People v. Lujan

• Decision Date: 23 October 2001
• Docket Number: No. B140027.,B140027.
• Citation: 112 Cal.Rptr.2d 769,92 Cal.App.4th 1389
• Parties: The PEOPLE, Plaintiff and Respondent, v. Reuben Kenneth LUJAN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

112 Cal.Rptr.2d 769

92 Cal.App.4th 1389

The PEOPLE, Plaintiff and Respondent, v. Reuben Kenneth LUJAN, Defendant and Appellant.

No. B140027.

Court of Appeal, Second District, Division 5.

October 23, 2001.

Certified for Partial Publication.^*

As Modified Oct. 25, 2001.

Rehearing Denied Nov. 9, 2001.

Review Denied Jan. 29, 2002.

Richard D. Miggins, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Marc J. Nolan, and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

Defendant, Reuben Kenneth Lujan, appeals from his conviction for two first degree murder counts (Pen.Code,¹ § 187, subd. (a)) and one stalking count. (§ 646.9, subd. (a).) Defendant was also found to have personally used a deadly weapon in the commission of both murders. (§ 12022, subd. (b)(1).) The jury also made true findings regarding the special circumstance allegations of intentional killing while lying in wait and conviction of multiple murders. (§ 190.2, subds.(a)(3), (a)(15).) Defendant was convicted of stalking in the initial trial. A mistrial was declared as to the two murder counts at that trial because the jury was unable to reach a verdict on the homicide charges. The homicide convictions and related special findings occurred during a retrial.

In the published portion of this opinion, we discuss two issues. First, we evaluate whether the advisement of rights given by detectives to defendant, who was in custody, complied with the holding of Miranda v. Arizona (1966) 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694. We conclude the advisement of rights did not comply with Miranda but that the erroneous admission into evidence of defendant's confession was harmless error. Second, we discuss the question of whether defendant, who was obsessively stalking his estranged spouse, was entitled to voluntary manslaughter instructions on a heat of passion theory. We conclude he was not. We affirm the judgment.

II. FACTUAL BACKGROUND

We begin by setting forth the general factual background. Later, while discussing the heat of passion instructional error issue, we will identify additional facts which relate more specifically to that question. Defendant and Monica Lujan were married. They had two sons together. In April 1998, Ms. Lujan and defendant separated. Ms. Lujan and their sons then moved in with her mother, Frances Velazquez. Defendant telephoned Ms. Lujan two or three times each day following their separation. In July 1998, Ms. Lujan returned to her mother's home at midnight after seeing a movie with Rachel Romero. Ms. Velazquez heard Ms. Lujan yell at defendant about being outside with their children that late at night. Defendant had the two boys in his car. The children were wearing only their underwear. Ms. Lujan telephoned Ms. Romero later that night. Ms. Lujan was upset and crying. Ms Romero suggested that Ms. Lujan document what was occurring with defendant. The following day, Ms. Lujan showed Ms. Romero the notes concerning the troubled relationship.

On July 17, 1998, defendant went to Ms. Velazquez's home. Defendant was scheduled to care for their youngest son, Adrian, for the weekend. Ms. Lujan was going to Las Vegas with family members. Defendant suggested that he and Ms. Lujan go to Las Vegas with their children. Ms. Lujan told defendant that she wanted "nothing to do with him." Despite Ms. Lujan's repeated requests that he leave, defendant refused to do so. Defendant called to her several times from outside Ms. Velazquez's home. Two deputy sheriffs from the Norwalk station arrived at Ms. Velazquez's home. They told defendant that he was not wanted on the premises because he had previously been reported for harassment of Ms. Lujan.

When Ms. Lujan's family arose to travel to Las Vegas the next morning, she saw defendant's car parked down the street. Defendant followed Ms. Velazquez's car. Defendant yelled at Ms. Lujan. Someone in Ms. Velazquez's car telephoned the sheriffs station. They reported that defendant was harassing them. Defendant was driving in and out of lanes and following too closely. They feared that he would hit their car. Ms. Velazquez was told to drive to the sheriffs station. Once at the station, defendant continued to yell at Ms. Lujan. He told her: "You're never going to get rid of me, Monica." Deputy Timothy Holt then spoke to both defendant and Ms. Lujan. Ms. Lujan told Deputy Holt that since their separation, defendant had made several disturbing phone calls and followed her. During the previous week, Ms. Lujan had noticed defendant's car parked near her home and work. Ms. Lujan had also seen defendant standing outside her work address waiting for her. Ms. Lujan told Deputy Holt that she had told defendant to leave her alone or she would obtain a restraining order. Defendant responded: "Go ahead. That is, if you're still alive." Ms. Lujan told Deputy Holt that defendant had simulated a gun with his fingers and placed it to her head saying, "This is going to be you." Ms. Lujan also stated that defendant had attempted to choke her when they separated five years earlier. Defendant told Ms. Lujan, "I'll kill you if you try to leave me."

Defendant also spoke with Deputy Holt. Defendant said he and his wife were just arguing. Defendant appeared strange to Deputy Holt. Defendant would not look at Deputy Holt. He stared at Ms. Lujan. Defendant acknowledged that there had been domestic violence in the past but did not elaborate. Defendant was arrested for making terrorist threats and stalking. Deputy Holt wrote a nine-page report regarding the incident.

On July 20, 1998, Sergeant Terri Williams telephoned defendant at work following his release from custody. Sergeant Williams advised defendant several times to stay away from Ms. Lujan. Defendant made light of Sergeant Williams's warnings. Sergeant Williams also spoke with Ms. Lujan the same day. Sergeant Williams explained the procedure for obtaining a restraining order. Ms. Lujan told Sergeant Williams that defendant threatened: "It's not over until I say so. You will not win."

Thereafter, defendant's phone calls to Ms. Lujan increased. On August 5, 1998, Deputy Holt drove past the Velazquez home. Ms. Lujan walked out to Deputy Holt's patrol car. She told Deputy Holt that she had filed for divorce. She was fearful that defendant would "blow up." On August 8, 1998, defendant was waiting in front of the Velazquez home when Ms. Lujan and Ms. Romero returned from a wedding at approximately 2 a.m. Ms. Lujan ran inside to call the authorities. Defendant jumped out of his car. He chased

Ms. Lujan as she ran. Mr. Velazquez asked defendant to leave. Defendant jumped up and down on the hood of his car. Defendant then got inside the car and left. Ms. Romero found Ms. Lujan inside. Ms. Lujan was crying and shaking. Defendant called the Velazquez residence while the deputies were present. Deputy Michael Van spoke to defendant by telephone. Deputy Van told defendant to stay away from Ms. Lujan's home. Defendant was advised he would be arrested if he did not stay away from Ms. Lujan.

On August 10, 1998, Deputy Holt informed Sergeant Williams about the August 8, 1998, incident. Sergeant Williams telephoned defendant. She also warned defendant about following or bothering Ms. Lujan. Defendant stated, "I just wanted to talk to her." Sergeant Williams told defendant: "[S]he is scared of you, stay away from her, do not harass her, don't contact her, don't call her, get an attorney, contact her through an attorney. She's afraid of you. If you contact her anymore, if I hear from her or another deputy sheriff that you have contacted her, I will personally come over and arrest you for stalking her." Defendant telephoned Sergeant Williams on August 13, 1998. Defendant acknowledged that he should not be bothering his wife. Defendant said he would not call or bother Ms. Lujan again.

On August 15, 1998, Ms. Lujan's family gathered to watch a professional prize fight on television. Ms. Lujan's brothers then played pool in the garage. Deputy Sheriff Gilbert Madrigal, a neighbor, was invited to join them. Deputy Madrigal stayed at the Velazquez home for approximately one hour. Deputy Madrigal and Ms. Lujan walked to his home two houses away. Ms. Velazquez remained on her porch to watch for defendant's car. Ms. Velazquez walked down to her front gate approximately four times between 12:15 and 1:35 a.m. Each time, she saw Ms. Lujan and Deputy Madrigal talking on the sidewalk in front of his home. Ms. Velazquez went inside at 1:35 a.m. and fell asleep. She had not seen defendant or his car.

At approximately 2:52 a.m. on August 16, 1998, Deputy Holt received an emergency call regarding a possible burglary at the house between the Velazquez home and that of Deputy Madrigal. Upon arriving, Deputy Holt saw the bodies of two individuals in the driveway area. Deputy Holt recognized Ms. Lujan as one of the victims. He was unable to detect any pulse or sign of life. The other victim was Deputy Madrigal, who had suffered a severe head injury. The blood from the injury appeared coagulated, suggesting that Deputy Madrigal had been laying there for some time. Deputy Madrigal was moaning for help. Deputy Holt instructed another arriving deputy to set up a containment of defendant's house. Deputy Holt went to defendant's home. Deputy Holt saw defendant's car parked across the street. Deputy Holt and another deputy secreted themselves in the nearby bushes. Defendant ran out of the house to his car. Defendant grabbed something out of the car and placed it in the waistband of his pants. Defendant then ran back into the house. A short time later, all occupants were ordered to come out of defendant's house. Defendant was then arrested.

Defendant's brother, George...