P. v. De La Cruz

Filed 7/20/06 P. v. De La Cruz CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Victor De La Cruz appeals the judgment following his conviction for second degree murder. (Pen. Code, §§ 187, subd. (a), 189.)[1] He contends that there was insufficient evidence to support a conviction for any offense, and separately contends that, at most, the evidence supports a conviction for voluntary manslaughter. We affirm.

FACTS AND PROCEDURAL HISTORY

Victim Alfonso Topete, his bother Ricardo Topete, and Alejandro Hidalgo were eating in a restaurant. De La Cruz walked by the restaurant and could see the men inside. De La Cruz, an admitted gang member, began "throwing gang signs" with his hands at the Topetes and Hidalgo. There was conflicting evidence of whether Alfonso Topete or his companions made gang signs in response as well as conflicting evidence of whether Topete was a gang member himself.

De La Cruz walked out of view but returned in a few seconds and "threw" more gang signs. He also gestured for the men inside the restaurant to come out. Alfonso Topete walked outside and Hidalgo followed. Hidalgo believed there was going to be a fight.

As soon as Alfonso Topete stepped out the door, De La Cruz shot him in the chest. No one inside the restaurant saw Topete with anything in his hand, or heard him say anything to De La Cruz as he opened the door. The shot killed Alfonso Topete. De La Cruz put the gun in his backpack and ran away with a smile on his face.

De La Cruz testified on his own behalf. He testified that he saw a man inside the restaurant throw a rival gang sign, and he threw his gang sign in return. He testified that, when Alfonso Topete opened the door to come out of the restaurant, Topete "reached to the--to his right side." Although De La Cruz saw that Topete was reaching for a bandanna, De La Cruz initially thought Topete was reaching for a gun and was "gonna shoot me first." De La Cruz testified that, in response to that thought, he pulled out his gun and fired one shot at Topete.

De La Cruz was convicted of second degree murder, and the jury found true allegations that he personally discharged a handgun causing death (§ 12022.53, subds. (b)-(d)), and that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). De La Cruz was sentenced to a 40-year-to-life term, consisting of 15 years to life for the murder, and 25 years to life for the section 12022.53, subdivision (d) firearm enhancement.

DISCUSSION

Substantial Evidence Supports Murder Conviction

De La Cruz contends that the evidence at trial was insufficient to establish he had the requisite mental state necessary to support a conviction for second degree murder. In considering such a claim, "we examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--that would support a rational trier of fact in finding the essential element of intent beyond a reasonable doubt." (People v. Lewis (2001) 25 Cal.4th 610, 642.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Jones (1990) 51 Cal.3d 294, 314.)

Murder is an unlawful killing committed with malice aforethought. (§ 187, subd. (a).) It is second degree murder when there is malice, but not the premeditation and deliberation necessary for first degree murder. (People v. Bohana (2000) 84 Cal.App.4th 360, 367-368.) Malice can be express or implied. Express malice requires an intent to kill. Implied malice requires an intentional act the natural consequences of which are dangerous to human life which is performed with conscious disregard for life. (People v. Blakeley (2000) 23 Cal.4th 82, 87.) We conclude that a reasonable trier of fact could have found beyond a reasonable doubt that De La Cruz killed Alfonso Topete with malice aforethought.

Substantial evidence shows that De La Cruz challenged Alfonso Topete and his two companions by throwing gang signs at them from outside the restaurant. Topete accepted the challenge by leaving the restaurant to confront De La Cruz in some manner. Topete may have unwisely placed himself in danger, but the evidence does not indicate that he committed any violent act or said anything to De La Cruz. De La Cruz had a gun at hand and shot before Topete could do anything other than open the restaurant door.

De La Cruz testified that Topete reached for "his right side" as Topete walked out the door, but also testified that he did not see a gun and that, in fact, Topete was reaching for a bandanna. In addition, no gun was found in Topete's possession or at the scene. The jury could reasonably conclude that De La Cruz fired the killing shot as soon as Topete came out the door.

De La Cruz argues that the evidence supports only two explanations of the killing. Either he premeditated and deliberated the killing or he acted in self-defense. He argues that, by rejecting first degree murder, only self-defense was left.

There is no basis in the record to support this argument. The jury was instructed on first and second degree murder, manslaughter, self-defense and unreasonable self-defense. Arguably, the jury could have found first degree murder, but this possibility in no way undermines the finding of all the elements of second degree murder, a lesser included offense. The jury's failure to find premeditation and deliberation did not prevent it from reasonably finding that De La Cruz killed with malice aforethought.

De La Cruz relies on CALJIC No. 2.02 concerning the sufficiency of circumstantial evidence to prove a specific intent or mental state. CALJIC No. 2.02 instructs the jury that, if evidence of specific intent or mental state permits two reasonable interpretations, "one of which points to the existence of the specific intent or mental state and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the specific intent or mental state appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."

The instruction requires the jury to acquit a defendant of first degree murder if the evidence is consistent with both the existence and nonexistence of premeditation and deliberation, but it does not prevent the jury from concluding that the only reasonable interpretation of the evidence is that a defendant acted with malice.

De La Cruz also argues that evidence supports a finding of self-defense. He asserts that there was no evidence "that it would not be reasonable for Victor to suspect that Topete was reaching for a gun," and that, when gangs are involved, "whoever draws quickest wins."

De La Cruz misconstrues the substantial evidence standard of review. Arguably, the jury could have assessed the evidence in the way he proposes, but there is substantial evidence supporting the verdict actually reached by the jury. Juries are instructed that, in cases involving circumstantial evidence, the facts and circumstances must be consistent with guilt and inconsistent with any other reasonable conclusion. (CALJIC No. 2.01.) This instruction concerning reasonable doubt is primarily for the guidance of the trier of fact, not the reviewing court. (People v. Towler (1982) 31 Cal.3d 105, 118.) When the jury rejects the hypothesis pointing to innocence, and evidence supports the finding of guilt as the more reasonable hypothesis, the reviewing court is bound by the verdict. (Ibid.) "[T]he relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." (Ibid.)

No Basis to Reduce Conviction to Manslaughter

De La Cruz contends that his conviction should be reduced to voluntary manslaughter because the evidence shows that, if he did not act in reasonable self-defense, then he acted in unreasonable self-defense. The express or implied malice necessary for murder is negated by an honest but unreasonable belief in the necessity for self-defense. (People v. Blakeley, supra, 23 Cal.4th at pp. 85, 87-88.) In such cases, the offense is deemed voluntary manslaughter where the defendant acts in a good faith but unreasonable belief in the need for self-defense. (Ibid.)

This argument adds nothing to the prior argument. De La Cruz is asserting that the jury was required to believe his testimony that he believed his life was in danger because he confronted persons he thought were members of a rival gang. The jury was instructed on unreasonable self-defense, but concluded that the evidence did not support that theory. Substantial evidence supports the jury's conclusion.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

David M. Mintz, Judge

Superior Court County of Los Angeles

______________________________

Vincent James Oliver for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code.