from the
bedroom door toward the bed where Arellano was sitting. She saw Arellano "punching
the air" in a fighting motion. The struggle lasted about one minute. She got out of the
tub and saw Arellano on the floor by the window. He looked injured and paralyzed. She
did not help him because she did not know what to do or who was in the room. Instead,
Martinez went to her daughters' bedroom and got in bed with one of them. Selena
knocked on the bedroom door, opened it, and motioned for Martinez to come out into the
hall. In the hall, he told her to "tell the police it was somebody else that came in here, a
friend of Fernando [Arellano]." He said to tell police "a black guy did it." He told her
3 Although Martinez was referring to Arellano, she did not remember identifying
him during her telephone conversation with Selena.
5
Arellano was dead. Selena's arm was bloody, but he appeared calm, composed, and not
stressed. He left the house through the garage.
Martinez ran to Richard and Millie's house and told Millie that Selena had killed
Arellano. Martinez asked Millie to go back to her house. Richard said she could not and
called 911. Martinez asked him to say that some "unknown black man had committed
the stabbing."
At about 4:30 a.m. on May 5, police arrived at Martinez's home and found
Arellano lying on his back on the floor of the master bedroom between the bed and the
wall. Arellano had sustained multiple stab wounds, was holding a rosary in his right
hand, and was dead. Police observed bloodstains on the pillowcase, bed frame, and
comforter. They found other bloodstains in the master bedroom, in the loft outside that
bedroom, on the kitchen counter, and in the garage. They found blood spatter on the
window blinds and the curtain in the master bedroom. They found a glass pipe and a
little plastic bindle in Arellano's pants and drug paraphernalia and little baggies scattered
around the bedroom. There was water in the master bathtub. They did not find
Arellano's cell phone or wallet.4
Police found Selena's vehicle at his workplace in Vista. They approached Selena
while he was near his vehicle and detained him. A laptop inside his workplace showed a
recent search history of "Escondido Breaking News." Selena had a small abrasion on his
right hand. The seats of his vehicle appeared to have been recently cleaned. On Selena's
4 Arellano's cell phone was later recovered from a person who got it from Martinez.
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sweatshirt, police found two bloodstains—one on the back and one on the right sleeve.
The blood on the back of the sweatshirt matched Arellano's DNA; Selena and Martinez
were excluded as possible contributors.
Blood matching Arellano's DNA was found on the floor near the bed, on top of the
dresser, on the floor near the dresser, on the floor near the entry to the bedroom, and on
the floor of the loft outside the bedroom. Selena and Martinez were excluded as possible
contributors to that blood.
An autopsy showed Arellano suffered 17 sharp-force injuries, including stab
wounds and incise wounds. Three stab wounds penetrated his mid-right chest cavity to
depths of four to four and one-half inches, which wounds caused life-threatening injuries
to his lungs, aorta, pulmonary artery, and left anterior descending coronary artery.
Arellano also suffered stab wounds on his shoulder, on his arm and into his chest
(penetrating his chest cavity and injuring his lung), and to his thigh, as well as incise
wounds or cuts to his forearm and a knuckle. Arellano's injuries were consistent with a
folding or pocket knife as their cause. Toxicology testing found methamphetamine and
the metabolite amphetamine in Arellano's blood. However, those drugs did not
contribute to his death. His cause of death was multiple stab wounds.
Information. An amended information charged Selena with the first degree
murder of Arellano (Pen. Code, § 187, subd. (a)).5 It also alleged that in committing that
offense Selena personally used a deadly weapon (§ 12022, subd. (b)(1)) and that he had
5 All statutory references are to the Penal Code.
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served a prior prison term (§§ 667.5, subd. (b), 668). At trial, the prosecution presented
evidence substantially as described above. Martinez testified after being given use
immunity and derivative use immunity for her testimony.
Defense case. Selena testified in his own defense. He admitted violating the
restraining order by entering Martinez's house on April 15, 2012, to pick up clothing. He
testified he took Arellano's laptop and cell phone as collateral for some of his missing
property. On April 22, he went to Martinez's house to return some of her property and
give some clothing to his daughters. Martinez was partying and prevented his daughters
from visiting with him. Selena described the text messages he sent to Martinez as
meaning to get her attention and intimidate her because he was afraid for his daughters'
welfare. When he stated in a text that he had to "get sneaky," he was referring to calling
Child Protective Services about his daughters' welfare. When he threw bricks through
Martinez's windows and doors, he did so to call attention to her house and make it look
like a crack house. Selena admitted asking Rivera to tell Arellano not to come to the
house anymore. He admitted he told Rivera he would burn down Arellano's trailer under
certain circumstances. Selena denied threatening to stab Arellano in the eye or having a
knife or gladius with him. However, he admitted he carried a triangle-shaped box cutter
and a folding knife with a four-inch long blade, both of which were clipped to his belt.
After he was released from custody, Selena decided he needed to move on from
his relationship with Martinez and had two dates with Daniela Pumarejo, a woman he
met at the gym. On May 4, 2012, he and Pumarejo went to Carlsbad, but her tires went
flat after driving over a spike strip and her car was towed to a car repair shop in
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Escondido. While they were at the repair shop, Selena received the telephone call from
Martinez asking for his help. Martinez told him a person took all of her money, would
not leave, and called people to come and beat her up. However, Martinez never
identified that person to him as Arellano. Martinez said she would leave the garage door
unlocked for him. Despite the restraining order, he went to Martinez's house because he
was thinking about her and his daughters.
On Selena's arrival, Martinez's house was dark and quiet. Selena had his folding
knife clipped onto his belt. He saw a light on in the master bedroom and someone
hunched over the side of the bed as if he was tying his shoes. He did not recognize the
person as Arellano. When the person got up and jumped on the bed, Selena dove and
tackled him. They fought on top of the bed. Selena heard objects clattering, pushed the
person off, and pulled out his knife. He then recognized the person as Arellano, but did
not know whether other people would come to the room. Arellano started swinging at
Selena with "haymaker punches." Selena then stabbed Arellano in the knee with his
knife. Not seeing any reaction or blood from Arellano, Selena stabbed Arellano four
times in the shoulder. When Arellano kept swinging his arms at him, Selena decided to
stab him in the chest. When Arellano's face changed, Selena knew he was wounded.
When Selena heard footsteps, he went downstairs but found no one. Returning upstairs,
Selena saw water all over the floor. Arellano was sitting up. Selena went to his
daughters' bedroom, knocked on the door, and saw Martinez sitting on a bed with their
daughter. When he asked Martinez what was wrong, she replied, "I need help getting my
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stuff," which he understood as meaning her money and dope. When he said no, she told
him to leave.
Although Selena knew Arellano was wounded, he did not call 911. He thought
Martinez would call for help. Selena denied he told Martinez to say a black man had
come to her house. Selena left Martinez's house, went to his workplace, and fell asleep in
his car. He closed the knife he used to stab Arellano and threw it in a bush in front of his
car. He went inside and performed a computer internet search for "Escondido Breaking
News."
Clark Smith, a physician specializing in addiction psychiatry, testified for the
defense on the effect of methamphetamine on a person's brain. Methamphetamine causes
overstimulation, overloads the brain's capacity to handle information, and causes the
brain to shut down production of adrenaline. It can cause severe psychosis, confusion,
visual distortion, reality distortion, and suggestibility. Arellano's toxicology results
showed he had 2.5 milligrams of methamphetamine per liter of blood—a toxic level that
is "extremely high" and four times higher than the level at which a person usually
exhibits irrational and violent behavior. At that level, it was possible for a person, who
had not eaten or slept that day, to react violently when a person unexpectedly appeared in
a room. It is also possible the person would engage in a fight believing he or she had
more strength and continue fighting, unaware of his or her injuries. However, Smith did
10
not know Arellano's level of tolerance and did not speak with Arellano's family and
friends about how he acted while on methamphetamine.6
The jury found Selena guilty of second degree murder and found true the
allegation he personally used a knife in committing that murder. Selena admitted the
truth of the allegation he had a prior prison conviction. The trial court sentenced Selena
to a total term of 17 years to life in prison, consisting of a 15-year-to-life term for second
degree murder, a consecutive one-year enhancement for the personal weapon use
allegation, and a consecutive one-year enhancement for the prior prison conviction
allegation. Selena timely filed a notice of appeal.
DISCUSSION
I
Substantial Evidence Standard of Review
When a defendant challenges a criminal conviction on appeal based on a claim of
insufficiency of the evidence, "the reviewing court's task is to review the whole record in
the light most favorable to the judgment to determine whether it discloses substantial
evidence—that is, 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. Rodriguez (1999) 20 Cal. 4th 1, 11, citing People v. Johnson (1980) 26 Cal. 3d
557, 578.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive
6 Millie testified she saw no change in Arellano's behavior when he used
methamphetamine and that he was a peaceful person. Likewise, Martinez testified she
saw no change in Arellano's behavior when he used methamphetamine.
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province of the trier of fact. [Citation.] Moreover, unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is sufficient to support
a conviction." (People v. Young (2005) 34 Cal. 4th 1149, 1181.)
The substantial evidence standard of review involves two steps. "First, one must
resolve all explicit conflicts in the evidence in favor of the respondent and presume in
favor of the judgment all reasonable inferences. [Citation.] Second, one must determine
whether the evidence thus marshaled is substantial. While it is commonly stated that our
'power' begins and ends with a determination that there is substantial evidence [citation],
this does not mean we must blindly seize any evidence in support of the respondent in
order to affirm the judgment. . . . [Citation.] '[I]f the word "substantial" [is to mean]
anything at all, it clearly implies that such evidence must be of ponderable legal
significance. Obviously the word cannot be deemed synonymous with "any" evidence.
It must be reasonable . . . , credible, and of solid value . . . .' [Citation.] The ultimate
determination is whether a reasonable trier of fact could have found for the respondent
based on the whole record." (Kuhn v. Department of General Services (1994) 22
Cal. App. 4th 1627, 1632-1633, fns. omitted.) "[T]he power of an appellate court begins
and ends with the determination as to whether, on the entire record, there is substantial
evidence, contradicted or uncontradicted, which will support the determination, and when
two or more inferences can reasonably be deduced from the facts, a reviewing court is
without power to substitute its deductions for those of the trial court. If such substantial
evidence be found, it is of no consequence that the trial court believing other evidence, or
12
drawing other reasonable inferences, might have reached a contrary conclusion."
(Bowers v. Bernards (1984) 150 Cal. App. 3d 870, 873-874.)
The standard of review is the same in cases in which the prosecution relied
primarily on circumstantial evidence. (People v. Bean (1988) 46 Cal. 3d 919, 932.) In
applying the substantial evidence standard of review to cases primarily involving
circumstantial evidence, Bean stated: "Although it is the duty of the jury to acquit a
defendant if it finds that circumstantial evidence is susceptible of two interpretations, one
of which suggests guilt and the other innocence [citations], it is the jury, not the appellate
court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt.
' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the
reviewing court that the circumstances might also be reasonably reconciled with a
contrary finding does not warrant a reversal of the judgment." ' " (Id. at pp. 932-933.)
"Circumstantial evidence may be sufficient to connect a defendant with the crime and to
prove his guilt beyond a reasonable doubt." (People v. Pierce (1979) 24 Cal. 3d 199,
210.)
II
Murder and Voluntary Manslaughter Generally
Murder is the unlawful killing of a human being with malice aforethought. (§ 187,
subd. (a).) Malice may be either express or implied. (§ 188; People v. Knoller (2007) 41
Cal. 4th 139, 151.) Malice is express when there is an unlawful intent to kill. (§ 188
[defining express malice as "a deliberate intention unlawfully to take away the life of a
fellow creature"]; People v. Blakeley (2000) 23 Cal. 4th 82, 87.) "Malice is implied when
13
the killing is proximately caused by ' "an act, the natural consequences of which are
dangerous to life, which act was deliberately performed by a person who knows that his
conduct endangers the life of another and who acts with conscious disregard for life." '
[Citation.] In short, implied malice requires a defendant's awareness of engaging in
conduct that endangers the life of another—no more, and no less." (Knoller, at p. 143.)
"Second degree murder is defined as the unlawful killing of a human being with malice
aforethought, but without the additional elements—i.e., willfulness, premeditation, and
deliberation—that would support a conviction of first degree murder." (People v. Nieto
Benitez (1992) 4 Cal. 4th 91, 102, italics omitted.)
Voluntary manslaughter is a lesser included offense of murder. (People v. Cole
(2004) 33 Cal. 4th 1158, 1215.) It is defined as the "unlawful killing of a human being
without malice . . . [¶] . . . upon a sudden quarrel or heat of passion." (§ 192, subd. (a).)
The heat of passion requirement has both objective and subjective components. (People
v. Steele (2002) 27 Cal. 4th 1230, 1252.) A killing during a sudden quarrel or heat of
passion occurs if the killer's reasoning was actually obscured as a result of a strong
passion aroused by provocation sufficient to cause an ordinary person of average
disposition to act rashly or without due deliberation and reflection and from that passion
rather than from judgment. (People v. Breverman (1998) 19 Cal. 4th 142, 163; People v.
Manriquez (2005) 37 Cal. 4th 547, 583-584.)
In addition to a sudden quarrel or heat of passion killing, a "killing committed
because of an unreasonable belief in the need for self-defense is voluntary manslaughter,
not murder." (People v. Elmore (2014) 59 Cal. 4th 121, 129.) That unreasonable self-
14
defense, or "imperfect self-defense," obviates malice because that mental state cannot
coexist with an actual belief that the killing was necessary to defend one's self from death
or serious injury. (Id. at pp. 129-130; People v. Beltran (2013) 56 Cal. 4th 935, 951.)
Alternatively stated, a killing with an actual, but unreasonable, belief in the need for self-
defense is voluntary manslaughter. (Elmore, at p. 133.) Accordingly, "[t]wo factors may
preclude the formation of malice and reduce murder to voluntary manslaughter: heat of
passion and unreasonable self-defense." (Ibid.)
III
Substantial Evidence to Support Selena's Conviction of Second Degree Murder
Selena contends his conviction for second degree murder must be reversed
because the evidence is insufficient to support the jury's finding he killed Arellano with
malice. He argues the evidence showed he was guilty only of voluntary manslaughter
under a theory of either heat of passion or unreasonable self-defense.
Based on our review of the record, we conclude there is substantial evidence to
support the jury's finding Selena killed Arellano with express malice—i.e., with the intent
to kill him. Before the killing, Martinez had ended her relationship with Selena and
began a relationship with Arellano. Selena's text messages to her showed he still loved
her and was upset she was seeing Arellano. He told her he would "beat the shit out of
[Arellano]" and had to "get sneaky . . . to get that pussy bastard. . . . No warning shots."
He also told her he would be around in five years, but Arellano would not. On one
occasion, Selena threw bricks into her house, knowing Arellano was inside. Selena also
conveyed threats to Arellano through Rivera. He told Rivera that if Arellano did not stay
15
away from Martinez's house, he would set Arellano's RV on fire. In Rivera's presence, he
displayed a knife and stated he would stab Arellano in the eye. Selena also made similar
statements to his father. The evidence shows Selena bore ill will toward Arellano and
had threatened to stab him.
Furthermore, the evidence, including that found at the crime scene and showing
Arellano's injuries, supports a reasonable inference that Selena intended to kill Arellano.
When Selena arrived at Martinez's house, Arellano was sitting on the bed alone,
administering first aid to his fingers and fixing his rosary. The blood found on the bed
supports a reasonable inference that Selena stabbed Arellano while he (Arellano) was
sitting on the bed. The jury could also infer Selena did so without any actions by or
words from Arellano (i.e., without either provocation or an actual belief in the need for
self-defense). Based on the quiet and dark nature of Martinez's home and Arellano's
position, i.e., sitting on the bed, the jury could reasonably infer Selena did not, in fact,
have an actual, or good faith, belief he or others (e.g., Martinez or his daughters) were in
imminent danger, thereby requiring self-defense actions. There was no evidence showing
Arellano had any weapons. Also, Arellano was physically much smaller than Selena, and
had shown his fear of Selena in the past by hiding in a closet and a bathroom. Although
Selena testified Arellano started throwing "haymaker punches," the jury could reasonably
infer those actions did not, in fact, make Selena actually believe he needed to defend
himself by stabbing Arellano multiple times. Instead, the jury could infer Selena, by
reason of his larger physical status and boxer training, did not fear Arellano or his
haymaker punches, or actually believe in the need for self-defense.
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The nature and circumstances of Arellano's stab wounds also support the jury's
finding Selena acted with malice in killing him. The record shows Selena stabbed
Arellano at least 15 times with a knife and killed him. Selena stabbed Arellano in the
knee, in the thigh, four times in the shoulder, and four times in the chest. The stab
wounds to his chest were four to four and one-half inches deep and caused life-
threatening injuries to Arellano's lungs, aorta, pulmonary artery, and left anterior
descending coronary artery. Based on the nature of the knife attack and location and
depth of each stab wound, there is substantial evidence to support the jury's finding that
Selena stabbed Arellano with the intent to kill him, thereby satisfying the malice
requirement for murder. (Cf. People v. Bolden (2002) 29 Cal. 4th 515, 560-561 [single
stab wound, five to six inches deep, to victim's back that penetrated victim's lungs and
spleen supported inference that defendant had an intent to kill]; People v. Moore (2002)
96 Cal. App. 4th 1105, 1114 [defendant stabbed victim in abdomen, an extremely
vulnerable area, supporting inference defendant had a specific intent to kill].)
Furthermore, the number of stab wounds (i.e., at least 15) inflicted on Arellano supports
an inference Selena intended to kill him and did not act in self-defense. (Cf. People v.
San Nicolas (2004) 34 Cal. 4th 614, 658 [jury could conclude defendant intended to kill
victim based on "sheer number of wounds on [her] body, many of which individually
would have been fatal"]; People v. Pride (1992) 3 Cal. 4th 195, 247 ["A violent and
bloody death sustained as a result of multiple stab wounds can be consistent with a
finding of premeditation."].) Finally, Arellano's defensive wounds (e.g., injuries to his
forearm, knuckles, and calf) were consistent with his use of his arms and legs to defend
17
against Selena's vicious knife attack against him. There is substantial evidence
supporting the jury's finding Selena intended to kill Arellano (i.e., had express malice).
To the extent Selena argues there is substantial evidence that would have
supported a contrary finding (i.e., that he did not have an intent to kill), he misconstrues
and/or misapplies the substantial evidence standard of review. (People v. Rodriguez,
supra, 20 Cal.4th at p. 11; People v. Johnson, supra, 26 Cal.3d at p. 578; People v.
Young, supra, 34 Cal.4th at p. 1181; Kuhn v. Department of General Services, supra, 22
Cal.App.4th at pp. 1632-1633.) "[T]he power of an appellate court begins and ends with
the determination as to whether, on the entire record, there is substantial evidence,
contradicted or uncontradicted, which will support the determination, and when two or
more inferences can reasonably be deduced from the facts, a reviewing court is without
power to substitute its deductions for those of the trial court. If such substantial evidence
be found, it is of no consequence that the trial court believing other evidence, or drawing
other reasonable inferences, might have reached a contrary conclusion." (Bowers v.
Bernards, supra, 150 Cal.App.3d at pp. 873-874); see People v. Ochoa (1993) 6 Cal. 4th
1199, 1206; People v. Harris (2013) 57 Cal. 4th 804, 849-850; People v. Livingston
(2012) 53 Cal. 4th 1145, 1170.)
Assuming arguendo there is sufficient evidence to have supported a contrary
finding by the jury (e.g., that Selena killed Arellano in a heat of passion or in
unreasonable self-defense), that does not show the evidence is insufficient to support the
jury's finding that Selena killed Arellano with malice. Although Selena argues, at great
length, that the evidence could support inferences he killed Arellano in a heat of passion
18
or in unreasonable self-defense, that argument does not refute or disprove the evidence
and inferences therefrom supporting the jury's finding that he killed Arellano with malice
and not in a heat of passion or in unreasonable self-defense. The jury could reasonably
infer Arellano's methamphetamine blood level at the time of the killing did not cause him
to attack or otherwise provoke Selena. There was evidence Arellano was a peaceful
person, even when he used methamphetamine. Furthermore, although Martinez called
Selena before the killing and asked him to come over to her house because Arellano
owed her money, had not paid her back, and told a person to come over and slap her, the
jury nevertheless could infer Selena did not, based on that call, actually believe he needed
to defend Martinez or his daughters from any imminent danger of death or serious injury
or that he was so provoked by Arellano that he killed him in a heat of passion.
DISPOSITION
The judgment is affirmed.
McDONALD, Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
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