Opinion
E065714
04-11-2018
THE PEOPLE, Plaintiff and Respondent, v. DOMINGO GRAJEDA MAGDALENO, Defendant and Appellant.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVA801888) OPINION APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore, Judge. Affirmed. Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Domingo Grajeda Magdaleno of second degree murder for running over his girlfriend with his truck during a domestic dispute while her daughter looked on. On appeal, Magdaleno argues his murder conviction cannot stand because the trial court improperly excluded evidence crucial to proving he was instead guilty of voluntary manslaughter under a provocation theory. We affirm. The evidence Magdaleno cites is irrelevant to the issue of provocation and, in any event, the record does not support a provocation theory as a matter of law.
I
FACTUAL BACKGROUND
A. Prosecution's Evidence
The incident occurred in the late afternoon of October 25, 2008. Magdaleno and the victim, Rosa, had been dating off and on for about four years. According to Rosa's daughter, Magdaleno and Rosa had a volatile, "love and hate relationship" and Magdaleno often became physically aggressive with Rosa during arguments. In June 2008, during a period of separation Magdaleno stalked Rosa for about a week, driving his truck past the apartment where she and her daughter lived while blasting music. One night, when Rosa refused to let Magdaleno come inside, he threatened to drive his truck into the apartment and kill her. Rosa's daughter and her two friends were at the apartment that evening and witnessed him rev his truck's engine and drive towards the apartment, stopping "real close to the window." He got out of his truck and banged on Rosa's door and broke one of her windows. Rosa called the police and ultimately sought a restraining order against Magdaleno. However, by October 2008, she and Magdaleno had gotten back together, and around that time, her daughter heard Magdaleno tell her, "If I wanted to, I can kill you."
On the day of the incident, Rosa and Magdaleno were spending the afternoon outside drinking and listening to music while Magdaleno worked on his truck. Rosa's daughter was inside the apartment. She recalled that around 2:00 p.m. she could hear them bickering through the window, but "just the normal arguing." Rosa came into the apartment annoyed with Magdaleno and told her daughter he had just put his armpit in her face. Magdaleno came inside about an hour later and they started arguing in Rosa's room. The daughter could hear Magdaleno saying he wanted to get his jacket and leave and Rosa saying she wanted a cigarette. She heard Magdaleno push her mother and went to the doorway of the room to see what was going on. Magdaleno pushed the daughter aside. She said he "got in my face," as if "he wanted to, like, hit me or . . . do something to me or, like, something really evil." Rosa told Magdaleno not to hit her daughter and pulled his ponytail. The daughter recalls hitting Magdaleno at some point in the scuffle and telling him she was going to call the police. Magdaleno walked out of the apartment and Rosa followed him outside. The daughter dialed 911.
Still on the phone with the dispatcher, the daughter went outside to check on Rosa. Magdaleno started his truck's engine and Rosa stood in front of the truck, banging on the hood and asking him not to leave. Magdaleno started driving forward, causing Rosa to run backward for several feet to avoid getting run over. Rosa yelled at Magdaleno to stop, but he kept driving forward.
What happened next happened quickly. Rosa's daughter could not explain exactly how her mother ended up on the ground—whether she tripped while running or the truck pushed her down—but at some point Rosa was on her back, and Magdaleno proceeded to run over her body, first with his front tire and then again with his rear.
Rosa passed away before the ambulance arrived. According to the medical examiner who performed her autopsy, Rosa likely died instantaneously from the blunt force trauma. The entire right side of her chest was crushed, her organs were torn apart, she had severe tread marks on her legs, and a large piece of skin had been completely torn off her ankle and foot.
Rosa's neighbor and his friend were outside the apartment complex playing soccer when it happened. At trial, they both said they heard Rosa yelling at Magdaleno to stop. The neighbor said he also heard Magdaleno say, "If you don't move, I'm going to run you over." According to Rosa's daughter and the neighbor, it took some effort on Magdaleno's part to drive over her body because both of his tires burned out in the process of going over her, requiring him to accelerate quite a bit. All the while Rosa's daughter screamed and pleaded with him to stop. Magdaleno sped away and the daughter chased him down the street.
One of Rosa's neighbors saw Magdaleno drive into the lot of a nearby apartment complex and then saw him "bail[] out" about 10 minutes later wearing a different shirt. Later that evening, the police found Magdaleno's truck about two miles away from the victim's apartment. About a day later, they found him hiding under a blanket in the patio area of a mobile home and arrested him.
B. Defense Evidence
Magdaleno testified in his own defense. Before he testified, defense counsel sought to introduce evidence of Rosa's blood alcohol content at the time of her death to prove she was intoxicated, as well as evidence from police records that Magdaleno had called the police on her twice in the past. The court concluded the evidence was irrelevant and denied counsel's request.
Magdaleno testified he had run Rosa over on accident and had not meant to kill her. He told the jury he and Rosa argued often and he had called the police on her in the past for "domestic abuse," adding, "[s]he hits pretty good."
According to Magdaleno, he had been tuning his truck outside Rosa's apartment complex on the day of the incident. He said they both had been drinking, but neither were drunk. At one point, he told Rosa he needed to take a shower and sniffed his armpit. This offended Rosa and she poured her drink on his face. Magdaleno responded, "What's up, Babe?" and Rosa went inside. He stayed outside and continued to work on his truck. A while later, he entered the apartment and Rosa asked him for a CD cleaner she had previously loaned him. When he said he had already returned it, she called him a "bitch" and told him to "get the fuck out of the house." He went to get his jacket from her closet so he could leave, but she followed him into the room and asked for a cigarette. He told her there were some in the living room and then, suddenly, she hit from behind on his back twice. As he turned around to tell her not to hit him, her daughter started hitting him too. He raised his hands to his face to block their blows. He testified that if he hit one of them during this exchange it was by accident.
Magdaleno said he then walked towards the kitchen so he could leave, and either Rosa or her daughter—he didn't know which—pulled his ponytail from behind. He took the two containers holding his belongings that had been sitting in the hallway and loaded them into his truck.
Inside the truck, Magdaleno started the engine and looked behind him to make sure no one was there before he backed up. When he turned back around he saw Rosa standing in front of his truck. He rolled down both windows and asked her to move. Magdaleno told the jury, "I'm calling out, I'm saying, 'Babe,' to get out of the way, and she wouldn't move." Rosa didn't move. "So what I did, I backed up a little bit right here and then she kept following the truck as I'm coming this way." Magdaleno said Rosa still would not move, so he continued to back up—at which point his truck stalled. He testified, "It stopped. It died on me. And, you know, I started over. I think I let the clutch out too fast or something. You know, it's the clutch. You got to be real careful, you know."
Magdaleno restarted his truck and continued backing up. At this point, he noticed Rosa's daughter by the kitchen door on the phone. "So I'm telling her, . . . '[to] tell your mom to get out of the way, or come get your mom, move her,' you know, but she was still on the phone." When he turned back to look at the road, he didn't see Rosa, so he "took off." He told the jury, "I told myself maybe she went inside or maybe she fell, but I lost [sight of] her right there." He denied noticing he had run anything over as he drove away. "I took off. I didn't feel nothing. Maybe—I didn't feel anything and I took off."
On cross-examination, the following exchange occurred:
Q. And you saw Rosa in front, didn't you? In front of your truck?
A. Yes.
Q. And you indicated you put both windows down, so you heard her as well, correct?
A. Yeah.
Q. And you were calm at the time, correct?
A. No. I was upset.
Q. Okay. But you were telling her, you testified, "Babe, move out of the way?"
A. Yes.
Q. That's how you told her, "Babe, move out of the way?"
A. Yeah. I always talked to her that way.
Q. So you were thinking clearly; you knew she needed to get out of the way? Yes?
A. Yes.
Q. 'Cause you know that a truck is a deadly weapon, correct?
[¶] . . . [¶]
A. Yes, ma'am.
Q. Okay. And you knew that it's not safe to have someone in front of you and drive forward, correct?
A. Yes, ma'am.
Q. And you knew that if you ran her over that you could kill her, correct?
A. Yes, ma'am.
On redirect, Magdaleno testified, "I just wanted to leave. . . . [¶] . . . I didn't want to hurt her."
The court instructed the jury on first and second degree murder, as well as the lesser included offense of voluntary manslaughter based on a provocation/heat of passion theory. During closing argument, defense counsel argued, "[A]s we look at what happened and how this came about, . . . I don't think there was any question that [Magdaleno] was in the heat of passion; that he was provoked by Rosa, began while she hit him in the back, from—coupled with the fact that [the daughter] jumped on him also." "He merely wanted to get away. He acted as a result of provocation. He acted rashly and under the influence of intense emotion that obscured his reasoning and judgment."
On December 2, 2010, the jury found Magdaleno guilty of second degree murder (Pen. Code, § 187), committed while personally using a deadly and dangerous weapon (Pen. Code, § 12022, subd. (b)(1)). The trial court found he had suffered a prior strike conviction for a serious felony, struck the deadly weapon enhancement, and sentenced him to a total of 30 years to life, plus five years. Magdaleno filed a timely appeal.
The notice of appeal in this case was not filed until February 1, 2016, but because we concluded the delay in filing was beyond Magdaleno's control, we construed the notice as timely. --------
II
DISCUSSION
Magdaleno argues the trial court erroneously excluded the call log and blood alcohol content evidence. He claims he was prejudiced by the error because it was crucial to his provocation theory. According to Magdaleno, the jury would have been more likely to believe his testimony that Rosa had cussed at him and attacked him on the day of the incident had it heard evidence she was heavily intoxicated and had a history of abusing him.
We disagree. The trial court correctly concluded the evidence is irrelevant, and, more importantly, its exclusion was harmless because Rosa's conduct (even taking the version most favorable to Magdaleno) is inadequate to constitute provocation as a matter of law. In other words, because Magdaleno sought to use the evidence to bolster a legally inadequate theory, excluding it did not affect the outcome of the case.
Only relevant evidence is admissible, and evidence is relevant if it has any tendency in reason to prove or disprove a disputed fact. (Evid. Code, §§ 210, 350.) "The trial court has broad latitude in determining relevance," and we will reverse such a determination only if it constitutes an abuse of discretion. (People v. Howard (2010) 51 Cal.4th 15, 31.) The trial court also has broad discretion to exclude relevant evidence "if admitting the evidence would have confused the issues at trial, unduly consumed time, or been more prejudicial than probative." (People v. Gutierrez (2009) 45 Cal.4th 789, 827-828 (Gutierrez), citing Evid. Code, § 352.)
There was no abuse of discretion here because the evidence Magdaleno sought to admit was both irrelevant and cumulative. The fact Magdaleno had called the police on Rosa twice before, as the result of an unrelated domestic dispute, does not tend to show how she was acting on the day of her death, months later. If anything, it served as further evidence the couple had a volatile relationship and fought frequently, a fact both the daughter and Magdaleno testified to at length. Similarly, Rosa's blood alcohol content, on its own, would not shine any light on her behavior that day. Magdaleno argues it would support an inference she was acting aggressively, but it is common knowledge that the effects of alcohol vary from person to person or depending on the circumstances. In any event, the evidence would not have made Magdaleno appear any more credible in the eyes of the jury because he had testified that Rosa was not drunk that day.
More problematic than the issue of relevance, however, is even if Magdaleno could show error, he cannot show prejudice under any standard because the record precludes a finding of provocation sufficient to support voluntary manslaughter. Voluntary manslaughter is defined as the unlawful killing of a human being without malice, provoked by "'a sudden quarrel or heat of passion.'" (Gutierrez, supra, 45 Cal.4th at p. 825, quoting Pen. Code, § 192, subd. (a).) "[T]he factor which distinguishes the 'heat of passion' form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. (People v. Manriquez (2005) 37 Cal.4th 547, 583 (Manriquez).) Provocation contains both an objective and a subjective element. First, the provoking conduct must be "sufficient to arouse the passions of the ordinarily reasonable man," and second, "[t]he defendant must actually, subjectively, kill under the heat of passion." (Id. at p. 584.) Even when viewed in the light most favorable to Magdaleno, Rosa's conduct meets neither standard.
"[A] voluntary manslaughter instruction is not warranted where the act that allegedly provoked the killing was no more than taunting words, a technical battery, or slight touching." (Gutierrez, supra, 45 Cal.4th at p. 826.) In Gutierrez, the defendant argued the victim's aggressive and argumentative conduct had provoked him to kill her during a domestic dispute. He testified the victim—the mother of his three-year-old son—had cussed at him, scratched his chest, kicked him in the leg, and grabbed his shirt. (Id. at p. 827.) The California Supreme Court concluded the victim's conduct was inadequate to constitute provocation as a matter of law. "Simple assault, such as the tussle defendant described, . . . does not rise to the level of provocation necessary to support a voluntary manslaughter instruction." (Ibid.)
Magdaleno described engaging in a similar tussle with Rosa, claiming she had cussed at him and hit him while he merely attempted to fend her off. He also said someone had pulled his ponytail, though he wasn't sure whether it was Rosa or her daughter. Assuming Magdaleno knew it was Rosa who pulled his hair, the domestic altercation he described was minor and would not arouse the passions of the ordinarily reasonable person. (Gutierrez, supra, 45 Cal.4th at p. 827.)
And even if Rosa's conduct met the objective standard, Magdaleno could not satisfy the subjective element of provocation, as his own testimony shows he was not actually enflamed by Rosa's conduct. During direct examination, he recounted how he had reacted to the altercation with patience and an even temper. He described walking out to his truck and loading it with the containers of his belongings, cautiously backing up, politely asking Rosa to move when she tried to block his way, and restarting his engine when it stalled. He said he had waited to drive away until he didn't see her in front of his truck anymore and had no idea at the time that he had run her over. On cross-examination, he admitted he had been thinking clearly at the time. (See Manriquez, supra, 37 Cal.4th at p. 585 [insufficient evidence of provocation where "even under the version of events that was ostensibly more favorable to defendant . . . [t]here was no showing that defendant exhibited anger, fury, or rage"].) In short, Magdaleno's own testimony was fatal to his provocation theory. He claimed he accidentally ran Rosa over because he assumed she was no longer in front of his truck, not that he killed her in the heat of passion. As such, no additional evidence the victim had been intoxicated or he had called the police on her in the past could have resurrected his provocation theory.
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. McKINSTER
J.