People v. Vasquez CA4/3

Filed 2/11/15 P. v. Vasquez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G048927

v. (Super. Ct. No. 12ZF0131)

ROBERT EUGENE VASQUEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed. Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Robert Eugene Vasquez stands convicted of special circumstances murder for killing Bobby Ray Rainwater, Jr., while lying in wait. Appellant contends his jury was inadequately instructed on the lesser included offense of second degree murder, but we do not see it that way. Not only were the instructions legally correct, any error in them was harmless in light of the jury’s true finding on the lying-in-wait allegation. We therefore affirm the judgment. FACTS At the time this case arose in 2011, appellant and Rainwater both lived with their parents. Their families lived next door to each other in a mobilehome park in San Juan Capistrano, but they did not get along very well. The Rainwaters thought appellant’s family was noisy and inconsiderate, and appellant’s family was leery of Rainwater because he was a convicted sex offender. In fact, appellant’s mother told everyone that Rainwater was a dangerous pedophile, even though his sole sex offense was committed against an adult woman in the 1980’s. On the night of November 30, 2011, appellant and his girlfriend Sheryl Herrera were watching a movie at appellant’s place when he stepped outside to have a smoke. When he returned, Herrera was spooked because Rainwater had appeared at the bedroom window and said something to her. Herrera wouldn’t tell appellant what Rainwater said, but she and appellant suspected Rainwater may have been watching them while they were having sex earlier that evening. Angered by the thought of that, appellant grabbed a knife and set out to find Rainwater. His initial search of the area proved fruitless, so he hid in the bushes by Rainwater’s home until Rainwater arrived in the early hours of December 1. While watching Rainwater smoke a cigarette in front of his home, appellant unsheathed his knife. Then he sneaked up and punched Rainwater in the back of the head, knocking him down. Appellant continued punching Rainwater until his body went limp, then he began