Filed 9/21/17 P. v. Cruz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Appellant, v. CRISTIAN LOPEZ CRUZ, Defendant and Respondent.

H044156 (Santa Cruz County Super. Ct. No. F28937)

The People appeal from an order granting defendant Cristian Lopez Cruz’s motion to dismiss one count of the information, which charged attempted willful, premeditated, deliberate murder (Pen. Code, § 664, 187, subd. (a)).[1] We shall reverse and order the trial court to reinstate the attempted murder charge without the allegation that defendant acted with premeditation and deliberation.

I. Factual and Procedural Background

A. Felony Complaint

The Santa Cruz County District Attorney charged defendant, by first amended felony complaint, with (1) attempted willful, deliberate, premeditated murder (§§ 664, 187, subd. (a) - count 1); (2) assault with a firearm (§ 245, subd. (a)(2) - count 2); (3) unlawful firearm activity (§ 29820, subd. (b) - count 3); (4) carrying a loaded firearm while not being the registered owner (§ 25850, subd. (c)(6) - count 4); (5) and possession of ammunition by a prohibited person (§ 30305, subd. (a)(1) - count 5). With respect to counts 1 and 2, the first amended complaint contained a number of special allegations, including that defendant personally used a firearm (§ 1192.7, subd. (c)(8)); personally inflicted great bodily injury (§§ 12022.7, subd. (a)); and committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)).

B. Preliminary Hearing

A preliminary hearing was held over the course of several days in March and May of 2016. Edgar Thomas testified that on the afternoon of September 22, 2015, he was a passenger in a car driven by his mother. While the vehicle was stopped at a red light in Santa Cruz, Thomas saw defendant crossing the street. The two had met in juvenile hall in 2011. They did not get along because Thomas associated with the Norteños, while defendant ran with the Sureños. According to Thomas, on September 22, 2015, defendant saw him as well and threw a Sureño gang sign. In response, Thomas got out of the car, yelled obscenities and threats at defendant, and chased him. Defendant turned around and reached into his waistband, which prompted Thomas to turn around and retreat. Defendant fired a gun; the bullet went through Thomas’s upper thigh and scrotum and grazed his penis.

Thomas’s mother corroborated much of Thomas’s account, although she did not see defendant make any hand signals. Thomas’s mother estimated that the shooter was 35 to 40 feet from her son when he was shot.

Detective Bruce Cline testified that he interviewed eyewitness Lee Shepard, who said one individual exited a vehicle, yelled at and chased a pedestrian, and got shot by the pedestrian, who then fled the scene. Shepard told Cline that the shooter moved in the direction of his pursuer before shooting and that the men were standing eight feet apart from each other at the time of the shooting.

According to Santa Cruz police officer Leonardo Gomez, another eyewitness, Lawrence Navarro, reported that just prior to the shooting, the shooter tugged at his waistband and made a motion similar to cocking a gun—pulling back and releasing a slide on the top of the gun. Navarro also told police that at the time of the shooting, the men were 50 feet apart and the victim had started to retreat.

A gang expert opined that at the time of the shooting, defendant was a member of the Beach Flats Sureños and Thomas associated with Norteños. The expert further opined that the shooting was committed to promote, benefit, or further the interests of the Beach Flats Sureños.

Defendant was held to answer on all of the counts and allegations in the first amended complaint other than the section 186.22, subdivision (b)(1) gang allegations. In finding insufficient evidence to support those allegations, the court found Thomas’s testimony, including that defendant threw a gang sign, to be incredible and rejected the gang expert’s opinion that the shooting was committed to promote, benefit, or further the interests of the Beach Flats Sureños.

C. The Information

On June 13, 2016, the Santa Cruz County District Attorney filed an information that was identical to the first amended complaint. It included the gang allegations (§ 186.22, subd. (b)(1)) for which defendant was not held to answer.

D. Section 995 Motion

Defendant moved pursuant to section 995 to dismiss the attempted murder charge, the premeditation and deliberation allegation, and the section 186.22, subdivision (b)(1) special allegations. The superior court granted defendant’s motion. As to the attempted murder charge, the court concluded that there was no evidence of express malice and reasoned that implied malice was insufficient to support a charge of attempted murder.

The People timely appealed. They challenge the court’s order only as to the attempted murder charge, not the gang allegations.

II. Discussion

A. Standard of Review

“Penal Code section 995 allows a defendant to challenge an information based on the sufficiency of the record made before the magistrate at the preliminary hearing.” (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1071-1072 (Lexin).) At issue on such a motion is whether “there is probable cause to hold the defendant[] to answer, i.e., whether the evidence is such that ‘a reasonable person could harbor a strong suspicion of the defendant’s guilt.’ ” (Id. at p. 1072.) Probable cause “ ‘ “may exist although there may be some room for doubt.” ’ [Citations.]” (People v. Mower (2002) 28 Cal.4th 457, 473.) As such, “[e]vidence that will justify a prosecution need not be sufficient to support a conviction.” (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474 (Rideout).)

On appeal from an order granting or denying a section 995 motion, we “ ‘disregard[ ] the ruling of the superior court and directly review[ ] the determination of the magistrate holding the defendant to answer.’ ” (Lexin, supra, 47 Cal.4th at p. 1072.) We “may not substitute [our] judgment as to the weight of the evidence for that of the magistrate, and, if there is some evidence to support the information, [we] will not inquire into its sufficiency. [Citations.] Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information.” (Rideout, supra, 67 Cal.2d at p. 474.)

B. Legal Principles Governing Attempted Murder

“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) “Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’ ” (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).) “Implied malice—a conscious disregard for life—suffices for murder but not attempted murder.” (People v. Stone (2009) 46 Cal.4th 131, 139-140.)

“t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may . . . be inferred from the defendant’s acts and the circumstances of the crime.” ([i]Smith, supra, 37 Cal.4th at p. 741.) “ ‘The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . .” [Citation.]’ [Citations.]” (Ibid.)

“ ‘ “The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship necessarily establish a less culpable state of mind.” [Citation.]’ [Citation.]” (Smith, supra, 37 Cal.4th at p. 741.)

“[T]he crime of attempted murder is not divided into degrees. [Citation.] The prosecution may seek a jury finding that an attempted murder was ‘willful, deliberate, and premeditated’ for purposes of sentence enhancement.” (Smith, supra, 37 Cal.4th at p. 740.)

C. Analysis

The parties dispute whether the evidence supports a finding of probable cause of intent to kill. The People contend that evidence that defendant shot at Thomas at close range supports an inference of the requisite intent. Defendant responds that the evidence supports only a charge of assault with a firearm and suggests he acted in self-defense.

Case law supports the People’s position that evidence that defendant intentionally shot at Thomas at relatively close range supports an inference of intent to kill. (See People v. Lashley (1991) 1 Cal.App.4th 938, 944-945 [concluding there was sufficient evidence of intent to kill to support attempted murder conviction where defendant shot at a group of people on the bank of a creek from the second story of an adjacent apartment building]; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1149 [concluding that conviction for attempted murder was supported by sufficient evidence, reasoning “evidence that Millbrook intentionally shot at Manoa’s chest at close range[, no more than two feet,] was sufficient to permit the jury to conclude that Millbrook had the requisite express malice”]; People v. Perez (2010) 50 Cal.4th 222, 230 [“a rational trier of fact could find that defendant’s act of firing a single bullet at a group of eight persons from a distance of 60 feet established that he acted with intent to kill someone in the group he fired upon”].)

Defendant may have a credible defense of self-defense. But because “the evidence also supports a credible inference of [express] malice,” there was probable cause to hold defendant to answer for the attempted murder charge. (People v. Superior Court (Day) (1985) 174 Cal.App.3d 1008, 1020.) Thus, “the People are entitled to . . . bring [defendant] to trial on [that] charge. Whether [he] acted in self-defense is a question to be resolved at that trial.” (Id. at p. 1022.)

The parties also dispute whether the evidence was sufficient to show probable cause that defendant acted with deliberation and premeditation. “ ‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance.” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) “ ‘The process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .” [Citations.]’ ” (Ibid.) California courts have identified three non-exclusive “categories of evidence pertinent to the determination of premeditation and deliberation: (1) planning activity, (2) motive, and (3) manner of killing.” (People v. Perez (1992) 2 Cal.4th 1117, 1125.)

The People say evidence that defendant removed the gun from his waistband, cocked it, aimed it at Thomas, and pulled the trigger after Thomas had turned to retreat supports the allegation of premeditation and deliberation. To accept that argument would be to conclude that virtually every shooting is premeditated. (See People v. Boatman (2013) 221 Cal.App.4th 1253, 1274, fn. 4 [“cocking, aiming, and firing a revolver essentially describes the act of shooting with a revolver. If these actions could, without more, constitute premeditation and deliberation, we would effectively add killing perpetrated by a revolver to the list of crimes specifically enumerated in section 189 and thereby substantially broaden the scope of first degree murder and eliminate the purposeful division created by the Legislature”].) That we refuse to do.

For the first time on reply, the People argue that defendant’s gang membership and the fact that he was carrying a gun are relevant to the issue of premeditation. Under certain circumstances, arming oneself might constitute relevant planning activity. And it is true that gang rivalry can provide a motive to kill. (See People v. Rand (1995) 37 Cal.App.4th 999, 1001-1002 [admitted hatred of rival gang members constituted evidence of motive for killings of persons believed to be rival gang members and thus evidence of premeditation and deliberation]; People v. Martinez (2003) 113 Cal.App.4th 400, 413 [evidence from which jurors could infer “that the motive for the shooting involved gang rivalry” supported “findings that the murder and attempted murders were committed with premeditation and deliberation”].) But we remain unconvinced that there was sufficient evidence to show probable cause that defendant acted with deliberation and premeditation. If we were to conclude that the evidence was sufficient here, then in every case in which a gang member shoots a rival gang member there would be probable cause that the shooting was premeditated and deliberate. That simply cannot be.

There was evidence presented at the preliminary hearing that defendant was a Sureño, Thomas associated with Norteños, and Sureños and Norteños are rival gangs. While the judge rejected the expert’s opinion that the shooting was carried out for the benefit of a street gang, even in cases not involving a gang enhancement, evidence of gang membership may be relevant and admissible to help prove “motive . . . or other issues pertinent to guilt of the charged crime.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Here, defendant’s lethal response to Thomas’s aggression conceivably could have been motivated by self-defense or by gang rivalry. But that evidence of potential motive alone is not sufficient to warrant reinstating the section 664, subdivision (a) allegation that defendant acted willfully, deliberately and with premeditation.

III. Disposition

The order granting defendant’s section 995 motion is reversed and the trial court is ordered to reinstate count 1 of the information, charging attempted murder, not including the section 664, subdivision (a) allegation that defendant acted willfully, deliberately and with premeditation.

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