People v. Alvarado CA4/2

Filed 8/4/23 P. v. Alvarado 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E078497
v. (Super.Ct.No. RIF1900801)
JUAN CARLOS LOPEZ ALVARADO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bernard J. Schwartz,
Judge. Affirmed.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Senior Assistant Attorney General, and Steve Oetting and
Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
1
After defendant Juan Carlos Lopez Alvarado found out his wife was cheating on
him, he said he was going to kill her. They reconciled. About a month later, however,
his wife told him, “It’s going to keep happening.” She was never seen alive again.
At first, defendant told relatives that his wife had left him for another man. He
sent (or had his accomplice send) text messages from her phone, purporting to be from
her, saying she had run off with another man. However, he then claimed he had been
contacted by kidnappers who were holding her for ransom.
A week after his wife disappeared, defendant bought a sleeping bag, crossed over
the border to Mexicali, then crossed back. He told relatives that the kidnappers had said
they would release his wife in Mexicali. His wife’s body was found in an alley in
Mexicali, in the sleeping bag that defendant had bought. She had been strangled some 24
to 72 hours earlier with a charging cord, which was still around her neck.
In a jury trial, defendant was found guilty of first degree murder. (Pen. Code,
§§ 187, subd. (a), 189, subd. (a)). He was sentenced to 25 years to life in prison.
Defendant appeals, contending:
(1) There was insufficient evidence of premeditation and deliberation to support
the conviction for first degree murder.
(2) The trial court erred by failing to instruct on voluntary manslaughter on a heat
of passion theory. Alternatively, defendant’s trial counsel rendered ineffective assistance
by agreeing to omit such an instruction.
2
We will hold that there was sufficient evidence of deliberation and premeditation.
Defendant had a motive to kill his wife; he and his accomplice kept her imprisoned and
incommunicado for at least four days before killing her; he changed his story from a
break-up to a kidnapping, so as to account for her subsequently being found dead; and he
used a method of killing that took some three to five minutes of constant pressure.
We will also hold that there was insufficient evidence of provocation to require an
instruction on “heat of passion” voluntary manslaughter. The four to six days between
defendant’s wife’s disappearance and her death were more than enough “cooling time,”
as a matter of law, and there was no evidence of any new provocation.
I
STATEMENT OF FACTS
Defendant lived in Jurupa Valley with his wife Jane Doe R.L. (Jane),1 their three
children, and their daughter-in-law.
Defendant was very close to his brother-in-law (the husband of his sister),
Cornelio Corrales Robles;2 they were best friends. Cornelio lived on 54th Street in Mira
Loma. Defendant owned a piece of property six blocks away from Cornelio, also on 54th
Street; he was often seen there with Cornelio.
1 The trial court ordered that the victim be referred to by this fictitious name.
(Pen. Code, § 293.5.)
2 Cornelio had pleaded guilty to being an accessory after the fact to murder
(Pen. Code, § 32) and been given immunity for his testimony.
3
Jane was having an affair with Agustin Q. (Agustin). Defendant’s 16-year-old
daughter came to suspect that Jane was seeing another man. She told Ilce, defendant’s
daughter-in-law. Together, they told defendant, but he did not believe it.
On December 24, 2018, the daughter used the “Find My iPhone” app to find the
location of Jane’s iWatch. It showed that Jane was in Chino. Defendant went there. He
found Jane and Agustin sitting in her car, outside Agustin’s sister’s home. He pulled
Agustin out of the car by the shirt and threatened to hit him. When Jane got out of the
car, he “raised his hand at her” and said he was going to kill both of them. Agustin had
his brother-in-law call the police. Meanwhile, defendant left.
That Christmas was tense, but by New Year’s Day, defendant and Jane appeared
to have reconciled.
On January 26, 2019, Jane told her mother she had something very important to
tell her whole family; she seemed nervous. Ilce heard defendant and Jane arguing and
Jane crying.
On January 27, Jane asked Agustin to talk to her in person right away. They met
up at a park. Jane was scared and crying; she sounded “[b]roken.”
On January 28, in the morning, Agustin talked to Jane on the phone. She sounded
“[g]ood.” At 10:23 a.m., Jane sent her mother a video.
Around 11:00 a.m. or 12:00 noon, as Ilce was on her way to the bathroom, she saw
Jane and defendant in the hallway. The bedroom door was open. Jane said, “No. It’s
4
going to keep happening.”3 As Ilce entered the bathroom, she heard a sound like the
bedroom door slamming.4 When she exited the bathroom, the bedroom door was closed.
She heard the shower running.
Some 15 to 20 minutes later, Ilce asked defendant to tell Jane she was leaving. He
said Jane was in the shower, but he would tell her.
Around 2:30 p.m., when defendant picked the daughter up from school, he told her
that Jane had left the family.
When Ilce got home, between 6:00 and 8:00 p.m., neither Jane nor defendant was
there. As Jane worked nights, her absence was not unusual.
When defendant came home, between 7:00 and 10:00 p.m., he told Ilce that Jane
had left home. He said Jane “was taking such a long shower, he went in to check on her
but she was gone[.]” “[T]he water was still running but she was not there[.]”
Jane’s car and clothing were still at the house. Only her wallet, iWatch, and cell
phone were missing.5
Jane did not respond to phone calls and text messages. Agustin expected to hear
from her again later that day, but he did not.
3 Ilce did not recall anything defendant said in response. When asked if she
told the police that he said “No, [Jane]. No, [Jane],” she did not recall.
4 However, she also described it as “a sound that [she] had not heard before.”
5 Witnesses differed as to whether Jane’s purse was missing.
5
On January 29 and 30, defendant told Jane’s relatives and one of Jane’s friends
that Jane had left him for another man and had taken either “a lot of money” or
specifically $20,000.
Defendant’s house was equipped with security cameras both inside and outside.
Family members urged him to check the video. At first he got upset and said no, because
it might show something “intimate”; then he agreed, but the cables to the cameras had
been cut.
Between January 28 and 31, Jane’s relatives got text messages from Jane’s
number. Her mother got texts saying Jane had made a mistake, defendant found her
talking to someone else, and she took some money and “got out.” Her friend got a text
saying “I’m fine, don’t worry . . . .” The daughter, while in defendant’s presence, got a
text telling her to “take care of [your] dad and [your] sister.”
However, these texts were not in Jane’s usual style. Some had uncharacteristic
misspellings. Some had no spaces between the words. Others had periods after every
word. When defendant sent a text message, he typically ran all the words together, with
no spaces between them; he did not spell well.
On February 1, defendant showed up at Agustin’s home. He was angry. He said
Jane had left and he was looking for her. He wanted to know Agustin’s cell phone
number. Then he calmed down and said Jane had been kidnapped. Agustin asked if he
had called the police; defendant said he was planning to.
6
Starting on February 1, defendant similarly told Jane’s relatives that Jane had been
kidnapped. He said the kidnappers had called him from a private number, claimed to
have Jane in Tijuana, and demanded a ransom of 5 million pesos. For Jane’s safety, he
was not going to call the police. On February 2, while in the presence of relatives, he got
a phone call that he said was from the kidnappers.
On February 3, as shown by store records, security video, and cell phone records,
defendant and Cornelio went to a Bass Pro Shop in Rancho Cucamonga and bought a
blue Ascend sleeping bag. According to Cornelio, they then drove to Cornelio’s house.
Also on February 3, defendant bought a third cell phone, using the false name
Pablo Lopez. He told Ilce and the daughter that he was going to San Diego the next day;
at his request, Ilce agreed to drive his daughters to school that morning.
As shown by security video and cell phone records, on February 4, around
9:05 a.m., defendant and another man crossed the border into Mexicali in Jane’s car.
Around 11:50 a.m., defendant crossed back into California, alone. At the border, he gave
the false name Miguel Mejia.
That same day, defendant told one of Jane’s relatives that the kidnappers were
going to release Jane in the Pueblo Nuevo neighborhood of Mexicali. The relative
notified the police. Around 1:00 p.m., Jane’s body was found, in a blue Ascend sleeping
bag, in the middle of an alley in Pueblo Nuevo. This location was four or five blocks
from the border. A tag on the sleeping bag indicated that it had been purchased at the
Bass Pro Shop in Rancho Cucamonga.
7
In the opinion of the medical examiner who performed the autopsy, Jane had been
dead for 24 to 72 hours.6 The cause of death was ligature strangulation. An Apple
charging cord, with a knot in it, was still around Jane’s neck. Defendant’s DNA was on
the cord. Strangulation would have required constant pressure for three to five minutes.
Jane had been struck in the forehead and both eyes before she died. There were no
signs that she had been bound.
Defendant’s DNA was found in Jane’s vagina and anus, along with a low level of
the DNA of another male (not Cornelio). DNA from sperm could remain in the vagina
for “five days or more.”
About two weeks after Jane disappeared, the daughter found Jane’s iWatch in a
gym bag. She had searched the bag before, when Jane disappeared, and the iWatch had
not been there then. Defendant told her she could erase the watch and keep it, which she
did.
At his earliest opportunity, defendant started keeping Jane’s car at his property on
54th Street. On February 15, 2019, using the false name Pedro Gomez, he bought a new
trunk mat and installed it in Jane’s car.
On February 18, defendant and Cornelio were arrested while defendant was
driving Jane’s car away from Cornelio’s home on 54th Street. The police seized three
cell phones from defendant. His main phone had no data earlier than February 11. His
6 This was counting back from 8:00 or 9:00 p.m. on February 4, when the
body was refrigerated. Thus, it meant that Jane was still alive at least until 8:00 p.m.
February 1, and possibly until 9:00 p.m. on February 3.
8
second phone had no data earlier than February 16. The new phone he had purchased on
February 3 had no data from either February 3 or 4.
Cell phone records showed that on January 28, at 12:52 p.m., Jane’s cell phone
was near her home. At 3:06 p.m., it was near Cornelio’s home. From January 29 to 31, it
was near Cornelio’s home (as well as in Norco and Pedley), but it had no activity near
Jane’s home. There was no activity on Jane’s phone after January 31.
Meanwhile, every day from January 28 through February 4, defendant’s main
phone was near his house at some times and near Cornelio’s house at other times (plus
Rancho Cucamonga on February 3 and the Mexican border on February 4, as well as
other locations).
When interviewed, defendant denied killing Jane. He also denied going to Bass
Pro Shop or buying a sleeping bag, until he was shown photos of himself doing so. He
claimed he gave the sleeping bag to one of Jane’s relatives.
I
THE SUFFICIENCY OF THE EVIDENCE
OF PREMEDITATION AND DELIBERATION
Defendant contends that there was insufficient evidence of premeditation and
deliberation to support the conviction for first degree murder.
“When considering such a challenge, ‘“we review the entire record in the light
most favorable to the judgment to determine whether it contains substantial evidence —
that is, evidence that is reasonable, credible, and of solid value — from which a
9
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”’
[Citation.] We consider ‘“whether . . . any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”’ [Citation.] ‘[A] reviewing
court “presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.”’ [Citation.]” (People v. Holmes, McClain and
Newborn (2022) 12 Cal.5th 719, 780.)
Murder that is “willful, deliberate, and premeditated” is of the first degree. (Pen.
Code, § 189, subd. (a).)
“‘A verdict of deliberate and premeditated first degree murder requires more than
a showing of intent to kill. [Citation.] “Deliberation” refers to careful weighing of
considerations in forming a course of action; “premeditation” means thought over in
advance. [Citations.] “The process of premeditation and deliberation does not require
any extended period of time. ‘The true test is not the duration of time as much as it is the
extent of the reflection. Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly . . . .’”’ [Citation.]” (People v. Cage
(2015) 62 Cal.4th 256, 275–276.)
“In People v. Anderson [(1968) 70 Cal.2d 15] (Anderson), [the Supreme Court]
identified ‘three basic categories’ of evidence [it] has generally found sufficient to sustain
a finding of premeditation and deliberation: (1) planning activity, or ‘facts about how
and what defendant did prior to the actual killing which show that the defendant was
engaged in activity directed toward, and explicable as intended to result in, the killing’;
10
(2) motive, or ‘facts about the defendant’s prior relationship and/or conduct with the
victim from which the jury could reasonably infer a “motive” to kill the victim’; and (3)
manner of killing, or ‘facts about the nature of the killing from which the jury could infer
that the manner of killing was so particular and exacting that the defendant must have
intentionally killed according to a “preconceived design” to take his victim’s life in a
particular way for a “reason” . . . .’ [Citation.]” (People v. Morales (2020) 10 Cal.5th 76,
88–89.)
“In the years since Anderson, ‘“[the Supreme Court] ha[s] emphasized that its
guidelines are descriptive and neither normative nor exhaustive, and that reviewing courts
need not accord them any particular weight.”’ [Citation.]” (People v. Morales, supra, 10
Cal.5th at p. 89.) However, we need not decide whether evidence of all three Anderson
factors is required, because we conclude that there was such evidence here.
Defendant’s primary argument is that there was no evidence of planning activity.
Also, while he concedes that “there was evidence of motive to kill,” he argues that in this
case, his motive tended to show a killing on impulse rather then after careful thought,
consideration, and reflection. (See People v. Boatman (2013) 221 Cal.App.4th 1253,
1268 [Anderson motive factor requires a motive that shows “‘the killing was the result of
a “pre-existing reflection” and “careful thought and weighing of considerations” rather
than “mere unconsidered or rash impulse.”’”].)
Defendant’s argument hinges on the presumption that he killed Jane on January
28, when Ilce heard what she thought was a door slamming. This ignores the evidence
11
that (1) at 3:06 p.m., Jane’s phone was near Cornelio’s house on 54th Street, and (2) Jane
was still alive until some time between 8:00 p.m. on February 1 and 9:00 p.m. on
February 3. The obvious inference is that defendant kept Jane locked up at Cornelio’s
house for some four to six days before he killed her.
At oral argument, defendant noted the medical examiner’s testimony that there are
“variables” that can affect the determination of the time of death — “mainly” weather.
However, “This is why we use ranges, minimum and maximum.” In this case, the
maximum was 72 hours. Tight-fitting clothing could also affect this determination, but it
would leave marks, which were not present. In closing argument, defense counsel argued
that the medical examiner was “totally believable, totally credible” and hence Jane “could
not have been killed prior to Friday,” February 1. “[W]e know January 28th, which is
Monday, she’s still alive. Tuesday, January 29th, she is still alive. Wednesday, January
30th, and so forth, she’s still alive.”
The very fact that defendant imprisoned Jane suggests a plan to kill her.
Otherwise, what was his end game? What did he expect to happen if he released her? He
had already told the whole family that Jane had left him. If released, she would hardly
back up that story. Rather, she would go to the police — perhaps not immediately, if he
threatened her effectively enough, but eventually.
Moreover, even assuming defendant did not initially plan to kill Jane, he had at
least four days to think about what to do with her. By the end of this time, he had
decided to kill her. It is significant that, on February 1, he changed his story. His first
12
story had been that Jane had left him. If he killed her, however, it would be hard to
explain why she had disappeared so completely — not taking her clothing or her car, not
contacting Agustin, not even contacting the children. Thus, he came up with his second
story, that Jane had been kidnapped. That way, when he killed Jane, he could blame the
kidnappers. Presumably, then, on or before February 1, defendant made a premeditated
and deliberate decision to kill.
At oral argument, defendant asserted that defendant may already have killed Jane
before he started telling the kidnapping story. However he told this story to at least four
separate people on February 1. It is inferable that this was before Jane was killed,
sometime between 8:00 p.m. on February 1 and 9:00 p.m. on February 3.
This was ample evidence of planning activity. It was also ample evidence of
motive. To the extent that defendant’s motive was ambiguous — some husbands may
react to being cuckolded with an explosion of violence, others with a cold plan for
revenge — the circumstances here show that defendant was the latter type.
Last but not least, there was ample evidence of a manner of killing that showed
premeditation. “[T]he California Supreme Court has held that strangulation as a manner
of killing is sufficient evidence of premeditation and deliberation because its prolonged
nature provides ample time for the killer to consider his actions. [Citation.]” (People v.
Shamblin (2015) 236 Cal.App.4th 1, 11, fn. omitted, citing People v. Hovarter (2008) 44
Cal.4th 983, 1020 [“‘This prolonged manner of taking a person’s life, which requires an
offender to apply constant force to the neck of the victim, affords ample time for the
13
offender to consider the nature of his deadly act.’”] (Hovarter); accord, People v.
Quintanilla (2020) 45 Cal.App.5th 1039, 1064 [“killing a victim by strangulation shows
the type of premeditation and deliberation necessary to support a conviction for first
degree murder.”].) It would have taken three to five minutes of constant pressure to
cause death. The fact that the cable was knotted was additional evidence of
premeditation. (See People v. Bonillas (1989) 48 Cal.3d 757, 792.)
Defendant relies on People v. Rowland (1982) 134 Cal.App.3d 1 (Rowland),
which held that, when evidence of planning is “minimal” and there is no evidence of
motive, ligature strangulation alone is insufficient to prove premeditation and
deliberation. (Id. at pp. 8–9.) However, Rowland was decided without the benefit of the
Supreme Court’s decision in Hovarter. In any event, Rowland is distinguishable, in two
respects. First, as discussed, here there was evidence of both planning and motive.
Second, it does not appear that in Rowland, there was any expert testimony on how long
ligature strangulation had to continue to cause death. (See People v. Shamblin, supra,
236 Cal.App.4th at p. 12 [similarly distinguishing Rowland].)
We therefore conclude that there was sufficient evidence of premeditation and
deliberation.
14
III
THE NEED FOR A VOLUNTARY MANSLAUGHTER INTSTRUCTION
Defendant contends the trial court erred by failing to instruct on voluntary
manslaughter on a heat of passion theory. He also contends his trial counsel rendered
ineffective assistance by agreeing that such an instruction was unnecessary.
During an instructions conference, the trial court remarked, “There were no lessers
that were requested . . . . I don’t think there’s any basis for any lessers. Do you agree?”
Defense counsel responded, “I agree.”
“‘“[I]t is the ‘court’s duty to instruct the jury not only on the crime with which the
defendant is charged, but also on any lesser offense that is both included in the offense
charged and shown by the evidence to have been committed.’ [Citation.]” [Citations.]’
[Citation.] ‘Speculation is an insufficient basis upon which to require the giving of an
instruction on a lesser offense.’ [Citation.] ‘“[T]he existence of ‘any evidence, no matter
how weak’ will not justify instructions on a lesser included offense . . . .” [Citation.]
Rather, substantial evidence must exist to allow a reasonable jury to find that the
defendant is guilty of a lesser but not the greater offense. [Citation.] “‘“Substantial
evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence
that a reasonable jury could find persuasive.”’” [Citation.]’ [Citation.]” (People v.
Westerfield (2019) 6 Cal.5th 632, 718.)
15
“‘On appeal, we review independently the question whether the trial court
improperly failed to instruct on a lesser included offense.’ [Citation.]” (People v. Nelson
(2016) 1 Cal.5th 513, 538.)
“Voluntary manslaughter is a lesser included offense of murder. [Citation.]”
(People v. Booker (2011) 51 Cal.4th 141, 181.) “When an unlawful killing occurs ‘upon
a sudden quarrel or heat of passion’ [citation] the killer lacks malice, and the crime is
voluntary manslaughter . . . . [Citation.]” (People v. Dungo (2012) 55 Cal.4th 608, 615,
fn. 4.) “‘[T]he factor which distinguishes the “heat of passion” form of voluntary
manslaughter from murder is provocation . . . .’ [Citation.]” (People v. Moye (2009) 47
Cal.4th 537, 549–550.)
“To be adequate, the provocation must be one that would cause an emotion so
intense that an ordinary person would simply react, without reflection. . . . [T]he anger
or other passion must be so strong that the defendant’s reaction bypassed his thought
process to such an extent that judgment could not and did not intervene. . . .
[P]rovocation is not evaluated by whether the average person would act in a certain way:
to kill. Instead, the question is whether the average person would react in a certain way:
with his reason and judgment obscured.” (People v. Beltran (2013) 56 Cal.4th 935, 949.)
Preliminarily, the People argue that defense counsel invited the error by agreeing
that the trial court did not have to instruct on any lesser included offenses. We disagree.
“The obligation to give an instruction on lesser included offenses exists even when a
defendant expressly objects to it. [Citation.]” (People v. Nieves (2021) 11 Cal.5th 404,
16
463.) “Nevertheless, the claim may be waived under the doctrine of invited error if trial
counsel both ‘“intentionally caused the trial court to err”’ and clearly did so for tactical
reasons. [Citation.] Invited error will be found, however, only if counsel expresses a
deliberate tactical purpose in resisting or acceding to the complained-of instruction.
[Citations.]” (People v. Souza (2012) 54 Cal.4th 90, 114.)
Here, defense counsel expressed no such deliberate tactical purpose. To the
contrary, he simply agreed with the trial court that there was insufficient evidence of
voluntary manslaughter.
Moreover, no tactical purpose is apparent. The People argue that a voluntary
manslaughter instruction would have conflicted with what defense counsel actually
argued, namely that defendant was not the killer. However, that defense was almost
laughably weak. A reasonable attorney in defense counsel’s position would have been
delighted to have some lesser included offense to offer the jury, even if that required
arguing in the alternative. At a minimum, we cannot say the record affirmatively
demonstrates a deliberate tactical choice.
We turn, then to the merits of the contention.
Being confronted with a spouse’s adultery is a classic form of provocation.
(People v. Logan (1917) 175 Cal. 45, 49; People v. Thompkins (1987) 195 Cal.App.3d
244, 249.) Here, defendant first discovered Jane’s adultery on Christmas Eve. However,
he did not kill her then. To the contrary, for a month, the couple appeared to be
reconciled. On January 28, Jane tore the Band-Aid off the wound by telling defendant,
17
“It’s going to keep happening.” However, he still did not kill her. As discussed, Jane
was alive until at least 8:00 p.m. on February 1. This was enough “cooling time,” as a
matter of law. (People v. McShane (2019) 36 Cal.App.5th 245, 256 [four days]; see also
People v. Hach (2009) 176 Cal.App.4th 1450, 1453–1454, 1458–1459 [six hours, from
6:00 p.m. to midnight].)
Defendant killed Jane sometime between February 1 and 3. There is no evidence
of the circumstances of the killing. Thus, it would be speculation to suppose that he
killed her in a new heat of passion, in response to new provocation.
In sum, then, there was no substantial evidence that defendant killed while under a
heat of passion induced by legally adequate provocation.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
RAPHAEL
J.
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