P. v. Fuentes

Filed 7/24/06 P. v. Fuentes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Appellant Regulo Fuentes was sentenced to prison for a life term plus a 25-year-to-life enhancement after a jury convicted him of attempted premeditated murder and determined that he had personally discharged a firearm during the offense, causing great bodily injury. (Pen. Code, §§ 664/187, subd. (a); 12022.53, subd. (d).)^[1] He contends the judgment must be reversed because the trial court failed to instruct the jury that evidence of his preoffense statements should be viewed with caution. He also argues that the court should have stricken a great bodily injury enhancement under section 12022.7, subdivision (a), rather than ordering it stayed. We agree with the later contention but otherwise affirm the judgment.

FACTS

Candelario Flores had been dating Graciela Sencion, appellant's ex-wife, for over two years. Appellant frequently caused problems when he encountered Flores and Sencion together. Appellant drove to Sencion's house and saw that she was talking to Flores in his parked car. According to Flores and Sencion, appellant approached the driver's side of the car, Flores got out, and the two men began fighting.

Appellant was holding a can of pepper spray. According to Flores, appellant was yelling at him and threatened to kill him. Flores attempted to push appellant away because he did not want to fight. Appellant hit Flores several times and then ran back to his car to retrieve a gun. He fired several shots, hitting Flores twice. Flores did not use any type of weapon during the fight.

Flores held onto appellant's arm to prevent him from shooting him again. Gustavo Perea, Sencion's son-in-law, helped Flores restrain appellant. Police officers arrived and saw all three men struggling for the weapon. After the men were subdued, the officers examined the gun and found three expended bullet casings in its chamber and three live rounds, indicating that three shots had been fired. A can of pepper spray was found on the ground.

At trial, appellant testified that he had separated from Sencion because he believed she was having an affair with Flores. He went to her house to pick up his son. Appellant carried pepper spray for his job as a security guard and kept a gun in the back seat of his car for protection. When he arrived at Sencion's house, Flores got out of his vehicle and came toward appellant. Appellant got out of his car and the two men began fighting.

Appellant testified that he and Flores fought for about five minutes, during which time he pulled a can of pepper spray from his belt. He saw Sencion's son-in-law, Perea, approaching. Flores kicked the pepper spray out of appellant's hands so appellant went to his car and loaded his gun. Flores ran toward appellant and appellant decided to fire a shot to scare him. He feared for his life because there were two men confronting him, even though neither of them was carrying a weapon. He fired a second shot, aiming it at Flores, but did not remember firing a third. Appellant struggled for the weapon because he thought that Flores and Perea would grab it from him and kill him.

DISCUSSION

Failure to Give CALJIC No. 2.71.7 Regarding

Oral Statements by a Defendant

Flores testified at trial that appellant threatened to kill him before he retrieved the gun and fired the shots. This was contrary to the version of events that appellant gave at trial. Appellant argues that this evidence required a cautionary instruction in the form of CALJIC No. 2.71.7, which would have advised the jury, "Evidence has been received from which you may find that an oral statement of [intent] [plan] [motive] [design] was made by the defendant before the offense with which [he] [she] is charged was committed. [¶] It is for you to decide whether the statement was made by [a] [the] defendant. [¶] Evidence of an oral statement ought to be viewed with caution."

When the evidence warrants, the court must instruct the jury sua sponte to view the evidence of a defendant's oral admission with caution. (People v. Dickey (2005) 35 Cal.4th 884, 905.) This rule applies to statements of intent uttered before or during the commission of the offense. (People v. Carpenter (1997) 15 Cal.4th 312, 392-393.) The purpose of the instruction is to assist the jury in determining whether the statement was in fact made. (Id. at p. 393.) The erroneous failure to give the instruction does not implicate the federal constitution and requires reversal only if it is prejudicial under the normal standard of review for state law error, i.e., when it is reasonably probable the jury would have reached a result more favorable to the defense if the instruction had been given. (Dickey, at p. 905.)

The People do not dispute that a cautionary instruction was required with respect to appellant's statement. The issue is whether the lack of such an instruction was prejudicial. "'[C]ourts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately.'" (People v. Dickey, supra, 35 Cal.4th at p. 905.) When there is no such conflict in the evidence, but simply a denial by the defendant that he made the statements, the failure to give the cautionary instruction is harmless where the jury has otherwise been instructed on the credibility of witnesses. (Id. at p. 906.)

The evidence that appellant threatened to kill Flores when they first began to fight tended to show that he acted with the intent to kill necessary for an attempted murder conviction and that he considered this plan beforehand and thus acted with premeditation and deliberation. There was no conflict about the actual words used or their meaning; the only issue was whether they were uttered at all. The defense established through cross-examination that Flores had not mentioned the threat during his preliminary hearing testimony, but had instead testified that he did not understand what appellant was saying to him. The jury was fully instructed on witness credibility and was well able to assess whether Flores was telling the truth when he testified at trial that appellant made the threat. (CALJIC No. 2.13 [Prior Inconsistent Statements], CALJIC No. 2.20 [Believability of Witness], CALJIC No. 2.21.1 [Discrepancies in Testimony], CALJIC No. 2.21.2 [Witness Willfully False], CALJIC No. 2.22 [Weighing Conflicting Testimony], CALJIC No. 2.27 [Sufficiency of Testimony of One Witness].)

Flores and Sencion both testified that appellant was the aggressor. The outcome of this case rested on whether the jury believed them or appellant, who claimed to have shot Flores in reasonable or honest-but-unreasonable self-defense. If the jury had believed appellant and rejected Flores's version of events, it would not have credited his testimony about the threats. But once it found Flores to be a credible witness in his description of the altercation, the evidence of threats was unlikely to have affected the verdict in a case where the other evidence of intent to kill and premeditation was strong. Appellant himself acknowledged that he returned to the car and loaded his gun and that he aimed at least one of the shots at Flores. It is not reasonably probable that a cautionary instruction regarding evidence of the threat would have changed the result of this case.

Great Bodily Injury Enhancement

The jury returned true findings on enhancement allegations that appellant personally and intentionally discharged a firearm, causing great bodily injury (§ 12022.53, subd. (d)) and that he had personally inflicted great bodily injury (§ 12022.7, subd. (a)). The court imposed a 25-year-to-life term on the former and imposed and stayed a 3-year term on the latter. Appellant argues that latter enhancement should have been stricken. The People agree and we will order the judgment so modified. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 712-713, fn. 5.)

DISPOSITION

The judgment is modified to strike the great bodily injury enhancement under section 12022.7, subdivision (a). The superior court shall modify the abstract of judgment and forward a copy to the Department of Corrections. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Steven Suzukawa, Judge

Superior Court County of Los Angeles

______________________________

Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Respondent.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Marc E. Turchin, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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