People v. Quitoriano

ADAMS, P. J. Defendants herein were charged with the crime of murder and found guilty of murder of the second degree. Motions for a new trial were denied and both defendants appealed. On the day set for hearing in this court defendants’ counsel moved for dismissal of the appeal as to defendant Quitoriano and the motion was granted. The appeal as to defendant Avila was submitted without argument, on briefs to be thereafter filed.

The brief filed by counsel for defendant Avila consists of but two scant pages and cites no authorities. The only question raised is the sufficiency of the evidence to sustain the verdict as to this defendant. No adequate citations to the transcript are made nor is it pointed out in what respect the evidence is insufficient. Under such circumstances the court would be entirely justified in refusing to search the record for the purposes of an opinion. (People v. Vivian, 50 Cal. App. (2d) 533 [123 P. (2d) 613] ; People v. McLean, 135 Cal. 306, 309 [67 Pac. 770].)

However, it is apparent from the evidence pointed out by counsel for the People that same was ample to sustain the verdict as to both defendants. The victim of the homicide was one Augustine Villairin, with whom defendant Avila had been, according to her own admission, on terms of sexual intimacy. At the time of the killing, Avila was living with defendant Quitoriano in a cabin at a camp near [643]Isleton. On December 15, 1941, decedent drove to Isleton from Suisun and joined Quitoriano and Avila at the cabin occupied by them. After lunching together in the cabin the three of them drove in decedent’s car to Rio Vista where they visited at the. home of friends until after 11 p. m. About that time defendant Avila left with the intention of hitch-hiking back to Isleton, and Quitoriano followed her. They were picked up on the highway, stopping on the way home to buy wine. After they had returned to their cabin decedent arrived there about midnight. As to what happened thereafter the testimony is conflicting.

Defendant Quitoriano made three statements, the third one being made jointly with Avila. Avila herself made three different statements before the joint one made with Quitoriano. All were made freely. In her first statement she averred that she shot Villairin; that she shot to kill him; that the gun with which she shot him belonged to her; that at the time decedent arrived Quitoriano had left the cabin in search of cigarettes; that decedent then stated that if he could not have her (Avila) no one else could, and that when he advanced upon her she shot him four times. Both she and Quitoriano admitted that the decedent did not draw a gun but that after he was killed they took a gun out of his overcoat pocket and put it into his right hand, where it was found when the officers arrived.