Thursday, January 15, 2009
Court of Appeal Upholds Upper Term Sentence in Killing of Lover
By KENNETH OFGANG, Staff Writer
A Los Angeles Superior Court judge did not abuse his discretion or violate the right to jury trial when he imposed a 12-year prison term on a woman who killed her lover as he lay in bed, either asleep or extremely drunk, this district’s Court of Appeal ruled yesterday.
Div. Four affirmed Los Angeles Superior Court Judge George Lomelli’s sentencing choice in the case of Angelina Olivares, who was 49 years of age when she killed Ricky Flores in 2006. A jury found Olivares guilty of involuntary manslaughter, which carries a base term of three, six, or 11 years in prison; Lomelli imposed the upper term plus a one-year weapons enhancement.
Prosecutors presented evidence that Flores and the defendant, as well as several other people, had been drinking beer and eating pizza celebrating Flores’ birthday. Olivares eventually told the others it was time to leave and that she had to “put [Flores] to sleep now.”
One of the others later testified that Flores and Olivares both had a lot to drink and that when the witness left, Flores could not stand up or walk straight.
Later that night, Olivares drove to her daughter’s house and told her “there was blood.” After the two women and a friend drove to the apartment, the daughter called 911.
A police officer responded and found Flores lying on the bed with what appeared to be major head trauma. He found a hammer with blood on the handle and head and claw ends on a coffee table, and there was blood spatter on all four walls and the ceiling, he testified.
A criminalist testified that Flores’ died of brain trauma, and that his wounds suggested that he suffered five or more “good, strong blows” to the head, likely inflicted with the round part of the hammer. There were no defensive wounds.
There was testimony that Flores and Olivares had been having difficulties and that both had talked about ending the relationship.
The defense called an expert who testified that Olivares had an IQ of 74, and that she was able to distinguish right from wrong but that her mental limitations made it difficult for her foresee the consequences of her actions.
Olivares testified that she loved Flores and had been with him for five years. She denied that she had previously threatened to kill him, and that only in the last two months of his life had their relationship grown difficult.
On the night of his death, she said, Flores became angry because she could not find paperwork he was completing in order to apply for general relief. Olivares explained that Flores was working at the time, but wanted to make it appear he was unemployed in order to obtain benefits from the county.
When she went to console him, she claimed, he yelled and called her names. She said she was upset and confused when she went to the kitchen, came back with the hammer, and hit Flores because he did not “want to shut up.”
She did not realize he was hurt until she saw the blood, she said. A detective testified that when he interviewed the defendant, she told him Flores went to sleep after telling her to leave him alone.
At sentencing, defense counsel urged the judge to impose the lower-term sentence, citing the parties’ heavy drinking and the defendant’s lack of prior violence, her remorse, and the fact that Olivares had helped raise Flores’ children, as mitigating factors. The prosecutor responded that the crime was “way more egregious than your standard manslaughters.”
In choosing to impose the higher term, Lomelli found that the victim was particularly vulnerable and that the crime was carried out in a planned, sophisticated manner.
Presiding Justice Norman Epstein, in an unpublished opinion for the Court of Appeal, said the trial judge was not required to submit the sentencing dispute to a jury under the law in effect in December 2007 when the sentence was imposed.
The jurist explained that in March 2007, the Legislature adopted an urgency measure amending the Determinate Sentencing Law to permit trial judges to impose any of the three permissible sentences for a given crime, regardless of how it weighed the aggravating or mitigating factors.
That legislation was enacted in response to Cunningham v. California (2007) 127 S.Ct. 856, which held that the imposition of an upper term sentence based on facts found by the judge and not by a jury violated the Sixth Amendment unless the facts related to prior convictions.
That decision was based on the old version of the DSL, which permitted an upper term sentence only if the aggravating factors were found to outweigh those in mitigation. The state Supreme Court upheld the new law in People v. Sandoval (2007) 41 Cal.4th 825.
Epstein explained that, as the high court found in Sandoval, the application of the new law to crimes committed before it was enacted does not violate the ex post facto prohibition because the law did not increase the punishment for crimes, but merely amended the procedure for determining sentences.
Nor was the defendant denied due process, because the sentence she received would have been valid under either version of the law, the presiding justice wrote.
Epstein also rejected the argument that Lomelli abused his discretion. The finding of victim vulnerability, the presiding justice said, was supported by the evidence that Flores was extremely intoxicated and was either asleep or incapacitated when the fatal blows were struck.
The case is People v. Olivares, B205504.
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