Opinion
H044534
10-10-2018
THE PEOPLE, Plaintiff and Respondent, v. OSCAR ANTONIO AYALA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1364983)
Defendant Oscar Antonio Ayala was convicted by a jury of first degree murder (Pen. Code, § 187) for killing Reina Figueroa. Defendant and Reina, who were both married to other people, had been in an extramarital relationship for about 15 years at the time of Reina's death. On appeal, defendant argues there was insufficient evidence he premeditated and deliberated the killing, so his conviction should be reduced to second degree murder. We agree with defendant. Only circumstantial evidence was presented to show defendant premeditated and deliberated, and we do not believe a reasonable jury could have inferred defendant had the requisite mental state to commit first degree murder based on such limited evidence. Thus, we reverse the judgment and remand the matter with directions to reduce defendant's conviction to second degree murder and to resentence defendant accordingly.
Unspecified statutory references are to the Penal Code. We refer to Reina and her family by their first names for clarity. --------
BACKGROUND
1. The Information
On June 26, 2014, defendant was charged by information with one count of murder (§ 187). The information alleged he killed Reina with malice aforethought on or about August 31, 2013. Jury trial began on June 6, 2016.
2. The Crime
a. Defendant and Reina's Relationship
At the time she was killed, Reina lived with her husband, Francisco, and her two sons, Manuel and Francisco, who they called "Tony." Reina had a long-term extramarital relationship with defendant. Several of her friends, including her best friend Alma Nava, were aware of the relationship. Reina told Nava she was in love with defendant. She also suspected her younger son, Tony, who was 15 years old at the time of her murder, was fathered by defendant. A DNA test conducted following Reina's death confirmed defendant is Tony's father.
Defendant was also married. A year or so before Reina's murder, Francisco and defendant's wife learned about the affair between Reina and defendant. Reina and defendant briefly stopped seeing each other but started their relationship again after a while. Reina kept her rekindled relationship with defendant a secret from Francisco. Manuel knew that defendant and Reina had been in a relationship, but he thought the relationship had ended. Nava knew that Reina had restarted her relationship with defendant. Reina told Nava she had a special phone she used to contact defendant.
Maria Ledezma ran a nutrition club out of her house, where members, including Reina and her husband Francisco, would come over and taste different products. Ledezma had known Reina for three years before her death and was aware that Reina had a romantic relationship with defendant. She knew Tony's age corresponded with the length of Reina's relationship with defendant, but she believed Tony and Manuel were both Francisco's sons.
b. The Events Leading to Reina's Disappearance and Death
Patricia Pacheco knew both Reina and Francisco. Pacheco had planned to pick her mother up at the Mexican border on Saturday, August 31, 2013. She spoke about her plans with Reina, and they agreed that Francisco would accompany her on the drive south and be dropped off in Riverside, California, where his family lived. Pacheco dropped Francisco off in Riverside at approximately 1:00 p.m. on August 31, 2013.
On August 31, 2013, Reina went to Ledezma's house with her son Tony. She stayed at Ledezma's house until approximately 6:30 that evening. Reina initially planned on accompanying Ledezma and her family to a party, but called Ledezma to cancel. That afternoon, Reina told Nava that she planned to see defendant in the evening late at night after her earlier plans ended. Reina told Nava that defendant had texted her, telling her that he wanted to see her to give her a small gift. That was the last conversation Nava had with Reina.
c. The Discovery of Reina's Body
Manuel was working on August 31, 2013, and did not come home until 1:00 a.m. Sunday morning, September 1, 2013. When he came back home, he noticed his mother's van was not parked outside. Manuel asked his brother, Tony, if their mother was home. Tony told Manuel that he had last seen their mother sometime around 7:00 p.m. on Saturday evening, and she had cooked Tony food before she left. Manuel stayed up for a little while to wait for his mother but eventually went to sleep. He became concerned the next day when Reina still had not returned. Manuel started calling Reina's friends, including Nava, and his father. Francisco told Manuel that maybe Reina had gone to the casino.
Later that Sunday, Manuel found Reina's cell phone near the door of the house. He went through her most recent calls and other contacts to try to figure out where she had gone. Manuel grew increasingly worried. He decided to wait until his father returned before calling the police. The following morning, Manuel visited some of his mother's friends to try to find her.
Pacheco was scheduled to pick Francisco up that Monday, September 2. She did not have Francisco's phone number, so she called Reina that morning. Reina did not answer her phone. Pacheco was eventually able to get in touch with Francisco. She picked him up at approximately 4:00 p.m. at his relative's home in Riverside. At that time, four family members were present with Francisco.
Pacheco dropped Francisco off at his home at approximately 1:00 a.m. on Tuesday morning. Pacheco had mentioned to Francisco that she was unable to reach Reina. Francisco was worried, and he remarked that he did not see Reina's car when he arrived home. He had also mentioned to Pacheco that he had tried to get in touch with Reina himself over the weekend but had not been successful.
Immediately after Francisco returned home, he joined Manuel to look for Reina. Manuel called the police to report his mother was missing. Manuel and Francisco went to three or four different hospitals trying to find Reina. Eventually, Manuel had to go to school and Francisco continued the search without him.
At around noon that day, Manuel received a call from Francisco. Francisco was crying and out of breath. Francisco told Manuel he needed to come over and said he had found Reina next to a school. Manuel initially thought his father meant he was at the school where his mother worked. He went to that school first, but was later redirected by his father to San Antonio Elementary School. When he pulled up to the school, he could see his mother's van and his father's truck. Francisco was standing outside, visibly upset and crying. He told Manuel he had called the police.
d. The Subsequent Police Investigation
San Jose Police Department Officer Laurence Ryan arrived at the scene first. He saw Francisco next to the van, crying and appearing frantic. Francisco told him that his wife was dead and inside the van. The van was parked approximately a quarter mile away from defendant's home. Officer Ryan looked into the van from the front and saw Reina's body lying partially clothed on the seat behind the front seat. Ryan noticed there was some trauma to Reina's neck. Her body also appeared bloated, which Ryan believed indicated she was dead. Ryan called for support and established a crime scene.
Other officers arrived and began gathering evidence. Officers unlocked the van and were able to see Reina's body was laying on the van's center console with a sunshade covering the lower part of her body. There was a wound on Reina's neck, but it had little blood. Reina was wearing a shirt but was not wearing clothes on her lower half. She still had her jewelry and her purse, which contained cash and credit cards. Clothing and an electronic reader were found on the car seat. There was also a gym bag. On the floor below Reina's body there was an open tube of "Orgasmix Gel." There were also packages of "sexy latex intimate wipes," Johnson & Johnson baby oil, and "lip slick cinnamon oral arousal gel" in the car. Based on the state of Reina's body, officers believed she had been dead for some time before her body was discovered. Her hands were bagged to preserve evidence.
Officers were unable to find witnesses who saw the van parked at the school before Reina's body was discovered on September 3, 2013. Officers were also unable to locate any of the other articles of clothing she may have been wearing that night.
An autopsy was performed on Reina's body. The coroner assessed that Reina's body was in a "markedly decomposed state." Reina's hands were swabbed for DNA and her fingernails were clipped and sent for evaluation. Reina's neck had a superficial injury that had been made with some type of sharp object. The wound measured approximately five inches in length and two inches in width and was made up of three overlapping cuts. The coroner determined the cuts were either inflicted as Reina was dying or right after she died.
The coroner described two types of strangulation. One is manual strangulation, where the perpetrator will use his or her hands to actively compress the victim's airway or blood vessels in the neck. The second is ligature strangulation, which is where the perpetrator loops an object like a cord or shoelace around the victim's neck and compresses it. The coroner also described "burking," which is where the perpetrator sits on the victim's chest or back, preventing the victim's lungs to fully expand while the victim is suffocating or being strangled.
It takes approximately 45 seconds to a minute for a person's heart rate to slow down before they die. If pressure is applied to the neck, a person will lose consciousness within 10 to 20 seconds. However, it might take significantly longer for a victim to succumb to suffocation depending on if there is any struggle between the victim and the perpetrator.
The coroner determined that Reina had been killed and the cause of death was violent homicide. However, she could not determine the exact means by which Reina was killed. The coroner suspected that she had been asphyxiated or strangled. There were no injuries consistent with a sexual assault, and no evidence of significant bruising to Reina's body. Typical signs of strangulation, such as hemorrhages in the eyes, were not found on Reina's body. The coroner opined the decomposition of Reina's body could have hidden some of the physical hallmarks of strangulation, and burking or smothering may not have left any marks on the body at all. The coroner concluded that she could not rule out strangulation as Reina's cause of death but also could not say that she was killed that way. The coroner was unable to pinpoint the exact time of Reina's death, but narrowed it down to between 8:00 or 9:00 p.m. on August 31 and sometime on September 1.
Officers went to Reina's home and noticed a section of carpet with dark reddish spots that was partially underneath a couch. The spots tested presumptively positive for blood. Officers took the carpet, but there was no evidence officers conducted any further tests on the spots.
Officer Brian McDonald met with defendant four days after August 31, 2013. He observed defendant had several scratches on his face and arms. He photographed the scratches, which were more pronounced in person. McDonald believed defendant's injuries looked fresh. Defendant's home was searched, but officers did not find anything that directly tied him to Reina's murder.
Officers obtained phone records for the phone Reina used to communicate with defendant. They were able to obtain records dating from March 1, 2013 to September 3 or 4, 2013. When reviewing the records, officers determined the phone communicated exclusively with one particular number. Officers determined the number was associated with a Pinger account. Pinger is a downloadable phone application that permits users to make and receive phone calls and text messages using an assigned number.
Pinger maintains records for only 72 hours. Officers contacted Pinger, and the company sent over the records associated with the number Reina exclusively contacted. The Pinger account in question was associated with the user name "Ozkar A." At some point, the Pinger account made contact with defendant's cell phone. Before July 2013, most of the calls from Reina's phone were to defendant's cell phone. After July 2013, most of Reina's phone calls were to the Pinger number associated with "Ozkar A." Reina exchanged numerous text messages with "Ozkar A.," and they communicated every day in the two months before Reina's murder. They sometimes exchanged between 60 to 100 messages a day. Between April 19 through August 31, 2013, the two exchanged 4,435 messages.
Officers also obtained phone records for Reina's primary cell phone. The records reflected that Reina received a call from Ledezma at around 6:49 p.m. the evening of August 31, 2013. The location of Reina's phone was consistent with her being at home at the time she received a call. Next, at around 9:14 p.m., Reina's primary cell phone called the phone she used to communicate with defendant's Pinger number. Again, the location of the call was consistent with her being at home at the time. Police were able to determine that Reina exchanged numerous texts with the Pinger number associated with "Ozkar A." that day using her secondary cell phone, and received a text message from the account at 9:34 p.m. that evening, which is the last time she had contact with him on that device. She had exchanged roughly 60 texts with "Ozkar A." that day.
Officers also obtained phone records for defendant's wife's phone and defendant's cell phone. At approximately 12:53 a.m. on August 31, 2013, defendant texted his wife: "Today I'm afraid, and I am shaking and crying out of anger towards myself . . . . It's not going to be your fault for what I do." At around 7:17 p.m. that same day, defendant texted his wife: "I've already taken six aspirin and seven Coronas . . . . And I don't give a fuck what happens." Between 7:17 p.m. and 10:09 p.m., defendant did not use his phone until he texted his son, "Are you coming?" Defendant's son replied, "Yes, right now." At 10:10 p.m., defendant texted his son again, "Do you need a ride?" His son replied, "No. We're on Jackson right now." At 11:20 p.m., defendant texted his son, "I'm outside smoking." His son replied, "Okay." The cell phone records reflected that defendant's cell phone location was consistent with defendant being at or near his home.
Officers obtained a surveillance video from a neighbor's house that was on the same side of the street as where the van was found, which was approximately a quarter mile away from defendant's home. The surveillance video showed defendant walking from right to left, in the direction of his house, in front of the neighbor's house at approximately 11:07 p.m. Defendant was wearing shorts and a grey shirt, and he was holding something small in his hand. It was not possible to discern from the video what he was holding.
The fingernail clippings collected from Reina's body were sent to a lab for evaluation. The analyst who received the clippings noticed some of the clippings from Reina's right hand were stained reddish brown, so she separated those clippings from the unstained clippings. The analyst created a DNA profile from one of the unstained clippings and determined defendant was the source of the major DNA component, and Reina was a possible contributor to the minor DNA component. The red-brown stains on the fingernail clippings tested presumptively positive for blood. Reina was determined to be a possible contributor, but both defendant and Francisco were excluded as the source of the DNA.
The analyst then created a profile from the fingernail clippings taken from Reina's left hand. Again, defendant was determined to be the major contributor to the DNA component, and Reina was a possible contributor. Reina's husband, Francisco, was a possible contributor to a minor DNA profile.
The analyst also examined swabs taken from Reina's left and right hands. Reina and defendant were both determined to be possible contributors to the DNA mixture found on Reina's hands. Francisco was excluded as a contributor.
Several items in Reina's car were tested for DNA. The sunshade that was used to partially cover Reina was tested, but analysts were unable to discern any possible contributors to the DNA mixture found on it. A semen sample obtained from Reina's car was determined to be from defendant.
3. Verdict and Sentencing
On June 22, 2016, the jury found defendant guilty of first degree murder (§ 187). On January 27, 2017, the trial court sentenced defendant to 25 years to life in prison.
DISCUSSION
Defendant's sole contention on appeal is that there was insufficient evidence of premeditation and deliberation to support his conviction of first degree murder. He argues Reina's cause of death was undetermined and did not support a finding that he premeditated or deliberated prior to the killing. Furthermore, the prosecution presented no evidence that he had a pressing motive to murder Reina, because his affair with Reina was ongoing and had existed for 15 years. Defendant posits the prosecution did not present evidence that something triggered defendant's need to kill Reina the night of August 31, 2013. Thus, he insists his conviction of first degree murder must be reduced to second degree murder. As we explain below, we agree with his arguments.
1. Standard of Review and Governing Legal Principles
"In reviewing a criminal conviction challenged as lacking evidentiary support, ' "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' " (People v. Maury (2003) 30 Cal.4th 342, 396 (Maury).) This applies to cases where prosecutors rely on circumstantial evidence. (Ibid.) "An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (Ibid.)
First degree murder includes murder that is "willful, deliberate, and premeditated." (§ 189.) All other murders are second degree murder. (Ibid.) " ' "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance.' " (People v. Casares (2016) 62 Cal.4th 808, 824.) "To prove the killing was 'deliberate and premeditated,' it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act." (§ 189.) "Premeditation and deliberation do not require an extended period of time, merely an opportunity for reflection." (People v. Cook (2006) 39 Cal.4th 566, 603.)
Defendant directs our attention to People v. Anderson (1968) 70 Cal.2d 15 (Anderson). In Anderson, our Supreme Court identified "three factors commonly present in cases of premeditated murder: '(1) [F]acts 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—what may be characterized as "planning" activity; (2) 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, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of "a pre-existing reflection" and "careful thought and weighing of considerations" rather than "mere unconsidered or rash impulse hastily executed" [citation]; (3) 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" which the jury can reasonably infer from facts of type (1) or (2).' " (People v. Koontz (2002) 27 Cal.4th 1041, 1081.)
The California Supreme Court, however, has cautioned that " '[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law of murder in any way.' [Citation.] In other words, the Anderson guidelines are descriptive, not normative." (People v. Koontz, supra, 27 Cal.4th at p. 1081.) Thus, the Anderson factors "need not be present in any particular combination to find substantial evidence of premeditation and deliberation. [Citation.] However, '[w]hen the record discloses evidence in all three categories, the verdict generally will be sustained.' " (People v. Stitely (2005) 35 Cal.4th 514, 543.)
2. Evidence of Premeditation
Defendant analyzes the three factors set forth in Anderson and concludes that all three factors are lacking. We agree and address each of the factors in turn.
a. Planning Activity
First, defendant argues there is no evidence of any planning activity. Defendant opines that on the day of Reina's disappearance, he exchanged roughly 60 text messages with her, but that amount was not unusual for them. Defendant also acknowledges the prosecution presented evidence of the text messages he exchanged with his wife. In those text messages, he said: "Today I'm afraid, and I am shaking and crying out of anger towards myself . . . . It's not going to be your fault for what I do." He also texted his wife: "I've already taken six aspirin and seven Coronas . . . . And I don't give a fuck what happens." Although these text messages demonstrated defendant was upset, there was no evidence he was upset with Reina. Moreover, the only evidence introduced of the content of the text messages exchanged between Reina and defendant was that defendant intended to give Reina a gift that evening when they saw each other.
We agree with defendant that the evidence of planning was lacking. Anderson discussed the use of using circumstantial evidence, like the evidence presented here, to prove first degree murder. In Anderson, the court stated: "Given the presumption that an unjustified killing of a human being constitutes murder of the second, rather than of the first, degree, and the clear legislative intention to differentiate between first and second degree murder, [a reviewing court] must determine in any case of circumstantial evidence whether the proof is such as will furnish a reasonable foundation for an inference of premeditation and deliberation [citations] or whether it 'leaves only to conjecture and surmise the conclusion that defendant either arrived at or carried out the intention to kill as the result of a concurrence of deliberation and premeditation.' " (Anderson, supra, 70 Cal.2d at p. 25.)
We believe the circumstantial evidence of planning activity—the text messages sent to defendant's wife and the promise of a gift to Reina—does not lead to a reasonable inference of premeditation or deliberation. We acknowledge that as the reviewing court, we may not reverse the judgment solely because we believe the evidence presented might also support a contrary finding. (People v. Salazar (2016) 63 Cal.4th 214, 245.) As previously stated, we must accept logical inferences that the jury may have drawn from circumstantial evidence. (Maury, supra, 30 Cal.4th at p. 396.) There is a difference between inference and speculation or conjecture. "An inference is a 'conclusion reached by considering other facts and deducing a logical consequence from them.' (Black's Law Dict. (8th ed. 2004) p. 793, col. 2.) 'The strength of an inference may vary widely. In some circumstances, the preliminary facts may virtually compel the conclusion. In other circumstances, the preliminary facts may minimally support the conclusion. But to constitute an inference, the conclusion must to some degree reasonably and logically follow from the preliminary facts. If, upon proof of the preliminary facts, the conclusion is mere guesswork, then we refer to it by such words as speculation, conjecture, surmise, suspicion, and the like; and it cannot rise to the dignity of an inference.' " (People v. Boatman (2013) 221 Cal.App.4th 1253, 1265-1266.)
Here, the evidence of planning activity is largely based on conjecture and weak inferences. The text messages exchanged between defendant and his wife indicated he was upset about something. However, there was no evidence he was upset with Reina. The People did not introduce evidence showing that defendant and Reina were angry at each other. They also did not introduce evidence that showed defendant was afraid his wife would find out about the affair, or he was worried Reina would disclose Tony's parentage.
Similarly, there was no evidence that defendant had ulterior motives when he asked Reina to meet him that evening. We agree with the People that luring a victim to a scene of a killing can constitute evidence of planning activity. However, cases that have found premeditation and deliberation supported by the fact that a defendant lured a victim have involved much more evidence. For example, in People v. Nicolaus (1991) 54 Cal.3d 551, there was evidence presented that the defendant lured his ex-wife to the scene of the killing by soliciting someone to drive her to a predetermined alley. In People v. Lucero (1988) 44 Cal.3d 1006, an eyewitness saw the defendant approach the two victims, both young girls, on his property and reassure them that his goose would not harm them before they entered his yard. The Supreme Court surmised that since the two girls were not familiar with the defendant, it was unlikely the girls would have accompanied the defendant into a strange house. (Id. at p. 1019.) Thus, the court concluded the jury could have reasonably inferred the defendant lured or compelled the girls to enter the house. (Ibid.) In People v. Rich (1988) 45 Cal.3d 1036, there was evidence that the defendant lured the victim out of a bar and then drove her to a dump. In contrast to these cases, there was little evidence from which a jury could infer that defendant's offer of a gift to Reina was part of some preconceived plan to coax her into a meeting so he could kill her.
The People argue planning can be inferred from the manner of Reina's death, because it takes time to asphyxiate or strangle a person. We agree but find the inconclusive cause of her killing only weakly supports the finding of premeditation and deliberation. At trial, the coroner expressly stated she determined Reina died from a violent homicide but could not conclusively state the exact manner of her death. Although the coroner suspected Reina may have died from asphyxia or strangulation, she stated she did not find any of the hallmark indicators of death from asphyxiation or strangulation on Reina's body.
For the jury to determine that the manner of Reina's death showed premeditation and deliberation would require two inferences from the evidence—first, that Reina was indeed strangled or asphyxiated to death, and second, that during the time Reina was being strangled, defendant consciously and deliberately thought about his actions. The People argue the fact that Reina may have been strangled tends to show that defendant was able to do just that. They rely on People v. Disa (2016) 1 Cal.App.5th 654. In Disa, the appellate court held that evidence of planning can be inferred from the fact that the defendant continued to exert pressure on the victim's neck even after she went limp. (Id. at p. 666.) The facts of Disa, however, are distinguishable from the facts presented in this case. In Disa, the defendant admitted in an interview that he put the victim in a chokehold for a minute or longer, said he kept the victim in the chokehold 15 seconds after she stopped moving, and acknowledged he knew putting a person in a chokehold for longer than a minute could eventually cause death. (Id. at p. 661.) Here, the evidence that defendant strangled or asphyxiated Reina was weak. In fact, the manner of Reina's death is wholly unclear based on the evidence. In turn, the inference that defendant deliberately planned or was able to consciously reflect on his actions while strangling or asphyxiating Reina was minimal at best.
Based on the foregoing, we find there was insufficient evidence of planning activity to support a finding of premeditation and deliberation.
b. Preexisting Relationship or Motive
Next, defendant argues there was no evidence he had a preexisting motive to kill Reina based on his relationship with her. At trial, the prosecutor argued that defendant may have been motivated to kill Reina to prevent disclosure of their affair and to prevent anyone from knowing that Tony, Reina's younger son, was his biological son. We conclude that to find a preexisting motive based on the evidence presented would require speculation. (People v. Boatman, supra, 221 Cal.App.4th at pp. 1265-1266.) The prosecution's theory was not supported by substantial evidence.
At trial, the People elicited testimony from Reina's best friend, Nava, that Reina and defendant briefly stopped seeing each other after their spouses found out about the affair. However, the evidence showed that the spouses found out about the affair more than a year before Reina's murder. And when the relationship resumed, there was no evidence that defendant harbored ill feelings toward Reina. According to Nava, the two began communicating with each other through more secretive means following the affair's disclosure. However, there was no indication that defendant may have been motivated to kill Reina by a fear that his wife would find out about the affair, or that someone would discover Tony may be his child.
In sum, we find there is no evidence defendant either had a preexisting motive to kill Reina, or that the nature of his relationship with Reina lent itself to the inference that defendant deliberated or premeditated her murder.
c. Manner of Reina's Killing
Lastly, defendant argues that since the coroner determined Reina died from unspecified means, the manner of her killing did not show the murder was committed as part of some preconceived design. The People disagree, again arguing that the manner of Reina's death, which they argue was from asphyxia or strangulation, is indicative of premeditation or deliberation.
We have already discussed this factor in the prior part of our opinion. Again, we reiterate that we believe the manner of Reina's killing does not support the People's contention that the murder was planned. Additionally, even if we accept the People's position that the evidence supports the theory that Reina was strangled or asphyxiated, death by strangulation or asphyxiation is not automatically elevated to first degree murder. (People v. Rowland (1982) 134 Cal.App.3d 1, 8 [strangulation with an electrical cord fails to show defendant premeditated and deliberated the killing].) "In order to support a finding of premeditation and deliberation the manner of killing must be, in the words of the Anderson court, 'so particular and exacting' as to show the defendant must have 'intentionally killed according to a "preconceived design." ' " (Id. at p. 9.)
By itself, the manner of Reina's death does not necessarily demonstrate she was killed following any sort of premeditation and deliberation.
d. Conclusion
Based on the foregoing, we find the Anderson factors do not show either premeditation or deliberation. Our analysis, however, does not end there. Even if the Anderson factors are not established, other evidence can support a finding of premeditation.
For example, the conduct of defendant after the killing can be considered. (People v. Perez (1992) 2 Cal.4th 1117, 1128.) Conduct that is "inconsistent with a state of mind that would have produced a rash, impulsive killing" can be considered. (Ibid.) Here, the People presented evidence that during the evening when Reina was last seen, defendant was seen on a surveillance video walking in the direction of his house, which was located on the same street where Reina's car was later found. The People also presented evidence that defendant sent his son a text message saying he was outside smoking that evening. It is not clear if he sent the messages or was seen walking on the surveillance video before or after Reina's murder, since the coroner was not able to determine a more precise time of death. Even assuming this took place after he killed Reina, we do not believe it is reasonable to infer from these actions that defendant's state of mind was inconsistent with one that could have produced a rash or impulsive killing.
We reiterate the presumption is that an unjustified killing is second degree murder, not first degree murder. (Anderson, supra, 70 Cal.2d at p. 25.) The People bear the burden to prove beyond a reasonable doubt that defendant premeditated and deliberated Reina's killing. The evidence presented of planning activity, established motive, and manner of death was based on a combination of relatively weak inferences and speculation. We agree with the People that there was some evidence of premeditation and deliberation. However, the evidence was not of reasonable, credible, and solid value from which a reasonable jury could have concluded beyond a reasonable doubt that defendant premeditated and deliberated Reina's killing. Thus, we find defendant's conviction of first degree murder is not supported by sufficient evidence, and we direct the trial court to reduce his conviction to second degree murder.
DISPOSITION
The judgment is reversed. On remand, the trial court is directed to reduce defendant's conviction of first degree murder to second degree murder and to resentence defendant accordingly. The trial court is also directed to modify the abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.
/s/_________
Premo, J. I CONCUR: /s/_________
Grover, J. GREENWOOD, P.J., Dissenting
I respectfully dissent.
The majority does not dispute that sufficient evidence supports the jury's verdict that Oscar Ayala murdered Reina Figueroa. Rather, they reverse and reduce Ayala's conviction for first degree murder to second degree, concluding that a reasonable jury could not infer from the circumstantial evidence admitted at trial that Ayala's killing of Figueroa was premeditated and deliberated. Elements of planning and motive for the murder appear in the record that provide sufficient support for the jury's conclusion. (People v. Hovey (1988) 44 Cal.3d 543, 556; People v. Anderson (1968) 70 Cal.2d 15, 26-27.) I would hold that the prosecution presented circumstantial evidence from which the jury could reasonably infer Ayala reflected on and weighed his course of action in advance of the killing. I would therefore affirm the verdict.
The Attorney General contends the jury could conclude Ayala was motivated to kill Figueroa because of his desire to keep their clandestine affair secret from his spouse, and to keep hidden the paternity of Ayala and Figueroa's son, who was being raised as the son of Figueroa and her husband. The Attorney General argues that Ayala's planning is evident from the record because Ayala texted Figueroa before the homicide and solicited her to meet him so that he could give her a present—a promise that caused her to change her plans for the evening. He asserts the jury could infer from this that Ayala lured Figueroa to the homicide scene. (People v. Nicolaus (1991) 54 Cal.3d 551, 576.) I agree these inferences are reasonable given this evidence. The Attorney General's argument that the coroner's testimony supports a finding of premeditated murder based on her belief that Figueroa was asphyxiated is less compelling, largely because the coroner was unable to definitively state how Figueroa died.
Were these inferences from the evidence the full sum of the support for the jury's verdict, I would vote to reverse with the majority. However, the most compelling evidence that Ayala was consciously deliberating and reflecting on whether to murder Figueroa are his own text messages to his wife, sent on the day of the killing. On August 31 at 12:56 a.m., the date of Figueroa's disappearance, Ayala stated: "Today I'm afraid, and I am shaking and crying out of anger towards myself . . . It's not going to be your fault for what I do." (Italics added.) He later texted her: "I've already taken six aspirin and seven Coronas . . . . And I don't give a fuck what happens." Figueroa went to meet Ayala at approximately 9:30 p.m. that night, and she was dead before midnight. While Ayala's unguarded expressions certainly revealed his mental distress, it is reasonable to conclude Ayala was expressing an intent hours before he met Figueroa to take a drastic action that would result in his own moral culpability. Figueroa's murder was the only morally repugnant action taken by Ayala in the relevant timeframe that fit that description from the evidence heard by the jury. These text messages, combined with Ayala's motive to kill Figueroa, and the actions he took to lure her to the van, logically support the jury's conclusion that Ayala reflected on and weighed the decision to kill Figueroa hours before he murdered her—in other words, that her death was premeditated.
This is a close case based on circumstantial evidence. If we were sitting as jurors weighing the circumstantial evidence, we well might have reached a verdict of second degree murder. But in the allocation of responsibility given by law to the reviewing court, we look to see whether the jury's finding of premeditation is justified. " 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " [Citations.]' " (People v. Stanley (1995) 10 Cal.4th 764, 792-793.) I conclude there is reasonable justification for the jury's finding that Ayala murdered Figueroa with premeditation and deliberation, and I would therefore defer to the jury's verdict.
/s/_________
Greenwood, P.J.