P. v. Laboy CA4/2 ( 2013 )

Filed 3/7/13 P. v. Laboy CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054850
v. (Super.Ct.No. SWF10000124)
CONCEPCION LAZU LABOY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III,
Judge. Affirmed.
Catherine White, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and Kathryn
Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found defendant and appellant Concepcion Lazu Laboy guilty as charged of
first degree murder (Pen. Code, § 187, subd. (a)), and further found true the allegation
under Penal Code section 12022, subdivision (b)(1), that defendant personally used a
deadly weapon, namely a knife, in the commission of that crime. The trial court
sentenced defendant to serve a determinate term of one year in state prison on the
allegation defendant personally used a deadly weapon, followed by an indeterminate term
of 25 years to life in state prison on the first degree murder conviction.
In this appeal, defendant raises various claims of error, the details of which we
recount below in our discussion of those claims. We conclude, as we explain below, that
defendant’s claims are meritless. Therefore, we will affirm.
FACTS
According to the undisputed facts, defendant and his longtime girlfriend, whom he
refers to as his wife, were drug addicts who had been clean and sober for many years
before relapsing into their addictions. In an effort to regain their sobriety, they joined the
Santa Ana Restoration Church, an organization that counsels and assists drug and alcohol
addicts. Defendant recounts in detail in his opening brief the particulars of what church
involvement entailed. For our purpose, it is sufficient to note that church members lived
together in homes segregated by sex. Church members were required to solicit money to
fund the various homes and church activities. To that end, members would spend six to
eight hours a day in shopping centers and on the streets asking for donations.
On January 5, 2010, Roumaldo Huerta, the leader of the church home where
defendant had then lived for about eight months, dropped defendant and another church
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member off to solicit money in a shopping area in Temecula. While there, defendant
went into a Rite-Aid and asked a cashier for an ice pick. The cashier was unsure whether
the store carried ice picks, but directed defendant to the hardware aisle. Defendant left
the Rite-Aid without making a purchase. Later, defendant went to a Wal-Mart store. A
security camera tape shows defendant in the sporting goods aisle where knives and
ammunition are displayed.
Around 5:00 p.m., defendant entered a Big Lots store. He purchased a kitchen
knife for $3.81. Defendant paid for the knife with money he took from the glass jar that
contained the donations he had solicited that day. Outside in the parking lot, defendant
removed the knife from its plastic packaging, and concealed it somewhere on his person.
A few minutes later, Huerta arrived in a van to pick up defendant and another church
member. Defendant got into the front passenger seat. After Huerta buckled his seatbelt
and started to drive away, defendant attacked him with the knife. Defendant stabbed
Huerta 22 times on the face, neck, and upper torso. Huerta died while trying to unbuckle
his seatbelt and get out of the van.
When defendant attacked Huerta, the other church member jumped out of the van
and started yelling for help. As shoppers gathered around, defendant left the knife
protruding from Huerta’s shoulder, got out of the van, and walked around to the driver’s
side. He showed his bloody hands to witnesses, and said, “I just killed this guy.”
Defendant was standing next to the van when the police arrived. From the backseat of
the patrol car after his arrest, defendant yelled to an officer passing by, “I bought the
knife at Big Lots.”
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Defendant did not testify at trial. He relied on the testimony of a fellow church
member to argue that Huerta had been abusive to defendant, and that defendant bought
the knife because he was afraid of him. Defendant also argued that the killing was the
result of provocation by Huerta, as evidenced by defendant’s voice in the background on
a tape of one of the 911 calls in which he can be heard saying, “[unintelligible] he did to
me for 15 months. Push me, push me, push me in a program, you know? I try to do my
[unintelligible]. I got my wife in the program. He, he tried to [unintelligible] with my
wife [unintelligible].”1 From that evidence, and evidence that defendant had a one-inch
cut on his hand, defense counsel argued that Huerta had provoked the killing, either
through long-term abuse of defendant or by instigating a fight with defendant in the van.
Defense counsel argued defendant killed Huerta as a result of either that provocation or in
self-defense.
DISCUSSION
1.
SECOND DEGREE MURDER INSTRUCTION
Defendant first contends the trial court committed reversible error by failing to
include the definition of second degree murder in its instructions to the jury. The record
reflects the trial court instructed the jury according to CALCRIM No. 520 and
CALCRIM No. 521, on murder and first degree murder, respectively, but did not include
the optional paragraph in CALCRIM No. 521 that, “The requirements for second degree
1The 911 caller testified that defendant said, “ ‘He was messing with my wife.’
Something about the wife.”
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murder based on express or implied malice are explained in CALCRIM No. 520, First or
Second Degree Murder With Malice Aforethought.”2 (See CALCRIM No. 521 (2011
ed.).) During their deliberations, the jury asked the trial court for a definition of second
degree murder. The trial court responded, “See CALCRIM 520 for a definition of second
degree murder.”
Defendant argues that the omitted sentence left the jury without any guidance on
how to reach a second degree murder conviction. Although the trial court omitted that
sentence from its original instructions, it referred the jury to CALCRIM No. 520 in
response to the jurors’ request for a definition of second degree murder. That instruction
told the jury, in pertinent part, that to prove defendant is guilty of murder, “the People
must prove that: [¶] 1. The defendant committed an act that caused the death of
(another person); [¶] AND [¶] 2. When the defendant acted, he had a state of mind
called malice aforethought.” The instruction also includes definitions of express and
implied malice.
Defendant’s contrary claim notwithstanding, the trial court in this case instructed
the jury on the elements of the crime of second degree murder. Therefore, we must reject
defendant’s first claim of error in this appeal.
2 Defendant contends the trial court omitted from CALCRIM No. 521 the
sentence, “All other murders are of the second degree.” Although that sentence appeared
in the 2009-2010 version of CALCRIM No. 521, it was eliminated from the 2011 version
of CALCRIM No. 521 and replaced with the optional phrase, quoted ante. (See
CALCRIM No. 521 (2009-2010 ed.) p. 271; CALCRIM No. 521 (2011 ed.) p. 271.)
Defendant’s trial took place in 2011. Therefore, the trial court would have instructed the
jury with the 2011 version of the CALCRIM jury instructions.
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2.
INSUFFICIENT EVIDENCE OF LYING IN WAIT
Defendant next contends the evidence that he committed first degree murder by
lying in wait is insufficient. He further contends that the defect requires reversal of his
first degree murder conviction. Defendant is incorrect.
The prosecutor presented two theories of first degree murder to the jury—murder
committed with premeditation and deliberation, and murder committed by lying in wait.
Defendant does not dispute the evidence is sufficient to support a first degree murder
conviction based on the evidence that defendant premeditated and deliberated before he
committed the murder. Instead, he cites People v. Guiton (1993) 4 Cal 4th 1116, and
contends the error in this case consists of submitting a “legally insufficient” theory of
liability to the jury because the evidence was insufficient to support a verdict based on
lying in wait, and the record does not disclose whether the jury relied on that theory in
finding defendant guilty of first degree murder. Defendant misunderstands the holding in
that case.
The Supreme Court explained in People v. Guiton, supra, 4 Cal.4th 1116, that
when “the inadequacy of proof is purely factual, of a kind the jury is fully equipped to
detect, reversal is not required whenever a valid ground for the verdict remains, absent an
affirmative indication in the record that the verdict actually did rest on the inadequate
ground.” (Id. at p. 1129.) But when “the inadequacy is legal, not merely factual, that is,
when the facts do not state a crime under the applicable statute, [reversal is required], as
in Green [People v. Green (1980) 27 Cal.3d 1], the Green rule requiring reversal applies,
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absent a basis in the record to find that the verdict was actually based on a valid ground.”
(Ibid., fn. omitted.)
First degree murder based on lying in wait is a legally valid theory, but one that
the evidence arguably did not support. Therefore, the purported inadequacy of proof in
this case is factual. Because the claimed error is one of factual insufficiency, rather than
legal insufficiency, we must affirm the first degree murder conviction. That conviction is
supported by evidence that defendant premeditated and deliberated before he killed
Huerta, as evidenced by the fact that he bought a knife shortly before Huerta returned in
the van to pick up defendant, and defendant used that knife to kill Huerta.
3.
ADMISSIBILITY OF AUTOPSY PHOTOGRAPHS
Defendant contends the trial court committed prejudicial error by allowing the
prosecutor to introduce autopsy photographs of the victim over defendant’s objection.
We disagree.
At a pretrial hearing, defendant offered to stipulate that the victim had been alive
before the incident on January 5, 2010, that defendant stabbed the victim multiple times,
and that the stabbing caused the victim’s death. As a result of that proposed stipulation,
defendant argued that the majority of the prosecutor’s photographs were irrelevant and
therefore inadmissible. Defendant also argued that if offered to prove premeditation and
deliberation, the photographs were cumulative to other evidence on that issue. The trial
court accepted the prosecutor’s offer of proof that a photograph of the victim in the
driver’s seat of the van was relevant to show the victim’s position relative to defendant
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and explain how the victim had wounds on the left side of his body when defendant was
seated on the victim’s right. In the prosecutor’s view, the photograph showed “this
wasn’t just a fight going on, the defendant was reaching over the body. Otherwise there’s
no way for the victim to have suffered this cut mark over his left ear.” The prosecutor
argued the number of stab wounds depicted in the photographs was relevant to show “this
wasn’t some sort of manslaughter type thing, that this defendant had actual hatred for the
victim that went beyond, you know, just some isolated argument that led to this stabbing
and any sort of manslaughter type defense.” The trial court overruled defendant’s
objection and concluded that photographs of the victim at the scene were relevant and
admissible.
Defendant also objected to autopsy photographs of the victim on the grounds that
they were cumulative and gruesome, in that one photograph depicts the handle of the
knife sticking out of the victim’s neck, while others show straw-like probes sticking out
of each of the stab wounds.3 Defendant offered to stipulate that the fatal blow was the
last one, the one to the victim’s neck. The trial court again overruled defendant’s
objections, finding that the photographs, although graphic, were probative.
“The rules pertaining to the admissibility of photographic evidence are well
settled. Only relevant evidence is admissible [citations], and all relevant evidence is
admissible, unless excluded under the federal or California Constitution or by statute.
3 The forensic pathologist testified at trial that he used multiple colored rods and
placed them in the victim’s stab wounds to give an idea of the way the knife actually
passed through the body, as well as to show the depth and location of each wound.
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(Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).) Relevant evidence is
defined in Evidence Code section 210 as evidence ‘having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the determination of the
action.’ The test of relevance is whether the evidence tends ‘ “logically, naturally, and by
reasonable inference” to establish material facts such as identity, intent, or motive.
[Citations.]’ [Citation.] The trial court has broad discretion in determining the relevance
of evidence [citations] but lacks discretion to admit irrelevant evidence. [Citations]”
(People v. Scheid (1997) 16 Cal.4th 1, 13-14.)
As set out above, the trial court in this case reviewed the photographs in question
and found they were relevant to issues in dispute at trial. People v. Poggi (1988) 45
Cal.3d 306, which defendant relies on to argue otherwise, is inapposite. In that case, the
trial court permitted the prosecutor over defendant’s objection to introduce a photograph
of the victim standing in front of a Christmas tree to prove that she had been alive, and an
autopsy photograph that depicted an incision surgeons had made in the victim’s throat in
order to perform a tracheotomy to save her life. The Supreme Court found the first
photograph relevant but inadmissible because the defendant had offered to stipulate to the
fact that the victim had once been alive. The Supreme Court found the second
photograph was not relevant and therefore was inadmissible because the wound in the
victim’s neck depicted in the autopsy photograph had not been inflicted by the defendant.
(Id. at pp. 322-323.)
The photographs at issue in this appeal were relevant to disputed issues, as
previously discussed, and did not include a photograph of the victim while he was alive.
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In fact, the trial court excluded such a photograph from the evidence in this case. In
short, we conclude the trial court did not abuse its discretion by admitting the challenged
photographs into evidence. But even if we were to conclude otherwise, any purported
error necessarily was harmless. Defendant did not dispute that he stabbed and killed the
victim. The only issue was his mental state at the time. If anything, the photographs
might have bolstered the defense claim that defendant acted in a rage after having been
provoked by the demeaning way the victim had treated defendant and defendant’s wife
over the course of many months.
4.
UNANIMITY INSTRUCTION
As his final claim on appeal, defendant contends the trial court violated
defendant’s Sixth Amendment right to a jury trial because it did not instruct the jury that
in order to find defendant guilty of first degree murder, the jury had to agree on the facts
of that crime. Defendant is wrong.
The Supreme Court recently reiterated, “ ‘[i]t is settled that as long as each juror is
convinced beyond a reasonable doubt that defendant is guilty of murder as that offense is
defined by statute, [the jurors] need not decide unanimously by which theory he is guilty.
[Citations.]’ [Citation.] ‘Not only is there no unanimity requirement as to the theory of
guilt, the individual jurors themselves need not choose among the theories, so long as
each is convinced of guilt.’ [Citation.]” (People v. Valdez (2012) 55 Cal.4th 82, 153.)
Defendant concedes that our state Supreme Court has rejected the specific
argument he raises in this appeal that absent a unanimity instruction, the guilty verdict on
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the first degree murder conviction violates the constitutional requirement set out in
Apprendi v. New Jersey (2000) 530 U.S. 466, that a jury must find any fact, other than a
prior conviction, that increases the maximum penalty for a crime. (See People v.
Nakahara (2003) 30 Cal.4th 705, 712-713.) Defendant acknowledges that we are bound
by the decisions of our state Supreme Court (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455), and he raises the issue to preserve his rights to further review
in federal court.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
KING
J.
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