People v. Diaz CA5

Filed 12/7/20 P. v. Diaz CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT THE PEOPLE, F078005 Plaintiff and Respondent, (Super. Ct. No. 17CR05571) v. RIGOBERTO GONZALEZ DIAZ, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Merced County. Jeanne Schechter, Judge. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Erin Doering, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- A jury found appellant Rigoberto Gonzalez Diaz1 guilty of willful, deliberate, and premeditated murder (Pen. Code,2 §§ 187, subd. (a)/189; count 1) against Maria Vargas. In addition, the jury found appellant had personally used a dangerous or deadly weapon, to wit, a knife in the commission of the crime (§ 12022, subd. (b)(1)). Appellant was sentenced to a prison term of 25 years to life for count 1, plus an additional year for the deadly weapon enhancement, for a total prison term of 26 years to life. On appeal, appellant contends the evidence was constitutionally insufficient to support the jury’s finding that the murder was willful, deliberate, and premeditated. Appellant also contends the trial court reversibly erred by failing to instruct on heat of passion voluntary manslaughter sua sponte. In the alternative, he contends his trial counsel provided ineffective assistance by failing to request the instruction. Finally, appellant contends the trial court violated his due process rights by imposing certain fines and fees without making a determination of his ability to pay them. We affirm. FACTS Early in the morning of September 1, 2017, law enforcement was dispatched to a canal near an orchard. Vargas’s body was found in the canal with “drag marks” in the ground leading to it. Vargas’s vehicle was parked nearby, and there was a puddle of blood surrounded by an area of disturbed dirt in the orchard. Appellant’s fingerprints were found on the outside and inside handle of the passenger door of Vargas’s vehicle. Law enforcement went to appellant’s residence on September 4, 2017, and observed boots with red stains sitting outside the front door. The tread on the boots was consistent with boot prints found at the scene. The boots were seized and sent to the Department of Justice with samples of appellant’s and Vargas’s DNA. The red stains on 1 Appellant’s name was listed on the information as Bernabe Gonzalez. Before trial, the information was amended to reflect his true name. 2 All further undesignated statutory references are to the Penal Code. 2. appellant’s boots was blood matching the DNA profile of Vargas, which the ...

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