Opinion
E068161
03-19-2018
THE PEOPLE, Plaintiff and Respondent, v. LINO ALVAREZ-MURGA, Defendant and Appellant.
Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1502137) OPINION APPEAL from the Superior Court of Riverside County. Steven J. Gallon, Judge. Affirmed. Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury found defendant and appellant Lino Alvarez-Murga guilty of one count of second degree murder. (Pen. Code, § 187, subd. (a).) A trial court sentenced him to an indeterminate term of 15 years to life in state prison.
All further statutory references will be to the Penal Code, unless otherwise noted. --------
Defendant filed a timely notice of appeal. We affirm.
FACTUAL BACKGROUND
On the night of November 15, 2015, defendant and his girlfriend went to his uncle's house for a birthday party. Juan Ontiveros (the victim) also went to the party. When the victim arrived, he appeared to be intoxicated. The victim started talking to people, telling them he wanted to fight defendant. Defendant went out to the patio and saw the victim, and the victim told him he wanted to beat him up because he did not like him. Defendant and the victim went out to the street by themselves, and the sounds of yelling, cursing, and punching could be heard. Defendant came back in the house about 10 minutes later, by himself. He got his girlfriend and left the party. Defendant's aunt heard there had been fighting, so she went outside and saw the victim lying on the street. She went back to the house and called 911.
The police arrived at the scene and found the victim on the street with his face "bloody and battered." There was blood on the ground around both sides of his head. He was totally unresponsive and had no pulse. The victim was dead when the first medical personnel began to treat him.
The police subsequently located and detained defendant and brought him to the police station for an interview. The video of the interview was played for the jury and trial. Defendant said he had known the victim for one or two years and they had gotten into a fight once before. Defendant said he was not drunk at the party, but the victim was. They went outside of the house to fight. Defendant said they were "face punching," but the victim did not land one punch on him. Defendant knocked him to the ground and kept punching him. Defendant said he thought he had almost punched the victim to death. He grabbed the victim to see if he was breathing, and he was, so defendant set him down. Defendant's uncles told him he had better leave. Defendant was so angry, he did not know how many times he hit the victim.
At trial, the prosecution had the forensic pathologist who performed the autopsy on the victim testify. The victim's blood-alcohol content was .37 percent at the time of death. She opined that the cause of death was asphyxia due to compression of the neck, or some form of strangulation.
The defense presented a forensic pathologist who had been provided with, and reviewed, the autopsy report. He opined that the cause of death was a fatal head trauma, in conjunction with acute alcohol intoxication.
The prosecution presented another forensic pathologist as a rebuttal witness. He agreed with the opinion of the pathologist who performed the autopsy as to the cause of death.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and a few potential arguable issues: (1) whether the conviction was supported by substantial evidence; (2) whether the prosecution made an election that defendant could be found guilty of second degree murder only if the cause of death was strangulation; if so, whether the jury was required to abide by that election; and (3) whether the court committed reversible error by not responding directly to the jury's question of whether the phrase "at the time he acted" referred to before, during, or after the altercation (CALCRIM NO. 520). Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.