People v. Lujan

[1392]

Opinion

TURNER, P. J.

I. Introduction

Defendant, Reuben Kenneth Lujan, appeals from his conviction for two first degree murder counts (Pen. Code,

1

§ 187, subd. (a)) and one stalking count. (§ 646.9, subd. (a).) Defendant was also found to have personally used a deadly weapon in the commission of both murders. (§ 12022, subd. (b)(1).) The jury also made true findings regarding the special circumstance allegations of intentional killing while lying in wait and conviction of multiple murders. (§ 190.2, subd. (a)(3), (15).) Defendant was convicted of stalking in the initial trial. A mistrial was declared as to the two murder counts at that trial because the jury was unable to reach a verdict on the homicide charges. The homicide convictions and related special findings occurred during a retrial.

In the published portion of this opinion, we discuss two issues. First, we evaluate whether the advisement of rights given by detectives to defendant, who was in custody, complied with the holding of

Miranda v. Arizona

(1966) 384 U.S. 436, 444-445 [86 S.Ct. 1602, 1612-1613, 16 L.Ed.2d 694, 10 A.L.R.3d 974]. We conclude the advisement of rights did not comply with

Miranda

but that the erroneous admission into evidence of defendant’s confession was harmless error. Second, we discuss the question of whether defendant, who was obsessively stalking his estranged spouse, was entitled to voluntary manslaughter instructions on a heat of passion theory. We conclude he was not. We affirm the judgment.

n. Factual Background

We begin by setting forth the general factual background. Later, while discussing the heat of passion instructional error issue, we will identify additional facts which relate more specifically to that question. Defendant and Monica Lujan were married. They had two sons together. In April 1998, Ms. Lujan and defendant separated. Ms. Lujan and their sons then moved in with her mother, Frances Velazquez. Defendant telephoned Ms. Lujan two or three times each day following their separation. In July 1998, Ms. Lujan returned to her mother’s home at midnight after seeing a movie with Rachel Romero. Ms. Velazquez heard Ms. Lujan yell at defendant about being outside with their children that late at night. Defendant had the two boys in his car. The children were wearing only their underwear. Ms. Lujan telephoned Ms. Romero later that night. Ms. Lujan was upset and crying. Ms.