People v. Abundio
| Decision Date | 12 March 2014 |
| Docket Number | B245774 |
| Citation | 221 Cal.App.4th 1211,165 Cal.Rptr.3d 183 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jose ABUNDIO, Defendant and Appellant. |
OPINION TEXT STARTS HERE
See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 238.
APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa M. Chung, Judge. Affirmed. (Super. Ct. No. MA047792)
Barbara S. Perry, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
In an unprovoked, premeditated attack, appellant Jose Abundio stabbed marijuana dealer Timothy Wong to death in order to rob him of marijuana appellant could not afford to buy. After appellant's first jury deadlocked and a mistrial was declared, a second jury convicted him of first degree murder. The jury also found true the special circumstance allegation that he committed the murder in the commission or attempted commission of a robbery, and the allegation that he used a knife. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(17), & 12022, subd. (b)(1).) 1 The trial court sentenced him to life in prison without the possibility of parole, plus one year. On appeal, he contends that his sentence constitutes cruel or unusual punishment under California Constitution, article I, section 17, and People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697 ( Dillon ), abrogated on other grounds by People v. Chun (2009) 45 Cal.4th 1172, 1186, 91 Cal.Rptr.3d 106, 203 P.3d 425. We disagree and affirm the judgment.
According to Kourtney Garcia, Timothy Wong's girlfriend, Wong had been selling marijuana for about a year before he died. Before the killing, he had sold marijuana to appellant six or seven times, and there had never been any problem between them. They called each other by familiar names: appellant was “Joe,” and Wong was “Timmy.”
On the night of the killing, December 19, 2009, around 9:00 p.m., appellant was with three friends, Josue Hernandez, Felix Martinez, and John Bowen, watching television at Bowen's house on 171st Street in Lake Los Angeles. Appellant borrowed Hernandez's cell phone, walked around the corner of the house, and made three to five phone calls. He then erased the numbers he had dialed.
Hernandez saw a white sedan pull up and stop in front of Bowen's house. Appellant walked out to the car and returned to the house about ten minutes later. The car drove away.
The white car observed by Hernandez was Wong's. According to Garcia, Wong received a phone call from appellant asking to buy marijuana. After Wong and Garcia obtained the marijuana, Wong received another phone call from appellant, and placed it on speaker phone. Wong said, “I got it,” named a price, and said he would be there soon. Appellant said,
Wong and Garcia drove to Bowen's house on 171st Street. Appellant came out to the car and stood by the passenger side where Garcia was seated. After appellant and Wong discussed the price, appellant said he needed to get change. Although Wong told appellant that he had change, appellant insisted that he needed to go down the street to get change and would arrange to meet Wong later. Appellant also repeatedly asked Wong if Garcia would be present at a later meeting. Further, although Wong and appellant had never hung out socially before, appellant asked Wong if he wanted “to hang out and kick it and drink and smoke.” Wong declined because his family was visiting.
According to Hernandez, when appellant returned to Bowen's house, he said, “I'm going to kill them.” He added that he wanted to get marijuana and was going to get more than he could afford. Hernandez thought that appellant was joking. Bowen overheard appellant tell Martinez that he was going to jump “Timmy” for marijuana. Bowen did not take appellant seriously and told appellant it was stupid.
Appellant asked Bowen if he could borrow some gloves. Bowen gave him a pair of black wool gloves. Bowen did not consider the request unusual, because appellant had borrowed his clothing before. Appellant then asked Bowen to drive him someplace using Bowen's girlfriend's car. Hernandez, Martinez, Bowen, and appellant got in the car, and appellant gave Bowen directions. At first appellant said he wanted to go to the store to get snack food, but while they were driving, appellant said he wanted to go to Wong's to buy marijuana. Bowen asked, “You are not going to do anything, right?” Appellant said he was not and that he was going to “buy a 40,” which Bowen assumed meant $40 worth of marijuana. Hernandez and Bowen did not see appellant with a knife.
After driving for about 15 minutes, they arrived at a house. Appellant asked Hernandez to get out of the car with him and told Bowen to park the car down the street. Hernandez and appellant got out of the car, and Bowen drove down the street with Martinez and parked.
Appellant borrowed Hernandez's phone and made a call. Wong came out of the house, and appellant introduced him to Hernandez as “Timmy.” Wong told appellant that he had “the stuff” and directed him to walk over to Wong's car, which was parked in the driveway. Wong walked behind and to the right of Hernandez, and appellant walked to Wong's right. There was no argument, confrontation, or dispute between appellant and Wong.
As they were walking, Hernandez noticed a glint of light, turned, and saw appellant jump on Wong's back. Appellant's arm was wrapped around Wong so that his arm and hand were in front of Wong. Wong started screaming, They fell to the ground, and Wong screamed, “Call the cops.” After they fell on the ground, appellant was on top of Wong and appeared to punch Wong in the back about five times. Hernandez heard a gurgling sound.
Hernandez ran to Bowen's car, got in, and told Bowen that “something bad” had happened. Bowen asked what he meant, and Hernandez said that he thought appellant stabbed Wong. Hernandez told Bowen they should leave. Bowen started to turn the car around to pick up appellant, but they worried that appellant might stab them. They returned to Bowen's house without appellant.
Hernandez and Martinez went to their homes. Bowen went inside his house and told his family and girlfriend what had happened. Before Bowen could call the police, officers arrived at the house. Bowen told them what happened.
According to Garcia, after leaving the house on 171st Street, she and Wong went to Wong's house, where they had dinner with Wong's family. During dinner, Wong received a call on his cell phone and told the caller he would go outside. While still talking on the phone, Wong walked outside with his dog.
After Wong walked outside, Garcia heard Wong screaming, a dog barking, and car tires screeching. Garcia ran outside and saw Wong bleeding from his neck and chest, screaming for help and saying, Wong fell to the ground. His brother asked who did it, and Wong said it was “Joe.”
Wong died of multiple stab wounds. An autopsy revealed that he suffered three stab wounds to his back, three to the back of his neck, and one to his abdomen. Wong also had defensive wounds on his hand from trying to divert the knife.
Detective Steve Owen and his partner responded to Wong's house and spoke to Garcia, who directed them to Bowen's house on 171st Street. Around 2:00 a.m. that night, Detective Owen was outside his car on 171st Street when he saw appellant walking toward him with his hands raised. Appellant said,
Appellant was interviewed at the sheriff's station by Detectives Troy Ewing and J. Leslie. A recording of the interview was played at trial. After waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, appellant stated, “I didn't really mean to do it but when I did it, I—I couldn't believe I did it 'cause I was just—I was shocked, I was scared, I ran.” Detective Leslie asked appellant if he went home after it happened, and he replied,
Appellant told the detectives that he had contacted Wong to buy an ounce of marijuana, but he did not have the money to pay for it, so he planned to take it. When Wong came to Bowen's house with the marijuana, appellant was unable to take the marijuana because Garcia was in the car. Therefore, appellant lied and told Wong he needed to get change for a $100 bill. Appellant then decided to go to Wong's house and steal the marijuana from him. He told Hernandez and Martinez his plan, but he did not tell Bowen. He intended to beat Wong up to take the marijuana, so he took a knife from his mother's kitchen, hid it outside his house, and retrieved it when they left for Wong's house. He concealed it in his waistband. Hernandez and Martinez knew he had the knife, but they did not know he was going to kill Wong.
Appellant said that he panicked after stabbing Wong, but he chased Wong and continued to stab him. He did not know how many times he stabbed him. Detective Leslie asked appellant if he wanted to kill Wong, but appellant replied,
After the stabbing, appellant ran away and took some clothes he found hanging on a fence. He discarded his bloody clothing and the one remaining glove.
In People v. Dillon, supra, 34 Cal.3d at page 488, 194 Cal.Rptr. 390,...
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