People v. Parras

• Decision Date: 19 June 2007
• Docket Number: No. F044512.,F044512.
• Citation: 152 Cal.App.4th 219,60 Cal.Rptr.3d 850
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Borrego PARRAS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

60 Cal.Rptr.3d 850

152 Cal.App.4th 219

The PEOPLE, Plaintiff and Respondent, v. John Borrego PARRAS, Defendant and Appellant.

No. F044512.

Court of Appeal, Fifth District.

June 19, 2007.

Certified for Partial Publication.^*

Heather MacKay, under appointment by the Court of Appeal, Oakland, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DAWSON, J.

John Borrego Parras (appellant) was acquitted of second degree murder but convicted of the lesser offense of voluntary manslaughter (Pen.Code, § 192, subd. (a))¹ in the beating death of Raquel Lombera. Though the homicide occurred in 1989, appellant was not charged until 2002. He was convicted the following year.

We find no merit to appellant's claims of instructional error. We agree that he received an unauthorized fine and that the case must be remanded under Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856 (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely). The judgment is otherwise affirmed.

FACTS

The badly beaten body of Raquel (also known as Rachel) Lombera was found in her apartment on September 18, 1989. Clad in only a shirt, her body lay between the couch and television. The remainder of her clothing was stacked next to the couch. She had a cut on her mouth, a large gash on her forehead, and her eyes were swollen. Her blood and teeth were spattered on the couch; blood was spattered on a picture on the wall behind her head. Pieces of a broken wooden chair were scattered about the room. Blood and hair was embedded in a portable radio found near her foot, and a telephone was nearby with the line pulled from the wall. Six empty beer cans were found in the apartment. Ms. Lombera's car was located a short distance from the apartment complex.

An autopsy revealed Ms. Lombera suffered a compound fracture to her jaw. Four of her teeth were knocked out. She had defensive wounds on her hands and arms and 12 to 15 distinct wounds to her head. An L-shaped wound on the top of her head was consistent with an injury from the portable radio found near her body. The injury caused a brain hemorrhage and, several hours later, her death.

The case remained unsolved for 13 years, but, in February 2002, appellant was identified as a possible suspect from an artist's sketch.

Appellant was interviewed by Detective Brandon Shoemaker in 2002 in San Diego. In a taped interview, appellant admitted he had been with Ms. Lombera at her apartment in September 1989. He related that, at that time, he was a heavy drinker and suffered from "blackouts." He and Ms. Lombera worked at the same bar. They were sexually involved, but appellant's wife was unaware of the relationship. On the night of September 16, appellant left the bar with Ms. Lombera and several others to drink beer. Later, appellant and Ms. Lombera went to her apartment to drink more beer. After they had sex on the couch, appellant told Ms. Lombera he no longer wanted to see her. Ms. Lombera threatened to tell appellant's wife about the relationship, and they began to fight. Appellant was "mad" and hit Ms. Lombera two or three times in the face. Appellant did not realize he had killed Ms. Lombera, because she was still moving when he left her apartment. Appellant took Ms. Lombera's car and drove to his stepson's apartment.

At trial, appellant testified he was an alcoholic and, at the time of the incident, drank nine to 12 beers a day. Appellant stated he had known Ms. Lombera for approximately six months. On the night in question, appellant drank several beers at home and six beers at the bar. Appellant and Ms. Lombera left the bar with two others and drank more beer. Eventually, appellant and Ms. Lombera went to her apartment, where they drank beer and had sex. Appellant told Ms. Lombera he no longer wanted to see her, and she threatened to tell appellant's wife he had been with her. Ms. Lombera went to get the phone, and appellant yanked it from the wall. Ms. Lombera hit appellant, and he hit her back. Appellant did not recall hitting Ms. Lombera with anything other than his hand, or hitting her in any way that would have been life-threatening. He did not intend for her to die. Appellant claimed not to have known Ms. Lombera died until Detective Shoemaker told him in 2002. He had been very drunk and remembered nothing else from that night.

Appellant's former daughter-in-law testified that, at the time of the incident, appellant drank daily and frequently to excess. She had witnessed a number of occasions when appellant behaved violently when drunk and then could not remember what he had done.

DISCUSSION

1. Voluntary manslaughter instructions

Appellant was charged with murder and convicted of voluntary manslaughter. He contends the trial court erred in giving an instruction on voluntary manslaughter that allowed a conviction based on a homicide committed without an intent to kill. He argues that, instead, the trial court should have instructed that voluntary manslaughter requires such intent.

Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Manslaughter is the unlawful killing of a human being without malice and is divided into three classes: voluntary, involuntary, and vehicular. (§ 192.) "A defendant lacks malice and is guilty of voluntary manslaughter in `limited, explicitly defined circumstances: either when the defendant acts in a "sudden quarrel or heat of passion" [citation], or when the defendant kills in "unreasonable self-defense"....' [Citation.]" (People v. Blakeley (2000) 23 Cal.4th 82, 87-88, 96 Cal.Rptr.2d 451, 999 P.2d 675 (Blakeley); § 192, subd. (a).)

Prior to our Supreme Court's opinions in Blakeley and the companion case of People v. Lasko (2000) 23 Cal.4th 101, 96 Cal.Rptr.2d 441, 999 P.2d 666 (Lasko), it had been held that the intent to kill was an essential element of voluntary manslaughter. (See, e.g., People v. Shannon (1996) 46 Cal.App.4th 1365, 1368-1369, 54 Cal. Rptr.2d 416.) In Blakeley and Lasko, however, our high court held to the contrary. Instead, voluntary manslaughter may also occur when one kills with a conscious disregard for life but no intent to kill. Following the decisions in Blakeley and Lasko, former CALJIC No. 8.40 was revised to include as a required element of the crime of voluntary manslaughter proof that "[t]he perpetrator of the killing either intended to kill the alleged victim, or acted in conscious disregard for life...." (CALJIC No. 8.40 (2001 rev.).)

Appellant contends the trial court committed prejudicial instructional error by giving the post-Blakeley/Lasko voluntary manslaughter instruction (CALJIC No. 8.40), when the charged offense occurred in 1989. Because the new version of CALJIC No. 8.40 enlarged the crime of voluntary manslaughter by not requiring an intent to kill, appellant argues, its retroactive application violated his state and federal constitutional rights to due process. Absent the erroneous instruction, he concludes, he would have been convicted of involuntary rather than voluntary manslaughter. Respondent contends the instruction as given was proper. We agree.

The defendant in Blakeley, who was charged with murder, claimed self-defense and imperfect self-defense, and was convicted of voluntary manslaughter. He contended on appeal that the trial court erred in refusing to instruct on involuntary manslaughter based on an unintentional killing done without malice because of the unreasonable belief in the need to defend against the victim. The court rejected the argument and held that "when a defendant, acting with a conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary rather than involuntary manslaughter." (Blakeley, supra, 23 Cal.4th at p. 91, 96 Cal. Rptr.2d 451, 999 P.2d 675.) The court went on, however, to hold that this rule could not be applied retroactively to the Blakeley defendant's case because it constituted an "unforeseeable judicial enlargement of the crime of voluntary manslaughter." (Id. at p. 92, 96 Cal.Rptr.2d 451, 999 P.2d 675.) As explained by the court:

"[W]hen defendant killed [the victim six years earlier] this court had not yet addressed the issue of whether an unintentional killing in unreasonable self-defense is voluntary or involuntary manslaughter. But three decisions by the Courts of Appeal in this state held that such a killing was only involuntary manslaughter [citations]; no case held to the contrary. Thus, our decision today— that one who, acting with conscious disregard for life, unintentionally kills in unreasonable self-defense is guilty of voluntary manslaughter rather than the less serious crime of involuntary manslaughter—is an unforeseeable judicial enlargement of the crime of voluntary manslaughter, and thus may not be applied retroactively to defendant." (Ibid.)

In Lasko, the defendant was convicted of second degree murder after the beating death of his employer, which he contended occurred in the heat of passion. (Lasko, supra, 23 Cal.4th at pp. 104-105, 96 Cal. Rptr.2d 441, 999 P.2d 666.) The jury was instructed on murder and on the lesser included offense of voluntary manslaughter. On appeal, the defendant argued the trial court erroneously instructed that intent to kill was an essential element of voluntary manslaughter, forcing the jury to reach a murder verdict if it found no intent to kill. (Id. at p. 106, 96 Cal.Rptr.2d 441, 999 P.2d 666.) Interpreting section 192, subdivision (a), the Supreme Court found the plain language of the statute contained no requirement of intent to kill.² Therefore, the court held that a killing in a sudden quarrel or heat of passion constitutes voluntary...