Filed 11/18/20 P. v. Utuy CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B301574
(Super. Ct. No. BA451497)
Plaintiff and Respondent, (Los Angeles County)
v.
RICARDO UTUY,
Defendant and Appellant.
Ricardo Utuy appeals a judgment following conviction of
first degree murder (count 1), and willful, deliberate, and
premeditated attempted murder (count 2), with findings that he
personally used a deadly weapon during commission of both
crimes, and personally inflicted great bodily injury regarding
count 2. (Pen. Code, §§ 187, subd. (a), 189, 664, subd. (a), 12022,
subd. (b)(1), 12022.7, subd. (a).)1 We modify the judgment to
All statutory references are to the Penal Code unless
1
otherwise stated.
award Utuy an additional 34 days of presentence custody credit,
but otherwise affirm.
This appeal concerns the murder of a three-year-old child
in Utuy’s workplace and the attempted murder of another
coworker several weeks earlier. Utuy used a knife to commit
each crime. He surrendered to police officers following the
murder of the child, admitted the crimes, and described a
longtime methamphetamine addiction. He now raises arguments
of evidentiary and instructional error, as well as the
miscalculation of presentence custody credit. We order an award
of additional custody credit, but find no merit to the remaining
arguments.
FACTUAL AND PROCEDURAL HISTORY
Murder of R.V. (Count 1)
On October 31, 2016, Utuy was employed at a clothing
factory in Los Angeles. Maria R. and Javier V. were also
employed at the factory and their workstations were near Utuy’s
workstation. In the late afternoons, Javier V. and Maria R.
would bring their three-year-old daughter R.V. to the factory
following daycare.
As usual, Javier V. brought R.V. to the factory that
afternoon. She walked between her parents’ workstations, giving
them cookies. As R.V. walked near Utuy’s workstation, he stood
up and followed her. Utuy then stabbed R.V. three times with a
pocketknife before he fled the factory. R.V. died from her stab
wounds, each of which was fatal. Neither Javier V. nor Maria R.
had any disagreements with Utuy, nor had they ever had a
conversation with him.
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Attempted Murder of Maria C. (Count 2)
In 2016, Utuy was employed at another clothing factory in
Los Angeles. Maria C., a coworker, sat at a nearby workstation.
In the morning of October 10, 2016, Maria C. walked to the
restroom. As she opened the restroom door, Utuy approached her
and thrust a knife toward her abdomen. Maria C. deflected the
knife with her forearm, causing the blade to penetrate her arm.
Utuy asked Maria C. why she had criticized him, then he fled to
the street.
The knife blade was embedded in Maria C.’s forearm, but
removed at the hospital. Maria C. was unable to explain why
Utuy had stabbed her because she had never socialized with him
and only briefly interacted with him once during a meal break.
By the time of trial, Maria C. continued to experience pain and
she was unable to grasp objects with her hand.
Utuy’s Surrender
Utuy appeared at the police station later that evening and
provided a handgun and a folding knife to police officers.
Through a Spanish-language translator, Utuy stated that he had
killed a child because voices so instructed him. At trial, the
parties stipulated that the bloodstains on the knife blade
matched the DNA of R.V. Laboratory testing of Utuy’s urine
sample revealed the presence of amphetamine and
methamphetamine.
Utuy’s Trial Testimony
Utuy testified that he stabbed Maria C. because voices so
encouraged him. He admitted that he brought a knife to the
workplace that day for the purpose of attacking her. Utuy stated
that he used methamphetamine six times that day, including
twice before stabbing Maria C.
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Utuy also testified that he used methamphetamine four
times prior to stabbing R.V. He described voices stating that
Javier V. was sacrificing his child to Utuy and other voices
threatened Utuy’s children if he did not kill R.V. Utuy admitted
that he purchased a knife to kill R.V. and brought it to work for
that purpose. He stated that he wanted R.V. to die when he
stabbed her.
Utuy stated that following the stabbing, he appeared at the
police station and surrendered a handgun and the knife he used
to stab R.V. He was under the influence of methamphetamine at
the time, having used it again following the stabbing.
Utuy described a frequent and longtime methamphetamine
addiction, including daily at his workplace. He testified that
after some years of frequent methamphetamine use, he began to
hear voices and see imaginary people. Utuy stated that he was
hospitalized twice for his addiction and was struck by a train
because voices commanded him to stand on the railroad tracks.
Upon his release from the hospital, Utuy returned to the railroad
tracks and laid down. An onrushing train stopped and Utuy was
returned to the hospital.
Utuy acknowledged that he refused methamphetamine
addiction counseling and medication. He admitted that he
threatened to assault a social worker who offered him addiction
counseling, treatment, and services.
Other Defense Evidence
Utuy’s girlfriend testified that he used drugs and stated
that he heard voices. She added that he lost custody of their
children because he refused drug treatment.
Professor Ettie Rosenberg, a licensed pharmacist and
professor of pharmacy, testified regarding the effects of prolonged
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and chronic methamphetamine use. She described mental
symptoms of paranoia, delusions, psychosis, and hallucinations,
as well as physical symptoms that could result in unpredictable
violent and aggressive behavior.
Conviction, Sentencing, Appeal
The trial court sentenced Utuy to a prison term of 37 years
to life, including 25 years to life for the first degree murder, one
year for the deadly weapon finding, and seven years to life for the
attempted willful, deliberate, and premeditated murder. The
court also imposed various fines and fees, ordered restitution,
and awarded Utuy 1,033 days of presentence custody credit.
Utuy appeals and contends that the trial court erred by: 1)
admitting evidence of Exhibit No. 7, a three-inch by five-inch
ordinary photograph of R.V.; 2) refusing to instruct regarding
involuntary manslaughter based upon assault; and 3)
miscalculating his presentence custody credit. He asserts that
these errors denied him due process of law.
DISCUSSION
I.
Utuy argues that the trial court abused its discretion by
admitting into evidence a family photograph of three-year-old
R.V. He asserts that the error was prejudicial and denied him
due process of law because the photograph engendered sympathy
for the child and influenced the jury’s rejection of his defense that
methamphetamine psychosis caused R.V.’s murder.
Over defense objection of undue prejudice, the trial court
admitted the small photograph into evidence as relevant to
reflect R.V.’s height and basic stature. The court expressly found
that the single photograph was not unduly prejudicial. At trial,
Javier V. identified R.V. from the photograph and the questioning
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encompassed eight lines of transcript. In other evidence, the
deputy medical examiner who performed the autopsy on R.V.’s
body identified her wounds from seven autopsy photographs.
Whether the trial court erred in admitting into evidence a
challenged photograph of the murder victim depends upon
whether the photograph of the child alive is relevant and its
probative value outweighs any substantial prejudicial effect.
(Evid. Code, § 352; People v. Morales (2020) 10 Cal.5th 76, 103.)
We review the trial court’s decision to admit evidence of a
photograph for an abuse of discretion. (Ibid.) We will not disturb
the court’s exercise of that discretion unless the probative value
of the photograph “clearly is outweighed” by its prejudicial effect.
(Ibid.)
Moreover, the prosecutor is not required to stipulate to the
identity of the victim. (People v. Morales, supra, 10 Cal.5th 76,
104.) A photograph is not irrelevant or inadmissible simply
because it duplicates testimony, depicts uncontested facts, or
triggers an offer to stipulate. (Ibid. [citing long-established
precedent that the prosecutor need not accept “antiseptic
stipulations” in lieu of photographs].)
The trial court did not abuse its discretion when it found
that the probative value of the unremarkable photograph
outweighed its prejudicial effect. The photograph was not
graphic or disturbing and served to identify R.V. as Javier V.’s
daughter and provide context to the medical examiner’s
explanation of R.V.’s fatal injuries. (People v. Morales, supra, 10
Cal.5th 76, 103.) Relevant victim photographs are not
inadmissible if they do no more than accurately portray the
sometimes shocking nature of the charged crimes. (Id. at p. 104.)
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An objection to photographic evidence on the grounds of
due process of law must be made at trial to preserve the issue on
appeal. (People v. Fayed (2020) 9 Cal.5th 147, 196-197
[defendant failed to object to family photographs of murder victim
on grounds of relevance]; People v. Riggs (2008) 44 Cal.4th 248,
292 [distinct federal due process claim must first be raised in
trial court].) Utuy has forfeited this particular argument on
appeal. (Fayed, at p. 197.) Forfeiture aside, his constitutional
challenge fails because the trial court did not abuse its discretion
in admitting the photograph. (People v. Morales, supra, 10
Cal.5th 76, 105.)
II.
Utuy contends that the trial court erred by refusing an
instruction concerning involuntary manslaughter based upon
misdemeanor or felony assault with a deadly weapon resulting in
death. (People v. Brothers (2015) 236 Cal.App.4th 24, 33-34
[instruction on involuntary manslaughter required where jury
could entertain reasonable doubt that killing was accomplished
with implied malice during course of inherently dangerous
assaultive felony].) He asserts that his methamphetamine
intoxication negated malice aforethought. Utuy argues that the
prejudicial error denied him due process of law and the right to a
jury trial pursuant to the state and federal constitutions.
In criminal cases, the trial court must instruct on general
principles of law relevant to the issues raised by the evidence and
necessary to the jury’s understanding of the case. (People v.
Nelson (2016) 1 Cal.5th 513, 538; People v. Enraca (2012) 53
Cal.4th 735, 759.) The evidence necessary to support a lesser
included offense instruction must be substantial evidence from
which reasonable jurors could conclude that the facts underlying
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the instruction exist. (Ibid.; People v. Breverman (1998) 19
Cal.4th 142, 154 [lesser included offense instruction not required
where no evidence that offense less than that charged].) The
substantial evidence requirement is not satisfied by any evidence,
no matter how weak, but evidence from which a jury could
conclude that the lesser offense, but not the greater, was
committed. (Nelson, at p. 538.) We independently review
whether the trial court should have instructed concerning a
lesser included offense. (People v. Waidla (2000) 22 Cal.4th 690,
733.) “Whether or not to give any particular instruction in any
particular case entails the resolution of a mixed question of law
and fact that . . . is however predominantly legal. As such it
should be examined without deference.” (Ibid.) Doubts regarding
the sufficiency of evidence to warrant a lesser included offense
instruction, however, must be resolved in favor of the defendant.
(People v. Tufunga (1999) 21 Cal.4th 935, 944.)
The trial court was not required to instruct regarding
involuntary manslaughter because there was no evidence that
Utuy’s acts were unintentional or negligent. Utuy testified that
he stabbed R.V. to kill her and that he brought a knife with him
to work that day for that purpose. He acknowledged that each
stab wound was meant to accomplish the child’s death. Utuy
surrendered to police officers later that evening, provided the
knife, and admitted killing R.V.
In any event, the jury found that Utuy acted with the
necessary premeditation required for first degree murder. Any
error in refusing an involuntary manslaughter instruction is
harmless pursuant to any standard of review.
Failure to instruct with an instruction on a lesser included
offense that is not supported by sufficient evidence does not
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constitute fundamental unfairness or loss of verdict reliability
pursuant to the federal or state constitutions. (People v.
Holloway (2004) 33 Cal.4th 96, 141.)
Moreover, to the extent Utuy argues that he lacked the
capacity to act with premeditation or malice, the diminished
capacity defense is no longer available. Section 25, subdivision
(a) eliminates the defense of diminished capacity: “The defense of
diminished capacity is hereby abolished. In a criminal action . . .
evidence concerning an accused person’s intoxication . . . shall not
be admissible to show or negate capacity to form the particular
purpose, intent, motive, malice aforethought, knowledge, or other
mental state required for the commission of the crime charged.”
(See also § 28, subd. (b) [“As a matter of public policy there shall
be no defense of diminished capacity . . . .”].)
III.
Utuy asserts that he is entitled to an additional 34 days of
presentence custody credit, for a total of 1,067 days. The
Attorney General concedes. (People v. Rajanayagam (2012) 211
Cal.App.4th 42, 48 [calculation of custody credit commences on
day of arrest and continues through day of sentencing].)
DISPOSITION
We modify the judgment to award Utuy an additional 34
days of presentence custody credit, for a total of 1,067 days. The
trial court shall prepare an amended abstract of judgment
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accordingly and forward the amended abstract to the Department
of Corrections and Rehabilitation. We otherwise affirm.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Eleanor J. Hunter, Judge
Superior Court County of Los Angeles
______________________________
Matthew Alger, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
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