Opinion
D057581
11-30-2011
THE PEOPLE, Plaintiff and Respondent, v. EFRAIN SOLTERO GUTIERREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. INF054424)
APPEAL from a judgment of the Superior Court of Riverside County, Bert L. Swift, Judge. Affirmed as modified with directions.
I.
INTRODUCTION
During the guilt phase of a bifurcated trial, the People presented evidence that on the morning of May 29, 2006, Efrain Gutierrez killed his mother by manually strangling her and hitting her in the head with several household objects. After the killing, Gutierrez dragged the victim's body from her home into the middle of a residential street. After a passerby called 911, police arrested Gutierrez, who was incoherent and naked, inside the house. During an interview with police the next day, Gutierrez told investigators that he killed a "thing," after the "devil beast" came out of her. Gutierrez explained that he dragged the thing into the "middle of the street to see if everybody could see . . . what the 'thing' was."
The jury found Gutierrez guilty of first degree murder (Pen. Code, §§ 187, subd.
(a), 189). The jury also found that Gutierrez used three dangerous or deadly weapons— a vacuum cleaner, a glass vase, and a picture frame—during the commission of the murder (§ 12022, subd. (b)(1)). The jury found not true a special circumstance torture allegation (§ 190.2).
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
In the sanity phase of the trial, the People presented considerable evidence that Gutierrez had a long history of psychosis caused by his abuse of drugs, and that he had been awake and using methamphetamine for three to four days before the killing. According to the People's expert, Gutierrez was "hallucinating," at the time of the killing, and while he "was significantly impacted by psychiatric symptoms, [those symptoms were] secondary to substance abuse." In this expert's opinion, Gutierrez's use of methamphetamine caused him to kill his mother. After being instructed that an insanity defense may not be based solely on a defendant's addiction to, or the abuse of, intoxicating substances, the jury found that Gutierrez was legally sane during the commission of the offense.
The trial court sentenced Gutierrez to an aggregate sentence of 26 years to life in prison, including a term of 25 years to life on the underlying offense (§ 190, subd. (a)), and an additional consecutive one-year term on one of the weapon enhancements (§ 12022, subd. (b)(1)). The trial court stayed imposition of sentence on the two remaining weapon enhancements.
On appeal, Gutierrez claims that there is not substantial evidence to support the jury's first degree murder verdict. Specifically, Gutierrez contends that there is insufficient evidence in the record that he committed the killing during the commission of a burglary or that he premeditated and deliberated the murder—the two theories of first degree murder that were presented to the jury. Gutierrez also contends that there is not substantial evidence in the record to support the jury's finding that he was sane during the commission of the killing.
Although the record does not indicate on which theory or theories the jury based its first degree guilty verdict, we agree with Gutierrez that the record does not contain substantial evidence to support either theory of first degree murder that was presented to the jury. Specifically, we conclude that the sole evidence supporting the theory that Gutierrez committed the killing during a burglary—a statement that Gutierrez purportedly made in a confession to a jailhouse informant whose credibility was wholly impeached and whose testimony was not only uncorroborated, but contradicted by other evidence in the record on material points—does not constitute substantial evidence sufficient to support a first degree murder verdict. With respect to the premeditation and deliberation theory, the People failed to present any substantial evidence that Gutierrez planned the killing, that he had a motive for killing his mother, or that he killed his mother in such an exacting manner that a reasonable juror could have found that he was acting pursuant to a preconceived design. On the contrary, the undisputed evidence demonstrated that Gutierrez had a good relationship with his mother, and that he killed her in a frenzied and irrational manner while in a psychotic state. Thus, we conclude that this is the rare case in which the record lacks substantial evidence on which we may affirm the jury's verdict and that the judgment must be modified to reflect a conviction of second degree murder.
With respect to Gutierrez's challenge to the jury's sanity finding, California law provides that insanity may not be based solely on a defendant's addiction to, or the abuse of, intoxicating substances. (§ 25.5.) We conclude that the People's presentation of expert testimony that Gutierrez killed his mother due to a drug-induced psychosis constitutes substantial evidence in the record that Gutierrez was legally sane during the commission of the murder.
We modify the judgment to reflect a conviction of second degree murder. Accordingly, we reduce Gutierrez's sentence to 16 years to life in prison, consisting of a term of 15 years to life for second degree murder (§ 190, subd. (a)), and an additional consecutive one-year term for the weapon enhancement (§ 12022, subd. (b)(1)). As so modified, we affirm the judgment.
II.
FACTUAL BACKGROUND
In our consideration of Gutierrez's sufficiency claims (pt. III.A. and pt. III.B., post), we discuss additional evidence that the People contend supports the jury's first degree murder verdict, including the testimony of jailhouse informant Glen Smith.
A. Guilt phase
1. The prosecution's evidence
a. The events before the killing
Gutierrez's father, Wilebaldo Gutierrez (Wilebaldo), testified that in May 2006, he was living with his wife, victim Guadalupe Gutierrez (Guadalupe), in a house in Indio.Guadalupe was approximately 75 years old at the time.
We refer to Wilebaldo Gutierrez and Guadalupe Gutierrez by their first names for purposes of clarity. Because Wilebaldo died prior to the trial, a redacted portion of his August 31, 2006 preliminary hearing testimony was read to the jury.
For several days prior to May 29, Gutierrez had parked his truck in front of his parents' house and slept in the truck. During this time period, Gutierrez and Guadalupe were getting along well. According to Wilebaldo, "[Guadalupe] would appreciate [Gutierrez] all of the time." Gutierrez was not angry with Guadalupe in the days before the killing. In fact, Wilebaldo had never seen Gutierrez behave in an angry manner toward his mother.
On the evening of May 28, at approximately 11:30, Gutierrez asked his parents if he could sleep in the house because the neighbors were playing the radio loudly. Guadalupe gave Gutierrez permission to sleep in the house, and he went to sleep in a bedroom. At some point during the night, Wilebaldo was awakened by the sound of a dog barking. Wilebaldo looked outside and saw Gutierrez outside the house, pacing. Wilebaldo asked Guadalupe to go see what was troubling Gutierrez. According to Wilebaldo, Gutierrez explained that he was not feeling well and that he "went outside to get some air." Shortly thereafter, Gutierrez came back inside his parents' house to go to sleep.
Wilebaldo and Guadalupe woke up at approximately 5:00 on the morning of the 29th. Wilebaldo asked Guadalupe if she wanted to accompany him to Mexicali. She declined. After eating breakfast with Guadalupe, Wilebaldo left the house at 6:00 a.m. to go to Mexicali. According to Wilebaldo, when he left, Guadalupe was in the house, and "[Gutierrez] was at the house, because the bedroom door was closed."
b. The discovery of the victim's body
A few minutes after 7:00 that morning, Philip Saucedo was driving down the street in front of Wilebaldo and Guadalupe's house. Saucedo saw a body, later determined to be Guadalupe, lying in the middle of the street. Saucedo looked up, and saw a man using a hose to wash off the driveway that was directly across from the body. The man looked at Saucedo as if he were surprised to see him. Saucedo parked his vehicle approximately 200 to 300 feet up the street, and then returned to the body. By the time Saucedo arrived at the spot where the body was, the man with the hose was gone. At approximately the same time, another driver, neighbor Jose Delgaldillo, stopped near the body and called police. Delgaldillo noticed a washed out trail of blood that extended from the entrance to Wilebaldo and Guadalupe's house, down the driveway to Guadalupe's body.
Saucedo testified that he did not get a good look at the man's face.
c. Gutierrez's arrest
Riverside County Sheriff's Investigator Sean Dusek responded to the scene at approximately 7:30 a.m. Investigator Dusek saw the body of a female with "severe trauma to her forehead" lying in the street.
Dusek and several other law enforcement officials entered Wilebaldo and Guadalupe's house, where they found Gutierrez standing in the bathroom. Gutierrez was naked, except that he was wearing sandals. Gutierrez's hair appeared to be wet, and there was dried blood on his hands. After Gutierrez failed to respond to Dusek's commands to show his hands and get on the ground, Investigator Dusek took Gutierrez into custody by force. While being arrested, Gutierrez mumbled or groaned something that Investigator Dusek could not understand, but did not otherwise speak.
d. The crime scene
Riverside County Sheriff's Investigator Benjamin Ramirez searched Wilebaldo and Guadalupe's house at approximately 2:00 p.m. on the day that Guadalupe's body was found. In the living room, Ramirez found an overturned and broken vacuum cleaner, a crystal picture frame, and a broken glass vase. Both the glass vase and the picture frame had blood on them. Pieces of blue plastic from the vacuum cleaner were found both near the victim's body in the street and also near a pool of blood in the living room. The walls in the living room were covered with blood spatter. A garden hose was stretched out along a hallway inside the house. A blood trail led through the living room and out the front of the house, in a manner consistent with the victim having been dragged from the living room to the street. The other rooms in the house appeared to be in good order.
Officers found Gutierrez's truck parked in front of the house. A search of the truck revealed a powdery substance consistent with a small dose of methamphetamine, drug paraphernalia, the keys to the truck, and a wallet that contained $674 dollars, among other items.
e. Gutierrez's physical and mental state in the hours after the killing
Riverside County Sheriff's Investigator Thomas Brewster took Gutierrez to the police station at approximately 11:00 a.m. on the morning Guadalupe was killed. Gutierrez had scratches on his neck and chest, blood spatter on one side of his chest, dried blood on his hands, and blood on his sandals. According to Brewster, Gutierrez appeared to be in "an unconscious state." Brewster explained, "He was unresponsive . . . during the process, we had to take photographs of him; . . . we asked him to turn around or move certain ways so we could capture certain pictures, and he was totally unresponsive, as if we didn't even exist in the interview room . . . . . [H]e actually had to be manipulated so we could take these pictures." Gutierrez required the assistance of two persons in order to stand, and upon sitting down, he would go to sleep. In Brewster's opinion, it appeared that Gutierrez "had been awake for at least a period of days [prior to the killing], and [that] he was coming down from being under the influence of methamphetamine."
f. The autopsy
Forensic pathologist Darryl Garber performed an autopsy on Guadalupe. Guadalupe was 4 feet 11inches tall and weighed 122 pounds at the time of her death. She had numerous injuries to her head, face, lower neck, and upper chest. Guadalupe had suffered extensive skull fractures and approximately 14 rib fractures, all caused by blunt force trauma. She also suffered fractures to her upper airway caused by manual strangulation. Dr. Garber concluded that the strangulation and the blunt force trauma had occurred "at or around the same time," and that Guadalupe was alive when she received these injuries. Dr. Garber could not determine whether Guadalupe had been strangled or hit first, but thought that it was more likely that she had been strangled first. Guadalupe died within 15 minutes of suffering her injuries.
2. The defense
a. Gutierrez's testimony
Gutierrez testified that he was 43 years old, and that he had been a longtime user of many illegal drugs, including methamphetamine. He first began to hear voices when he was 27 or 28 years old, while he was using drugs. He had been hospitalized when he was approximately 37 years old after seeing what he thought was a "demon baby" on a bed at his sister's house. Gutierrez had been hospitalized on another occasion after he hit his sleeping brother-in-law on the head with a pole. Gutierrez explained that Jesus had told him to hit his brother-in-law. Gutierrez indicated that he had been prescribed various medicines to help with his mental health problems, but admitted that he had not taken the medication on a regular basis.
In May 2006, Gutierrez had been using crystal methamphetamine regularly, and was living in his truck. On the day before he killed his mother, he parked his truck in front of his parents' house. During the day, he sat in the truck with the windows rolled up, as a penance for his sins. Guadalupe brought him water while he was sitting in the truck. Gutierrez stated that he had no angry feelings toward his mother, and that the two "were close." Gutierrez also said that he had spoken with a "spiritual woman" named Sara. At some point in the evening, Gutierrez knocked on the door of his parents' house. Guadalupe invited Gutierrez into the house, and he went inside. While inside the house, Gutierrez stared at the walls and heard the voice of a girl whom he had known in high school. At some point in the night, he blacked out.
The following morning, Gutierrez saw something "pale and blurry" coming toward him. He heard a voice tell him, "I want you to . . . take that out. I want you to take that thing out." As the "thing" moved closer to him, Gutierrez put his arm around "her neck," and "she" pushed him. According to Gutierrez, immediately thereafter, "it" seemed to have a heart attack. At that point it appeared to Gutierrez that the devil had possessed "her" and that she was now a "demon." Gutierrez was frightened because he believed that the demon would take his soul. He began to hit the demon with a vase and with a vacuum cleaner. After killing the demon, Gutierrez took a garden hose and wrapped it around the demon's neck. He dragged the demon into the street because he wanted to show everyone that it was a demon that he had killed. He then went inside the house and removed his shorts because there was an "image of the devil in [his] shorts." The police arrived soon thereafter.
During his testimony, Gutierrez referred to the victim as "it," "her," "she," "thing," and "demon."
On cross-examination, Gutierrez admitted that he had been using methamphetamine for three to four days before Guadalupe's death. Gutierrez also agreed that long-term drug abuse had "[m]essed [him] up." With respect to his thoughts and actions on the day he killed Guadalupe, although Gutierrez testified that at the time he was striking Guadalupe he thought he was hitting a demon, in response to the prosecutor's question, "You knew it was a person; right?" Gutierrez responded, "Yes." Shortly thereafter, the prosecutor asked, "So you know the person is dead, and you decide to get them out of the house; right?" Gutierrez responded, "It was dead, and I wanted to show it to people." After dragging the body into the street, Gutierrez saw a red van stop near the body. Gutierrez denied hosing down the driveway.
b. Expert testimony
Michael Kania, a clinical forensic psychologist, diagnosed Gutierrez as suffering from schizophrenia. In Dr. Kania's opinion, on the day Gutierrez killed Guadalupe, Gutierrez suffered from an "acute exacerbation" of a chronic psychotic condition. Gutierrez had not been taking his medication, had been using methamphetamine, and was experiencing delusions that caused him to believe that he was in imminent danger.
During direct examination of Dr. Kania, the defense played an audio recording of an interview that Brewster conducted of Gutierrez on the day after the killing. During the interview, Gutierrez stated that he knew that the reason he was in jail was because he had killed a "lady." Gutierrez indicated that he had killed her in order to "defend [him]self." Gutierrez told Brewster that he had hit her with a vase, and that he used the hose "so that [he] could drag her out in the middle of the street to see if everybody could see . . . what the 'thing' was." Gutierrez also acknowledged striking the victim with a vacuum cleaner and choking her. Gutierrez stated that when he was committing the killing, the "devil beast c[a]me out of her." Gutierrez also stated that he wanted Brewster to refer to the victim as a "he-she," and that "[d]evils are demons."
When the audio recording ended, the defense resumed its direct examination of Dr. Kania. Dr. Kania stated that Gutierrez's demeanor and the statements that he made during the interview were consistent with that of a person who was suffering from schizophrenia. However, Dr. Kania acknowledged that he could not be certain whether methamphetamine use had caused Gutierrez's violent behavior.
3. The People's rebuttal case
The People asked Brewster a number of questions regarding his interview of Gutierrez on the day after the killing. Brewster stated that Gutierrez appeared to be acting normally during the interview, and was able to answer questions. Brewster said that during the interview, Gutierrez told him that he knew that the reason he was in jail was because he had killed a "lady." Gutierrez also said that he had not used drugs prior to the killing.
The People played a video recording of Gutierrez being processed for evidence by law enforcement at approximately 11:00 a.m. on the day of the killing. At one point during the video, Gutierrez said, "I am tripping," and during another portion of the video, he blew his nose against the wall. Gutierrez also appeared to be sleeping during parts of the video. Brewster testified that Gutierrez did in fact sleep through parts of the processing.
Dale Somers, a toxicologist, analyzed blood that was drawn from Gutierrez approximately six hours after he killed Guadalupe. Gutierrez's blood contained approximately 361 nanograms of methamphetamine per milliliter. Based on this figure, Somers said that there would have been approximately 500 nanograms of methamphetamine per milliliter in Gutierrez's blood at the time of the killing, which, according to Somers, was "a large amount of methamphetamine."
4. The defense's surrebuttal
Gutierrez testified that while he was being processed by police, he was seeing devils and animals on the walls. Gutierrez claimed that he had not been sleeping while police were completing the evidence-gathering process at the station, but rather, that he was closing his eyes and praying. B. Sanity phase
1. The defense
Michael Leitman, a licensed psychologist, conducted a two-hour interview with Gutierrez approximately two months after the killing. Gutierrez told Dr. Leitman that he was hearing voices inside his head while he and Leitman were speaking, and claimed that there was a demon in the room. Gutierrez also told Dr. Leitman that at the time of the killing, he thought that his mother was a demon and that he had struggled with the demon. Dr. Leitman concluded that, in killing his mother, Gutierrez was acting under the "influence of voices" and that "he would not have understood that his behavior was wrong."
Dr. Leitman also testified that Gutierrez "has a diagnosis of schizophrenia," and that it was likely that Gutierrez was using methamphetamine to self-medicate. On cross-examination, after establishing that Dr. Leitman had not used the word "schizophrenic" in his report, the prosecutor asked Dr. Leitman, "So your conclusion was that [Gutierrez] was what, psychotic or schizophrenic?" Dr. Leitman responded, "Psychotic." Dr. Leitman acknowledged that a person could suffer "mental delusions due to prolonged use of drugs."
Morton Kurland, a psychiatrist, reviewed Gutierrez's medical records and interviewed Gutierrez in September 2006. Dr. Kurland did not think that Gutierrez was suffering from a drug-induced psychosis. Rather, in Dr. Kurland's opinion, Gutierrez was suffering from schizophrenia, and used drugs to self-medicate. Dr. Kurland noted that in the past, Gutierrez had been prescribed many different types of antipsychotic medications that are used to treat schizophrenia. Dr. Kurland also noted that Gutierrez claimed to have seen a demon when he was eight years old, before he started using methamphetamine. In addition, Dr. Kurland thought that Gutierrez's actions and his mental state after his arrest in this case were more consistent with the behavior of someone suffering from schizophrenia than with a person who had used methamphetamine. In Dr. Kurland's opinion, at the time of the offense, "[Gutierrez] was not capable of [either] knowing or understanding the nature [of] his acts [or] of distinguishing right from wrong."
Dr. Kurland acknowledged that the long-term use of methamphetamine can cause a drug-induced psychosis.
2. The prosecution's evidence
As discussed in greater detail in part III.B.3., post, Craig Rath, a licensed clinical psychologist, testified that in his opinion, Gutierrez's use of methamphetamine caused him to kill Guadalupe. Dr. Rath stated that Gutierrez's medical history indicated that he was a chronic user of methamphetamine who had previously been diagnosed as suffering psychosis secondary to amphetamine abuse. Gutierrez told Dr. Rath that he had been violent in the past only when he was using methamphetamine. Dr. Rath also noted that Gutierrez said that he had been using methamphetamine for three to four days before he killed Guadalupe, that he had not slept during this period, and that he had been hallucinating. Dr. Rath stated that Gutierrez told him that he had "crashed and slept for a week" after the crime, which was typical of a person who had used methamphetamine over a period of several days.
Dr. Rath disagreed with Dr. Kurland's schizophrenia diagnosis, and instead believed that Gutierrez suffered from a substance-induced psychosis that had grown more severe over time. Dr. Rath also disagreed with the conclusion of both Dr. Leitman and Dr. Kurland that Gutierrez did not understand either the nature or the wrongfulness of his actions. In Dr. Rath's opinion, while Gutierrez "was significantly impacted by psychiatric symptoms, [they were] secondary to substance abuse."
Riverside County Sheriff's Sergeant David Walton had received specialized training in recognizing the symptoms of persons under the influence of various drugs, including methamphetamine. Walton observed the video of law enforcement personnel processing Gutierrez following his arrest. Walton stated that Gutierrez's movements were consistent with the movements of individuals whom Walton had arrested in the past who were "at the tail end of their binge period" on methamphetamine.
III.
DISCUSSION
A. Because the record lacks substantial evidence that Gutierrez committed either felony murder or a premeditated and deliberate murder, the judgment must be modified to reflect a conviction of second degree murder
Gutierrez contends that that the judgment must be modified to reflect a conviction of second degree murder because the record lacks substantial evidence to support either theory of first degree murder that the prosecution presented at trial. Specifically, Gutierrez contends that there is not substantial evidence in the record that he committed either a felony murder or a premeditated and deliberate murder.
We may affirm the jury's first degree murder verdict in this case if there is substantial evidence in the record to support either theory of first degree murder because "in a prosecution for first degree murder it is not necessary that all jurors agree on one or more of several theories proposed by the prosecution; it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by the statute." (People v. Milan (1973) 9 Cal.3d 185, 195.) As stated in part I., ante, there is nothing in the record that indicates which theory or theories the jurors relied on in reaching a guilty verdict of the first degree murder charge.
1. Standard of review
"A state court conviction that is not supported by sufficient evidence violates the due process clause of the Fourteenth Amendment and is invalid for that reason." (People v. Rowland (1992) 4 Cal.4th 238, 269, citing Jackson v. Virginia (1979) 443 U.S. 307, 313-324 (Jackson).) In determining the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson, supra, at p. 319.) "[T]he 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. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).)
In Jackson, the United States Supreme Court explained that appellate review of the entire record is essential to the preservation of a defendant's right to due process:
"This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon 'jury' discretion only to the extent necessary to guarantee the fundamental protection of due process of law." (Jackson, supra, 443 U.S. at p. 319, fn. omitted.)
In Johnson, in "demonstrat[ing] that [the standard of review applicable to sufficiency claims under California law] complies with federal constitutional requirements" (Johnson, supra, 26 Cal.3d at p. 575), our Supreme Court observed that under state law, in both civil and criminal cases, "Evidence, to be 'substantial' must be 'of ponderable legal significance . . . reasonable in nature, credible, and of solid value.' (Estate of Teed (1952) 112 Cal.App.2d 638, 644; People v. Bassett [(1968)] 69 Cal.2d 122, 139.)" (Johnson, supra, at p. 576.) The Johnson court further stressed that under the California standard for reviewing sufficiency claims, as under the federal standard, an appellate court may not limit its review of the evidence to that supporting guilt:
"The court does not . . . limit its review to the evidence favorable to the respondent. As People v. Bassett, supra, 69 Cal.2d 122, explained, 'our task . . . is twofold. First, we must resolve the issue in the light of the whole record—i.e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements . . . is substantial; it is not enough for the respondent simply to point to "some" evidence supporting the finding, for "Not every surface conflict of evidence remains substantial in the light of other facts." ' (69 Cal.2d at p. 138.) (Fn. omitted.)" (Johnson, supra, 26 Cal.3d at p. 577.)
In People v. Bassett, supra, 69 Cal.2d at page 128, a jury found the defendant guilty of two counts of first degree murder. The jury's implied finding that the defendant had sufficient mental capacity to premeditate the murders was supported by the testimony of three experts whom the People presented. (Id. at pp. 136-137.) In observing that "substantial evidence," is not " 'synonymous with "any" evidence' " (id. at p. 139), the Bassett court noted that it was required to examine the whole record to determine whether the People's evidence was substantial enough to support the first degree murder verdicts. (Id. at pp. 138-140.) The Bassett court explained, "[W]e cannot call a halt to our inquiry merely because the prosecution's experts uttered the 'correct' words; we must press on, and determine the substantiality of the proof which that testimony purported to represent." (Id. at pp. 140-141.) After concluding that the expert testimony that the People presented was insufficient to support the jury's implied findings that the defendant had premeditated the murders, the Bassett court reduced the defendant's murder convictions from to first to second degree. (Id. at p. 148.)
2. There is insufficient evidence that Gutierrez committed a felony murder
Gutierrez contends that there is insufficient evidence in the record to support a finding that Gutierrez killed his mother in the perpetration of a burglary, and thus, that the evidence is insufficient to support a conviction for felony murder.
a. Governing law
Section 189 provides in relevant part, "All murder . . . which is committed in the perpetration of . . . [a] burglary . . . is murder of the first degree." Any person who enters the room of a building with the intent to commit a felony or theft is guilty of burglary. (§ 459.) Thus, in order to prove Gutierrez guilty of burglary felony murder, the People were required to prove that he committed a burglary, that he intended to commit a burglary, and that while committing a burglary he performed an act that caused the death of another person. (People v. Cain (1995) 10 Cal.4th 1, 36; CALCRIM No. 540A.)
b. Factual background
The only evidence in the record that would support a finding that Gutierrez killed Guadalupe in the perpetration of a burglary is the testimony of jailhouse informant, Glen Smith. Smith testified that Gutierrez made a jailhouse confession to him about the killing. Specifically, Smith stated that Gutierrez told him that he killed his mother after she discovered him stealing money from her. On direct examination, Smith testified as follows regarding Gutierrez's alleged confession:
During closing argument, the prosecutor acknowledged that Smith's testimony was essential in proving that Gutierrez committed a burglary felony murder, stating, "Here it has to be proven that he committed the burglary. Okay. And obviously, this is depending on Glen Smith's testimony." On appeal, the People do not dispute that Smith's testimony is the only basis upon which the jury could have found that Gutierrez committed felony murder.
Smith and Gutierrez were housed together in a jail cell for six days between August 28, 2006 and September 4, 2006.
"He goes, 'I killed my mom. I hit her in the head with a vase and a vacuum cleaner.' And—and he—then he—he started talking some more, and he said about where—that he was sitting out in the truck, and that he was getting high, and that he wanted money for—for dope. So he went in, and he stole money from her. And he was leaving out of the hallway, and she comes flying out of the hallway, and he said, 'Like a demon.' He flipped her over, and that's—in the hallway. That's where he said he hit her in the head with the vacuum cleaner and the vase, and he like choked her. And he said he took her outside, like through the grass, and he was shaking her like a trophy. And then he—and that's pretty much about what I remember."
Smith testified that Gutierrez told him that the incident occurred at "night." Smith also said that he remembered that Gutierrez had told him that he had stolen $17 from his mother. When the prosecutor asked Smith whether Gutierrez had told him where he had taken the money from, Smith responded, "Just the bedroom. I think it was her—her purse."
In response to a question posed by the prosecutor, Smith acknowledged that he had suffered "a history of felony convictions," and that he was currently in custody for possession of methamphetamine. When the prosecutor asked Smith why he had come forward with the information concerning Gutierrez's alleged confession, Smith responded, "I just thought it was kind of really bad to kill your mom, you know." Although Smith testified that he had not been promised anything in exchange for his testimony in this case, he conceded that he was hoping to receive a "deal" in this case, as he had in the past when he had provided information to the prosecution with respect to other cases. Smith maintained that he was testifying truthfully.
On cross-examination, Smith admitted that he had previously testified at a preliminary hearing in a capital case, and that in "return" for his testimony in that case, he was released from custody. Smith also admitted that he had told the district attorney about Gutierrez's alleged confession because he was seeking leniency in his pending felony matter. Smith acknowledged having incurred numerous convictions, dating back to 1980, for various crimes involving dishonesty, including theft, burglary, and forgery.
With respect to the killing of Guadalupe, Smith reiterated his testimony on direct examination that Gutierrez allegedly told him that he had killed his mother at "night." Smith also admitted that he had told an investigator from the district attorney's office that Gutierrez had told Smith that Gutierrez had raped his mother, and testified that Gutierrez had in fact told Smith that he raped his mother during the commission of the killing.
On redirect, the prosecutor asked Smith, "[W]hen you were interviewed by the . . . deputy investigator, you actually told him Efrain Gutierrez told you he went in in the morning; do you recall that?" Smith responded, "Yes ma'am. He was sitting out in the truck; it was early, but it was like dark, early morning or—or early morning dark."
On recross examination, Smith testified that Gutierrez had told him about the killing during one conversation, and told him about the rape during a subsequent conversation, "the next day." However, upon being shown a transcript of his interview with the investigator, Smith testified that he now recalled that Gutierrez had told him about the rape prior to telling him about the killing. Smith also testified that Gutierrez told him that he had left the $17 that he had stolen from Guadalupe in his truck.
During his testimony, Gutierrez denied having told Smith that he had raped his mother or that he had stolen money from her. Gutierrez acknowledged that he told Smith that he had killed his mother, but stated that he then told Smith that it was a "demon" that he had killed. Gutierrez stated that at the time of the killing, he had approximately $700 in his wallet in his truck from an income tax refund. Police found nearly $700 in a wallet in Gutierrez's truck.
c. Application
Smith's testimony concerning Gutierrez's commission of a burglary was not corroborated by any other evidence, circumstantial or otherwise, and was contrary to other evidence that was introduced at trial. Guadalupe's purse was not found in Gutierrez's possession, and the purse was not offered in evidence. The People presented no physical evidence that Gutierrez had touched Guadalupe's purse. Gutierrez's father, Wilebaldo, did not report that anything had been taken from the house. Further, with respect to the entry element of burglary, Smith's testimony that Gutierrez left his truck and went into his parents' house because he wanted "money for—for dope" was contrary to Wilebaldo's testimony (which the People presented), that Gutierrez was already inside the house at 6:00 a.m. when Wilebaldo left for to Mexicali.
We also reject the People's apparent suggestion that Smith testified that Gutierrez told him that he waited for Wilebaldo to go to sleep before entering his parents' house. The People state that Gutierrez had "mentioned something [to Smith] about waiting for someone to fall asleep," and that Gutierrez may have "expected his father was already . . . in bed or asleep when he knocked on the door." (Italics added.) Smith testified that Gutierrez told him that he was sitting in his truck, "waiting for the neighbors to go to sleep." (Italics added.) In any event, Wilebaldo testified that Gutierrez came in the house at approximately 11:30 p.m. on the night before Gutierrez killed Guadalupe, and that Gutierrez was inside the house when Wilebaldo left the house at 6:00 a.m. the day of the killing.
In addition, Smith's testimony that Gutierrez stole $17 from his mother because he wanted money for drugs was inconsistent with undisputed evidence that police had found $674 in a wallet in Gutierrez's truck. None of the money found in the wallet had blood on it, nor is there any other physical evidence tending to show that that Gutierrez took $17 from his mother. The wallet itself was not offered in evidence, and there was no testimony that among the $674, the wallet contained bills that totaled $17. We reject the People's suggestion that Smith's testimony concerning Gutierrez's alleged theft was corroborated by evidence that Gutierrez had an expensive methamphetamine habit and limited financial resources. As noted above, it is undisputed that police found $674 dollars in a wallet in Gutierrez's truck, and there is no evidence in the record, either physical or testimonial, that would support the People's speculation that part of this amount included the $17 that Smith claimed Gutierrez said he had stolen.
Smith's testimony that Gutierrez said that he had raped his mother was not corroborated by any other evidence presented at trial. We reject the People's contention that Smith's testimony concerning Gutierrez's alleged rape confession was corroborated by evidence that "the victim's pants were pulled down," generic expert testimony that methamphetamine users sometimes become hypersexual, and Gutierrez's testimony that he had sexual relations with a "spiritual woman" named "Sara." Importantly, the People presented no forensic evidence that Guadalupe suffered a sexual assault of any kind. Smith's testimony also was materially inconsistent with respect to when Gutierrez allegedly told him that he had raped Guadalupe.
Gutierrez testified that he believed the victim's pants had been pulled down when he dragged her out to the street.
Smith's testimony on direct and cross-examination that Gutierrez told him that the killing occurred at "night" was contrary to evidence that the killing took place sometime after 6:00 a.m. On redirect, after the prosecutor referred to an interview during which Smith stated that Gutierrez had told Smith that Gutierrez "went in [his parents' house] in the morning," Smith testified that Gutierrez told him that he had entered his parents' house when it was "early morning or—or early morning dark." Thus, Smith's testimony was also inconsistent on this point, as well as being contrary to Wilebaldo's testimony that when he left the house at 6:00 a.m., Guadalupe was alive and well. Smith's testimony was further contradicted by the judicially noticed fact that the sun had risen at 5:40 a.m. that day.
The trial court took judicial notice that sunrise occurred at 5:40 a.m. on the day Guadalupe was killed.
In addition to the fact that Smith's inconsistent testimony concerning Gutierrez's commission of a burglary was entirely uncorroborated, and his claim of Gutierrez's jailhouse confession was contradicted by other evidence presented at trial, Smith also admitted to having suffered numerous felony convictions, many of which involved acts of dishonesty, and had an obvious motive to lie, i.e., to receive leniency in his pending felony matter. Finally, the People's theory that Gutierrez committed the killing after his mother interrupted his commission of a theft was at odds with evidence that Gutierrez's killing of Guadalupe was committed in a frenzied and irrational manner (see generally pt. II., ante) and culminated in Gutierrez dragging the victim's body into the middle of a residential street in broad daylight.
Smith's admissions span approximately six pages of the reporter's transcript.
We are aware of case law, such as that cited by the People in their brief, holding "that the testimony of a single witness is sufficient to establish a fact. (Evid. Code, § 411.)" (People v. Robertson (1989) 48 Cal.3d 18, 44.) However, such cases cannot be read to hold that a single witness's testimony, no matter how unworthy of belief, and no matter how much that testimony is contradicted by other evidence in the record, is necessarily sufficient to support a criminal conviction, particularly in a case like this one, in which there is no indication in the record that the jury actually found the witness credible. Rather, we believe that the proper standard is that "the testimony of a single credible witness may constitute substantial evidence. [Citation.]" (Spencer v. Marshall (2008) 168 Cal.App.4th 783, 793, italics added.) That is because, "[w]hile the testimony of a single witness may be sufficient substantial evidence [citation], such evidence " ' "must be of ponderable legal significance," ' " ' "credible," ' and of ' "solid value." ' [Citation.]" (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 612.)
As stated previously, the People presented the felony murder theory as an alternative theory of first degree murder, and there is no indication in the record under which theory or theories the jury found Gutierrez guilty. It is possible that the jury rejected Smith's testimony in its entirety and rested its verdict on a finding of premeditated and deliberate murder. Thus, cases in which courts have stated that, "[t]o reject the statements given by a witness whom the [trier of fact] has found credible, either they must be physically impossible or their falsity must be apparent without resorting to inferences or deductions [citation]" (People v. Duncan (2008) 160 Cal.App.4th 1014, 1018, italics added), are not applicable.
The Robertson's court's citation to Evidence Code section 411, which provides, "Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact," is consistent with the notion that the testimony of one credible witness may be sufficient to support a verdict. (Italics added.)
Due process requires that the same standard apply in conducting a sufficiency review in a criminal case as in a civil case. (Bassett, supra, 69 Cal.2d at p. 139 [discussing standard for assessing whether civil judgment is supported by substantial evidence and stating, "[t]he same standards control, a fortiori, when it is a criminal judgment which is challenged on the ground of insufficiency of the evidence"]; accord Johnson, supra, 26 Cal.3d at p. 576 [applying civil case in defining meaning of substantial evidence for purposes of conducting sufficiency review in criminal cases].)
For the reasons stated above, we conclude that Smith's testimony concerning Gutierrez's alleged statement that he entered his parents' residence with the intent to steal money cannot be deemed to be " 'credible' " and of " 'solid value' " (Johnson, supra, 26 Cal.3d at p. 576). The testimony thus does not constitute substantial evidence upon which a rational juror could have based a finding that Gutierrez committed a felony murder. Because this testimony is the only evidence in the record that would support a conviction for first degree murder under a theory of felony murder, we further conclude that we may not affirm the jury's first degree murder verdict on this ground.
3. There is insufficient evidence in the record to support a finding that Gutierrez's killing of Guadalupe was premeditated and deliberate
Gutierrez claims that there is insufficient evidence in the record to support a finding that he premeditated and deliberated the killing.
a. Governing law
Penal Code section 189 provides in relevant part, "All murder which is perpetrated by means of . . . willful, deliberate, and premeditated killing . . . is murder of the first degree."
" 'Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder. [Citation.]' [Citation.]" (People v. Chun (2009) 45 Cal.4th 1172, 1181.)
"In this context, 'premeditated' means 'considered beforehand,' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.' [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 . . . .' [Citations.]" (People v. Mayfield (1997) 14 Cal.4th 668, 767.)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the Supreme Court identified three categories of evidence that are relevant in proving premeditation and deliberation: planning activity, motive, and the manner of killing. "A first degree murder conviction will be upheld when there is extremely strong evidence of planning, or when there is evidence of motive with evidence of either planning or manner." (People v. Romero (2008) 44 Cal.4th 386, 401.) "However, . . . 'Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]" ' [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1249.)
b. Application
With respect to planning activity, "the most important prong of the Anderson test," (People v. Lucero (1988) 44 Cal.3d 1006, 1018-1019 (Lucero)), the People cite three items of evidence from which the People contend "the jurors could have reasonably concluded that [Gutierrez] waited for his father to leave [and] then went into the house with the intent to kill his mother." The People's contentions are not persuasive.
First, the People contend that when Wilebaldo left the house at 6:00 a.m. on the morning Guadalupe was killed, he "did not know where [Guiterrez] was because he did not see him before he left and the bedroom door was closed." Wilebaldo testified that Gutierrez came into his parents' house at approximately 11:30 p.m. on the night before the killing, after Guadalupe gave him permission to sleep in the house that night. At some point during the night, Wilebaldo saw Gutierrez outside the house and asked Guadalupe to check on him. According to Wilebaldo, Gutierrez told Guadalupe that he "went outside to get some air." Wilebaldo further testified that after Guadalupe checked on Gutierrez, Gutierrez came back into the house and "went inside . . . his room to go to sleep." With respect to the events on the morning Guadalupe was killed, Wilebaldo testified in relevant part as follows:
"[The prosecutor]: Let me ask you a question, [Wilebaldo]. What time did you wake up in the morning?
"[Wilebaldo]: At five o'clock.
"[The prosecutor]: When you woke up, who was in the house, if you know?
"[Wilebaldo]: Well, he was there. He was there, and my wife, she was there.
"[The prosecutor]: When you say, 'he,' is that the defendant?
"[Wilebaldo]: Yes. The defendant, yes.
"[¶]. . .[¶]
"[The prosecutor]: [Wilebaldo], when you left your house [at 6:00 a.m.], was your wife still at home?
"[Wilebaldo]: Yeah. She stayed in the kitchen.
"[The prosecutor]: How about your son. Was he still at home?
"[Wilebaldo]: Well, he was at the house, because the bedroom door was closed."
Thus, Wilebaldo testified that Gutierrez was inside the house when Wilebaldo woke up at 5:00 a.m. on the morning of the day Guadalupe was killed, and that Gutierrez was still inside the house when Wilebaldo left at 6:00 a.m. Accordingly, a reasonable juror could not infer from Wilebaldo's testimony that Gutierrez was outside in his truck when Wilebaldo left the house at 6:00 a.m. that morning.
The People also contend that excerpts of a police interview that Investigators Brewster and Gary Leclair conducted of Gutierrez on the day after the killing constitute substantial evidence that Gutierrez planned the killing. The People note that during the interview, Brewster asked Gutierrez, "Okay, so why did you go into the house to do this?" Gutierrez responded, "Why?" After Brewster replied, "Yeah," Gutierrez continued, "Because uh, she's like . . . that thing is one of the . . . few that seemed to know that Satan is . . . ." Gutierrez added, "Or that she said that we got to call her 'mom' . . . she never was."
We have listened to the audio recording and have reproduced Gutierrez's statements as best as we can determine from the recording.
The People also cite portions of the following excerpt as demonstrating that Gutierrez planned the killing:
"[Brewster]: What was your reason for going into the house?
"'[Gutierrez]: Cause to kill that 'she.'
"[Brewster]: To kill her?
"[Gutierrez]: Yeah.
"[Brewster]: Okay.
"[Leclair]: When did you decide to kill her?
"[Gutierrez]: Um . . . later on . . . .
"[Brewster]: This is my partner.
"[Gutierrez]: Okay.
"[Leclair]: How long did you think about it before you did it? Before you were inside?
"[Gutierrez]: About a half an hour.
"[Leclair]: What were some of the things you were contemplating?
"[Gutierrez]: With her?
"[Leclair]: No, when you were outside thinking about what you were gonna do, what were some of the things you were thinking about?
"[Gutierrez]: What was I thinking about? I wasn't thinking about nothing."
A reasonable juror could not find, on the basis of Gutierrez's statements during this interview, that the killing was planned. The first question that police asked Gutierrez in this interview, as cited by the People, was, "[W]hy did you go into the house to do this?" This question assumes that Gutierrez entered the house intending to kill his mother.However, it does not establish that he in fact did so. Rather than agreeing that the reason he went into his parents' house was to kill his mother, Gutierrez responds to this leading question by stating that he killed his mother because she knew Satan. In addition, later in the interview, Gutierrez appears to state that he entered the house in order to kill a "she," and yet, immediately thereafter states that he decided to kill her "later on." Similarly, although Gutierrez appears to state that he thought about killing his mother for half an hour, he also states that he "wasn't thinking about nothing." In light of the bizarre, contradictory, and ambiguous nature of Gutierrez's statements during this interview, no reasonable juror could find that these statements establish that Gutierrez planned the killing.
After asking this initial leading question, the officers posed additional leading questions that indicate that the officers assumed Gutierrez had gone into the house intending to kill his mother. The officers asked Gutierrez, "[W]hen you were outside thinking about what you were gonna do, what were some of the things you were thinking about?" and, "How long did you think about it before you did it? Before you were inside?"
Finally, the People note that Gutierrez testified at trial that the reason he had not gone into his parents' house on the day before the killing was because his "dad was still there." However, Gutierrez and Wilebaldo both testified that Gutierrez entered his parents' house on the night before the killing, when Wilebaldo was still at home. One cannot infer from the fact that Gutierrez had avoided going into his parents' house on the day before the killing because his father was home, that Gutierrez waited for his father to leave the house on the morning of the killing so that he could enter the house and kill his mother.
Gutierrez testified, "They [his parents] invited me in." As noted previously, Wilebaldo testified that Gutierrez came into the house at approximately 11:30 p.m. on the night before Guadalupe was killed, and went into a bedroom to sleep.
In sum, the People fail to point to any " 'credible' " and " 'solid' " evidence (Johnson, supra, 26 Cal.3d at p. 576) that Gutierrez waited in his truck until his father left the house so that he could enter the house and kill his mother. Because this is the only purported evidence of "planning activity" that the People cite, we conclude that the record lacks "the most important prong of the Anderson test" to establish that Gutierrez committed a premeditated and deliberate murder. (Lucero, supra, 44 Cal.3d at pp. 1018-1019.)
With respect to motive evidence, the People contend that there is substantial evidence in the record from which a rational juror could have found that Gutierrez killed his mother after she caught him stealing money. We reject this contention for the reasons stated in part III.A., ante, and the People did not present evidence of any other motive for the killing, such as an argument or acrimony between Gutierrez and his mother. On the contrary, Wilebaldo testified that he had never seen Gutierrez become angry with his mother, and Gutierrez testified that the two "were close." Accordingly, we conclude that the record lacks motive evidence upon which a juror could have rationally found premeditation and deliberation.
With respect to the manner of the killing, in Anderson, supra, 70 Cal.2d 15, the "seminal case addressing proof of premeditation and deliberation" (People v. Moon (2005) 37 Cal.4th 1, 30), our Supreme Court held, "[i]t is well established that the brutality of a killing cannot in itself support a finding that the killer acted with premeditation and deliberation." (Anderson, supra, at p. 24; accord People v. Moon, supra, at p. 31 [reaffirming this quotation as a "correct statement of law"].) The Supreme Court explained that in order to sustain a finding of premeditation based on this type of evidence, the manner of the killing must have been "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" based on evidence of planning and motive. (Anderson, supra, at p. 27). In Anderson, the Supreme Court concluded that the record lacked substantial evidence of premeditation or deliberation, notwithstanding that the defendant had inflicted more than 60 separate wounds on the victim's body, including "one extending from the rectum through the vagina, and the partial cutting off of her tongue." (Id. at pp. 21-22.)
In this case, Gutierrez killed his mother by strangling her with his hands and hitting her multiple times with a vacuum cleaner, a picture frame, and a vase. An autopsy revealed that Guadalupe suffered a minimum of 27 blows to the face and head, 14 broken ribs and a fractured sternum. After the killing, Gutierrez dragged her body into the middle of a residential street in broad daylight.
While the evidence clearly establishes that Gutierrez committed a brutal killing, it does not constitute substantial evidence that he committed the killing "as the result of reflection rather than unconsidered or rash impulse," as is required in order to sustain a first degree murder verdict based on premeditation and deliberation. (People v. Nelson (2011) 51 Cal.4th 198, 213.) In fact, a reasonable juror could conclude only that "appellant's frenzied actions of picking up anything and everything he could get his hands on that was 'hard' so he could 'hit it on the head' to make sure the demon was dead," is entirely inconsistent with his having committed a premeditated and deliberate murder. (Compare with People v. Horning (2004) 34 Cal.4th 871, 902-903 ["The manner of killing, a single bullet from close range into the brain of a bound and blindfolded—and hence, so the jury could reasonably infer, unresisting—victim, shows a calculated design to ensure death rather than an unconsidered explosion of violence."].)
Citing People v. Koontz (2002) 27 Cal.4th 1041, 1081-1082 (Koontz), the People contend that the jurors could have rationally found that Gutierrez committed a premeditated and deliberate murder because he directed numerous blows to vital areas of Guadalupe's body. In Koontz, the Supreme Court found sufficient evidence of premeditation based on the following facts:
"Defendant, having armed himself in the early morning hours with two concealed and loaded handguns, argued with the victim in the apartment they shared. When the victim sought refuge in the Project's offices, located in a different apartment in the complex, defendant pursued him and persisted in the argument as the victim walked back and forth in the hallway. After McLean Currie unsuccessfully exhorted the two men to resolve their differences, and indicated by gesture that he intended to write up a disciplinary report based on their failure to do so, defendant said, 'All right, I'll settle it.' Defendant then entered the office, locked the door and pulled a handgun from the waistband of his pants. After the victim refused defendant's demand for his car keys, defendant fired a shot at the victim's abdomen. He then took active steps to prevent Currie from summoning medical care, without which the victim was certain to die." (Ibid.)
The Koontz court held that based on this evidence, the jurors could rationally have found a premeditated murder:
"Applying the Anderson guidelines, we easily find evidence of planning (defendant's arming himself and following the victim to the Project's office), motive (to effectuate a robbery), and a manner of killing indicative of a deliberate intent to kill (firing a shot at a vital area of the body at close range, then preventing the witness from calling an ambulance)." (Koontz, supra, 27 Cal.4th at p. 1082.)
In this case, there is no evidence that Gutierrez armed himself prior to entering his parents' house. There is no evidence that Guadalupe and Gutierrez had an argument prior to the killing, or that Gutierrez chased his mother from one location in the house to another. There is no evidence that anyone attempted to defuse the situation. There is no evidence that Gutierrez made statements prior to the killing that indicated an intent to "settle" his differences with Guadalupe—nor that Gutierrez and his mother even had "differences." There is no evidence that Guadalupe refused to comply with any demands, and no evidence that Gutierrez took any steps to prevent bystanders from summoning medical care. In short, Koontz is wholly distinguishable on its facts, and provides no support for the broad proposition that a factfinder may reasonably infer premeditation and deliberation whenever a defendant kills by inflicting fatal blows to vital areas of the body.
The People also cite People v. Perez (1992) 2 Cal.4th 1117, 1126 -1127 (Perez) in support of the proposition that the fact that Gutierrez used three different household objects to kill Guadalupe demonstrates that he committed a premeditated and deliberate murder. In Perez, the Supreme Court held that the following evidence was "not overwhelming, [but] sufficient to sustain the jury's finding [of premeditation and deliberation]:"
"Defendant surreptitiously entered the house while Victoria was warming up her car; there were no signs of forced entry or of the presence of an additional car. Defendant surprised her as she was carrying the dog food; the broken dog dish and dog food were strewn about the floor. Defendant first beat Victoria about the head and neck with his fists. Then he stabbed her with a steak knife obtained from the victim's kitchen; the handle and blade were consistent with knives in the kitchen drawer. When that knife broke, cutting him, defendant went in search of another knife; drippings of defendant's blood were found all over the kitchen, including a drawer containing knives. Regardless of defendant's motive for entering the house, once confronted by Victoria, who knew him and could identify him, he determined to kill her to avoid identification.
"As so viewed, the evidence is sufficient to support the jury's findings of premeditation and deliberation. Evidence of planning activity is shown by the fact that defendant did not park his car in the victim's driveway, he surreptitiously entered the house, and he obtained a knife from the kitchen. [Citations.] As to motive,
regardless of what inspired the initial entry and attack, it is reasonable to infer that defendant determined it was necessary to kill Victoria to prevent her from identifying him. [Citations.] She was acquainted with him from high school and obviously would have been able to identify him. The manner of killing is also indicative of premeditation and deliberation. The evidence of blood in the kitchen knife drawer supports an inference that defendant went to the kitchen in search of another knife after the steak knife broke. This action bears similarity to reloading a gun or using another gun when the first one has run out of ammunition." (Ibid.)
Unlike in Perez, in this case, as discussed above, there was no credible evidence of planning activity or motive. With respect to the manner of killing, there is no physical evidence that Gutierrez left the living room in search of weapons or other items that he could use to kill his mother. (Compare with Perez, supra, 2 Cal.4th at p. 1127.) While Wilebaldo testified that the vacuum cleaner was ordinarily kept in the bedroom and that he had not seen it in the living room that morning, he also testified that Guadalupe had "wanted to clean" that morning and that "it was very early, but she did it." In addition, Wilebaldo testified "I think she got it in the bedroom." Further, there was no evidence that indicated that Gutierrez went into the bedroom to retrieve the vacuum.
Wilebaldo's testimony on this point is as follows:
"[Prosecutor]: [Wilebaldo], on that day do you know if there was a vacuum cleaner at your house?
"[Wilebaldo]: Well, yes. All that was there in her house. She
[Guadalupe] wanted to clean. It was very early, but she did it. I didn't see that.
"[Prosecutor]: Okay. So the—was the vacuum cleaner in the living room when you left? "
[Wilebaldo]: No. I think she got it in the bedroom. There is another bedroom.
"[Prosecutor]: Okay. So it is usually kept in the bedroom?
"[Wilebaldo]: Yes. Yes. When she finishes work, she take it to another room.
"[Prosecutor]: Okay. But when you left, the vacuum cleaner was not in the living room, correct?
"[Wilebaldo]: No. I didn't see that."
Ramirez, who conducted the search of the Gutierrez home in the hours after the killing, testified that, "the bedrooms didn't seem to have anything significant related to the homicide." Brewster agreed with the prosecutor that that he found nothing "out of the ordinary," in the bedrooms of the house after the incident.
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The People do not cite any evidence of Gutierrez's conduct after the killing that would support a finding of premeditation and deliberation. On the contrary, after killing his mother in her own home and dragging her into the middle of a residential street in broad daylight, Gutierrez returned to the house. He was arrested while naked in the house. His truck was parked in front of the house. He was essentially incoherent upon arrest. (Compare with Perez, supra, 2 Cal.4th at p. 1128 ["the conduct of defendant after the stabbing, such as the search of dresser drawers, jewelry boxes, kitchen drawers and the changing of a Band-Aid on his bloody hand, would appear to be inconsistent with a state of mind that would have produced a rash, impulsive killing"].)
In sum, in light of the absence of any substantial evidence of either planning activity or motive, the manner by which Gutierrez killed Guadalupe does not constitute a sufficient basis upon which a jury could have found that he committed a premeditated and deliberate murder. (See People v. Romero, supra, 44 Cal.4th at p. 401 ["A first degree murder conviction will be upheld when there is extremely strong evidence of planning, or when there is evidence of motive with evidence of either planning or manner"].) A reasonable jury simply could not have found that the manner by which Gutierrez killed Guadalupe "was so particular and exacting," that the jury could infer that he acted pursuant to a " 'preconceived design' " to take her life in a "particular way," for a " 'reason' " identified by the evidence. (Anderson, supra, 70 Cal.2d at p. 27.)
Accordingly, we conclude that there is insufficient evidence in the record that Gutierrez committed a premeditated and deliberate murder and thus, we may not affirm the jury's first degree murder verdict on this ground.
B. There is substantial evidence in the record to support the jury's verdict that Gutierrez was legally sane during the commission of the murder
Gutierrez claims that there is not substantial evidence in the record to support the jury's verdict that he was legally sane when he killed Guadalupe.
1. Governing law
"Insanity, under California law, means that at the time the offense was committed, the defendant was incapable of knowing or understanding the nature of his act or of distinguishing right from wrong. (Pen. Code, § 25, subd. (b); People v. Skinner (1985) 39 Cal.3d 765, 776-777 [construing Pen. Code, [§] 25, subdivision [(b)], as providing that defendant may be found insane if he did not know the nature and quality of his act or if he did not know the act to be morally wrong].)" (People v. Hernandez (2000) 22 Cal.4th 512, 520-521 (Hernandez).)
However, insanity may not be based solely on an addiction to, or the abuse of, intoxicating substances. (§ 25.5 ["In any criminal proceeding in which a plea of not guilty by reason of insanity is entered, this defense shall not be found by the trier of fact solely on the basis of . . . an addiction to, or abuse of, intoxicating substances"].) "This limitation has been interpreted to establish 'an absolute bar prohibiting use of one's voluntary ingestion of intoxicants as the sole basis for an insanity defense, regardless of whether the substances caused organic damage or a settled mental defect or disorder which persists after the immediate effects of the intoxicant have worn off.' [Citation.]" (People v. Cabonce (2009) 169 Cal.App.4th 1421, 1433-1434.)
"The 'sanity trial is but a part of the same criminal proceeding as the guilt phase' [citation] but differs procedurally from the guilt phase of trial 'in that the issue is confined to sanity and the burden is upon the defendant to prove by a preponderance of the evidence that he was insane at the time of the offense [citation.].' " (Hernandez, supra, 22 Cal.4th at p. 521.)
2. Standard of review
We apply the substantial evidence test described in part III.A.1, ante, in our review of the jury's sanity verdict. (People v. Chavez (2008) 160 Cal.App.4th 882, 891 ["The substantial evidence test applies to appellate review of a sanity determination"].) However, "[b]ecause the burden was on the defense to show by a preponderance of the evidence that appellant was insane, before we can overturn the trier of fact's finding to the contrary, we must find as a matter of law that the [trier of fact] could not reasonably reject the evidence of insanity. [Citations.]" (People v. Skinner (1986)185 Cal.App.3d 1050, 1059.) In addition, "jurors are not automatically required to render a verdict which conforms to [even] unanimous expert opinion as to a defendant's sanity. Our Supreme Court has frequently upheld on appeal verdicts finding a defendant sane in the face of contrary unanimous opinion. [Citations.]" (People v. Duckett (1984) 162 Cal.App.3d 1115, 1119.)
3. Application
Dr. Rath testified that Gutierrez's use of methamphetamine caused him to commit the murder. Dr. Rath based his opinion on numerous pieces of information. Dr. Rath reviewed blood tests that indicated that Gutierrez had methamphetamine in his system at the time he killed Guadalupe. During a clinical interview, Gutierrez told Dr. Rath that he had used methamphetamine and that he had been awake for three to four days prior to the killing. Gutierrez also told Dr. Rath that he "crashed and slept for a week," after the killing. Dr. Rath agreed with the prosecutor that such behavior was consistent with the individual having been on a "run on methamphetamine" at the time of the offense.
Dr. Rath also noted that there was ample evidence that Gutierrez was a "chronic user" of drugs. Dr. Rath noted that in 1999, Gutierrez had been diagnosed with "psychosis secondary to amphetamine abuse, and amphetamine abuse." He explained that this diagnosis indicated that Guiterrez was experiencing psychotic symptoms caused by the chronic use of amphetamines, and that he was under the influence at the time of the diagnosis. In 2005, Gutierrez was diagnosed as having a "psychotic disorder not otherwise specified, and [being] poly substance dependent." A 2005 medical record indicated that Guiterrez stated that he had been "hallucinating due to speed use." Gutierrez also told Dr. Rath that he began using marijuana, drinking alcohol, and "huff[ing] gas or paint," at the age of 12, and that he started using PCP, methamphetamine and heroin at the age of 18.
Dr. Rath testified that the long-term use of illegal substances could cause a person to suffer a mental defect, including becoming psychotic. Indeed, Gutierrez informed Dr. Rath that he could see the devil only when he was using methamphetamine, and that he was not violent unless he was using methamphetamine. Dr. Rath also testified that there is a high incidence of violence and aggression when sleep deprivation is combined with long-term methamphetamine use. Dr. Rath stated that the potential for violence is increased further when a sleep deprived person suffering from a mental defect uses methamphetamine. Dr. Rath summarized his opinion concerning the cause of Gutierrez's commission of the murder as follows, "The simplest, most appropriate explanation in my view is he was abusing drugs; had a typical reaction to the drugs, and committed the underlying offense." Dr. Rath's testimony contains substantial evidence upon which a reasonable juror could have found that Guiterrez's commission of the murder was caused by his use of intoxicating substances and thus, that under California law (§ 25.5), he was legally sane at the time of the offense.
We reject all of Gutierrez's arguments in support of his contention that Dr. Rath's testimony does not constitute substantial evidence of sanity. Specifically, we reject Gutierrez's claim that Bassett, supra, 69 Cal.2d. 122 supports the conclusion that the record lacks substantial evidence to support the jury's sanity finding. Most fundamentally, unlike in Bassett, in which the Supreme Court found that the People's psychiatric experts failed to provide sufficient "reasoning by which they assertedly progressed from the facts to their conclusions," (id. at p. 144, italics omitted), in this case, as summarized above, Dr. Rath fully supported the basis for his opinion that Gutierrez's commission of the murder was caused by his use of intoxicating substances.
We also reject Gutierrez's contention that Dr. Rath's testimony does not constitute substantial evidence because Dr. Rath purportedly relied upon only those items of information that supported his conclusion. For example, Gutierrez states that Dr. Rath discounted his statements to Dr. Rath that he had seen demons when he was eight years old (prior to his use of drugs) and that he had nephews who had "some type of mental illness." Dr. Rath was fully cross-examined on such issues; it was up to the jury to determine the weight to accord Dr. Rath's testimony in light of such cross-examination.
Finally, we reject Gutierrez's contention that his presentation of expert testimony "in sharp contrast to Dr. Rath['s] [testimony]," to the effect that he was legally insane at the time of the offense establishes that the record is insufficient to support the jury's sanity verdict. Such testimony does not establish "as a matter of law that the [trier of fact] could not reasonably reject the evidence of insanity" as is required to prevail on such a sufficiency claim. (People v. Skinner, supra, 185 Cal.App.3d at p. 1059.) This is particularly true in this case in light of Dr. Rath's testimony concerning the effects of chronic drug use, and testimony from each defense expert acknowledging that drug abuse can, over time, cause psychosis.
Psychosis induced by drug use that causes a defendant to kill does not constitute legal insanity under California law. (§ 25.5.) Dr. Rath's testimony on this point constitutes substantial evidence upon which a reasonable juror could have found that Gutierrez's commission of the murder was caused by a drug-induced psychosis. Accordingly, we conclude that the record contains substantial evidence upon which a reasonable juror could have found that Gutierrez was legally sane at the time of the offense.
IV.
DISPOSITION
The judgment is modified by reducing the degree of Gutierrez's murder conviction to second degree murder; his sentence is modified to 16 years to life in prison. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward the amended abstract to the California Department of Corrections and Rehabilitation.
AARON, J.
WE CONCUR:
NARES, Acting P. J.
McINTYRE, J.