Filed 5/5/14 P. v. Aviles CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065396
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF126367A)
                   v.

ULYSES AVILES,                                                                           OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
         Alison E. Kaylor, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-


*        Before Gomes, Acting P.J., Kane, J. and LaPorte, J.†
†     Judge of the Superior Court of Kings County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
                                   INTRODUCTION
       On February 24, 2010, appellant, Ulyses Aviles, was charged in an information
with the first degree murder of Carlos Serrano (Pen. Code, § 187, subd. (a))1 and three
prior prison term enhancements (§ 667.5, subd. (b)). On March 21, 2012, the trial court
denied Aviles’s suppression motion. At the conclusion of a jury trial on April 19, 2012,
the jury acquitted Aviles of first and second degree murder but found Aviles guilty of
voluntary manslaughter. In a bifurcated proceeding, the trial court found two of the prior
prison term enhancements true.
       At the sentencing hearing on July 3, 2012, the trial court denied Aviles’s motion
for a new trial. The court sentenced Aviles to the upper term of 11 years plus a
consecutive term of one year for one of the prior prison term enhancements for a total
prison sentence of 12 years. The court awarded 1269 days of credits for time in custody,
conduct credits of 190 days, and total custody credits of 1459 days. Direct victim
restitution was reserved. The court imposed various fines and fees, included a restitution
fine of $240.
       Appellate counsel has filed a brief seeking independent review of the case by this
court pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
                                         FACTS
People’s Case
       On January 11, 2009, before 8:00 p.m., Keith Clifford and Carlos Serrano left in a
Saturn Ion searching for marijuana. Clifford was driving. A truck with its high beams on
pulled beside Clifford’s car. Clifford pulled off Highway 46 on to Bruning Street and
saw the same truck drive past him. The truck, driven by Aviles and with four male
passengers, returned and stopped beside the driver’s side of Clifford’s car. Aviles,




1      Unless otherwise designated, all statutory references are to the Penal Code.


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referring to Serrano, asked Clifford why he was “hanging out with that bitch.” Everyone
exited their vehicles.
       Serrano said it was between him and Aviles, “one-on-one.” Serrano threw the first
punch, hitting Aviles in the face as Aviles’s hands were down to his side. Serrano took
off running with Aviles and his companions chasing after him. Clifford, and Jeff
Johnson, an acquaintance who was nearby, drove in Clifford’s Saturn to find Serrano.
They found Serrano with a bloody nose walking out of a yard on Universal Street. It took
Clifford almost 10 minutes to drive from where the encounter began.
       Serrano asked Clifford to take him home, which was three minutes away. Clifford
knocked on the door and told Serrano’s mother her son was beaten up. Serrano’s mother
and Clifford walked Serrano from the car. Serrano’s father, Jose Martinez, told the
police that he answered the door and saw his son all bloody.
       Serrano had a wound on his head from one ear all the way to the other side of his
head. He had suffered stab wounds on his back and chest. Serrano had blood on his
shirt, pants, and arms. Serrano told his father more than once that Aviles had injured
him. On one occasion, Serrano told his father that Aviles and his friends injured him.
Serrano asked to be taken to the hospital because he did not want to die.
       Serrano’s parents tried to drive him to the hospital, but Martinez stopped at a gas
station and asked for help because he could see that Serrano was in serious condition.
Martinez denied that Serrano yelled at him to stop at the gas station. Police and an
ambulance arrived in minutes. Martinez told a police investigator that Serrano was
yelling at him which was why he stopped at the gas station. The officer found Serrano to
be very upset.
       When paramedics arrived, they found Serrano’s blood pressure dropping and that
he was about to go into cardiac arrest. Serrano was in a hostile emotional state. It took
roughly 22 minutes to transport Serrano to Mercy Southwest Hospital. During




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transportation of Serrano, however, paramedics stopped administering CPR because
Serrano had stopped breathing and died.
          Clothing, including a pair of Levi’s jeans, was seized from Aviles’s home during
the execution of a search warrant. Blood from the front of the jeans tested positive for
the presence of Serrano’s blood, Aviles’s blood, and the blood of an unknown third
person.
       According to Dr. Lesley Wallis, the pathologist who examined Serrano, he
suffered eight stab wounds. Several of the stab wounds were superficial, though they still
caused bleeding. Two of them were penetrating. One wound went from the chest into
the liver. The other went from the abdomen through the kidney. These two wounds
caused Serrano to “bleed out,” and were significant enough by themselves to be fatal.
Serrano’s cause of death was from multiple stab wounds.
       Serrano did not have any natural diseases that could have superseded the stab
wounds as the cause of his death. Benzoylecgonine, a metabolite of cocaine,
methamphetamine, and amphetamine were found in Serrano’s body. Serrano’s blood
contained .04 milligrams per liter of blood of Benzoylecgonine, .22 milligrams per liter
of blood of methamphetamine, and .01 milligrams per liter of blood of amphetamine.
Dr. Wallis could not determine how much methamphetamine Serrano ingested.
Defense Case
       Dr. Julian Smith, a psychiatrist, testified that amphetamine and D-
methamphetamine are brain stimulants that release larger amounts of neuro chemicals
into the brain, such as dopamine, serotonin, and norepinephrine, also known as
noradrenaline. D-methamphetamine causes more noradrenaline production which enacts
the fight-or-flight response.
       Although using methamphetamine initially causes an intense feeling of euphoria,
it also causes users to feel invincible or that they have more strength or power than they
actually have. Methamphetamine impairs the judgment of those who use it. It also


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causes users to become paranoid, to hear voices, and to have visual and tactile
hallucinations. Methamphetamine users suffer from impaired concentration and
hyperactivity.
       Dr. Smith explained that .02 milligrams of methamphetamine indicates drug
abuse. Serrano had .22 milligrams of D-methamphetamine and .01 milligrams of
amphetamine in his blood. This was 11 times greater than therapeutic levels. Dr. Smith
concluded that Serrano was abusing methamphetamine which would cause gross
hallucinations, a heightened fight-or-flight response, psychosis, confusion, paranoid
thoughts, delusions, and perceptual misperceptions. These reactions could have made
Serrano more aggressive.
                           APPELLATE COURT REVIEW
       Appellant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes
the declaration of appellate counsel indicating that appellant was advised he could file his
own brief with this court. By letter on March 22, 2013, we invited appellant to submit
additional briefing. To date, he has not done so.
       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                     DISPOSITION
       The judgment is affirmed.




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