Tuesday, March 24, 2015
C.A. Upholds Murder Conviction in Shooting of Pregnant Girlfriend
By KENNETH OFGANG, Staff Writer
In this file photo, Ruben Cepeda is sentenced for killing pregnant girlfriend Viridiana Rodriguez.
The Fourth District Court of Appeal has affirmed the murder conviction of a former Escondido resident who claimed he shot his pregnant girlfriend by accident.
Even without intent to kill, Ruben Cepeda’s act of placing a firearm against Viridiana Rodriguez’s abdomen, without any effort to determine whether the gun was loaded and with the knowledge that it might discharge with fatal consequences exhibited conscious disregard for life, Justice Judith Haller wrote Friday for Div. One.
The opinion was not certified for publication.
San Diego Superior Court jurors found Cepeda, 21 at the time of the April 2012 shooting, guilty of second degree murder in the deaths of Rodriguez, 18, and the couple’s unborn child. An autopsy revealed she was four months pregnant.
With respect to enhancements under the 10-20-Life law, the jury found that Cepeda personally used a firearm, but rejected the contention that he discharged it intentionally. San Diego Superior Court Judge Harry Elias sentenced him to 40 years to life in prison—a base term of 15 years to life, doubled because of a prior robbery conviction, plus 10 years for the gun use.
Witnesses testified that Rodriguez and two of her sisters were visiting Rodriguez at his new apartment, which he was sharing with friend Jesse Lopez after having stayed with Rodriguez and one of the sisters temporarily.
Lopez and the sisters were at the apartment at the time of the shooting, although the defendant and the victim were the only ones in the bedroom where it occurred. Witnesses told police the couple had been genuinely happy about the pregnancy, but also painted a picture of Cepeda as being quick to anger and as the owner of several guns, one of which he had fired in the air while drunk after an argument outside a bar the week before.
When Rodriguez was shot, according to the testimony, the sisters ran into the bedroom and found Cepeda holding a shirt against her bleeding abdomen. Cepeda told one of the sisters that the shooting was “an accident” and asked her to hold the shirt.
Cepeda was gone, as was Lopez, by the time police arrived.
Rodriguez and the fetus were pronounced dead at a hospital about an hour later. Cepeda was arrested in Mexico two months later and brought back to San Diego County.
Lopez, according to a news account, was sentenced to 16 months in prison as an accessory after the fact.
Haller, writing for the Court of Appeal, agreed with prosecutors that the evidence supported a finding of conscious disregard for life.
“The forensic evidence showed that Viridiana and her fetus were killed by a gun that was discharged while the muzzle was placed against her abdomen,” the justice wrote. “As defendant concedes on appeal, the evidence supports he was the person who placed the gun against her abdomen. This fact alone—the act of placing the barrel of a gun against a person’s abdomen—creates an inference of conscious disregard for life.”
The defendant, she said, chose to disregard the “extreme risk of death” that his actions created.
“Given the very nature of firearms, the mere fact that defendant did not want the gun to fire and that he thought it would not fire does not preclude a jury finding that he was aware of the risk that it might fire,” Haller explained.
Not Ineffective Assistance
The jurist also rejected the claim that defense counsel rendered ineffective assistance when—after jurors asked for an instruction as to whether “conscious disregard” should be judged from a “reasonable person” standard or as “to this specific person, Ruben Cepeda”—counsel did not object to the judge’s decision to refer the jurors back to the standard instruction on second degree murder, CALCRIM No. 520.
Haller acknowledged that the best practice would have been for the judge to specifically instruct the jury “that conscious disregard required them to evaluate defendant’s state of mind, not a reasonable person’s state of mind.” But there was no prejudice, she said, because in the absence of evidence that Cepeda had taken affirmative steps to make sure the gun was empty, it was not reasonably probable that such an instruction would have led to a different verdict.
The case is People v. Cepeda, D064835.
Copyright 2015, Metropolitan News Company