Filed 3/7/13 P. v. Laboy CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E054850

v.                                                                       (Super.Ct.No. SWF10000124)

CONCEPCION LAZU LABOY,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III,

Judge. Affirmed.

         Catherine White, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, William M. Wood and Kathryn

Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.




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       A jury found defendant and appellant Concepcion Lazu Laboy guilty as charged of

first degree murder (Pen. Code, § 187, subd. (a)), and further found true the allegation

under Penal Code section 12022, subdivision (b)(1), that defendant personally used a

deadly weapon, namely a knife, in the commission of that crime. The trial court

sentenced defendant to serve a determinate term of one year in state prison on the

allegation defendant personally used a deadly weapon, followed by an indeterminate term

of 25 years to life in state prison on the first degree murder conviction.

       In this appeal, defendant raises various claims of error, the details of which we

recount below in our discussion of those claims. We conclude, as we explain below, that

defendant’s claims are meritless. Therefore, we will affirm.

                                           FACTS

       According to the undisputed facts, defendant and his longtime girlfriend, whom he

refers to as his wife, were drug addicts who had been clean and sober for many years

before relapsing into their addictions. In an effort to regain their sobriety, they joined the

Santa Ana Restoration Church, an organization that counsels and assists drug and alcohol

addicts. Defendant recounts in detail in his opening brief the particulars of what church

involvement entailed. For our purpose, it is sufficient to note that church members lived

together in homes segregated by sex. Church members were required to solicit money to

fund the various homes and church activities. To that end, members would spend six to

eight hours a day in shopping centers and on the streets asking for donations.

       On January 5, 2010, Roumaldo Huerta, the leader of the church home where

defendant had then lived for about eight months, dropped defendant and another church


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member off to solicit money in a shopping area in Temecula. While there, defendant

went into a Rite-Aid and asked a cashier for an ice pick. The cashier was unsure whether

the store carried ice picks, but directed defendant to the hardware aisle. Defendant left

the Rite-Aid without making a purchase. Later, defendant went to a Wal-Mart store. A

security camera tape shows defendant in the sporting goods aisle where knives and

ammunition are displayed.

       Around 5:00 p.m., defendant entered a Big Lots store. He purchased a kitchen

knife for $3.81. Defendant paid for the knife with money he took from the glass jar that

contained the donations he had solicited that day. Outside in the parking lot, defendant

removed the knife from its plastic packaging, and concealed it somewhere on his person.

A few minutes later, Huerta arrived in a van to pick up defendant and another church

member. Defendant got into the front passenger seat. After Huerta buckled his seatbelt

and started to drive away, defendant attacked him with the knife. Defendant stabbed

Huerta 22 times on the face, neck, and upper torso. Huerta died while trying to unbuckle

his seatbelt and get out of the van.

       When defendant attacked Huerta, the other church member jumped out of the van

and started yelling for help. As shoppers gathered around, defendant left the knife

protruding from Huerta’s shoulder, got out of the van, and walked around to the driver’s

side. He showed his bloody hands to witnesses, and said, “I just killed this guy.”

Defendant was standing next to the van when the police arrived. From the backseat of

the patrol car after his arrest, defendant yelled to an officer passing by, “I bought the

knife at Big Lots.”


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       Defendant did not testify at trial. He relied on the testimony of a fellow church

member to argue that Huerta had been abusive to defendant, and that defendant bought

the knife because he was afraid of him. Defendant also argued that the killing was the

result of provocation by Huerta, as evidenced by defendant’s voice in the background on

a tape of one of the 911 calls in which he can be heard saying, “[unintelligible] he did to

me for 15 months. Push me, push me, push me in a program, you know? I try to do my

[unintelligible]. I got my wife in the program. He, he tried to [unintelligible] with my

wife [unintelligible].”1 From that evidence, and evidence that defendant had a one-inch

cut on his hand, defense counsel argued that Huerta had provoked the killing, either

through long-term abuse of defendant or by instigating a fight with defendant in the van.

Defense counsel argued defendant killed Huerta as a result of either that provocation or in

self-defense.

                                      DISCUSSION

                                             1.

                   SECOND DEGREE MURDER INSTRUCTION

       Defendant first contends the trial court committed reversible error by failing to

include the definition of second degree murder in its instructions to the jury. The record

reflects the trial court instructed the jury according to CALCRIM No. 520 and

CALCRIM No. 521, on murder and first degree murder, respectively, but did not include

the optional paragraph in CALCRIM No. 521 that, “The requirements for second degree

       1The 911 caller testified that defendant said, “ ‘He was messing with my wife.’
Something about the wife.”


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murder based on express or implied malice are explained in CALCRIM No. 520, First or

Second Degree Murder With Malice Aforethought.”2 (See CALCRIM No. 521 (2011

ed.).) During their deliberations, the jury asked the trial court for a definition of second

degree murder. The trial court responded, “See CALCRIM 520 for a definition of second

degree murder.”

       Defendant argues that the omitted sentence left the jury without any guidance on

how to reach a second degree murder conviction. Although the trial court omitted that

sentence from its original instructions, it referred the jury to CALCRIM No. 520 in

response to the jurors’ request for a definition of second degree murder. That instruction

told the jury, in pertinent part, that to prove defendant is guilty of murder, “the People

must prove that: [¶] 1. The defendant committed an act that caused the death of

(another person); [¶] AND [¶] 2. When the defendant acted, he had a state of mind

called malice aforethought.” The instruction also includes definitions of express and

implied malice.

       Defendant’s contrary claim notwithstanding, the trial court in this case instructed

the jury on the elements of the crime of second degree murder. Therefore, we must reject

defendant’s first claim of error in this appeal.


       2 Defendant contends the trial court omitted from CALCRIM No. 521 the
sentence, “All other murders are of the second degree.” Although that sentence appeared
in the 2009-2010 version of CALCRIM No. 521, it was eliminated from the 2011 version
of CALCRIM No. 521 and replaced with the optional phrase, quoted ante. (See
CALCRIM No. 521 (2009-2010 ed.) p. 271; CALCRIM No. 521 (2011 ed.) p. 271.)
Defendant’s trial took place in 2011. Therefore, the trial court would have instructed the
jury with the 2011 version of the CALCRIM jury instructions.


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                                              2.

                 INSUFFICIENT EVIDENCE OF LYING IN WAIT

       Defendant next contends the evidence that he committed first degree murder by

lying in wait is insufficient. He further contends that the defect requires reversal of his

first degree murder conviction. Defendant is incorrect.

       The prosecutor presented two theories of first degree murder to the jury—murder

committed with premeditation and deliberation, and murder committed by lying in wait.

Defendant does not dispute the evidence is sufficient to support a first degree murder

conviction based on the evidence that defendant premeditated and deliberated before he

committed the murder. Instead, he cites People v. Guiton (1993) 4 Cal 4th 1116, and

contends the error in this case consists of submitting a “legally insufficient” theory of

liability to the jury because the evidence was insufficient to support a verdict based on

lying in wait, and the record does not disclose whether the jury relied on that theory in

finding defendant guilty of first degree murder. Defendant misunderstands the holding in

that case.

       The Supreme Court explained in People v. Guiton, supra, 4 Cal.4th 1116, that

when “the inadequacy of proof is purely factual, of a kind the jury is fully equipped to

detect, reversal is not required whenever a valid ground for the verdict remains, absent an

affirmative indication in the record that the verdict actually did rest on the inadequate

ground.” (Id. at p. 1129.) But when “the inadequacy is legal, not merely factual, that is,

when the facts do not state a crime under the applicable statute, [reversal is required], as

in Green [People v. Green (1980) 27 Cal.3d 1], the Green rule requiring reversal applies,


                                              6
absent a basis in the record to find that the verdict was actually based on a valid ground.”

(Ibid., fn. omitted.)

       First degree murder based on lying in wait is a legally valid theory, but one that

the evidence arguably did not support. Therefore, the purported inadequacy of proof in

this case is factual. Because the claimed error is one of factual insufficiency, rather than

legal insufficiency, we must affirm the first degree murder conviction. That conviction is

supported by evidence that defendant premeditated and deliberated before he killed

Huerta, as evidenced by the fact that he bought a knife shortly before Huerta returned in

the van to pick up defendant, and defendant used that knife to kill Huerta.

                                             3.

                  ADMISSIBILITY OF AUTOPSY PHOTOGRAPHS

       Defendant contends the trial court committed prejudicial error by allowing the

prosecutor to introduce autopsy photographs of the victim over defendant’s objection.

We disagree.

       At a pretrial hearing, defendant offered to stipulate that the victim had been alive

before the incident on January 5, 2010, that defendant stabbed the victim multiple times,

and that the stabbing caused the victim’s death. As a result of that proposed stipulation,

defendant argued that the majority of the prosecutor’s photographs were irrelevant and

therefore inadmissible. Defendant also argued that if offered to prove premeditation and

deliberation, the photographs were cumulative to other evidence on that issue. The trial

court accepted the prosecutor’s offer of proof that a photograph of the victim in the

driver’s seat of the van was relevant to show the victim’s position relative to defendant


                                              7
and explain how the victim had wounds on the left side of his body when defendant was

seated on the victim’s right. In the prosecutor’s view, the photograph showed “this

wasn’t just a fight going on, the defendant was reaching over the body. Otherwise there’s

no way for the victim to have suffered this cut mark over his left ear.” The prosecutor

argued the number of stab wounds depicted in the photographs was relevant to show “this

wasn’t some sort of manslaughter type thing, that this defendant had actual hatred for the

victim that went beyond, you know, just some isolated argument that led to this stabbing

and any sort of manslaughter type defense.” The trial court overruled defendant’s

objection and concluded that photographs of the victim at the scene were relevant and

admissible.

       Defendant also objected to autopsy photographs of the victim on the grounds that

they were cumulative and gruesome, in that one photograph depicts the handle of the

knife sticking out of the victim’s neck, while others show straw-like probes sticking out

of each of the stab wounds.3 Defendant offered to stipulate that the fatal blow was the

last one, the one to the victim’s neck. The trial court again overruled defendant’s

objections, finding that the photographs, although graphic, were probative.

       “The rules pertaining to the admissibility of photographic evidence are well

settled. Only relevant evidence is admissible [citations], and all relevant evidence is

admissible, unless excluded under the federal or California Constitution or by statute.


       3 The forensic pathologist testified at trial that he used multiple colored rods and
placed them in the victim’s stab wounds to give an idea of the way the knife actually
passed through the body, as well as to show the depth and location of each wound.


                                             8
(Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).) Relevant evidence is

defined in Evidence Code section 210 as evidence ‘having any tendency in reason to

prove or disprove any disputed fact that is of consequence to the determination of the

action.’ The test of relevance is whether the evidence tends ‘ “logically, naturally, and by

reasonable inference” to establish material facts such as identity, intent, or motive.

[Citations.]’ [Citation.] The trial court has broad discretion in determining the relevance

of evidence [citations] but lacks discretion to admit irrelevant evidence. [Citations]”

(People v. Scheid (1997) 16 Cal.4th 1, 13-14.)

       As set out above, the trial court in this case reviewed the photographs in question

and found they were relevant to issues in dispute at trial. People v. Poggi (1988) 45

Cal.3d 306, which defendant relies on to argue otherwise, is inapposite. In that case, the

trial court permitted the prosecutor over defendant’s objection to introduce a photograph

of the victim standing in front of a Christmas tree to prove that she had been alive, and an

autopsy photograph that depicted an incision surgeons had made in the victim’s throat in

order to perform a tracheotomy to save her life. The Supreme Court found the first

photograph relevant but inadmissible because the defendant had offered to stipulate to the

fact that the victim had once been alive. The Supreme Court found the second

photograph was not relevant and therefore was inadmissible because the wound in the

victim’s neck depicted in the autopsy photograph had not been inflicted by the defendant.

(Id. at pp. 322-323.)

       The photographs at issue in this appeal were relevant to disputed issues, as

previously discussed, and did not include a photograph of the victim while he was alive.


                                              9
In fact, the trial court excluded such a photograph from the evidence in this case. In

short, we conclude the trial court did not abuse its discretion by admitting the challenged

photographs into evidence. But even if we were to conclude otherwise, any purported

error necessarily was harmless. Defendant did not dispute that he stabbed and killed the

victim. The only issue was his mental state at the time. If anything, the photographs

might have bolstered the defense claim that defendant acted in a rage after having been

provoked by the demeaning way the victim had treated defendant and defendant’s wife

over the course of many months.

                                              4.

                             UNANIMITY INSTRUCTION

       As his final claim on appeal, defendant contends the trial court violated

defendant’s Sixth Amendment right to a jury trial because it did not instruct the jury that

in order to find defendant guilty of first degree murder, the jury had to agree on the facts

of that crime. Defendant is wrong.

       The Supreme Court recently reiterated, “ ‘[i]t is settled that as long as each juror is

convinced beyond a reasonable doubt that defendant is guilty of murder as that offense is

defined by statute, [the jurors] need not decide unanimously by which theory he is guilty.

[Citations.]’ [Citation.] ‘Not only is there no unanimity requirement as to the theory of

guilt, the individual jurors themselves need not choose among the theories, so long as

each is convinced of guilt.’ [Citation.]” (People v. Valdez (2012) 55 Cal.4th 82, 153.)

       Defendant concedes that our state Supreme Court has rejected the specific

argument he raises in this appeal that absent a unanimity instruction, the guilty verdict on


                                             10
the first degree murder conviction violates the constitutional requirement set out in

Apprendi v. New Jersey (2000) 530 U.S. 466, that a jury must find any fact, other than a

prior conviction, that increases the maximum penalty for a crime. (See People v.

Nakahara (2003) 30 Cal.4th 705, 712-713.) Defendant acknowledges that we are bound

by the decisions of our state Supreme Court (Auto Equity Sales, Inc. v. Superior Court

(1962) 57 Cal.2d 450, 455), and he raises the issue to preserve his rights to further review

in federal court.

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                               McKINSTER
                                                                                           J.

We concur:



RAMIREZ
                        P. J.



KING
                           J.




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