Filed 1/21/20 P. v. Rubalcaba CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ELOY QUEZADA RUBALCABA,

Defendant and Appellant.

F076217

(Super. Ct. No. BF167179A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge.

Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant Eloy Quezada Rubalcaba was convicted by jury of first degree premeditated and deliberate murder (Pen. Code, §§ 187, 189) and sentenced to a prison term of 25 years to life. He appeals the judgment contending the evidence was insufficient to support the jury’s finding of premeditation and deliberation. We disagree and affirm.

FACTS

Fawn D. and Jack P. were roommates for approximately seven years. Sometime in 2015, defendant moved into the same apartment complex as Fawn and Jack. Defendant and Jack were friends, and they hung out about three to four times per week. In May 2016, defendant and Jack started hanging out less frequently.

On Tuesday, May 17, 2016, Fawn left her apartment around 8:00 a.m. to volunteer at her church as she did every Tuesday. Defendant knew Fawn volunteered at church on Tuesday mornings. When Fawn arrived home at 1:30 or 2:00 p.m., she found Jack dead on the living room floor of their apartment. Fawn noticed Jack had a mark across his neck. Fawn also noticed one of the curtains in the front window, which was never closed, was closed. Fawn had a neighbor call 911.

The responding sheriff’s deputy and detective noted the “ligature mark,” bruising caused by a cord or small rope for strangling, around Jack’s neck. They also noted there appeared to be no sign of a struggle in the apartment. No signs of struggle could mean that the victim was asleep or that he was “comfortable” with or “known to” the perpetrator. Jack’s phone charging cord was found on the floor behind a chair in the living room.

Fawn gave the responding officers defendant’s name as a suspect because she was concerned about a conversation she had with him the day before. On May 16, 2016, defendant was at Fawn and Jack’s apartment and was talking about killing and beating up people and asked Jack if he wanted to beat somebody up. Defendant told Fawn he would do anything for defendant’s girlfriend, Crystal G., including “killing people.” Fawn said that at one point, defendant had told Fawn that he thought Jack had had sexual relations with defendant’s girlfriend. Fawn told defendant Jack had not, and defendant got upset.

On the morning of Jack’s death, at approximately 7:00 a.m., defendant went to Crystal’s house. They had been having relationship problems. Crystal asked defendant to leave because she did not want to be with him anymore. Defendant asked why, and she told him because they fight too much, and he left. Defendant did not tell Crystal where he was going.

At 8:00 or 8:30 a.m., Jack and Fawn’s next door neighbor heard someone “speaking loud, very loud” in Jack’s apartment. The next door neighbor took the garbage out at 8:30 or 9:30 a.m. and saw defendant walking in the complex, smiling “ear to ear,” which she had never seen him do before. She also heard defendant “shouting like the mariachi” that day.

At 10:00 or 10:30 a.m., defendant went to the residence of his sister and brother-in-law, Michael K., where he took a shower and changed into clothes he borrowed from Michael. Law enforcement later confirmed that defendant’s apartment had a bathroom containing a bath and shower, with hot and cold running water, as well as toiletries.

At 3:00 or 4:00 p.m., defendant went back to Crystal’s house. At approximately 4:30 p.m., Michael called defendant to see if he wanted to come over to his house and have a beer, which defendant did. Michael went to pick defendant up at Crystal’s house, and in the car on the way to Michael’s house, Michael told defendant he saw on the news that Jack had died. Defendant told Michael that Jack was killed and, when Michael asked how, defendant said Jack “got choked out.” While at Michael’s house, Michael brought up Jack’s death again because “[i]t was boggling [his] mind.” Michael told defendant the police would be able to find who killed Jack, and defendant told Michael that people get away with murder all the time. When Michael told defendant that was not true because of technology and DNA evidence, defendant said, “Really? Can they do that?” Michael then asked defendant what he had done. Defendant broke down crying and said he “snapped.” Michael told defendant that if defendant did kill Jack, defendant might be able to claim it was in self-defense. Defendant responded that there was no struggle.

At 6:00 or 7:00 p.m., Michael brought defendant back to Crystal’s house. Crystal testified that something seemed wrong with defendant. Defendant asked Crystal if she would go to Mexico with him and she said no. Defendant told Crystal, approximately five times, that he did “it” for Crystal.

The medical examiner who performed Jack’s autopsy testified that the cause of death was homicide by ligature strangulation.

DNA recovered from Jack’s phone cord matched defendant’s and Jack’s DNA profile. Sandals were found a couple of inches from the feet of Jack’s body. It appeared that another shoe had stepped on top of the right sandal leaving a shoe track on top of it. The bottom of the shoes defendant wore the day of Jack’s death matched that imprint. DNA recovered from Jack’s neck matched defendant’s DNA profile.

DISCUSSION

In assessing a claim of insufficiency of the evidence, we review “the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—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.) Circumstantial evidence may be sufficient to prove defendant’s guilt beyond a reasonable doubt. (People v. Pierce (1979) 24 Cal.3d 199, 210.) “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” (People v. Bean (1988) 46 Cal.3d 919, 932-933.) “ ‘ “Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.” ’ ” (People v. Thomas (1992) 2 Cal.4th 489, 514.)

Direct evidence of premeditation and deliberation is not required in prosecution for first degree murder; “the elements of deliberation and premeditation may be inferred from proof of such facts and circumstances as will furnish a reasonable foundation for such an inference.” (People v. Miller (1969) 71 Cal.2d 459, 477; see People v. Dale (1936) 7 Cal.2d 156, 159-160.) Reversal on insufficiency of the evidence is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” (People v. Redmond (1969) 71 Cal.2d 745, 755.)

In the context of premeditated and deliberate murder, “ ‘premeditation means “ ‘considered beforehand’ ” [citation] and deliberation means a “ ‘careful weighing of considerations in forming a course of action . . .’ ” [citation]. “The process of premeditation and deliberation does not require any extended period of time.” ’ ” (People v. Salazar (2016) 63 Cal.4th 214, 245.) “ ‘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. . . .’ ” (People v. Mayfield (1997) 14 Cal.4th 668, 767, overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.) Ultimately, a finding of deliberation and premeditation requires the existence of “preexisting reflection, of any duration.” (People v. Solomon (2010) 49 Cal.4th 792, 813.)

The California Supreme Court in People v. Anderson (1968) 70 Cal.2d 15 delineated three categories of evidence for reviewing courts to consider in evaluating whether a murder was committed with premeditation and deliberation: “(1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2).” (Id. at pp. 26-27.)

Defendant argues the record contains no evidence of planning, “scant” evidence of motive, and that the nature of the killing, i.e., strangulation, is not enough to support a finding of premeditation and deliberation. We disagree.

The jury heard circumstantial evidence of planning. First, defendant knew Fawn would not be in the apartment on Tuesday morning, from which it could be inferred defendant went to Jack’s apartment at a time he knew Fawn would not be there and that he would be alone with Jack. Fawn testified that Jack’s charging cord, the murder weapon, was normally kept behind the chair in the living room. Photographs of the scene show that the area is somewhat cluttered, and it would take some effort to obtain the cord from where it was kept. Because Jack was found in front of the chair, it could be inferred defendant had to take some steps to obtain and use the cord, giving defendant some time to reflect on his actions. There was no apparent struggle in terms of furniture being turned over, from which it could be inferred there was not a physical altercation which resulted in a killing and rather that defendant was calculated and determined in his actions of attacking a nonaggressor.

As for motive evidence, defendant had suspicions of a sexual relationship between Jack and Crystal, coupled with some ideation that he could gain favor in the eyes of Crystal with violence, including killing. The day before the murder, defendant said he would kill for Crystal, and Fawn’s testimony suggests this was done in the presence of Jack. Soon after the murder, defendant told Crystal he did “it” for her. Further, defendant committed the murder shortly after having a conflict with Crystal, wherein she told defendant she did not want to be with him anymore. This, paired with defendant’s thoughts about violence and his suspicions of Crystal being intimate with Jack, is evidence that defendant had a preexisting motive to kill Jack when he went to Jack’s apartment the day of the murder.

As for manner of killing, “[l]igature strangulation is in its nature a deliberate act.” (People v. Bonillas (1989) 48 Cal.3d 757, 792.) “This prolonged manner of taking a person’s life, which requires an offender to apply constant force to the neck of the victim, affords ample time for the offender to consider the nature of his deadly act.” (People v. Hovarter (2008) 44 Cal.4th 983, 1020.) Here, the pathologist testified that strangulation typically takes two minutes to kill a person and that Jack would have likely passed out after 10 seconds. This shows defendant continued to strangle Jack for almost two full minutes after he lost consciousness, a period of time during which defendant had time to reflect on his actions. Additionally, there was no evidence of a physical altercation suggesting defendant attacked Jack when Jack was not suspecting it. That fact could support an inference of a calculated killing.

Defendant’s citation to People v. Rowland (1982) 134 Cal.App.3d 1, 9 does not alter our conclusion. In Rowland, the defendant offered to drive the victim home from a bar. (Id. at p. 6.) Instead of taking her home, he took her to his apartment. (Ibid.) At one point in the evening, the defendant’s roommate heard the defendant’s bed shaking, heard a woman say about seven or eight words in a soft voice, then say “ ‘Hey,’ ” and then heard choking sounds. (Id. at pp. 6-7.) The defendant had strangled the victim with an electrical cord. (Id. at p. 7.) The appellate court pointed out that strangulation demonstrated a deliberate intent to kill but did not find the manner of killing itself went beyond establishing malice aforethought. (Id. at p. 9.) The appellate court reasoned that an electrical cord “is a normal object to be found in a bedroom and there was no evidence presented that defendant acquired the cord at any time prior to the actual killing.” (Id. at p. 8.) The appellate court found the evidence was insufficient to sustain a finding of premeditation and deliberation because there was no evidence of planning or motive. (Id. at p. 9.)

Though the murder weapon in Rowland was similar to that used in the present case, here, unlike in Rowland, there was evidence that defendant had motive and had planned Jack’s murder. Further, we note our task is to look at the totality of the circumstances using the Anderson factors as a guide. “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.” (People v. Pride (1992) 3 Cal.4th 195, 247.) In People v. Lucero (1988) 44 Cal.3d 1006, 1020, the California Supreme Court held that strangling the victim with the necklace she was wearing was a deliberate manner of killing sufficient to indicate a “ ‘preconceived design,’ ” and upheld a finding of premeditation and deliberation based on that as well as other planning and motive evidence.

Viewing the totality of the circumstances in the light most favorable to the judgment, we find the premeditation and deliberation finding was supported by sufficient evidence.

DISPOSITION

The judgment is affirmed.

DETJEN, J.

WE CONCUR:

LEVY, Acting P.J.

MEEHAN, J.