People v. Abilez

• Citation: 41 Cal.4th 472,161 P.3d 58,61 Cal.Rptr.3d 526
• Decision Date: 28 June 2007
• Docket Number: No. S066377.,S066377.
• Court: United States State Supreme Court (California)
• Parties: The PEOPLE, Plaintiff and Respondent, v. Frank Manuel ABILEZ, Defendant and Appellant.

61 Cal.Rptr.3d 526

41 Cal.4th 472

161 P.3d 58

The PEOPLE, Plaintiff and Respondent, v. Frank Manuel ABILEZ, Defendant and Appellant.

No. S066377.

Supreme Court of California.

June 28, 2007.

Russell S. Babcock, San Diego, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, J.

A jury in Los Angeles County Superior Court convicted Frank Manuel Abilez in 1997 of the first degree murder of his mother, Beatrice Abilez Loza (Pen.Code, § 187; all further statutory references are to this code unless otherwise indicated), forcible sodomy (§ 286, subd. (c)), first degree robbery (§ 211), two counts of first degree burglary (§ 459) and grand theft of a vehicle (former § 487h, subd. (a), see now § 487, subd. (d)). The jury also sustained special circumstance allegations that Abilez committed a murder while engaged in the commission of a robbery, sodomy and burglary. (§ 190.2, former subd. (a)(17)(i), (iv) & (vii), see now subd. (a)(17)(A), (D) & (G).) In addition, the jury sustained an allegation that defendant caused great bodily injury to a person over 60 years of age. (§ 1203.09, subd. (a).) Defendant waived a jury for determination of his prior convictions, and the trial court sustained allegations that he had suffered two prior serious felony convictions (§ 667, subd. (a)(1)), had previously served four separate terms in prison for felony convictions (§ 667.5, subd. (b)), and had suffered two prior felony convictions within the meaning of the "Three Strikes" law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)(i)). On October 16, 1997, the jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).) We affirm.

I. Guilt Phase

A. Facts

Beatrice Abilez Loza (Loza), 68 years old at the time of her murder, lived in La Puente. She had 10 children, including defendant, although he was raised by someone else. Two of her other children, Susie Carlon (Carlon) and John "Chachi" Loza (Chachi), lived with her, each in a separate bedroom. The victim often allowed family members to use her spare bedroom. On March 14, 1996, defendant and Loza's nephew, Albert Vieyra (Vieyra), were staying in the spare bedroom, but Loza quarreled with them and told them to leave the next day. Carlon recalled that on March 15, defendant left the house around 8:30 or 9:00 a.m. She left the house around noon to go to Stateline, Nevada, with her friend Annette Jordan; at that time, she saw defendant returning to the house.

Another of Loza's children, Johnny Garcia, lived a short distance away, and on March 15 he came by the house around 5:00 p.m. to borrow some money from his mother. He stayed 15 or 20 minutes. At that time, he noticed Loza's car was in the driveway, which was normal because his mother never put the car in the garage. When he left, Loza and Chachi were the only ones in the house. As he often did, Garcia called his mother that night around 10:45 p.m. to ensure she was "safe and okay." Concerned when she did not answer her telephone, he went to her house. Her car was not in the driveway and the outside light was turned off, both of which were unusual. When no one responded to his knocking and ringing the doorbell, he entered the house through a window. Once in the house, Garcia noticed the door to Carlon's bedroom was broken. Finding the door to his mother's room locked, he sought out his brother Chachi. Chachi, surprised on seeing his brother in the house, told Garcia their mother was in her room. Garcia then forced open a window to his mother's bedroom and entered, finding her lying facedown in the room with a sock knotted around her neck. Her pants had been pulled down and her shirt pulled up. Garcia called the police from the bedroom; he later determined the telephone in the kitchen had been pulled from the wall and that Loza's car was missing.

James Ribe, a medical examiner for Los Angeles County, conducted an autopsy on the victim and concluded she died of "asphyxia due to ligature strangulation." In addition, Ribe found evidence of "forcible rectal insertion" occurring while she was still alive. A criminalist later determined the presence of spermatozoa in the victim's rectum, but the amount was insufficient to conduct a DNA test.

Leonard Mercado, apparently one of defendant's acquaintances, testified that late in the evening of March 15, 1996, defendant and Vieyra drove up to a house in La Puente and asked whether anyone wanted to buy any of the electronic equipment they had in the car. Around 3:00 a.m. the morning of March 16, Colton Police Officer Kenneth Kiecolt stopped the car defendant was driving for having a broken license plate light. Vieyra was a passenger in the car. A license plate check indicated the car was wanted by the Los Angeles County Sheriffs Department, so Officer Kiecolt arrested both defendant and Vieyra and had their car impounded.

After Colton Police transferred custody of defendant and Vieyra to the Los Angeles Sheriffs Department, Deputy Sean Harold secretly recorded them in the back of his car. Although much of the tape is unintelligible, one person could be heard to say in Spanish: "No, don't say anything." At another point, someone says: "Just say we were lost on the freeway." Someone also says: "No, but we left and that's it." It could not be determined who said what.

When arrested, Vieyra had scratches and abrasions on his face. A shirt, determined to belong to Vieyra, was recovered from the car; because it was stained, it was sent for analysis. A criminalist later determined the stain was from Vieyra's blood. Police also found empty beer cans and a red pajama top in the car. Loza would not have left beer cans in her car and, in fact, did not drink. The red pajama top belonged to Carlon and had been taken from her room.

Chachi, Loza's son who resided with her, had previously suffered an accident and was physically disabled at the time of trial. He testified initially that on the night in question, both defendant and Vieyra were in the victim's bedroom arguing with her. He later clarified that he heard only defendant in the room, which was consistent with his statement to the police who investigated the crime. From his bedroom, Chachi heard someone opening and closing drawers in his mother's bedroom.

When Carlon learned of her mother's murder, she returned home. She found the lock on her bedroom door had been broken and her bedroom ransacked. Missing were a compact disc player, a case with about 60 discs inside, a cassette tape player and her wallet. Stereo equipment was also missing from Loza's bedroom.

Candina Bravo, defendant's niece, testified defendant came to her home around 4:00 p.m. on March 15, 1996, to borrow money, but she had none to give him. She recalled that sometime in the two weeks before Loza's death, defendant told her: "I hate that fucking bitch. She keeps fucking with me." A couple of months before that, he told her: "I hate that fucking bitch. I want to kill her." Bravo said defendant's antipathy stemmed from the fact Loza raised her other nine children but "gave him up." Bravo also testified that Loza kicked defendant and Vieyra out of her house because they stole from her. Annette Jordan, Carlon's friend, testified she had been to the victim's home hundreds of times and confirmed that defendant and the victim argued about his eviction from the house during the two weeks leading up to the murder. She also reported hearing defendant attempt to borrow Loza's car, but she never saw Loza agree to lend it.

Gabriel Arce, the teenage son of defendant's girlfriend, testified that sometime before the murder, he heard defendant say that when Loza would not give him money, defendant would just take money from her purse, and that he wanted to kill her. Rachel Arce, defendant's sometime girlfriend, also testified defendant hated his mother.

Codefendant Vieyra testified in his own defense. He testified that on the day in question he ran into defendant, his cousin, in the parking lot of a shopping center. Defendant appeared to be under the influence of heroin and was holding a quart bottle of beer, which he proceeded to drink that afternoon. Defendant told Vieyra he was angry at his mother. They went together, first to a friend's house and then to the victim's home, arriving around 3:40 p.m. After staying a short time, they went to a corner store where they bought and consumed two 12-ounce beers. After running some errands in the neighborhood, the two returned to Loza's house. At that time, only Loza and Chachi were home. Vieyra noticed defendant was having an argument with Loza. Vieyra convinced defendant to leave, and they went to a bar although they did not have anything to drink. The two then returned to Loza's house sometime after 5:00 p.m. Defendant went to his mother's bedroom, and Vieyra went to the bathroom to shave; at that time, he saw defendant in Loza's room and they were talking. When Vieyra was finished shaving, he heard Chachi come out of his room. Chachi called out his mother's name. Defendant came out of Loza's room and told Chachi to go back into his room. Defendant then reentered Loza's bedroom and closed the door. Vieyra went to wait in the living room.

When defendant did not emerge from Loza's room for some time, Vieyra went and opened the door. He saw Loza lying on the floor on her stomach, with defendant sitting on her, straddling her "like on a horse." Defendant held a white cloth in his hands and it was around her neck; Vieyra heard a noise from her throat. Vieyra stood there a few seconds and then returned to the living room because he was scared. Less than two minutes later, defendant emerged from...