People v. Sotomayor, B207064 (Cal. App. 8/27/2009), B207064

Decision Date27 August 2009
Docket NumberB207064
CourtCalifornia Court of Appeals Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. ELIANA SOTOMAYOR, Defendant and Appellant.

Appeal from a judgment of the Superior Court of Los Angeles County, No. BA295122, William C. Ryan, Judge. Affirmed in part, reversed in part.

Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez, Sarah J. Farhat, and Catherine O. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

CHAVEZ, J.

Eliana Sotomayor appeals from the judgment entered upon her convictions by jury of first degree burglary (Pen. Code, § 459, count 1),1 attempted murder of Roberto Sotomayor (Roberto) (§§ 664, subd. (a), 187, subd. (a), count 5), and three counts of assault with a deadly weapon against three peace officers (§ 245, subd. (d)(1), counts 6-8).2 The jury found to be true with respect to count 1 the allegation that defendant personally used a firearm within the meaning of section 12022.5, subdivision (a), with respect to count 5 the allegations that defendant committed the attempted murder willfully, deliberately and with premeditation within the meaning of section 664, subdivision (a) and personally used a firearm within the meaning of section 12022.53, subdivision (b), and with respect to counts 6, 7, and 8 the allegations that defendant personally and intentionally used a firearm within the meaning of section 12022.53, subdivisions (b) and (c) and section 12022.5, subdivisions (a) and (b). The trial court sentenced defendant to an aggregate state prison term of life plus 56 years.

Defendant contends that (1) the trial court erred in failing to instruct the jury sua sponte on self-defense and attempted voluntary manslaughter on a theory of imperfect self-defense; (2) the trial court erred in refusing to instruct on the defense of unconsciousness in accordance with CALCRIM No. 3425 as a complete defense to the assault charges; (3) the trial court erred in instructing the jury that it could find defendant guilty of attempted murder on an implied malice theory; (4) the instruction regarding assault on a peace officer with a deadly weapon (CALCRIM No. 860) erroneously permits conviction based on criminal negligence; (5) there is insufficient evidence to support the attempted murder conviction; (6) there is insufficient evidence to support the burglary conviction because there was no evidence that defendant entered the building with the intent to commit a felony; and (7) there is insufficient evidence that defendant used a firearm in the commission of the attempted murder.

We strike the firearm enhancement in connection with count 5 and otherwise affirm.

FACTUAL BACKGROUND
The Charged Incident

In the afternoon of December 19, 2005, uniformed Los Angeles Police Officers Alma Mercado (Mercado) and Adam Mezquita (Mezquita) responded to a burglary call at a duplex on Griffith Park Boulevard, in the Silverlake area of Los Angeles. There, they met Officers Lenning Davis (Davis) and Refugio Ortiz (Ortiz), who had arrived first and seen a chair beneath a side window. Mercado and Mezquita knocked on the door of the apartment, announced that they were "L.A.P.D." and ordered the occupant to open the door. Defendant asked how she could be sure they were police. She was told she could see the police cars through the window and, if she came outside, could see they were in uniform.

Mercado walked to the other side of the residence, where she met Davis and Ortiz near the bathroom window, which had just been closed. The officers told defendant that they were going to enter if she did not come out. Defendant said, "I don't care who you are. I'm not coming out." Mercado and Ortiz then climbed through the small bathroom window, Davis went to the front door.

Once inside, Mercado and Ortiz drew their guns, cleared the house room by room, and then entered the living room where defendant, a petite, 60-year-old woman, was sitting on the couch with a pillow on her lap. She was yelling at someone on her cell phone.3 Mercado ordered defendant to raise her hands and to stand up. Defendant briefly raised her hands, but did not stand. After the other two officers came into the room, their directions were repeated, but defendant ignored them. She yelled into the cell phone, "You'd better get over here. I have these fucking officers pointing guns to my head." Approximately 10 times, she raised one hand, moved it down and placed it under the pillow.

Mercado saw that defendant was hiding something under the pillow and asked her "What do you have under the pillow? Let me see. Put your hands up." Defendant did not comply, but continued to put one hand under the pillow, then raise it, then return it under the pillow. Mercado tried to grab the pillow away, but defendant grabbed it back. During this maneuver, Ortiz believed he saw a gun on defendant's lap.

The officers viewed defendant's actions as aggressive and threatening, and devised a plan to pepper spray defendant and, if she reached for anything, to fire a beanbag round at her. The officers warned defendant that if she continued to be uncooperative, Mercado was going to spray her with pepper spray which would burn her eyes, and if defendant reached for anything, she would be shot with a beanbag which would hurt. Defendant nonetheless continued ignoring them, talking on the cell phone, and placing her hand under the pillow. Mercado then discharged a three-second burst of pepper spray into defendant's eyes. Defendant did not put her hands to her eyes, the normal response, but instead reached under the pillow. Davis and Mezquita yelled, "She's reaching for something!" Mezquita then shot the beanbag at her, hitting her on her left thigh and abdomen.

A "split second" later, defendant raised the pillow with one hand on top and the other underneath it. She aimed a gun at the officers. Mezquita saw her raise the pillow with the gun and shoot at him and aim at his partner. Mercado heard two or three shots. Davis saw two muzzle shots flash from under the pillow and recognized the object under the pillow as a gun. He tried to shoot defendant with his service revolver but stopped because Mercado came within his line of fire. Davis ordered the other officers out of the house.

While they were running from the duplex, Davis heard one shot from inside the residence. Mercado and Mezquita heard a shot from inside approximately 8 to 10 minutes later. The officers also heard defendant inside breaking things. Other officers and a SWAT team arrived. Approximately two hours later, defendant exited the residence with her hands up.

Erin Epps (Epps) lived in the duplex with Roberto, her boyfriend and their one-year-old child. Defendant had come to Epps's house three prior times and had spoken with Epps on the phone. Defendant referred to Roberto as a "devil, as a snake, a slithering snake." Epps was out of town on December 19, 2005, and had not given defendant permission to be in her residence. When Epps returned home, she found her usually neat home in disarray. A photograph of Roberto's and defendant's daughter holding Roberto's and Epps's infant daughter was missing from the refrigerator; the baby's crib had been moved out of the bedroom; and a stool had been placed in it upside down. There was a box under the crib and a bullet nearby. Epps found a hole in the crib that went through several baby blankets, the mattress and the bottom board of the crib. Between the blankets was the wrinkled, missing photograph of the two girls.

The Investigation

Detective Brian Carr arrived at the scene of the shootings between 2:30 p.m. and 3:00 p.m. Defendant was already in custody. Carr found the house in complete disarray. A search of the residence uncovered a .357-caliber revolver in the living room, which had been registered to defendant on November 5, 2005.

Amy Driver (Driver), a criminalist, arrived a few hours after the incident. She determined that there were three bullet paths, all in an upward direction from the sofa. One of the bullets was fired toward a mannequin and wall behind it, near where one officer had been standing and the other two shots were fired toward the front door where two other officers stood. Driver later compared the bullets test fired from defendant's gun with ballistic evidence from the scene and determined that the bullets recovered from the residence were fired from defendant's handgun.

Defendant's Statement

A police detective conducted a tape-recorded interview with defendant in the emergency room of Glendale Memorial Hospital where she was taken to be treated for injuries to her thigh and stomach. Defendant told the detective that she had gone to the duplex to speak with her husband, entered the window and sat down "waiting for [Roberto] to give [her] the money," which she had been trying to get from him to cure a venereal disease he had given her. She had purchased the gun months before in order to scare Roberto. She said that she loaded the gun and brought it with her because she "was tired asking for twenty years for [her] husband to pay [her] for the illness" and intended to kill him. She also said that she went to the duplex to get Roberto to pay for her medical treatment, "That's what I was going to do that's all." "I wasn't expecting to kill or do anything. I just want to talk to my husband" and scare him. She said that she would not "kill a fly." She had previously had the gun in her possession when she was with Roberto, but each time "could not do it." She said that when the police shot her, she "fell straight on the couch" and simply reacted automatically and instinctually, firing back.

DISCUSSION
I. Instructional Errors
A. Applicable principles

In criminal case...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT