Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County, No. FBV4161, Miriam I. Morton, Judge.
McDONALD, J.
A jury convicted defendant Gustavo Perez of one count of second degree murder. (Pen. Code, § 187, subd. (a).) On appeal, Perez claims (1) the trial court abused its discretion when it denied his motion to dismiss for "precharging" delay in prosecuting him; (2) the evidence was insufficient to support the verdict; (3) there was evidentiary error; (4) the trial court applied the wrong standard when it denied his motion for new trial; and (5) various sentencing errors occurred.
All further statutory references are to the Penal Code unless otherwise specified.
FACTS
A. Prosecution Evidence
Background
Perez and the victim, Gina Perez (Gina), had a tumultuous marriage. By the summer of 1992, when Gina was murdered, they had been married many years and had four children. However, they constantly argued, and Gina was involved in a romantic relationship with Angel Campuzano begun in July 1990.
In February 1991 Gina left Perez and moved in with Campuzano for the first time. She stayed with Campuzano until April 1991 when she obtained custody of her children and moved into a shelter. However, Gina and the children moved back in with Campuzano in July 1991, although she told him she wanted to work things out with her husband. Between October and December of 1991 she and the children lived with Gina's mother, but in December 1991 they moved back in with Campuzano. Two months later, she returned to living with Perez, but between February and July of 1992 she moved herself and the children back and forth between Perez's and Campuzano's homes at least three times. Campuzano did not mind because he wanted what was best for her.
On July 12, 1992, Gina moved back in with Perez. The previous week, Perez had told Campuzano he was not going to tolerate Gina going back and forth between them any more. After Gina moved back in with Perez, she saw Campuzano three more times before her death on August 10, 1992.
The Murder
Gina was murdered on Monday, August 10, 1992. Two days earlier, she and Perez took their children to spend the weekend with Gina's brother in Riverside, California. On the night of August 8, Gina and Perez were drinking together at a dance club when they had another argument. Perez, who was angry at Gina, shoved her off his lap onto the ground, and Gina got up and slapped Perez across the face. The police came and removed Gina and Perez from the club, but the fight continued outside with Perez grabbing Gina by the hair. However, calm was restored by police. Gina and Perez returned in separate cars to Gina's brother's house. Perez slept in the car outside. The following day, the couple spent time with Gina's family at a local lake and, with their children, drove back to Big Bear late Sunday night, arriving home in the early hours of Monday, August 10.
On the morning of August 10, Perez was late for his job. He worked at an Aamco Transmission shop in Victorville, California, about a one-hour drive from his home in Big Bear. Although he was scheduled to begin work at 8:00 a.m., he could not get there until shortly before 9:00 a.m., and asked Gina to call Aamco to tell the manager he was running late. When he arrived at work, he discovered that Gina had not called. Perez was upset and phoned his house twice trying to contact Gina. Perez also called the Domino's Pizza shop in Big Bear where Campuzano worked.
Meanwhile, Gina and Campuzano had plans to talk on the phone that morning. When Campuzano did not hear from her, he went to the school bus stop where she generally dropped her children off in the morning. Campuzano met Gina at the bus stop around 10:45 a.m., and they talked for a while. The two of them, along with Gina's two-year-old son Vinnie, returned to her house around 11:30 a.m., where they continued talking. At the house, Campuzano told Gina that he wanted her to move back in with him. While they were talking, the phone rang and Gina answered it. Approximately three minutes into the phone conversation, Vinnie blurted out "Angel, " and Gina reacted by covering the phone's mouthpiece. Soon thereafter, Gina hung up and told Campuzano that he must leave because Perez was on his way home, and Campuzano left the house at 12:05 p.m.
Perez left work early, departing around noon, and arriving home around 1:30 p.m. Gina was getting ready to take a shower and Vinnie was watching television. Perez confronted her and asked if Campuzano had been at the house earlier that day, but Gina denied he had been there. Although Perez knew she was lying, he claimed he took Vinnie and left the house and that Gina was alive when he left.
Perez's version was that he left the house and took Vinnie to McDonalds, a park, and then to the school his other children attended. However, the other children had already boarded the bus to go home, so Perez went to the bus stop to wait for them. When the children arrived at the bus stop, Perez picked them up and they went back to the house, arriving around 4:00 p.m. The front door was locked, and Perez's key was not on his key ring, so they knocked but there was no answer. They could hear the shower running, so when no one answered, Perez climbed through a living room window and let his children in through the front door. Perez then went to the bathroom, where he found Gina dead with multiple stab wounds. Perez turned off the shower, under which Gina's body was lying, and put his children in the car outside. He then called 911.
He told the 911 dispatcher his wife was "cut up" in the tub, there was "blood all over" and that it "smelled very bad." One of the dispatchers told police that Perez was "[e]xtremely calm. Very unusually calm, " and another dispatcher testified Perez's voice was "[j]ust very calm and didn't fit the story at all" and that his voice "was just like [he was] ordering a pizza or something."
The 911 system did not tape the call because an earthquake in the area several months earlier had caused the taping system to malfunction.
Deputy Wilson was the first to arrive at the house. He contacted Perez outside and then went in and located Gina's body. Wilson noticed she had been cut but there was no blood, and the water was not running. Wilson then cleared the house to wait for other officers to arrive. While he waited, he interviewed Perez. Perez stated he arrived around 1:30 p.m. and left around 2:00 p.m. to pick up his children. He closed the gate so the dog could not escape, but when he returned the gate was open, and when he went inside, he discovered Gina's body.
Captain Neely interviewed Perez shortly thereafter. Neely testified that Perez appeared calm and showed no emotion. Another officer who interviewed Perez in August also described Perez as lacking emotion. Gina had been stabbed numerous times, and the fatal wound was a stab to her chest that cut through her aorta.
The Investigation
A neighbor, Ms. Finch, was in her home on the day of the murder. She heard a noise outside, looked out, and saw a car she believed to be Perez's car driving down the street with Perez's dog chasing after it. She believed the driver was a male, and she told police in 1992 that she had seen the car leaving at 3:50 p.m. She saw a sheriff's car outside Perez's house about one-half hour later.
At trial, she initially testified she thought she had seen the car leaving around 4:30 p.m.
One of the work uniforms issued to Perez was later found to be missing. When Perez arrived at work on the morning of August 10, he was dressed in jeans and a light colored tank top. However, he changed into his work uniform and, when he left work around noon, both his manager and a coworker believed Perez was still wearing his work uniform, although Perez told police he was wearing a pair of levis and a shirt when he left work that day. Mr. Zankowski was a service manager in August 1992 for the company (Mission Linen and Uniform Supply) that supplied uniforms to the employees of the Aamco shop at which Perez worked. Perez had been issued 11 uniforms, but when Zankowski conducted an inventory of Perez's uniforms at the request of the police, he could not locate one set (consisting of a pair of pants and a shirt) issued to Perez. An employee at the Aamco shop also conducted an inventory of Perez's uniforms and likewise could not account for one of them. Perez told police he knew he was missing a uniform, but that almost everyone at his work was missing a uniform. When confronted with a coworker's statement that he left work wearing a uniform, Perez explained they may have seen him leave the shop wearing his uniform, but that he changed before leaving for home and he dropped the uniform off at Aamco's laundry.
One of the coworkers who saw him leave wearing his uniform did not discount the possibility Perez changed before leaving, because employees often changed in the bathroom at work.
Police collected some forensic evidence from the house. Investigator Rice photographed footprints and tire impressions outside the house, but police did not preserve the impressions. The crime scene investigator indicated the impressions would have no significance if the murderer lived on or was a known visitor to the premises. Similarly, a photograph was taken of a shoe impression left on a bathroom rug just outside the bathroom, but they did not ascertain the type or size of the shoe because it would have no significance if the murderer lived on or visited the premises. Investigators also did not take any fingerprints from most of the house for similar reasons.
Investigators collected two blood-like stains from the kitchen, but did not collect fingerprints. The stains, only one of which was blood, were tested one year later. In 2007, authorities tested some of the evidence for DNA and determined the stain on the kitchen floor from the 1993 tests was blood from one of Perez's male children. However, they did not retest the stain from the kitchen that had failed the 1993 presumptive test.
Testing of the blood collected from the bathroom showed it belonged to Gina, and DNA testing from a vaginal swab taken from Gina was consistent with Perez's DNA.
Police Interviews
Deputy Sylvester interviewed Perez at the scene. Perez first told Sylvester that he had left work around 11:30 a.m., but later said he left around 1:30 p.m. Captain Neely, who interviewed Perez for several hours on the night of the murder, stated Perez displayed no emotion during the interview.
Captain Ortiz testified he interviewed Perez on September 25, and that Perez again did not show any emotion. Perez gave Ortiz the following version: When he spoke to Gina on the phone on August 10 he thought she was acting strangely, and he decided to leave work early because he was not feeling well because of his lack of sleep and because he wanted to check on everything at home. When he arrived around 1:30 p.m., Gina opened the door for him. She was getting ready to take a shower. Perez asked her if Campuzano had been there, and she denied it. Perez did not think Campuzano had been at the house because Gina had recently called Campuzano and asked him to stop coming to the house, and Gina had contacted police to complain about Campuzano coming around against her wishes. Perez stayed for 15 to 20 minutes and then left with Vinnie to get some food at McDonalds, after which they went to a park for a short while. Perez and Vinnie then went to the school to pick up the other children, but when they arrived a woman in the principal's office told Perez the children were in the yard and he could not pick them up. When he arrived home, he found Gina's body.
Ortiz testified police did not investigate this complaint.
Ortiz testified police did not investigate the McDonalds, the park or the school to try to verify these claims.
Prior Acts of Violence
On February 1, 1991, Gina was driving her car with her mother and two youngest children inside. Perez was driving another car with his two other children inside. He spotted her and accelerated toward her car and rammed it, pushing her car to the side of the road. He then got out and retrieved a large bumper jack from his trunk and smashed the front windshield out of Gina's car. There was a lot of broken glass in the car, and the jack came through the windshield and hit Gina and her mother.
B. Third Party Culpability Evidence
Campuzano testified he left Gina's house on the day of the murder because, after Gina hung up the phone, she told him to leave, as Perez was returning home. Campuzano left at 12:05 p.m. and never returned to the house.
Campuzano had borrowed a car from Mr. Ochoa to get to and from Gina's home. He testified that, after leaving Gina, he went to a nearby gas station to fix one of the tires on the car. He then returned the car, went to the post office, and then to the cabin in which he was living. He arrived at his cabin around 1:30 p.m. Campuzano saw Mr. Payne (the owner of the cabin) when he arrived but they did not speak. Between 1:30 and 4:00 p.m., Campuzano was inside his cabin watching television and showering. Campuzano saw Mr. Payne around 3:45 to 4:00 p.m., and they talked for a while. Campuzano told Payne he was waiting for a call from Gina. Campuzano later left for work at Domino's Pizza, where he arrived around 5:00 p.m.
Police never viewed Campuzano as a suspect, and therefore never processed Ochoa's car for evidence.
Mr. Sobrito, the Domino's assistant manager, told investigators he thought Campuzano looked more tired and preoccupied than usual that evening. Campuzano told Sobrito he was looking for a larger house so that Gina and the children could move in with him. Campuzano left work around 10:00 p.m. He called Domino's later that evening, asking if Gina had phoned him at work, but she had not. Gina knew where Campuzano worked but had never called him there.
The following day, Gina's mother (Ms. Sepulveda) met with Campuzano to tell him that Gina was dead. When she told him Gina had been murdered, Campuzano "froze [and] he kind of brought his body back and just looked at me like-as if he were somewhere else, " and then started crying.
In Campuzano's first interview with police, he said he first learned of Gina's death around 4:00 p.m. on August 11, but did not know how she was killed. During another interview, Campuzano said Sepulveda told him about the murder around noon on August 11 but again said he did not know how she had been killed. Mr. Payne testified he did not recall seeing Ms. Sepulveda on the morning of August 11, but did work that morning with Campuzano on fixing one of Mr. Payne's cottages. At that time, Campuzano told Payne that Gina been stabbed to death in her bathroom. Payne thought Campuzano's lack of emotion was strange under the circumstances.
In this first interview, Campuzano did not tell police he had seen Gina a few times between July and August 1992 and did not reveal he had been at her house on August 10. However, he told police about his relationship with Gina during a second interview.
Campuzano told a defense investigator he met with Sepulveda and learned of the murder around 9:00 a.m. on August 11.
C. Defense Evidence
The defense presented two witnesses who criticized the handling of the investigation. Mr. Streed, an experienced homicide detective, testified he would have obtained the shoe and tire prints from the scene. He also testified that because there was so much blood involved in the attack, it was likely the assailant was covered in blood and would have transferred some of that blood to other locations, including the car used by the assailant. Perez's car was processed and no blood was found in it. However, the car Campuzano borrowed was not checked, and the owner of that car had moved to Mexico long ago and could not be located.
Another investigator, Ms. Salinas, stated the time between the crime and the charges made it impossible to verify alibis. Regarding Campuzano's alibi, Ochoa (the owner of the car Campuzano borrowed) was never contacted by police and had moved away and cannot be located. Regarding Perez's alibi, although the McDonalds Perez claimed to have visited did not have security cameras monitoring the drive-through portion of the site, it had other cameras inside the restaurant that may have been capable of peripherally spotting cars passing through the drive-through. However, those tapes are only preserved for 30 days. Salinas also contacted the school at which Perez claimed he attempted to pick up his children, but any records from that time period had been destroyed.
ANALYSIS
A. The Motion to Dismiss for Precharging Delay
Background
Although Perez was apparently the only suspect in the murder, and was arrested and held for four days following the discovery of the murder, no charges were filed against him until 14 years after the murder. Perez moved to dismiss the charges, arguing the delay was unjustifiable because there had been no new investigation producing additional evidence, and there had been no advances in scientific processes permitting reinterpretation of existing evidence, during the 14-year hiatus. He asserted the delay prejudiced him because he lost the ability to locate witnesses and/or physical evidence to support his alibi during the time Gina was killed, and he had lost access to certain physical evidence that had either not been collected or not been preserved to allow for testing that would have produced exonerating information. The prosecution opposed the motion, claiming a defendant asserting precharging delay must prove both the fact and extent of actual prejudice from the delay, in the form of the loss of physical evidence or of witnesses (either by death or by fading memories) significant under the facts of the case, and no showing of prejudice was made here. The prosecution also argued that, even assuming a defendant had shown prejudice, that defendant must also show the delay was in bad faith and sought to obtain a tactical advantage over the defendant, and no showing of bad faith was made here.
The trial court reviewed the evidence and concluded Perez had not shown actual prejudice from the delay because some of the allegedly missing witnesses were in fact available, some of the witnesses who allegedly might have been found were not material, and it was too speculative whether other of the alleged witnesses who allegedly might have been found would have provided material assistance to the defense. The trial court denied the motion without prejudice to Perez's right to reassert the motion after the trial had clarified what evidentiary landscape existed within which Perez might affirmatively show actual prejudice.
Legal Principles
The due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution protect a defendant from the prejudicial effects of lengthy, unjustified delay between the commission of a crime and the defendant's arrest and charging. (People v. Nelson (2008) 43 Cal.4th 1242, 1250, (Nelson); U.S. v. Lovasco (1977) 431 U.S. 783, 789-792.) In People v. Cowan (2010) 50 Cal.4th 401 (Cowan), our Supreme Court recently explained the standards applicable when the appellant (as here) complains not about the delay after he or she has been arrested and charged, but about the delay between the crime and the decision to charge the defendant. Cowan explained that, under those circumstances, the defendant:
A delay in arresting or charging does not implicate the defendant's state and federal speedy trial rights because those rights do not attach until a defendant has been charged. (Nelson, supra, 43 Cal.4th at p. 1250.)
"is 'not without recourse if the delay is unjustified and prejudicial. "[T]he right of due process protects a criminal defendant's interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence." [Citation.] Accordingly, "[d]elay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay." [Citation.]' (Nelson, supra, 43 Cal.4th at p. 1250.)" (Cowan, supra, 50 Cal.4th at p. 430.)
A defendant may demonstrate prejudice by showing a loss of material witnesses because of lapse of time, or a loss of evidence because of fading memory attributable to the delay. (People v. Catlin (2001) 26 Cal.4th 81, 107.) The courts, describing the required showing as one of "actual prejudice, " have stated that a showing based on bare "conclusory assertion[s]" of harm (see Serna v. Superior Court (1985) 40 Cal.3d 239, 250 [addressing speedy trial rights]) not "supported by particular facts" showing lost evidence (Crockett v. Superior Court (1975) 14 Cal.3d 433, 442) will not suffice to establish a denial of due process.
The courts have refused to apply a presumption of prejudice even where the delay between the crime and the decision to prosecute is a lengthy one. (Nelson, supra, 43 Cal.4th at pp. 1249-1250 [no presumption of prejudice even when delay between crime and charging was 26 years].)
As to what may constitute sufficient justification for delay, Cowan explained that under California law:
" 'negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process. This does not mean, however, that whether the delay was purposeful or negligent is irrelevant.' (Nelson, supra, 43 Cal.4th at p. 1255.) Rather, 'whether the delay was purposeful or negligent is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation.' (Id. at p. 1256.) The justification for the delay is strong when there is 'investigative delay, nothing else.' (Ibid.)" (Cowan, supra, 50 Cal.4th at p. 431.)
Cowan also explained that our review of a trial court's order on a motion to dismiss based on precharging delay is deferential: we review for an abuse of discretion and defer to any underlying factual findings if substantial evidence supports those findings. (Ibid.)
Evaluation
We conclude the trial court did not abuse its discretion in concluding Perez had not demonstrated actual prejudice from the precharging delay. Perez's argument below, which he reasserts on appeal, is that he was prejudiced because an earlier prosecution would have enabled him to (1) seek corroboration of his alibi during the 2:00 p.m. to 4:00 p.m. window of time during which Gina was killed, (2) locate evidence impeaching Campuzano's alibi during that same 2:00 p.m. to 4:00 p.m. window, (3) investigate whether the "missing uniform" was in fact missing, and (4) test the physical evidence obtained by police (e.g. the tire tracks and footprint impressions) to show Campuzano rather than Perez killed Gina.
Perez asserts the trial court erroneously ignored the presumptive prejudice to Perez associated with a lengthy precharging delay. However, in Nelson, in which the precharging delay was nearly twice as long as was present here, the court unambiguously rejected the same claim, explaining "[d]efendant argues that when the delay is as long as it was here, prejudice should simply be presumed, with no need to show specific prejudice. That has never been the law, and we decline to adopt such a rule here. As we have explained, '[t]he statute of limitations is usually considered the primary guarantee against bringing overly stale criminal charges, ' and there 'is no statute of limitations on murder.' [Quoting People v. Archerd (1970) 3 Cal.3d 615, 639.] Presuming prejudice would be inconsistent with the Legislature's declining to impose a statute of limitations for murder, among the most serious of crimes. To avoid murder charges due to delay, the defendant must affirmatively show prejudice." (Nelson, supra, 43 Cal.4th at p. 1250.) Although a presumption of prejudice may attach when the claimed violation involves federal speedy trial protections (see, e.g., Doggett v. U.S. (1992) 505 U.S. 647, 655-656) or violation of state statutory speedy trial rights (see, e.g., People v. Benhoor (2009) 177 Cal.App.4th 1308, 1317), Perez does not claim either protection was offended here.
As the trial court recognized, Perez's argument regarding prejudice is not that actual evidence tending to exonerate him was lost, but only that he lost the ability to investigate whether there might have been potentially helpful evidence. Indeed, many of the lost investigative opportunities identified by Perez, even had they produced fruit, would not have yielded exonerating information. For example, Perez claims that a witness from his children's school (or records that might have been kept by that school) might have verified that he appeared at the school to retrieve his children but that they had already been placed on the bus. However, that testimony would not have been inconsistent with the key testimony of Finch, who saw Perez's car drive off in a hurry shortly before 4:00 p.m., because there is no suggestion Perez could not have gone to the school (and thereafter to the bus stop) after departing his house as described by Finch. Similarly, Perez argued below that the delay prevented him from impeaching Campuzano's alibi by locating "Joe" at the service station where Campuzano said he had stopped to work on the tire of the car he had borrowed. However, Campuzano testified that he went to the nearby gas station to fix the tire immediately after leaving Gina's house and (after returning the car and going to the post office) went back to the cabin he was staying at and arrived around 1:30. Because Perez saw Gina alive long after Campuzano had his interaction with Joe, the absence of Joe's testimony was immaterial to any disputed issue.
For this reason, among others, Perez's reliance on this court's decision in People v. Mirenda (2009) 174 Cal.App.4th 1313 is misplaced. In Mirenda, unlike here, the trial court appeared to have found actual prejudice from the delay because (1) the only independent witness to the shooting had told the original investigating officer one version of the events but that witness's version had "recently changed" to the defendant's detriment and the officer who could have impeached her more recent version had died, and (2) the victim's memory of the events was unclear after 26 years. (Id. at pp. 1331-1332.)
Similarly, Perez's claims that he was deprived of the opportunity to compare the tire marks for a match to the borrowed car, or to match the footprint impressions to Campuzano's shoes, are irrelevant because there was no dispute Campuzano was at Gina's home just a few hours before she was killed, and there is no suggestion these impressions could only have been left between the hours of 2:00 p.m. and 4:00 p.m.
Perez's principal claim is that the evidence no longer available might have benefitted his defense: he might have found an employee from the McDonalds drive-through window who might have remembered him; he might have found a person at the park who might have remembered him being there; he might have found trace evidence in the car borrowed by Campuzano from Ochoa; and he might have been able to reconstruct (from the records of Mission Linen and Uniform Supply) when the uniform went missing to show it was already missing before the day of the murder. However, the prejudice must be actual rather than speculative (cf. Crockett v. Superior Court, supra, 14 Cal.3d at p. 442), and Perez has not shown that he in fact lost evidence that would have had significant exculpatory value.
Because the nature of the prejudice claimed by Perez in this case (e.g. that potentially exculpatory evidence was lost because of choices made by the state) appears substantively identical to the type of prejudice that a defendant asserts when he alleges potentially exculpatory evidence was destroyed by police, similar showings should be required. The courts have repeatedly held that, absent a showing of bad faith, the failure of the state to preserve evidentiary material does not violate the due process clause merely because the defendant asserts it might have been subjected to tests that might have produced exonerating evidence. (See, e.g., People v. Carter (2005) 36 Cal.4th 1215, 1246; People v. Cook (2007) 40 Cal.4th 1334, 1348-1349 [defendant must show lost evidence actually contained potentially exculpatory material]; People v. DePriest (2007) 42 Cal.4th 1, 42 [no duty to preserve car that could have been subjected to tests that might have helped defense; "failure to preserve 'potentially useful evidence' " does not violate due process absent additional showing of bad faith].)
Additionally, when assessing a claim of prejudice, the courts have recognized that " 'though time can tilt the case against either side, [citations], one cannot generally be sure which of them it has prejudiced more severely.' [Quoting Doggett v. U.S., supra, 505 U.S. at p. 655.]" (People v. Mirenda, supra, 174 Cal.App.4th at p. 1329.) Here, the trial court's conclusion that Perez had not shown prejudice (from the loss of actual exonerating evidence) finds additional support because the passage of time prevented the prosecution from disproving Perez's alibi, or from providing corroborative support for Campuzano's movements during the critical window of time, and the delay provided the defense the ability to assert that police in fact found no inculpatory trace material in Perez's car but could not prove there were in fact no trace forensic materials in Ochoa's car.
Under these circumstances, we cannot conclude the trial court's finding that Perez had not shown actual prejudice from the delay was unsupported by the evidence. We conclude the trial court's ruling denying Perez's motion to dismiss was not an abuse of discretion.
Because the trial court concluded Perez had not shown prejudice, the burden never shifted to the prosecution to show why its delay in filing the charges was justified. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911.) Considering our conclusion, we do not examine Perez's arguments regarding the alleged absence of justification for the delay.
B. Challenge to the Sufficiency of the Evidence
Perez asserts the evidence is insufficient to support the guilty verdict. Perez argues the prosecution produced evidence from which a rational trier of fact could have found motive and opportunity but, under People v. Blakeslee (1969) 2 Cal.App.3d 831 (Blakeslee), a showing limited to proving motive and opportunity does not provide substantial evidence from which a trier of fact could have found him guilty beyond a reasonable doubt.
As discussed below, we remand this matter for a new hearing on Perez's motion for a new trial. We reach the appellate claim of insufficiency of the evidence because, were Perez to prevail on this appellate claim, we would be required to vacate the conviction and a new prosecution would be barred based on double jeopardy principles. (Burks v. U.S. (1978) 437 U.S. 1, 18.)
When a defendant challenges the sufficiency of the evidence to support a conviction, we review the entire record to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66.) We view the evidence most favorably to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.) We must draw all factual inferences the jury could reasonably deduce from the evidence. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Although inferences must be derived from evidence and not mere speculation, reversal is warranted only if there is no hypothesis whatsoever to support the jury's verdict. (People v. Raley (1992) 2 Cal.4th 870, 891; Zamudio, at p. 357.)
We conclude there is evidence from which a trier of fact could have concluded beyond a reasonable doubt Perez was the person who killed Gina. Perez had a long history of conflict with Gina, and she had often moved herself and her children away from Perez. Perez had also acted physically violent toward Gina, including one attack in which Perez-undeterred by the risk of harm to their children the attack posed-rammed his car into hers and used a jack to break the window. Less than 48 hours before Gina was killed, she and Perez were involved in another physical altercation in a public setting that required police intervention to quell.
On the day of the murder, the evidence permitted a rational jury to infer that Perez, already angry with Gina because she failed to call his employers to inform them he was running late, became enraged when he called his home and overheard his son call out the name of Gina's lover, and this rage caused him to immediately leave work (well before the end of his normal shift and still dressed in his work uniform) to head home to confront Gina. When he arrived at 1:30 p.m., he admitted that he confronted Gina about Campuzano having visited and that he knew she was lying when she denied it. Nearly two and one-half hours later, the neighbor saw his car driving quickly away from the house, even though Perez claimed he had calmly left two hours earlier and had not returned until after Gina had been killed. A jury could have inferred that Perez used those hours to change out of his bloodied uniform, cleanse himself of any blood or other forensic material, and collect the weapon and uniform for disposal en route to the bus stop where he collected his children.
The missing uniform supports the inference that Perez disposed of it because it was bloodied. Moreover, Perez's calm demeanor-in his 911 call and in his affect when interviewed by police-provided additional evidence from which the jury could have rejected his story that he first discovered the carnage inside the bathroom when he returned home with his children. Additionally, Perez's statements to police contained inconsistencies or anomalies from which the jury could have concluded he had not yet settled on his version of the events when he was interviewed after the murder.
Perez asserts on appeal that the evidence showed he had only the motive and opportunity to kill Gina and, under Blakeslee, the absence of any other evidence tying him to her death makes the overall state of the evidence insufficient as a matter of law to support the verdict. In Blakeslee, the court found the evidence linking the defendant to her mother's murder, which evidence was almost exclusively limited to motive and opportunity, was not solid or substantial. (Blakeslee, supra, 2 Cal.App.3d at pp. 837-840). The court explained that an equally plausible case, based on motive and opportunity, could have been made against the defendant's brother and, along with the absence of physical evidence, the evidence presented at trial did not inspire confidence in the judgment. (Id. at p. 840.) Perez suggests that a similar absence of evidence exists in the present case, and the evidence presented does not lead to any reasonable inference that he was the killer. The decision in Blakeslee is distinguishable from the present case. First, Blakeslee expressly noted that, although there was some evidence of the defendant's possible motive (prior friction between her and the victim), there was "[n]o evidence... of any current quarrel between mother and daughter, or of any physical violence ever having taken place between the two." (Id. at p. 839.) The opposite is true here. Second, the state of the evidence in Blakeslee was that, although the defendant was around the apartment prior to the shots and after the shots, "no one placed defendant in the apartment at the time of the shooting." (Id. at pp. 837-838.) Here, Perez stated he arrived at the home at 1:30 while Gina was still alive, and his car was seen leaving at 3:50 p.m., and there was no evidence (apart from Perez's version) to undermine the inference properly drawn from this evidence that Perez remained at the house throughout the relevant time frame. Finally, unlike Blakeslee, Perez's calmness in reaction to his "discovery" of the body and the evidence that the clothes he was wearing when he left work could not be found provide additional evidence from which a jury could properly infer he killed Gina.
The sole issue is whether substantial evidence exists to uphold the conclusion that Perez was the killer. "When we decide issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts." (People v. Thomas (1992) 2 Cal.4th 489, 516.) Moreover, Blakeslee concluded there was insufficient evidence because of "the absence of evidence we would normally expect to find in a murder prosecution based on circumstantial evidence. The absence of evidence, like Sherlock Holmes' curious incident of the dog in the nighttime which did not bark, may have as great an impact on the substantiality of a case as any which is produced." (Blakeslee, supra, 2 Cal.App.3d at p. 839.) However, our Supreme Court has recently reiterated that, when examining whether substantial evidence supports a conviction, it is error to "[focus] on evidence that did not exist rather than on the evidence that did exist." (People v. Story (2009) 45 Cal.4th 1282, 1299 [Court of Appeal's determination of lack of substantial evidence was error because "[r]ather than focus[ing] on the evidence that actually existed, the Court of Appeal 'focused on what it found lacking in the prosecution's case.' "]
We conclude that, "for whatever such a comparison is worth" (People v. Thomas, supra, 2 Cal.4th at p. 516), the evidence here was more than was present in Blakeslee. More importantly, an examination of the evidence that was presented (rather than on what was not presented) convinces us the evidence was sufficient for a rational trier of fact to conclude Perez was the killer. Although we conclude our standard of review compels the conclusion that there was sufficient evidence to support the jury's verdict, nothing we say in this opinion precludes the trial court from reaching the opposite conclusion when it independently reweighs the evidence in connection with the new trial motion.
C. The Evidentiary Claim
Perez argues the trial court erred when it admitted evidence of his prior violent conduct toward Gina, and the court should have excluded the evidence of his February 1, 1991, assault on Gina. He asserts (1) application of Evidence Code section 1109 to admit evidence of the prior assault violated ex post facto principles and (2) admission of the evidence was an abuse of discretion under Evidence Code section 352.
Ex Post Facto
Evidence Code section 1109, subdivision (a), provides that "evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." However, the murder occurred before the 1996 enactment of Evidence Code section 1109. (People v. Flores (2009) 176 Cal.App.4th 1171, 1175 (Flores).) The trial court, after admitting the evidence, instructed the jury that it could consider those acts as evidence of Perez's disposition to commit violent crimes against her, including her murder. Perez argues this evidence, and the instruction based thereon, offends ex post facto principles.
However, the court in Flores, after a detailed analysis of the precise contention now asserted by Perez, concluded there was no ex post facto violation. (Flores, supra, 176 Cal.App.4th at pp. 1176-1181.) Although Perez argues we should conclude Flores was wrongly decided, we decline Perez's invitation to disagree with Flores for two reasons. First, we find nothing infirm in Flores's analysis. Second, our Supreme Court has approved a similar analysis conducted by the court in People v. Fitch (1997) 55 Cal.App.4th 172 (Fitch), which rejected an ex post facto challenge to application of analogous 1996 enactment (Evid. Code, § 1108) to a crime pre-dating its enactment. In Fitch, the court concluded, because that section "does not alter the definition of a crime, increase punishment, or eliminate a defense, it does not violate the ex post facto clause." (Fitch, at p. 186.)
After Fitch was decided, the United States Supreme Court decided Carmell v. Texas (2000) 529 U.S. 513, on which Perez relies. Carmell held an amendment to a Texas statute, which authorized conviction of certain sexual offenses based on the victim's testimony alone, when the previous statute had required corroborating evidence in addition to the victim's testimony, violated the ex post facto clause when applied to an offense committed before the date of the amendment. (Id. at pp. 516, 552.) In doing so, Carmell made clear the fourth category of the statute omitted by Fitch is prohibited by the ex post facto law. (Carmell, at pp. 521-525.) Although in view of Carmell, "Fitch's analysis was incomplete, " due to the omission of the fourth category, "its conclusion that section 1108 did not violate the constitutional prohibition of ex post facto laws remains sound" (Flores, supra, 176 Cal.App.4th at p. 1177, fn. 6), and our Supreme Court subsequently approved the soundness of Fitch's conclusion by citing it in People v. Davis (2009) 46 Cal.4th 539, 603, footnote 6 for the proposition that Evidence Code section 1108 "applies to cases tried after its effective date of January 1, 1996, and no ex post facto violation occurs when it is applied to a charged offense occurring before its enactment." Considering Flores, Fitch and People v. Davis, we conclude application of Evidence Code section 1109 did not violate ex post facto protections.
Evidence Code Section 352Perez alternatively argues the trial court abused its discretion when it declined to exclude the evidence under Evidence Code section 352. Although Evidence Code section 1109 creates an exception to the general rule codified in Evidence Code section 1101, subdivision (a), precluding admission of uncharged misconduct to show the defendant had a propensity to commit crimes (Evid. Code, § 1109, subd. (a)(1)), the trial court has discretion to exclude evidence of prior acts of domestic violence if the probative value is substantially outweighed by the probability their admission would necessitate undue consumption of time or create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, §§ 1109, subd. (a)(1), 352.) In assessing whether evidence is unduly prejudicial within the meaning of Evidence Code section 352, the question is whether the evidence "tends to evoke an emotional bias against the defendant with very little effect on issues...." (People v. Crew (2003) 31 Cal.4th 822, 842.)
"The admissibility of evidence of domestic violence is subject to the sound discretion of the trial court, [and the exercise of that discretion] will not be disturbed on appeal absent a showing of an abuse of discretion." (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) We review the trial court's ruling under Evidence Code section 352 for an abuse of discretion (People v. Lewis (2001) 25 Cal.4th 610, 637) and will not reverse an evidentiary ruling unless the appellant demonstrates a manifest abuse of that discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
We conclude the ruling admitting the evidence of Perez's 1992 assault was not an abuse of discretion. The conduct was not remote in time, but occurred approximately 18 months earlier, which is within the window Evidence Code section 1109 allows. (Evid. Code, § 1109, subds. (d)(3) & (e).) Moreover, because the evidence showed Perez reacted violently toward Gina when he suspected her of infidelity, his violent behavior was undeterred by the presence of his children or any danger to them that his violence might entail, and he "didn't know what came over him" when reacting violently toward Gina, the evidence was probative of the disputed issue in this case: whether Perez killed Gina in an explosion of violence on learning of her infidelity notwithstanding the presence of his youngest child in the house.
Although Perez argues the prejudicial effect of the evidence outweighed its probative value, the prejudicial effect Perez identifies is that it was "especially inflammatory because of [its] similarity to the prosecution's theory of the case-that [Perez] stabbed [Gina] to death out of anger because she was cheating on him...." However, " '[t]he prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' " (People v. Zapien (1993) 4 Cal.4th 929, 958.) Rather, evidence is unduly prejudicial under Evidence Code section 352 only when it " ' " 'uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " ' " (People v. Barnett (1998) 17 Cal.4th 1044, 1118.) The fact that the evidence dovetailed with the prosecution's theory undercuts the argument that it was an abuse of discretion to admit it.
D. The New Trial Motion
Perez argues the trial court erred when it denied his motion for new trial because it applied the wrong standard when assessing his motion. Perez's new trial motion asserted, among other grounds, that the evidence was insufficient to support the verdict under section 1181. The trial court denied the motion, stating (among other things):
"[T]his court certainly is not going to substitute its judgment or become a 13th juror in this case. [¶]... [T]he jury heard all of the evidence... including the discussions that Mr. Campuzano had with his landlord and with the victim's mother... and that was fully litigated and they were given the job of determining credibility and deciding this case, and they did just that. Testimony that hasn't been discussed today, and the Court can't discount, is the testimony of the neighbor who had testified to seeing the car driving away.... [¶] At any rate, the issues have been litigated. The court is not going to substitute its judgment for the jury. The jury did come back with a verdict, and the court is going to deny the motion for new trial...."
Perez asserts, and the People agree, the court did not apply the correct standard when it ruled on the new trial motion. When ruling on a motion for new trial based on sufficiency of the evidence, the trial court does not defer to the jury's determination, but instead reweighs all of the evidence and "the judge... sits, in effect, as a '13th juror.' " (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) Both Perez and the People argue (and we agree) that (1) the court below erred, and (2) the appropriate disposition is to remand the matter back to the trial court for a new hearing on the new trial motion at which the trial court must independently review the evidence to determine whether, in its own judgment, the elements of the charged offense have been proved beyond a reasonable doubt. (People v. Lagunas (1994) 8 Cal.4th 1030, 1040.)
E. The Sentencing Claims
Perez asserts on appeal that the court violated ex post facto protections regarding conduct credits and parole revocation fines. Because we reverse the order denying Perez's motion for new trial and remand this case for reconsideration of Perez's new trial motion, we also vacate the sentence imposed by the trial court with instructions that, if the court denies the new trial motion on remand, it shall resentence Perez in accordance with the applicable statutory and constitutional requirements governing conduct credits and parole revocation fines.
DISPOSITION
The judgment of conviction is affirmed. The order denying Perez's motion for new trial is reversed, the sentence imposed on Perez is vacated, and those aspects of the judgment are remanded for further proceedings consistent with this opinion.
WE CONCUR: BENKE, Acting P. J., NARES, J.