People v. Delossantos CA2/2 ( 2020 )

Filed 11/25/20 P. v. Delossantos CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B298362
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA087721)
v.
MARCELINO DELOSSANTOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Alan K. Schneider, Judge. Affirmed.
Victor J. Morse, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Blythe J. Leszkay and David W. Williams,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
A jury convicted Marcelino Delossantos (appellant) of first
degree murder by torture. (Pen. Code, §§ 187, subd. (a), 189,
subd. (a); People v. Cole (2004) 33 Cal.4th 1158, 1207.)1 He
admitted that he had a prior conviction for a violent or serious
felony. (§§ 667, subd. (d) & 1170.12, subds. (a)-(d).) The trial
court sentenced him to 25 years to life in state prison, and then
doubled it to 50 years to life under the second strike sentencing
provision of the “Three Strikes” law. (§§ 667, subds. (b)-(i) &
1170.12, subds. (a)-(d).) On appeal, appellant contends that there
was insufficient evidence of murder by torture and therefore the
trial court erred when it instructed the jury that it could convict
appellant on a murder by torture theory. Also, he contends that
the trial court erred when it denied his motion pursuant to People
v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to
strike his prior serious felony conviction. We find no error and
affirm the judgment.
FACTS
Prosecution Evidence
Months and Days Leading Up to Appellant’s Arrest
Appellant lived behind his uncle’s house in a storage
container. For about six or seven months, Macelina Wright
Vallecillo (Wright)2 lived there, too. On January 12, 2018,
Wright told her brother that she had a fight with appellant and
he broke her nose. In the afternoon of January 27, 2018, one of
the uncle’s workers heard someone say, “Where are you going?”
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 At trial, and in the parties’ briefs, Wright is referred to as
“Macy Wright” and “Wright.”
2
He saw Wright step out of the container while “almost” naked
below the waist. The worker then saw appellant pull Wright
back inside. The next day, the worker was present around
3:30 p.m. and heard a scream. Wright laughed as she emerged
“full of straw” from an area where the uncle kept animals. At
about 5:00 p.m., the uncle heard appellant and Wright arguing.
On January 29, 2018, the uncle went to see his animals
around 7:00 a.m. and saw appellant exit the container and leave
the property. Appellant went to a liquor store and bought Squirt
and a bottle of tequila. The uncle saw appellant again at about
8:00 a.m. or 8:30 a.m.
At about 10:00 a.m., the uncle encountered appellant and
believed he was drunk. He said something like, “I killed her,” or
“she killed herself.” The uncle asked why appellant had “done
that.” He said Wright “had gone crazy and that she had taken off
all her clothes, and she was jumping on the bed and she was
going to head out and then he pushed her . . . , and then she
bumped her head on the corner of the bed.” When the uncle
asked why he had not called the police, appellant said he could
not call because he had hit her. He went into the container, came
out and left.
The uncle called a family member and told him what
happened. The family member called the police.
The Police Discover Wright’s Body and Collect Evidence
from the Scene
Police officers arrived and went to the storage container.
To get inside, they had to cut off string or wire that was tied to
the handles. They found Wright lying on a makeshift bed3
3 In the record, the bed is sometimes referred to as a couch.
3
covered with a blanket. She was cold to the touch and not
breathing. Rigor mortis had set in “[s]omewhat.” Her body was
bloated. Per protocol, one of the officers called an ambulance.
Wright was pronounced dead at 11:20 a.m. She could have
been dead for a couple of days. However, there were no signs of
decomposition, which indicated that she died close to the time
that she was found.
A homicide detective responded to the scene. He found
jeans near Wright’s body and noticed that they were surrounded
by blood. The bed and walls had blood stains. The detective
observed what appeared to be fecal matter on the bed as well as
on Wright’s body. Her lower back, side and shoulder bore injuries
that looked like they could have been inflicted by a belt or strap.
Outside the container, he observed a brown leather belt on a
table. The detective swabbed various items and booked them into
evidence.
Appellant’s Police Interview
Appellant was arrested and interviewed by a detective the
same day that Wright’s body was found.
When asked where he was living, appellant said he did not
have a “set place” but that he got his mail at the uncle’s property.
The detective asked why appellant thought he was being
interviewed, and he said he did not know. He explained that he
had been outside a liquor store for a couple of hours trying to pick
up work as a day laborer. Before that, he was under some bushes
sleeping. He said that he slept under those bushes all night.
The detective asked appellant what happened the night
before. He said, “Nothing happened. To me, nothing. I was just
wasted, you know, on [marijuana].” When asked if he slept in the
storage container the prior night, he said, “There’s no storage
4
container. Like, I don’t know what you’re talking about.” He
denied having a girlfriend. Based on his version of events,
appellant had not stayed at his uncle’s house for three or four
days.
The detective indicated that people saw appellant at his
uncle’s property that morning. Appellant replied, “[Today]? I
mean, they probably did, but I didn’t go inside.” He explained
that he went to his uncle’s property to see if someone needed him
to work.
When asked about Wright, appellant said, “[Wright] was
my girlfriend.” He explained that she had been upset because he
smoked marijuana. She wanted him to change, yet she was
“doing like, meth.” The detective began a colloquy about Wright,
and appellant said that “she left . . . with some Black guy.” He
admitted that Wright and he had stayed at the uncle’s house
together. He then said “she cut me loose” two days ago “[l]ike: ‘I
was not worth it.’” This made appellant feel like “s**t.” He
added, “You feel . . . you ain’t worth . . . nothing.”
Appellant said he loved her “[a] lot” and pointed out a
tattoo with her name. He admitted she stayed in the container
with him “sometimes” but said she preferred being with a Black
guy. The detective said it was “tough,” and appellant said, “Yeah,
like I said, she[] . . . prefer[s] that Black guy [rather] than me,
. . . I got out of control. . . . ‘Cause she was staying with me
. . . [going] on [three] years.”
When appellant said he had not spoken to Wright in two or
three days, the detective said that swabs of appellant’s hands
revealed the presence of blood, and that Wright deserved to have
appellant tell the truth.
5
Appellant said, “Okay. Okay, if you guys wan[t] [to]
know[.] Yes, I did it.” Then he said, “I didn’t hit her[.]” He
explained, “I just told her I didn’t want nothing to do with her,
‘cause that woman’s [Black guy] . . . was around. That was it.”
The detective asked if they got into an argument, and appellant
replied, “I only think I . . . pushed her.” A few moments later, he
said, “You know how they—like a Black guy, that’s how they
went, ‘wa, wa, wa, wa.’ I’m a Mexican, that gets on . . . my nerves
when someone, like a Black guy or all that . . . yap, yap, yap, yap,
gets on my nerves. But . . . like I said, I did push her and I left,
that was it.”4
When asked about when he went to the container that
morning, appellant said it was early and he argued with Wright.
He pushed her. She said he was “not much of a man” and that he
was a “f***king f***got.” He pushed her and gave her a
backhand slap. He said he was “mad as a mother***ker.” She
said, “[T]he Black guy’s better than you, mother***ker. You’re
not worth f***king . . . s**t, all this and that.”
The detective asked if appellant told anyone. He said, “I
ain’t tell nobody I killed [Wright], none of that crap. I didn’t even
know if I killed her or not.” The detective said, “But you did.
How does that make you feel?” Appellant replied, “Dumb.” He
explained, “. . . I didn’t think . . . I was [going to] kill her with a
slap.”
The detective inquired whether appellant was holding
anything when he hit Wright, and he said, “No, I was just mad[.]”
The detective said, “I don’t know if she knocked out but she
4 Appellant sometimes used a racial slur when referring to
Wright’s new boyfriend. We need not repeat that slur.
6
stopped talking right away, right when you hit her.” Appellant
replied, “Right away.” The detective said, “And then you heard a
thump.” Appellant said, “Right,” and that he started walking
away.
The detective asked why Wright was on the bed. Appellant
said, “I dressed her,” and “I put them shorts on her[.]” The
detective asked if appellant put her on the bed, he said, “No, I left
her sitting . . . ‘cause when I hit her [¶] . . . [¶] I walked to the
front[.]” At first he thought she was knocked out, but then she
yelled at him, and he walked back to her. Per appellant, “[T]hen
I see[n] that she was bleeding from her [¶] . . . [¶] mouth.” She
yelled, “See what you did[?]” At that point, she went outside
without any clothes on. Appellant explained that he tried to
cover her. Then he grabbed her hair, threw her inside and
pushed her on the bed. He threw a blanket on top of her and
pushed her. Appellant said, “She went like” and knocked on the
table to create a sound for the detective to hear. Next, appellant
said, “[S]he fell . . . like it was at the end of the bed.” It was at
that point that appellant left.
Toward the end of the interview, appellant said, “Just do
what you guys gotta do. Put me away, whatever,” and “Give me
the death penalty if you want.” He added, “I never wanted to
hurt her.” Appellant believed he had blood on him because he
slapped Wright.
DNA Evidence
A criminalist analyzed blood samples from appellant’s
hands, pants, and shirt. The sample from the pants matched
Wright’s DNA profile. The sample from the shirt contained the
DNA profiles of appellant and Wright. Finally, the sample from
appellant’s hand was consistent with two contributors, one male
7
and one female. With respect to the male, the sample was
consistent with appellant’s DNA profile. As for the female, while
there was insufficient information for a match, it could have come
from Wright.
The criminalist did not test either a leather belt or a belt
buckle for DNA.
Medical Testimony Regarding Wright’s Injuries and Death
Dr. Yulai Wang
Dr. Wang conducted an autopsy.
Wright had small hemorrhaging and petechia on her eyelid
and hemorrhaging on her right eyeball that was consistent with
strangulation. There was hemorrhaging in her left eyeball
consistent with both strangulation and blunt force trauma. She
had reddish areas on her neck, bleeding in the muscles connected
to her larynx and neck, and a fracture of her thyroid cartilage
consistent with strangulation. Dr. Wang concluded that Wright
had been strangled but could not say whether strangulation
caused her death.
Wright had significant blunt force trauma on her face
comprised of contusions and abrasions. She exhibited contusions
on her scalp consistent with blunt force trauma that were
consistent with someone punching her in the head. Further, she
exhibited multiple contusions and abrasions on her torso, back,
shoulder, chest, hip, arms and legs. The contusions on her back
displayed a pattern consistent with injury inflicted by a belt.
Injuries to her buttocks, which were in a U-shaped pattern,
“could be” consistent with trauma caused by a belt buckle.
Wright had contusions and lacerations inside her mouth and
contusions on her lip consistent with blunt force trauma. Finally,
8
Dr. Wang noted that Wright had a subdural hematoma and
significant bleeding in her head.5
Dr. Wang opined that the cause of Wright’s death was
multiple traumatic injuries consisting of contusions on her head
and the subdural hematoma in her head, with strangulation as a
contributing factor.
On cross-examination, Dr. Wang was asked if damage to an
area on the back of Wright’s head came from one injury. He
expressed no opinion as to whether it was one or multiple
injuries. Next, he was asked if he could identify the number of
traumas that caused the subdural hematoma. He stated, “I don’t
know the exact number, but there were multiple.” As for an
injury to the left back side of Wright’s head, Dr. Wang agreed
that it could have been caused by Wright falling and hitting her
head. He pointed out, however, that she had traumas to the front
left side of her head as well as the right side. Each of those was a
separate injury.
Dr. Donald C. Boger
Dr. Boger, a radiologist, examined x-ray and
CT scan images of Wright’s head and neck. He found significant
soft tissue swelling of the left scalp extending into the left face,
intracranial extravascular blood around different portions of the
brain consistent with subdural hematoma, a fracture on the side
of the larynx or airway, and a fracture of thyroid cartilage in the
neck. Bleeding on the brain was most likely caused by the veins
being ruptured by traumatic force. Dr. Boger was unable to
5 Dr. Yang opined that some contusions on Wright’s legs and
abrasions on her left hand appeared to be older because they
were healing.
9
determine whether bleeding on the left side of the brain was
caused by one or multiple blows.
Dr. Bill Smock
Dr. Smock, an emergency room physician, testified as an
expert on strangulation.
Strangulation is the application of external pressure to a
person’s neck, which can block air flow, blood flow or both
depending on how the pressure is applied. A victim will be
rendered unconscious within five to 10 seconds if he or she is
strangled and blood flow to the brain is blocked. The victim will
go unconscious and the brain will stop working. After about 11 to
17 seconds, the victim will suffer an anoxic seizure. At 30
seconds, the victim will lose control of his or her rectal sphincter.
If pressure is maintained, a victim will die in 62 to 157 seconds.
When strangulation causes anoxia (lack of oxygen) or
hypoxia (limited oxygen), brain damage occurs. The
hippocampus is particularly sensitive to oxygen deprivation. If
hypoxia is visible under a microscope following a victim’s death,
it means the victim survived for several hours after the initial
strangulation.
A strangulation victim may suffer fractures to bones and
cartilage in the neck as well as petechia hemorrhages, which are
ruptures of capillaries usually seen in the eyes. Dr. Smock saw
evidence of petechia hemorrhages in a photo of Wright’s eyes.
Dr. Cho Lwin
Dr. Lwin, a medical examiner who specialized in
neuropathology, examined Wright’s brain and found
hemorrhages on the left side at multiple levels in her cranium.
Consistent with strangulation, the hippocampus showed hypoxic
changes to the neurons because of blood and oxygen being cut off.
10
Defense Evidence
Appellant testified in his defense. He explained that the
day before Wright’s body was found, he pushed her several times
to get her into the container and then to get her onto the bed. He
did this because she kept going outside without clothes on. At
one point, she was on the bed and tried to get off from it, and
appellant pushed her. She tried to get off a second time, and he
slapped her with a backhand motion. Later, he went out to buy
alcohol. He got back to the container at 8:00 p.m. or 9:00 p.m.
Wright was on the bed and “had a little drop of blood.” Appellant
wiped it up. Then he jumped on the bed and smoked marijuana.
She was not moving, and he decided to dress her in shorts and
lay her on a pillow. He saw some blood underneath her left
nostril. Eventually, he went to sleep next to her.
On cross-examination, appellant suggested that Wright got
her injuries either from falling in the backyard or from his dogs.
The prosecutor asked, “Are you telling me that the five dogs in
your house beat up [Wright]?” He denied saying that.
After appellant again stated that he slapped Wright, the
prosecutor asked, “And that one hit resulted in all those injuries
to her body[,] is that right?” Appellant once again suggested she
had fallen in the backyard. The prosecutor inquired if appellant
whipped Wright with his belt. Appellant said he did not. Then
the prosecutor asked if Wright strangled herself. Appellant
replied, “I don’t know.” Next, the prosecutor asked, “Did [Wright]
fracture the bone in her thyroid cartilage?” In response,
appellant testified, “I never said that she did or I did . . . or what
happened. She was falling everywhere, and when I pushed her,
she hit on the bed and everything. I don’t know if she hit herself
on something on the ground or whatever on the neck.”
11
Appellant testified that he woke up the next morning and
tried to get close to Wright to warm up. She was cold, and that’s
when he discovered she was dead. He told his uncle to call the
police.
When the prosecutor inquired about appellant’s
relationship with Wright, he admitted that she went back to her
old boyfriend because she did not think appellant was worthy as
a man. But appellant said that did not upset him. However, he
got mad when she called him derogatory names, so he called her
a derogatory name that expressed racist antipathy for her choice
of a Black man.
DISCUSSION
I. Murder by Torture.
Appellant contends that there was insufficient evidence to
support a murder by torture instruction and therefore the murder
by torture conviction. Specifically, he contends there was
insufficient evidence that he intended to inflict extreme and
prolonged pain on Wright; that he did so for revenge, extortion,
persuasion, or another sadistic purpose; that he did so willfully,
deliberately, and with premeditation; and that any infliction of
extreme and prolonged pain was the cause of Wright’s death. As
discussed below, we cannot agree.
A. Relevant Proceedings.
Toward the end of the trial, appellant’s counsel argued that
the murder by torture theory should not be presented to the jury
because there was insufficient evidence of intent to cause cruel or
extreme pain or suffering, and insufficient evidence that his
purpose in acting was revenge, extortion, persuasion, or some
other sadistic purpose. The trial court disagreed. It later
instructed the jury as to first-degree murder by torture, first-
12
degree premeditated murder, second-degree murder, voluntary
manslaughter, and involuntary manslaughter. The jury
convicted appellant of first-degree murder by torture.
B. Relevant Law.
In a criminal case, an instruction on a theory of guilt is
appropriate if there is substantial evidence to support a
conviction on that theory. (People v. Campbell (1994) 25
Cal.App.4th 402, 408.)
When applying the substantial evidence test, we examine
the evidence in the light most favorable to the prosecution and
determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. The
same standard applies to when we review whether the evidence
supports a special circumstance finding. (People v. Edwards
(2013) 57 Cal.4th 658, 715 (Edwards).)
Murder perpetrated by means of torture is murder of the
first degree. (§ 189, subd. (a).) Special circumstance murder by
torture “requires (1) an act or acts causing death that involve a
high degree of probability of death, (2) a causal relationship
between the torturous act and death, (3) a willful, deliberate, and
premeditated intent to inflict extreme and prolonged pain on a
person for the purpose of revenge, extortion, persuasion, or for
any other sadistic purpose, and (4) commission of the act or acts
with such intent. [Citations.]” (Edwards, supra, 57 Cal.4th at
pp. 715–716.)
A finding of murder by torture “‘“encompasses the totality
of brutal acts and the circumstances which led to the victim’s
death. [Citations.] The acts of torture may not be segregated
into their constituent elements in order to determine whether
any single act by itself caused the death; rather it is the
13
continuum of sadistic violence that constitutes the torture.”’
[Citation.]” (Edwards, supra, 57 Cal.4th at p. 716.) “‘The jury
may infer the intent to inflict extreme pain from the
circumstances of the crime, the nature of the killing, and the
condition of the body.’ [Citation.] A perpetrator need not have
any intent to kill [citation], and it need not be proven that the
victim actually suffered pain [citation].” (Ibid.)
“‘[E]vidence that the defendant intentionally inflicted
nonlethal wounds on the victim may demonstrate the requisite
“‘sadistic intent to cause the victim to suffer pain in addition to
the pain of death.’”’ [Citation.] Such wounds support a finding of
intent because they ‘evidence deliberate and gratuitous violence
beyond that which was necessary to kill the victim.’” (People v.
Powell (2018) 5 Cal.5th 921, 945.) In contrast, courts must be
cautious not to give undue weight to the severity of wounds.
“Horrible wounds may be consistent with a killing in the heat of
passion or an explosion of violence” (People v. Chatman (2006) 38
Cal.4th 344, 390) rather than an intent to inflict extreme and
prolonged pain.
The concept of premeditation assumes preexisting thought
and reflection rather than unconsidered or rash impulse. (See
People v. Lopez (2018) 5 Cal.5th 339, 354–355 [discussing
premeditated murder].)
C. Analysis.
Witness testimony and appellant’s statements establish
that appellant and Wright lived together in the container during
the days before she was discovered, and that he was at the
container the morning that she was discovered. Appellant’s
statements establish that: appellant is Mexican; appellant and
Wright exchanged heated words in which she made belittling
14
comments, used a homophobic slur to describe him, and said that
he was not worthy as a man; her words gave him negative
feelings about himself; Wright expressed a preference for a Black
man; Wright was leaving appellant for that Black man; appellant
used a racial slur to refer to the Black man; appellant used an
ugly term indicating he had antipathy for Wright due to her
stated preference for a Black man; her words gave him negative
feelings about himself; appellant and Wright got into a physical
altercation in which he claimed he pushed her and gave her a
backhand slap; she stopped talking when he hit her, and that she
“knocked out;” appellant knew Wright was dead before the police
were called because he told his uncle that appellant killed her or
she killed herself; appellant said he did not call the police
because he had hit Wright; appellant said he felt dumb for killing
Wright; and appellant told the detective he never wanted to hurt
Wright, and he did not object to being given the death penalty.
In addition, appellant lied to the detective regarding his
whereabouts and his relationship to Wright but then changed his
story when he was presented with conflicting facts and admitted
that Wright was his girlfriend and they were at the container.
His statements exhibited motive to kill or torture Wright, and his
lies exhibited consciousness of guilt.
The physical evidence regarding Wright’s wounds and the
expert opinions support the reasonable inferences that appellant
did more than slap and push Wright. Rather, he beat, whipped
and strangled her, causing brain damage, hematomas, abrasions,
welts, contusions, tissue damage and broken cartilage. She
sustained both nonlethal injuries to her face, torso, arms, legs
and buttocks, and injuries to her head that were cumulatively
lethal. The fecal matter on the bed proved she was strangled for
15
at least 30 seconds, the time necessary for her to lose control of
her rectal sphincter. Wright’s hippocampus showed visible signs
of hypoxia, establishing that she lived for several hours after
being strangled.
Based on the evidence that Wright suffered lethal and
nonlethal blunt force trauma as well as strangulation, the jury
justifiably concluded that appellant killed Wright. We must now
determine whether it justifiably concluded that it was murder by
torture.
The answer is yes.
The injuries to Wright’s head and neck, coupled with the
injuries to the rest of her body, establish that appellant engaged
in a variety of attacks, and attacked different parts of Wright’s
body. The nature, variety and extent of Wright’s injuries, and
the fact that she lived for several hours after being strangled,
provide sufficient evidence that appellant had time to reflect on
his actions and acted with premeditation rather than heat of
passion or an explosion of violence. Further, the variety of
injuries and the duration of time that Wright might have been
suffering after she was first strangled indicate that appellant
intended to inflict extreme and prolonged pain. Also, the
nonlethal abrasions and welts and contusions to her face, torso,
arms, buttocks and legs were gratuitous, which bolsters the
conclusion that appellant inflicted wounds on Wright with
sadistic intent.
Appellant’s statements to the detective in his police
interview indicated he was angry at Wright because: she was
leaving him, she made belittling comments, she expressed a
preference for a man of another race, he bore racial antipathy for
the man of another race, and he called her racially tinged names.
16
This evidence supported the reasonable inference that appellant
tortured Wright for revenge.
Dr. Wang opined that the cause of Wright’s death was
multiple contusions on her head as well as the subdural
hematoma in her head, and that strangulation was a contributing
factor. This opinion supported the finding that torture was the
cause of Wright’s death. Dr. Wang was not required to determine
which blow or blows caused Wright’s death. As set forth in case
law, “[t]he acts of torture may not be segregated into their
constituent elements in order to determine whether any single
act by itself caused the death[.]” (Edwards, supra, 57 Cal.4th at
p. 716.) We are concerned only with the totality of brutal acts
constituting the torture. (Ibid.)
Appellant offers a series of counterarguments.
First, he contends there is insufficient evidence to
warrant the conclusion that he intended to inflict extreme and
prolonged pain. He avers that the lack of eyewitness testimony
to “establish the circumstances surrounding the infliction of
Wright’s wounds, such as the number of separate blows inflicted,
or the amount of time during which blows or strangulation was
being inflicted” renders the conviction infirm. We disagree. The
nature and extent of the injuries, and the hypoxia present in
Wright’s hippocampus, established that Wright suffered
numerous injuries while she was alive. The precise number of
blows as well as the precise amount of time that the torture
lasted were not necessary details. Based on the totality of
circumstances, the jury was empowered to find the requisite
intent. Thus, we reject the suggestion that the prosecutor was
required to establish either a specified number of blows or that
Wright was tortured for a specified length of time. Appellant
17
next contends that there was no evidence regarding his mental
state to suggest the requisite intent. We disagree. The nature of
Wright’s injuries permitted the jury to infer his mental state and
therefore his intent to inflict extreme and prolonged pain when
he beat, whipped and strangled her.
Second, appellant suggests there was insufficient evidence
that he intended to inflict extreme and prolonged pain for, inter
alia, revenge. Appellant seizes upon the lack of evidence that he
followed a plan, and that he did not obtain or use any weapon
except for perhaps the belt. But acting pursuant to a plan and
obtaining or using a weapon are not necessary to prove that the
motive for torturing Wright was revenge. Taking a different
tack, appellant argues that his statements about the
conversations he had with Wright suggest, at most, a motive to
kill, not a motive to inflict extreme and prolonged pain. We reject
this suggestion. While the conversations suggested either
motive, appellant’s use of nonlethal violence as well as the
duration of time Wright lived after being strangled established
that his intent was to torture, not kill.
Third, appellant argues that because there was no evidence
that he acted pursuant to a plan, there was no evidence that he
acted with premeditation. But the law did not require that the
prosecution prove that appellant had a plan. It only had to show
that he acted intentionally and deliberately, and the evidence
amply showed that he did.
Fourth, appellant urges us to conclude that Dr. Wang’s
opinion on the cause of death did not prove that Wright died from
being tortured. This argument cannot prevail. Nothing about
the record was equivocal regarding Wright’s injuries and
Dr. Wang was qualified to render an opinion. Appellant has
18
offered no legal authority permitting us to reject Dr. Wang’s
testimony. Appellant notes that Dr. Wang stated that one of
Wright’s head injuries could have been caused by a fall. This
does not change our analysis. We examine torture as a
continuum of brutal acts and do not parse the constituent acts.
And, even if she fell and hit her head, the reasonable inference is
that she fell because he hit or pushed her, and therefore any fall
was part of the torture that he inflicted. Regardless, the cause of
death was multiple head injuries, not one.
Because we have concluded that sufficient evidence
supported the murder by torture conviction, we must conclude
that the trial court had sufficient reason to instruct the jury on a
murder by torture theory.
II. Romero.
Appellant contends the trial court abused its discretion
when it denied his Romero motion. We conclude otherwise.
A. Relevant Background.
In 1994, when appellant was 20 years old, he was convicted
of gross vehicular manslaughter (§ 191.5, subd. (a)) and
sentenced to six years in prison. He was released on parole,
which he violated in 1999. In 1999, appellant was convicted of
driving under the influence of alcohol (Veh. Code, § 23152) and
sentenced to a five-year prison term.6 In 2004, appellant was
convicted of marijuana possession. Also, in 2004, he was
convicted of driving under the influence (Veh. Code, § 23152) and
received a four-year prison sentence. In 2015, he was convicted of
public intoxication (§ 647, subd. (f)).
6 In 2000, appellant was arrested for participating in a
prison riot (§ 405).
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B. Relevant Proceedings.
Appellant admitted a prior strike for gross vehicular
manslaughter, which subjected him to an enhancement. (§§ 667,
subds. (b)-(i) & 1170.12, subds. (a)-(d).) Also, he admitted he was
driving while intoxicated, and that he caused a death. Later, he
moved to strike the enhancement under Romero. The trial court
denied the motion, stating, “Here is the problem. The crime here
is very serious, and the other crime involved a death of another
individual. So unfortunately, even though it is remote, the court
would not be inclined to grant the Romero motion.”
C. Relevant Law.
A trial court has discretion to strike a prior felony
conviction in the furtherance of justice pursuant to section 1385,
subdivision (a). (Romero, supra, 13 Cal.4th 497, 530.) When
considering whether to grant a Romero motion, a trial court must
consider the nature and circumstances of a defendant’s present
felonies and prior serious and/or violent felony convictions, and
the particulars of his background, character, and prospects, and
then determine whether the defendant may be deemed outside
the spirit of the Three Strikes law, in whole or in part, and hence
should be treated as though he had not previously been convicted
of one or more serious and/or violent felonies. (Romero, supra, at
p. 531.) A trial court’s denial of a Romero motion must be
affirmed unless we conclude there was an abuse of discretion.
(People v. Carrasco (2008) 163 Cal.App.4th 978, 992–993.) We
will not reverse unless the trial court exercised its discretion in
an arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice. (People v. Hajek and Vo
(2014) 58 Cal.4th 1144, 1206.)
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D. Analysis.
Appellant argues that his first strike should have been
stricken because (1) it incurred a long time ago and the time
lapse suggests that criminal activity is not a way of life for him,
(2) there is no proof that he is a hardened recidivist criminal
given that all his prior crimes related to alcohol; (3) nothing
about the current offense suggests that he cannot be
rehabilitated; and (4) he would receive a long sentence even
without the enhancement.
We find no abuse of discretion.
Appellant’s first strike involved a homicide that was the
result of his decision to drive a vehicle while intoxicated. In the
ensuing years, he committed two more felony violations of
Vehicle Code section 23152, which showed a reprehensible
disregard for human life. Then, he committed a murder by
torture, a particularly heinous act. Thus, it was not arbitrary,
capricious or patently absurd for the trial court to deny the
motion, implicitly concluding that appellant was within the spirit
of the Three Strikes law.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
_______________________, J.
HOFFSTADT
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