People v. Esquivel, E011157

• Decision Date: 04 October 1994
• Docket Number: No. E011157,E011157
• Citation: 28 Cal.App.4th 1386,34 Cal.Rptr.2d 324
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John Eric ESQUIVEL, Defendant and Appellant.

Page 324

34 Cal.Rptr.2d 324

28 Cal.App.4th 1386

PEOPLE of the State of California, Plaintiff and Respondent, v. John Eric ESQUIVEL, Defendant and Appellant.

No. E011157.

Court of Appeal, Fourth District, Division 2, California.

Oct. 4, 1994.

[28 Cal.App.4th 1389] Corinne S. Shulman, Hydesville, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., William M. Wood and Kyle Niki Cox, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

DABNEY, Acting Presiding Justice.

A jury convicted defendant John Eric Esquivel ¹ of first degree murder (Pen.Code, § 187) ² and found true the special allegation that a principal was armed with a firearm (§ 12022, subd. (a)(1)). The trial court sentenced Esquivel to a term of 25 years to life for the murder, plus a 1-year enhancement for the armed allegation.

On appeal, Esquivel contends the trial court erred in failing to instruct the jury that to find him liable for felony murder on an aider and abettor theory, it had to find he became an aider and abettor before the victim was fatally wounded. He also asserts that instructing the jury with CALJIC No. 2.15 violated his due process rights because the instruction allowed the jury to infer his guilt of robbery from circumstances, i.e., possession of recently stolen property plus slight corroboration, that did not afford a rational basis for such inference. Finally, he notes that a clerical error appears in the abstract of judgment.

FACTS

Thomas Cotanche returned to his home after work on March 22, 1991, and discovered the body of his 18-year-old daughter, Jenny. Jenny had not felt well that morning, and had stayed home alone.

Jenny's body was in the kitchen area. There was kielbasa on the counter, although Jenny did not usually prepare or eat kielbasa. Jenny had died from a gunshot wound to the head and from four blows to her head which fractured her skull. There were defensive bruises on her hands and forearms and bruises on the side of her torso consistent with her having been kicked while on the floor.

The upstairs master bedroom and a closet on the ground floor had been ransacked. The master bedroom door was usually locked, but the key was kept hidden on a shelf nearby. Several shotguns and rifles were missing from the downstairs closet. A handgun, jewelry, and coins were missing from the bedroom. A CD player was taken from the den, and some CD's were taken from Jenny's bedroom.

There were no signs of forced entry into the house. Shoe impressions leading away from the house were found in damp soil behind the house. The impressions matched the pattern of the shoes Esquivel was wearing when he was arrested on April 5, 1991. It was stipulated that the shoes were of a fairly common brand and size.

Esquivel had been acquainted with Jenny and had been to her house several times with his girlfriend, Mary Walmsley. Walmsley was the sister of Jenny's best friend. Jenny sometimes entertained friends in her bedroom, and her friends frequently wrote with markers on the three mirrored closet doors. After her murder, the following names, among others, were written on the mirrors: "H.L.O.S.T.", which was Esquivel's nickname; "Thumper," which was Brown's nickname; and "Sperm," which was Wilson's nickname. Mrs. Cotanche testified those names had not been on the door when she left for work the morning of the murder. Mrs. Cotanche had last seen Esquivel and Walmsley in Jenny's room on March 19, 1991. Walmsley testified she and Esquivel had written the names a few days before the murder when they had been at Jenny's house. After his arrest, Esquivel told the police he had written the names some time in the past.

Esquivel's father came home for lunch on March 22, 1991, around noon. Esquivel was there with Wilson and Brown. After Wilson and Brown left, Esquivel told his father Jenny had been killed.

The evening of Jenny's murder, Esquivel went to Domanique Toney's house where Esquivel laughed and joked when he related those events to Toney and Walmsley. Esquivel handed Toney a gun and asked her to hide it for him. Walmsley had not seen the gun before that night.

                Walmsley lived.  Esquivel told Toney that Jenny was dead, her body had been found in the kitchen, and the police had let him view it.  Esquivel told Walmsley that he, Wilson, and Brown had gone to Jenny's house that morning.  They were watching television in the living room while Jenny was in the kitchen.  Jenny asked Wilson to leave because she believed he had been involved in the theft of a credit card from her earlier in the year.  Esquivel also told Wilson to leave.  Wilson started to leave, but then got into an argument with Jenny and began beating her on the head with a gun.  Wilson asked Brown and Esquivel to shoot her;  they each said, "Not me."   Wilson then shot her in the head.  Esquivel described Jenny's body as lying half in the kitchen and half on the living room rug.  That was the position her body was in when discovered by her father
                

Officers searched Esquivel's house pursuant to a search warrant on April 5, 1991. They found two of Mr. Cotanche's shotguns (the barrels of which had been shortened), one of his rifles, and his handgun. None of those weapons was the murder weapon. It was stipulated that the murder weapon was recovered from someone other than Esquivel. The end portion of a shotgun barrel was found in a search of Wilson's house.

While the officers were executing the search warrant, Esquivel told them Wilson and Brown had committed the murder. He insisted he had been at his home at the time of the murder. The interrogating officer, bluffing, told Esquivel he knew Esquivel had been at the Cotanches' house during the murder. Esquivel then admitted being present when Jenny was beaten. He said Brown and Wilson had held a gun to his head and told him they would kill him if he said anything about the killing. He claimed he had left the Cotanches' house when the beating began. He said he had run down the hall toward the garage, into the garage, through the side door, and over the back fence. The officer, still bluffing, said that bloodstains had been found on Esquivel's shoes. Esquivel said that Wilson might have been wearing his shoes. He then said he was standing near Jenny when the beating took place, and he tried to get out through locked French doors in the dining area. He said the beating began after he told Wilson Jenny wanted Wilson to leave because of the credit card problem. Wilson started to leave, but then came back and began to hit Jenny.

He told the officer he had gone to the house that morning to see Walmsley. Although he had not previously arranged to meet Walmsley, he had intended to call her from Jenny's house. He had tried to call Jenny three times that morning, but she had not answered the telephone. He nonetheless thought she was home because she might have been outside smoking. She had called him earlier that morning when he was still asleep, and he had told her he would call her back.

Brown and Wilson drove him to Jenny's house and dropped him off at the end of the street. He believed they were going to go to a high school to look for girls. He thought they had no intention of going to Jenny's house. He went inside Jenny's house and used the upstairs bathroom. When he came downstairs, Wilson and Brown were coming in through the back door.

He did not come to Jenny's aid because he was afraid of Wilson and Brown. After the crimes, Wilson had brought the guns to his house and told him to watch them for him.

DISCUSSION

I Felony-Murder Instructions

Esquivel contends the trial court erred in failing to instruct the jury sua sponte that if Esquivel became an aider and abettor to a robbery after the victim had already been fatally wounded, he could not be found guilty of felony murder. The case was submitted to the jury solely on a felony-murder theory.

The People respond that the instructions given correctly stated the law; the evidence A. Application of Felony-Murder Doctrine. The court instructed the jury on general principles of felony murder and aider and abettor liability. (CALJIC Nos. 8.10, ³ 8.21, ⁴ 8.27); ⁵ on the concurrence of act and specific intent (CALJIC No. 3.31); ⁶ and on the definition of robbery. ⁷ Finally, the court instructed the jury on aider and abettor liability with respect to robbery. ⁸ However, Esquivel contends that the jury should also have been instructed that the felony murder doctrine did not apply unless the jury found that Esquivel formed the intent to participate in the robbery before Jenny was killed.

did not support Esquivel's proposed instruction; and the court had no sua sponte obligation to give an instruction on the timing of Esquivel's intent.

The information did not charge Esquivel with robbery, but only with murder. The People did not attempt to prove that Esquivel himself was the killer; rather, the People's theory at trial was that Esquivel was guilty of felony murder as an aider and abettor of the robbery.

The prosecutor argued to the jury that Jenny was already dead when the property was taken, but that if Esquivel participated in taking property, he was guilty of felony murder, even if he did not join the plan to rob until after the murder, so long as Wilson The People contend, based on People v. Cooper (1991) 53 Cal.3d 1158, 282 Cal.Rptr. 450, 811 P.2d 742, that the instructions given and the argument based on those instructions correctly stated the law. In Cooper, the court held that "... the commission of a robbery for purposes of determining aider and abettor liability continues until all acts constituting the robbery have ceased." (Id. at p. 1161, 282 Cal.Rptr. 450, 811 P.2d 742.) ¹¹ Thus, the court concluded, "The asportation, the final element of the offense of robbery, continues so long as the stolen property is being carried away...