P. v. Bravo

Filed 4/4/06 P. v. Bravo CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Higa, Judge. Affirmed.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung Mar and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.

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Jesus Miguel Bravo appeals from the judgment entered following his conviction by jury of attempted voluntary manslaughter (Pen. Code, §§ 664, 192 subd. (a)) with personal use of a deadly and dangerous weapon (Pen. Code, § 12022, subd. (b)(1)) and personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)). The court sentenced him to prison for seven years.

In this case, we conclude the trial court did not reversibly err by failing to instruct the jury, using CALJIC Nos. 2.71 and 2.71.7, to view with caution oral admissions of appellant, namely, angry statements made by him, which were relevant to show he intended to kill and did not act in self-defense. Even if the failure were error, it was not prejudicial to the jury's determination of whether appellant intended to kill the victim. Apart from the admissions, there was ample evidence of said intent and the absence of self-defense since, following a fight between appellant and the victim, appellant ran over him with a Chevrolet Suburban SUV. Moreover, the verdict, viewed in light of the evidence, implies the jury concluded appellant attempted to kill the victim in the heat of passion based on reasonable provocation, that is, the fight. If so, the jury reasonably must have found the evidence of the fight more probative of appellant's intent to kill than his statements.

As for self-defense, appellant presented no self-defense evidence but presented evidence that he ran over the victim by accident. The accident evidence negated self-defense. Moreover, the verdict implied appellant attempted to kill with mitigation. Mitigation negated self-defense. Therefore, the accident evidence and mitigation finding negated self-defense, apart from whether appellant's statements did. Finally, this was not a case in which conflicting evidence was presented as to the content or meaning of appellant's statements, but as to whether he made them at all. No prejudicial instructional error occurred.

FACTUAL SUMMARY

1. People's Evidence.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that prior to June 6, 2004, Vanessa Cesena had a troubled relationship with appellant. She had obtained a restraining order against him but they still saw each other. Appellant had indicated to Cesena that he disapproved of her talking with other men.

On June 6, 2004, Cesena lived in the 3300 block of Minnesota in South Gate. That afternoon, appellant indicated he wanted to come by Cesena's house but she told him not to do so. About 8:00 p.m., Ernie Talamentes and Miguel Ruiz visited Cesena in front of her house. As a result of a local event, there was an unusually high number of cars on Cesena's street.

About 9:30 or 10:00 p.m., appellant drove by Cesena's house in his Chevrolet Suburban SUV, then returned to Cesena's house. Appellant and his brother Juan Bravo (Juan) were in the SUV. Appellant parked it in the street in front of Cesena's house but not against the curb. Although Cesena previously had told appellant that she was not dating Talamentes or Ruiz, appellant exited the SUV and angrily asked her â€