People v. Fagundes CA3 ( 2023 )

Filed 5/2/23 P. v. Fagundes CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Calaveras)
----
THE PEOPLE,
Plaintiff and Respondent, C093720
v. (Super. Ct. No. 19F7639)
DAVID JOSEPH FAGUNDES,
Defendant and Appellant.
In a first trial, a jury found defendant David Joseph Fagundes guilty of making
criminal threats and obstructing or resisting law enforcement personnel. In a second trial,
a different jury convicted defendant of first degree murder and arson causing great bodily
injury. That jury also found true allegations that the murder involved infliction of torture
(hereafter the torture special circumstance) and that defendant personally used a deadly
weapon in committing the murder. The trial court sentenced defendant to an
indeterminate prison term of life without the possibility of parole, consecutive to a
determinate term of four years.
1
Defendant now contends (1) there is insufficient evidence to support the torture
special circumstance, (2) it was error to admit a video of defendant attacking another
inmate and an exhibit showing defendant’s prior conviction for first degree manslaughter,
(3) the trial court should have instructed with CALCRIM No. 224 on the use of
circumstantial evidence, (4) the trial court erred in concluding that his prior conviction
was a strike, and (5) amendments to Penal Code section 11701 made by Senate Bill
No. 567 (2021-2022 Reg. Sess.) require resentencing.
We conclude (1) substantial evidence supports the jury’s finding that defendant
acted with torturous intent, (2) to the extent defendant did not forfeit his evidentiary
claims he has not established error, (3) although the trial court should have instructed
with CALCRIM No. 224, the error was harmless, (4) we do not consider defendant’s
claim regarding a prior strike conviction because he was not sentenced on that basis, and
(5) it is appropriate to remand for resentencing on the count II arson conviction, the count
III criminal threats conviction, and the count IV obstruction conviction.
We will vacate defendant’s sentence on counts II, III and IV and remand for
resentencing on those counts consistent with current law. We will otherwise affirm the
judgment.
BACKGROUND
The People charged defendant with murder (§ 187, subd. (a) – count I), arson
causing great bodily injury (§ 451, subd. (a) – count II), making criminal threats (§ 422,
subd. (a) – count III) and obstructing or resisting, by use of threat, force or violence, law
enforcement personnel in the performance of their duty (§ 69 – count IV). At defendant’s
first trial, the jury found him guilty on counts III and IV but deadlocked on the other
1 Undesignated statutory references are to the Penal Code.
2
counts. The People retried defendant on counts I and II. The following is a summary of
the relevant facts from the evidence presented at the second trial.
Defendant arrived in Manteca, California on May 28, 2019, from Washington
state. He told his cousin Christina M. someone posted their daughters’ faces on
pornography websites, people were harassing his daughters because of it, and he was in
California to take care of it. Defendant said Christina M. knew the person responsible for
the pornographic images.
When defendant could not reach his daughters, he put gasoline into a gas can and
picked up his half-sister Toni Jilbert from work. Jilbert’s husband last heard from her at
3:30 a.m.
Someone working with cattle near Highway 4 in or near Copperopolis in
Calaveras County saw a car engulfed in fire at about 6:00 or 6:30 a.m. on May 29, 2019.
The car was registered to defendant.
Jilbert’s body was behind the driver’s seat of the car. Her face and body were
charred beyond recognition. There was a stab wound to Jilbert’s chest that penetrated her
lung. There were two stab wounds to her abdomen. One went into the stomach; the
other went into the area of her kidney. There was a lot of soot in her airway and the
carbon monoxide level in her body was elevated, indicating she was alive at the time of
the fire. The pathologist opined that Jilbert was stabbed before the fire and she was alive
for a few minutes after she was stabbed. According to the pathologist, someone looking
at Jilbert before the fire would have seen that she was alive. The cause of death was a
combination of smoke inhalation and thermal burns. The stab wounds were not fatal but
contributed to Jilbert’s death.
A fixed blade knife was found in the car. The knife belonged to defendant.
A rectangular, reddish-colored plastic object with a very strong odor of gasoline was
recovered from the rear portion of the car. Gasoline was present in foam cushions in the
car. And there was an indication of gasoline on fibers collected at Jilbert’s autopsy.
3
Law enforcement officers contacted defendant around 5:30 p.m. that day as he
stood in grass a short distance from the crime scene. Indicating they were with the
Sheriff’s Department, officers directed defendant to show them his hands. Defendant
refused, saying, “You’re going to have to shoot me.” Officers continued to direct
defendant to show them his hands, but defendant sat down in the grass and concealed his
left hand. He said, “You draw, I draw” and that it would “end in bullets.” He told
officers he had a gun. When asked if he was with anyone, defendant said he was with his
sister. He blamed officers for leaving him out there all day and said he heard the officers
talking and they were concealing evidence. Officers repeatedly ordered defendant to
show his hands but defendant refused to comply. He was taken into custody about an
hour and a half after the confrontation began. He had a fairly deep puncture wound on
the right side of his neck, and he had a knife sheath and a closed folding knife. No
firearm was found.
Defendant later admitted he drove his sister to Calaveras County. The fixed-blade
knife in the burned car could fit in defendant’s knife sheath. A mixture of DNA was
found on the sheath. Defendant was a major contributor of the DNA mixture, but a minor
partial DNA profile from the mixture was consistent with Jilbert’s profile. A California
Department of Forestry and Fire Protection investigator determined the car fire started on
the driver’s side of the car, between the front and rear seats. The investigator opined that
the fire was intentionally set.
Unlike with the first trial, defendant testified at the second trial. Among other
things, he said someone sent him a pornographic video as he was driving to California.
He did not know who sent it. The girl in the video looked like Christina M.’s daughter.
After arriving in California, he dropped Jilbert off at her work and offered to pick her up
so they could use methamphetamine together. He bought $5 worth of gasoline and put it
in a can because the gasoline gauge in his car did not work and he always kept a reserve
of gasoline when he travelled. He left his uncle’s house about 11:30 p.m. to pick up
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Jilbert from work. He and Jilbert drove to Stockton to get methamphetamine. Jilbert
drove and defendant fell asleep, but he awoke when someone named Jesse entered the
car. Jilbert was not in the car. Jesse said Jilbert wanted them to pick her up at her
dealer’s. Defendant followed Jesse’s directions and drove into the country. Another car
followed them. It was about 5:00 or 5:30 a.m. Defendant thought he was being
carjacked when Jesse put a pistol to his side. He ran his car off the road. Defendant ran
away, fell and blacked out. When he woke up he could not remember what happened.
He did not remember the confrontation with law enforcement officers. Defendant denied
killing Jilbert.
The jury found defendant guilty of murder in the first degree (§ 187, subd. (a) –
count I) and arson that caused great bodily injury (§ 451, subd. (a) – count II). It found
true the torture special circumstance allegation (§ 190.2, subd. (a)(18)) and the allegation
that defendant personally used a deadly weapon in committing the murder (§ 12022,
subd. (b)(1)). The trial court sentenced defendant to an indeterminate prison term of life
without the possibility of parole, consecutive to a determinate term of four years.
Additional facts are included in the discussion as relevant to the contentions on
appeal.
DISCUSSION
I
Defendant contends the true finding on the torture-special-circumstance allegation
must be reversed because there was insufficient evidence that he intended to cause Jilbert
extreme pain or suffering.
In determining whether sufficient evidence supports a conviction, “ ‘we do
not determine the facts ourselves. Rather, we “examine the whole record in the
light most favorable to the judgment 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.”
5
[Citations.] We presume in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence. [Citation.]’ ” (People v. Nelson (2011)
51 Cal.4th 198, 210.) And “ ‘[w]e “must accept logical inferences that the jury might
have drawn from the circumstantial evidence.” ’ ” (People v. Manibusan (2013)
58 Cal.4th 40, 87.) We do not reweigh evidence or reevaluate witness credibility.
(People v. Lindberg (2008) 45 Cal.4th 1, 27.) The effect of this standard of review is that
a defendant challenging the sufficiency of the evidence to support a conviction bears a
heavy burden on appeal. (People v. Powell (2011) 194 Cal.App.4th 1268, 1287.)
The People alleged in count I that the murder of Jilbert involved the infliction of
torture within the meaning of section 190.2, subdivision (a)(18). To prove that
allegation, the People had to prove that defendant intended to “ ‘ “cause extreme pain or
suffering for the purpose of revenge, extortion, persuasion, or another sadistic
purpose.” ’ ” (People v. Powell (2018) 5 Cal.5th 921, 944-945 (Powell).) Torturous
intent may be proved by the nature of the killing, the nature and severity of the victim’s
wounds, and statements by defendant revealing his state of mind at the time of the crime.
(Id. at p. 945; People v. Brooks (2017) 3 Cal.5th 1, 65-67 (Brooks).) The People need not
establish that the victim was conscious and suffered pain. (Powell, at p. 945; Brooks, at
p. 67.) Instead, “[t]he focus . . . is on defendant’s intent to inflict pain and suffering,
which is ‘at the heart of’ torture murder.” (Powell, at p. 945, italics omitted.)
A motive for killing may support a finding of torturous intent. (Powell, supra,
5 Cal.5th at p. 945-946 [sexual obsession]; Brooks, supra, 3 Cal.5th at pp. 17, 59-60, 66-
67 [sexual jealousy, anger and revenge]; People v. D’Arcy (2010) 48 Cal.4th 257, 294
[anger and revenge].) The prosecutor argued to the jury that defendant was obsessed
with someone posting what he believed were pornographic images of his niece and
daughters, he made sure Jilbert would be in Manteca when he arrived, and he came to
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California because of Jilbert.2 Christina M. testified that defendant was very upset about
someone putting their daughters’ faces on pornographic websites, and defendant said he
intended to take care of the person responsible for it when he came to California.
Defendant discussed his concern with Christina M. immediately upon seeing her and
talked about the matter for 20 or 30 minutes. In response to a question by a law
enforcement officer about why he was so hostile, defendant said he “watched it on porn
hub.” Defendant let Jilbert and his uncle know that he wanted to see Jilbert when he was
in Manteca. He drove Jilbert to Calaveras County, where authorities found his car on
fire. Jilbert was dead inside the car hours after defendant put gasoline in a gas can and
picked up Jilbert. The jury rejected defendant’s testimony about a third-party perpetrator.
The nature of Jilbert’s injuries also indicates an intent to cause pain and suffering.
There is evidence defendant doused Jilbert with gasoline and set her on fire after
inflicting three painful but nonfatal stab wounds. (Brooks, supra, 3 Cal.5th at
pp. 66 [“ ‘fire has historically been used as an instrument of torture and is generally
known to cause extreme pain.’ ”]; People v. Streeter (2012) 54 Cal.4th 205, 245; People
v. Martinez (1952) 38 Cal.2d 556, 561.)
There is substantial evidence from which the jury could find that defendant acted
with torturous intent, supporting the true finding on the torture-special-circumstance
allegation.
2 On appeal, the Attorney General argues that there was evidence defendant stabbed
Jilbert after she stabbed him and defendant set his car on fire as a result of
methamphetamine-induced panic. The portion of the reporter’s transcript the Attorney
General cites does not support that assertion. Further, the prosecutor did not present a
methamphetamine-induced killing theory at trial.
7
II
Defendant next argues the trial court erroneously admitted a video of defendant
attacking another inmate (exhibit 81) and an exhibit showing his prior conviction for first
degree manslaughter (exhibit 69).
A trial court enjoys broad discretion in the admission of evidence. (People v.
Fayed (2020) 9 Cal.5th 147, 189.) We review its ruling to admit evidence for abuse of
discretion and do not disturb its exercise of discretion except upon a showing that it
exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted
in a manifest miscarriage of justice. (People v. Brown (2003) 31 Cal.4th 518, 534.)
A
Regarding the video of defendant attacking another inmate (exhibit 81), d efendant
claims evidence of his character for violence was not admissible under Evidence Code
section 1102. But defendant did not assert Evidence Code section 1102 in the trial court
and this specific appellate claim has not been preserved for review. (People v. Doolin
(2009) 45 Cal.4th 390, 437 (Doolin).)
Defendant further claims his trial testimony did not open the door to admission of
the video. But because defendant testified on direct examination that he could not
remember the standoff with law enforcement officers, the prosecutor was entitled to
probe that testimony. (People v. Hawthorne (2009) 46 Cal.4th 67, 100 (Hawthorne),
disapproved on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 637-638;
People v. Dykes (2009) 46 Cal.4th 731, 764-766.) When questioned about whether he
threatened a lieutenant during the standoff, defendant volunteered that it was not in his
character to be violent and hostile. He added that he had never been violent unless he
was backed into a corner. When asked whether he knew a Ronnie Young, defendant said
Young provoked defendant to fight when the two were in jail. Defendant testified he and
Young were in a corner and Young “got in [defendant’s] face” and made a “threatening
8
gesture that he was going to take off.” Defendant said he hit Young after Young started
fighting with him.
Based on defendant’s testimony, it was proper to allow the prosecutor to introduce
evidence to refute it. (Hawthorne, supra, 46 Cal.4th at p. 100; Andrews v. City and
County of San Francisco (1988) 205 Cal.App.3d 938, 945-947.) “ ‘[B]y taking the stand,
defendant put his own credibility in issue and was subject to impeachment in the same
manner as any other witness.’ ” (Doolin, supra, 45 Cal.4th at p. 438; see Evid. Code,
§ 780, subd. (i); Hawthorne, at p. 99; People v. Lavergne (1971) 4 Cal.3d 735, 742
(Lavergne).) Exhibit 81 does not show defendant and Young in a corner when the fight
started. It does not show Young make any gesture indicating he was about to strike
defendant before defendant started hitting Young. Defendant hit Young repeatedly with
his fists. Young did not hit defendant.
There was also no abuse of discretion under Evidence Code section 352. (Doolin,
supra, 45 Cal.4th at p. 437.) The trial court may exclude evidence if its probative value
is substantially outweighed by the probability that its admission will necessitate undue
consumption of time or create a substantial danger of undue prejudice, confusing the
issues or misleading the jury. (Evid. Code, § 352.) Evidence relating to a witness’s
credibility is relevant evidence. (Lavergne, supra, 4 Cal.3d at p. 742.) “ ‘[E]vidence
should be excluded as unduly prejudicial when it is of such nature as to inflame the
emotions of the jury, motivating them to use the information, not to logically evaluate the
point upon which it is relevant, but to reward or punish one side because of the jurors’
emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of
the substantial likelihood the jury will use it for an illegitimate purpose.’ ” (Doolin,
at p. 439.)
Defendant was the only eyewitness to the murder presented at trial, and his
credibility was an important part of the proceeding. Exhibit 81 was directly relevant to
his truthfulness and credibility in that it contradicted the veracity of his testimony about
9
his altercation with Young. Defendant fails to demonstrate that introduction of exhibit 81
necessitated undue consumption of time or created a substantial danger of confusing the
issues or misleading the jury. Evidence of defendant’s attack on Young was not more
inflammatory than evidence of the stabbing and burning of Jilbert while she was still
alive.
B
Exhibit 69 showed defendant’s prior Washington state conviction for first degree
manslaughter. It was admitted as relevance to defendant’s credibility and not for
propensity. Defendant claims the exhibit does not contradict his testimony that he is
nonviolent because the Washington conviction did not establish that the prior death
occurred by violence.
The contention is forfeited because defendant did not object on the same grounds
in the trial court. (People v. Peoples (2016) 62 Cal.4th 718, 754; People v. Seumanu
(2015) 61 Cal.4th 1293, 1328, fn. 7.) In any event, a crime involving moral turpitude is
relevant to truthfulness (People v. Wheeler (1992) 4 Cal.4th 284, 295) and defendant
conceded the Washington conviction was a crime of moral turpitude. In addition, the
trial court exercised its discretion to limit exhibit 69 to two pages which disclosed limited
information about the prior conviction. The information shown on exhibit 69 is not
inflammatory when compared to the facts of the instant case. The trial court instructed
the jury to decide the facts based only on the evidence presented at trial and not to let bias
or prejudice affect how it assessed the credibility of a witness, the evidence and its
decision. Admission of exhibit 69 did not consume an undue amount of time or create a
substantial danger of undue prejudice or confusion of issues.
III
Defendant further contends the trial court should have instructed with CALCRIM
No. 224 on the use of circumstantial evidence.
10
At the time of trial, CALCRIM No. 224 provided: “Before you may rely on
circumstantial evidence to conclude that a fact necessary to find the defendant guilty has
been proved, you must be convinced that the People have proved each fact essential to
that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on
circumstantial evidence to find the defendant guilty, you must be convinced that the only
reasonable conclusion supported by the circumstantial evidence is that the defendant is
guilty. If you can draw two or more reasonable conclusions from the circumstantial
evidence, and one of those reasonable conclusions points to innocence and another to
guilt, you must accept the one that points to innocence. However, when considering
circumstantial evidence, you must accept only reasonable conclusions and reject any that
are unreasonable.”
The trial court did not give the CALCRIM No. 224 instruction. Instead, it
instructed the jury with CALCRIM No. 704 as follows: “Before you may rely on
circumstantial evidence to conclude that a special circumstance allegation is true, you
must be convinced that the People have proved each fact essential to that conclusion
beyond a reasonable doubt. Also, before you may rely on circumstantial evidence to find
that a special circumstance allegation is true, you must be convinced that the only
reasonable conclusion supported by the circumstantial evidence is that the special
circumstance allegation is true. [¶] If you can draw two or more reasonable conclusions
from the circumstantial evidence, and one of those reasonable conclusions supports a
finding that the special circumstance allegation is true and another reasonable conclusion
supports a finding that it is not true, you must conclude that the allegation was not proved
by the circumstantial evidence. However, when considering circumstantial evidence,
you must accept only reasonable conclusions and reject any that are unreasonable.”
The trial court also instructed the jury with CALCRIM No. 705, which provides a similar
instruction with regard to the use of circumstantial evidence to prove a special
circumstance with an intent or mental state requirement.
11
A trial court must instruct sua sponte on the effect to be given circumstantial
evidence when such evidence is substantially relied upon for proof of guilt. (People v.
Sandoval (2015) 62 Cal.4th 394, 417, 426 (Sandoval).) Here, the People’s case about
whether defendant stabbed Jilbert, set fire to her and his car, and possessed the requisite
mental states was based on circumstantial evidence. Although CALCRIM Nos. 704 and
705 instructed the jury on the use of circumstantial evidence, they specifically referenced
the use of that evidence for the special circumstance allegations. The trial court should
have instructed with CALCRIM No. 224. (Sandoval, at pp. 417, 426.)
Error in failing to instruct with CALCRIM No. 224 is state law error that is
prejudicial only where there is a reasonable probability of a more favorable result.
(Sandoval, supra, 62 Cal.4th at pp. 421-422, 426; People v. Rogers (2006) 39 Cal.4th
826, 886-887.) No such prejudice appears.
The jury was instructed that in deciding the special circumstance allegations it had
to determine whether defendant (1) personally and intentionally used a deadly weapon to
stab Jilbert; (2) intended to kill her; (3) intended to inflict extreme physical pain and
suffering on her while she was still alive; (4) intended to inflict such pain and suffering
for a sadistic purpose; and (5) did an act involving the infliction of extreme physical pain
and suffering on her. The prosecutor argued the personal use of a deadly weapon special
circumstance allegation was based on defendant stabbing Jilbert with a knife. He said the
torture special circumstance allegation was based on defendant setting fire to Jilbert while
she was still alive. The trial court instructed the jury on how to use circumstantial
evidence to make the special circumstance findings. The jury was, therefore, instructed
on how to use circumstantial evidence in determining whether defendant personally and
intentionally stabbed Jilbert and set her on fire and whether he acted with express malice,
findings it also had to make in deciding the first degree murder and arson counts.
Whether the stabbing and fire caused Jilbert’s death or great bodily injury was proved by
12
direct, not circumstantial, evidence. There is no reasonable probability the jury would
have returned a more favorable verdict had it been instructed with CALCRIM No. 224.
IV
In addition, defendant argues the trial court erred in finding that his Washington
state first degree manslaughter conviction was a prior strike conviction. The Attorney
General counters that the trial court did not sentence defendant based on a prior strike
conviction. We agree. Because defendant does not show he was sentenced based on a
prior strike conviction, we do not consider this appellate claim.
Although the abstract of judgment indicates that defendant was sentenced under
the three strikes law (§§ 667, subds. (b)-(i), 1170.12), the supplement to the sentencing
minutes signed by the sentencing judge does not have the equivalent box checked.3
The probation officer’s report does not mention the three strikes law and the prosecutor,
defense counsel, and trial court did not mention it or a prior strike. The trial court
imposed the sentences provided in the charged statutes without, for example, doubling
the determinate terms as may be required under the three strikes law. (§§ 190.2,
subd. (a)(18) [count I], 451, subd. (a) [count II], 69, 422, subd. (a) [counts III and IV],
667, subd. (e), 1170.12, subd (c)(1).) There is no indication the trial court imposed any
consecutive sentence pursuant to the three strikes law. (§§ 667, subd. (c)(6), (c)(7),
1170.12, subd. (a)(6), (a)(7).) Instead, the sentencing court followed the probation
officer’s report recommendation and considered the factors affecting concurrent or
consecutive sentencing in California Rules of Court, rule 4.425.
V
Defendant contends that amendments to section 1170 made by Senate Bill No. 567
require that he be resentenced.
3 On remand, the trial court can correct the abstract of judgment in this regard.
13
Senate Bill No. 567 changed the requirements for using aggravating circumstances
and altered sentencing discretion under section 1170, effective January 1, 2022. (Stats.
2021, ch. 731.) Among other things, Senate Bill No. 567 amended section 1170 to
prohibit upper term sentencing unless factors in aggravation are stipulated to by the
defendant, proven to a factfinder beyond a reasonable doubt, or established by a certified
record of conviction. (§ 1170, subd. (b)(2), (3).)
The parties agree, as do we, that the change in the law is ameliorative and applies
retroactively to defendant’s case. (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1108-
1109; People v. Jones (2022) 79 Cal.App.5th 37, 45; People v. Flores (2022) 73
Cal.App.5th 1032, 1039.)
The trial court imposed upper term sentences on counts II, III and IV after
referencing defendant’s criminal record, that he was on parole at the time of the offenses,
and that the offenses were particularly heinous. The probation officer’s report did not
identify any mitigating circumstances and the trial court did not find any.
Defendant argues the trial court relied on aggravating factors that were not
established in a manner consistent with current law. The Attorney General counters that
any error is harmless because we can conclude, beyond a reasonable doubt, that the jury,
applying the beyond-a-reasonable-doubt standard, unquestionably would have found true
the aggravating factors had the issue been submitted to the jury.
The trial court may consider defendant’s criminal record based on a certified
record of conviction. (§ 1170, subd. (b)(3).) But except for the Washington state
conviction, there was no certified record of conviction for the prior convictions listed in
the probation officer’s report. The record also does not show that defendant stipulated
to any aggravating factor or that such factors were proven to a trier of fact beyond a
reasonable doubt. Because the aggravating factors were not established in a manner
consistent with Senate Bill No. 567 and the trial court did not have the benefit of the
14
amendments to section 1170, we decline to conclude on this record that the state law
error was harmless. We will remand the matter for resentencing.
DISPOSITION
Defendant’s sentences on counts II, III and IV are vacated and the matter is
remanded to the trial court for resentencing on those counts consistent with current law.
The judgment is otherwise affirmed. Following resentencing, the trial court shall send
an amended abstract of judgment, as appropriate, to the Department of Corrections and
Rehabilitation.
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
RENNER, J.
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