P. v. Ordonez CA2/8

California Court of Appeal

P. v. Ordonez CA2/8

California Court of Appeal·Decided April 11, 2013·No. B238528·Unpublished

Opinion

Filed 4/10/13 P. v. Ordonez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

THE PEOPLE, B238528 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA068187)

v. MARTIN ORDONEZ, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael V. Jesic, Judge. Affirmed as modified.

Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Pamela C. Hamanaka, Deputy Attorneys General, for Plaintiff and Respondent.

******** Defendant and appellant Martin Ordonez was convicted by jury of one count of first degree murder of Crystal Zaldivar (Pen. Code, § 187, subd. (a)). The jury also found true the special allegation that he personally used a deadly weapon, a knife, in the commission of the murder (§ 12022, subd. (b)(1)). Defendant was sentenced to a term of 26 years to life in state prison. Defendant contends the trial court committed reversible error by refusing to instruct on (1) the lesser included offense of voluntary manslaughter, based on imperfect self-defense and heat of passion, and (2) voluntary intoxication causing unconsciousness, as well as its effects on homicide crimes. Defendant further contends the trial court erred by ordering him to pay attorney fees in the amount $400, without notice or an opportunity to be heard. (Pen. Code, § 987.8, subd. (b).) We conclude the trial court did not err in refusing to instruct on voluntary manslaughter, under either theory, and voluntary intoxication causing unconsciousness. We do not decide whether the trial court should have instructed on the effects of voluntary intoxication on homicide crimes as we find any alleged error to be harmless. We therefore affirm. However, we reverse the attorney fee order and strike it from the judgment in that the trial court failed to hold a hearing pursuant to section 987.8, subdivision (b).

FACTS AND PROCEDURAL BACKGROUND 1. The Crime Scene Sergio Munoz worked for a company that handled maintenance at an apartment complex in the 7000 block of Whitsett Avenue. At about 10:00 a.m., on June 26, 2009, he received a phone call concerning ―a rather serious leak in apartment 1,‖ on the first floor. At about 3:00 p.m., Munoz responded to the location, observed the leak and requested a key from the building manager to enter apartment 4, above apartment 1, to identify the source of the leak. The manager did not have a key. Nevertheless, Munoz gained entrance via an unlocked screen door and an open front door. Inside, he saw ―Crista,‖ lying on the floor. He closed the door and notified the authorities.

2 Los Angeles Police Officer Joel Gutierrez responded to the location. He, too, saw Crystal lying on the floor. She was not breathing and had no pulse. No one else was inside the apartment, only a small dog (or dogs). Water was overflowing from the bathtub. Gutierrez turned off the bathtub faucet and secured the crime scene. Los Angeles Police Detective Thomas Townsend responded to the Whitsett apartment complex sometime after 3:30 p.m. En route to apartment 4, he observed what appeared to be drops of blood at the bottom of the stairs, on various steps and at the top of the landing. Townsend entered the apartment and observed Crystal lying on the wet carpet floor. Someone from the fire department had placed a blanket over her. In the kitchen, Detective Townsend observed six glass slats had been removed from a louvered window and stacked on the counter. The window screen had also been removed. In the bathroom, Townsend observed water on the floor. Ogbonna Chinwah, MD, Deputy Medical Examiner, Los Angeles County Department of Coroner, observed that Crystal sustained between 40 and 42 sharp force injuries. She suffered 15 stab wounds to her face, seven of the which were fatal, six stab wounds to her neck, all fatal, four stab wounds to her chest, two of which were fatal, and eight stab wounds to her abdomen, none of which were fatal. She had multiple defensive wounds to her hands and arms, and bruising on her forearm, consistent with being held in place. Chinwah determined the manner of death to be homicide and the cause of death to be multiple sharp force injuries. Although Crystal had Carboxy THC and 0.07 percent methamphetamine in her blood, neither contributed to her death.

2. The “Robbery” Around noon, June 26, 2009, Los Angeles Police Department Officer Rafael Tobar responded to an emergency call of an ambulance dispatched to handle a ―cutting‖ at the Whitsett apartment complex. Upon arrival, Tobar spoke to Juan M., defendant‘s 13-year-old brother. Juan stated that he and defendant were in an alley nearby and were approached by a couple of individuals who tried to rob them.

3 Defendant was taken by ambulance to the hospital. At the hospital, Tobar observed numerous cuts on defendant‘s hands. Defendant told Tobar that he and Juan were walking down the alley when two male blacks, wearing black ski masks and black clothing, approached from behind and demanded that they give up ―whatever they have‖ ―if they didn‘t want to get hurt.‖ Both assailants were holding knives. One of the robbers lunged at defendant. Defendant grabbed the knife and told his brother to run for help. Later that afternoon, Officer Tobar returned to the Whitsett apartment and described for Detective Townsend the slices on defendant‘s hands. Given defendant stated he was robbed at knife point, Townsend suspected the two crimes might be related and defendant may have been ―the last person who may have seen these people.‖ Townsend also considered if defendant had stabbed Crystal with a knife without a hilt, he could have caused the injuries to his hands.

3. Juan M.’s Statement to the Police Defendant and Juan were transported to the North Hollywood police station. Detectives Townsend and O‘Donnell spoke first to Juan. Juan told the detectives two men with ski masks tried to rob defendant and him at knife point in the alley, and that he ran while defendant fought them off, sustaining cuts to his fingers. The detectives informed Juan they expected to obtain security video footage of the incident from an adjacent Chevron gas station. A few minutes later, after some cajoling by the detectives, Juan recanted: ―The truth is I was at home . . . playing. Then my brother leaves. He‘s like, stay here. [¶] I said, okay. And then I – I go and get something to eat. . . . [¶] Then I hear he just knocks hard. And . . . I just opened the door. And then I see the cuts. [¶] I said, ‗what happened? . . . .‘ [¶] He‘s like, ‗all right, listen . . . if the police come, tell them . . . that you were with me the whole day and that

4 we went to go back here [sic].‘ [¶] And I said, ‗okay.‘‖ Juan added defendant was gone for less than an hour, maybe 10 to 20 minutes.1

4. Defendant’s Statement to the Police Detectives Townsend and O‘Donnell informed defendant they had a long conversation with Juan. They asked defendant, ―What do you think he told us about the black guys with the ski masks ?‖ Defendant responded ―they weren‘t true.‖ The detectives then asked if Juan was telling the truth (i.e., there were no black robbers with ski masks). Defendant answered, ―Yes.‖ Defendant then gave a second version of what transpired.

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