People v. Espinosa

THE PEOPLE, Plaintiff and Respondent, v. ESTEVAN HARO ESPINOSA, Defendant and Appellant.

B246238

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Received for posting: January 21, 2016

November 5, 2015

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. TA122476)

APPEAL from a judgment of the Superior Court of Los Angeles County, Pat Connolly, Judge. Modified and, as so modified, affirmed.

J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II, William H. Shin and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ Defendant and appellant Estevan Espinosa appeals from the judgment entered following a jury trial that resulted in his conviction for first degree murder. The trial court sentenced him to a term of 26 years to life in prison. Espinosa contends the trial court erred by improperly excluding evidence, misinstructing the jury, and restricting voir dire of prospective jurors; the cumulative effect of the errors requires reversal; his conviction must be reduced to second degree murder because there was insufficient evidence to prove premeditation and deliberation; and his first degree murder sentence of 26 years to life amounts to cruel and unusual punishment. We agree there is insufficient evidence of premeditation and deliberation. Accordingly, we reduce the conviction to second degree murder and modify the sentence to an indeterminate term of 16 years to life. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

a. Background information

The victim, Delmirio Lopez, was the boyfriend of Espinosa's mother, Ebelia Haro. Lopez and Haro had been in a relationship for seven or eight years, and had lived together during that period. Lopez was the "breadwinner" for the family, paying for rent, food, and clothing. Espinosa also worked at times at various jobs. In March 2012 Lopez, Haro, Espinosa, Espinosa's younger brother, 18-year-old Asahel, and his younger sister, 16-year-old D., had recently moved to an apartment in Lynwood. The apartment was small, and the kitchen was connected to the living room. D. and Asahel slept in one bedroom; Lopez and Haro slept in another; and Espinosa slept on the living room couch. Espinosa's older sister, Yahaira Espinosa,¹ lived in a separate residence. Lopez had been friends with Roberto Carlos Ramirez Cortez for approximately five years.

b. People's evidence

On March 17, 2012, Lopez, Haro, Cortez, and Espinosa went out to dinner at approximately 10:00 p.m. or 11:00 p.m. Lopez, Haro, and Cortez had been drinking beer for several hours, and had more at the restaurant; Espinosa had only half a glass. After dinner, the group went back to the Lynwood apartment, where Haro, Lopez, and Cortez drank more beer.

Cortez testified² that at approximately midnight, he and Lopez went into the bedroom Lopez and Haro shared to find some music CDs. Espinosa joined them. Lopez angrily asked why Espinosa was not working. Cortez did not hear Espinosa say anything in response. Cortez went back out to the living room, where he and Haro sat on the couch and continued drinking beer. Five minutes later Lopez exited the bedroom and began cutting lemons in the kitchen. Five minutes after that, Lopez, who had finished cutting the lemons, walked toward Cortez to give him a lemon slice. Espinosa emerged from the bedroom and approached Lopez. Espinosa was "carrying something in his right hand," but Cortez could not see what it was because Espinosa had put on a sweatshirt. Espinosa "pulled out his hand," in which he was holding an ice pick. Cortez pulled Lopez away from Espinosa, but Espinosa pulled Lopez toward him. Espinosa stabbed Lopez multiple times. Lopez fell to the ground. Cortez asked what Espinosa was doing. Espinosa did not respond. The attack was over in a minute. Cortez did not see any other weapon in Espinosa's hands.

Cortez did not see Lopez attempt to take pictures with a cellular telephone or open the children's bedroom door. He did not see Lopez punch or hit Espinosa at any time that evening, and he did not see a weapon in Lopez's hands when Espinosa attacked. Espinosa left the apartment within a minute after stabbing Lopez.

Sheriff's Deputies and firefighters were summoned to the apartment at approximately 12:45 a.m. Lopez was treated, transported to a hospital, and died of his injuries at approximately 5:30 a.m.

Meanwhile, Espinosa rode a stolen bicycle to his cousin Victor Cervantes's nearby house. It appeared to Cervantes that Espinosa was intoxicated: his eyes were bloodshot, he smelled of alcohol, and his speech was slurred and loud. Espinosa told Cervantes he had been drinking and had had an "altercation of sorts" with his stepfather, and his mother and stepfather had "kicked him out of the house." Lopez had "put[ ] him down" and pushed him, and "that's when it escalated" and they fought. Espinosa did not tell Cervantes that he had stabbed Lopez. At Espinosa's request, Cervantes drove Espinosa to the neighborhood where Espinosa used to live, which was near Yahaira's residence.

Espinosa turned himself in at the Compton Sheriff's Station at approximately 6:00 a.m. He was transported back to the Lynwood apartment, where Detectives Phillip Martinez and Kevin Acevedo conducted a videotaped interview with him. Espinosa told the detectives that just before the stabbing, while he was in the hallway, he saw Lopez open D.'s bedroom door and attempt to take a photograph of her with a cellular telephone. Espinosa told Lopez not to take the photo, but Lopez smirked and stated it was for his phone's "caller ID." Lopez walked toward his own bedroom, and Espinosa followed. Espinosa thought the picture was "some sexual type of thing" which "got [him] mad." Espinosa again told Lopez not to take pictures of his sister. Lopez pushed Espinosa and told him not to mess with him. Haro moved between her son and Lopez and tried to separate them. Lopez said something like, "you don't want to mess with me because I'll beat you up" and "you don't want no problems more than you already have." They moved toward the living room area and Lopez pushed Espinosa again, saying, "I'll knock you out type of thing." Espinosa thought Lopez was going to hit him or "rush [him]," and panicked. He saw the knife and the ice pick in the kitchen, grabbed them, and stabbed Lopez several times. After seeing Lopez on the floor, Espinosa "just left," taking the knife and ice pick with him. He threw them in a field. He rode a bicycle to Cervantes's house, and left the sweatpants and shirt he had been wearing in a formerneighbor's yard. Prior to the stabbing, Espinosa had had problems with Lopez once or twice, but had never been involved in a physical altercation with him. Espinosa walked the detectives through a step-by-step reenactment of events in the apartment and showed them where he believed he had disposed of the weapons and his clothing.³ He turned himself in because he wanted to "man up" for what he did and tell his side of the story. He regretted the stabbing.

Lopez's cellular telephone contained two pictures of D., one depicting her partially behind a refrigerator door, and another depicting her standing with a Coke can in front of her face. Both had been taken on the date of the murder, at approximately 4:00 p.m.

An autopsy showed Lopez had suffered 17 stab wounds to his torso, neck, hand, and head, ranging from five inches to less than an inch in depth These included five fatal wounds: two to his back that perforated his aorta; one to his left chest that perforated his heart; and two to his head that penetrated his brain. The wounds were made by two different stabbing instruments: a knife, and an object similar to an ice pick. The fatal wounds to Lopez's head were made with "pretty strong force." Lopez suffered only a single defensive wound to his hand, indicating he was surprised by the attack, did not believe he would be attacked, or was intoxicated. Lopez's alcohol content in his vitreous humor was 0.13, indicating he was "slightly intoxicated."

Lopez had told Cortez that he had been in the military in El Salvador. Cortez had never known Lopez to be violent.

c. Defense evidence

As relevant to the issues presented on appeal, the defense presented the following evidence. Within a year after Lopez moved in, which was approximately six years before the murder, Yahaira asked Espinosa to keep an eye on D. because she believed Lopez had been molesting D. Yahaira told D. to stay away from Lopez, and go to a friend's houseor stay with Yahaira. When Yahaira told Haro of her impressions, her mother "didn't pay no mind, . . . she just left it alone." Yahaira had not called police about her suspicions, nor did she mention them to detectives following the murder. Lopez had purchased cellular telephones for Haro and D. Lopez frequently consumed alcohol.

D. testified that on the night of the murder, she went to bed in her room at approximately 11:00 p.m., wearing a black tank top and sweatpants. Asahel also went to sleep in the bedroom they shared, while her mother and the other adults drank beer in the living room. Earlier that day Lopez had tried to take a picture of her for his telephone's caller ID, but she had refused. She was awakened when Lopez opened her bedroom door and tried to take a picture of her. Espinosa followed Lopez and asked why Lopez was trying to take D.'s picture while she was sleeping. Lopez replied that Espinosa...