People v. Eslava
| Decision Date | 22 January 2014 |
| Docket Number | A135568 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MARIO ESLAVA, Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County
Defendant Mario Eslava was charged with one count of murder after he stabbed to death his roommate, Troy Swann. A jury convicted him of the lesser included offense of voluntary manslaughter and found true an enhancement allegation that he used a deadly or dangerous weapon.1 The information also contained other enhancement allegations that related to a prior conviction for battery with a serious bodily injury. One was that the prior conviction qualified as a "strike," and another was that it was for a "serious felony."2
The trial court sentenced Eslava to 18 years in state prison. This sentence was established by imposing the mid-term of six years for the manslaughter conviction; doubling the base term because the prior conviction was a strike; adding five years because the prior conviction was for a serious felony; and adding one year because Eslava used a deadly or dangerous weapon in killing Swann.
On appeal, Eslava contends that his manslaughter conviction should be reversed because he was prevented from introducing certain character evidence about Swann and a recording of a 911 call Eslava made the day before the killing. He also contends that the trial court improperly determined that his prior battery conviction was for a serious felony and was a strike.3 We reject Eslava's first two arguments, and we therefore affirm his manslaughter conviction and the enhancement that he used a deadly or dangerous weapon. But we reverse the part of his sentence resting on the two enhancement allegations related to his prior conviction for battery. On remand, the People have the burden to prove these allegations at a bench trial.
FACTUAL AND PROCEDURAL
Eslava and Swann lived together in room 228 of a single-room-occupancy hotel at 1139 Market Street in San Francisco. Eslava originally rented the room by himself, but Swann moved in as his roommate about two months before the killing. Swann, aged 42, was approximately six feet, four inches tall and "a big, big guy." Eslava, who is approximately five feet, eight inches tall, was aged 54 and "muscular" at the time he killed Swann.
Early on the morning of January 1, 2011, the day before the killing, Eslava called 911 to report that Swann had a knife. Two San Francisco police officers responded to the hotel within minutes. Officer Brian Cotter testified that when he arrived he observed a man, whom he later identified as Swann and who matched the 911 caller's description of the person with a knife, "wobbling" and "laying all over the wall" as he tried to unlock the door of another room on the same hall as room 228. Officer Cotter handcuffed and searched Swann but found no knife in his possession. According to Officer Cotter's partner, Officer Nicholas Territo, Swann seemed "puzzled" by being detained, but was "very hippy like, very kind of mellow, like . . . a stoner kind of guy" and was not upset.
Officer Cotter then went to room 228 to speak to Eslava, who acknowledged that he had made the 911 call. Officer Cotter asked Eslava why he had called since Swann did not have a knife. Eslava, who was "agitated," maintained that Swann had a knife and had threatened him with it. He insisted that the officers search Swann again. Officer Territo did so, but again no knife was found. With Swann's permission, Officer Territo also searched Swann's area of the room and found a small, folded Swiss Army knife in the nightstand. Eslava then admitted that he had called 911 because Swann "owed him $500," and because Swann had "been in the room all night bothering" him and "wouldn't turn the lights off." The officers decided there was no reason to arrest Swann, and they left after making sure that the roommates were not going to fight.
Several witnesses testified about the following day's events. One hotel resident testified that around 5:30 a.m. on January 2, she heard running in the hallway and Swann saying, "Stop him; stop him; he has my keys." She recalled hearing Swann at the front desk on two separate occasions later that day yelling about not having his keys and sounding "really upset." Swann was normally "goofy," and she had never before observed him so angry.
One of the hotel's managers testified that Swann came to the front desk around noon to ask for his keys, claiming that Eslava had taken them. Eslava had previously toldher that Swann was going to move out on December 31. Swann was "very upset" and "very rude," which she found to be unusual behavior for him. The manager told Swann that Eslava was in their room and that Swann should try to get a key from him. A few hours later, a housekeeper came to the manager's office and told her to call 911 because someone was bleeding in the hallway upstairs.
Another hotel resident testified that around 2:45 p.m., she heard several people in the hallway outside her room talking about someone bleeding. When she went outside to see what was going on, Swann was on his back in the hall and "[b]lood was everywhere." When she asked Swann, "Who did this?" he answered, "Mario." Eslava, who was standing near Swann, responded, "Self-defense," and he crossed his arms in front of his neck as if to signal that Swann had choked him from behind. When the police arrived, Swann told one of the officers that "Mario" was responsible and Eslava said, raised his hand, and again made a choking motion around his own neck.
Swann was stabbed 14 times, primarily in the abdomen and legs, and he died at the hospital from blood loss. A forensic toxicologist testified that Swann had Xanax and a "significant" amount of cocaine and methadone in his blood. He also tested positive for marijuana. The toxicologist testified that the drugs could have affected Swann's behavior and reaction to being stabbed in a number of ways, from giving him "super human strength" and making him more aggressive to making him calmer and less resistant to attack.
The police recovered a bloody knife, consistent with Swann's wounds, from a garbage can located a few feet from where Swann was lying. A crack pipe was found in Swann's pants, but he did not have any weapons.
Several witnesses testified about prior incidents in which Eslava had been violent or threatening. A postal worker testified that Eslava hit him in the head with a club after he refused to let Eslava collect mail from a box without showing identification. A chef instructor at City College of San Francisco testified that Eslava punched him in the faceafter he was unable to answer questions about a meal-card program. A San Francisco police officer testified that she detained Eslava after he hit someone on the street in the face, apparently with a set of brass knuckles. Finally, a nurse at San Francisco General Hospital testified that while Eslava was being "treated for an acute psychiatric issue," she heard him say that "he was going to take a gun or a knife or anything that he could pass through a metal detector and kill" a certain police detective.
The defense contended Eslava stabbed Swann in self-defense after Swann put him in a chokehold from behind. In support of this theory, four witnesses testified at trial about Swann's propensity for violence. But the trial court limited the testimony of one of these witnesses, James Green, and excluded the testimony of a fifth witness, Michael Bollinger.
Green, a friend of Eslava's and fellow resident of the hotel, was permitted to testify that several days before the killing, Swann "physically confronted" Eslava by stepping very close to his face and, without making contact, backing him up against a wall. According to Green, Eslava had not provoked Swann and seemed "very, very intimidated." Green testified that Swann "backed . . . down" from Eslava when Green, who is approximately six feet, two inches tall, stood up. As we discuss in more detail below, Green was not, however, permitted to testify about a voicemail message Eslava left him on the morning of the killing.
The other three witnesses to testify about Swann's propensity for violence were Alejandro Gaitan, James Wisner, and Monique North. Gaitan, who worked in the bookstore at City College of San Francisco, testified that about three-and-a-half years before Swann's death, Swann became "very agitated" when the bookstore declined to buy back some of his books. Swann then grabbed a large sign weighing 40 to 50 pounds and threw it over an overpass outside "like he was throwing a javelin."
Wisner was a friend of Swann's, and he testified that while Swann was "a very nice person," he had "issues" and his drug use sometimes made him "unpredictable."Swann had become violent and had scared Wisner on a few occasions, including during one incident three to six months before Swann's death when Swann punched him.
Finally, North, who had a long-distance relationship with Swann, testified about two occasions when she feared him. A little more than a year before his death, Swann visited North at her home for two weeks and "act[ed] strange, and he would . . . sometimes be . . . spaced out, and he would just suddenly fall asleep or he would be going back and forth . . . sort of pacing around." While he was there, Swann became upset...
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