Fear Not Law Articles: P. v. Magana

P. v. Magana

Filed 2/7/07 P. v. Magana CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

FRANCISCO JAVIER MAGANA,

Defendant and Appellant.

H029059

(Santa Clara County

Super. Ct. No. CC324083)

A jury found defendant Francisco Javier Magana guilty of first degree murder based on evidence that he fatally shot his former employer, Augusto Hostia. On appeal, defendant contends that the trial court improperly hindered his assertion of a self-defense claim by excluding evidence of the victim's aggressiveness and by failing to properly instruct the jury on the right of one who initiates a non-deadly confrontation to defend himself against deadly counterforce. We hold that the court erred in its exclusion of evidence that at the time of his death the victim had ingested methamphetamine, which can cause aggressive behavior. We conclude, however, that this error was very unlikely to have affected the verdict, and therefore does not warrant reversal. We reject defendant's other claims of error, except that, as respondent concedes, two enhancements based on prior prison commitments were not established by competent evidence. Accordingly we will remand for the limited purpose of retrying those enhancements or striking them from the judgment.

Background

Around 9:30 on the evening of Sunday, August 17, 2003, the wife of Augusto Hostia found his body at the cabinetry shop he operated in a light industrial neighborhood of San Jose. He had been shot four times in the face and head. About three hours before this grisly discovery, defendant had presented himself at the home of his former sister-in-law Maria Gonzalez and her husband Mauro Flores. Flores testified that defendant had blood on his shirt, right cheek, and boots. Defendant retrieved a black handgun and box of ammunition from his car and asked Flores to hide them, which Flores did. Both the gun and the ammunition were seized by police and introduced in evidence. The gun, a .380 caliber semiautomatic Grendel P-10, matched the bullets retrieved from the body of Augusto Hostia and the crime scene. Also retrieved from the Gonzalez-Flores home was a large Perry Ellis bag into which defendant had apparently packed five shirts, five pairs of pants, boxers, and toiletries, on August 17, 2003, before leaving his previous place of residence. The blood of Augusto Hostia was found on one pair of defendant's pants, as well as on his boots and the black handgun.

The medical examiner opined that the first two shots that hit Augusto Hostia were â€

Description	A jury found defendant guilty of first degree murder based on evidence that he fatally shot his former employer, Augusto Hostia. On appeal, defendant contends that the trial court improperly hindered his assertion of a self-defense claim by excluding evidence of the victim's aggressiveness and by failing to properly instruct the jury on the right of one who initiates a non-deadly confrontation to defend himself against deadly counterforce. Court hold that the court erred in its exclusion of evidence that at the time of his death the victim had ingested methamphetamine, which can cause aggressive behavior. Court conclude, however, that this error was very unlikely to have affected the verdict, and therefore does not warrant reversal. Court reject defendant's other claims of error, except that, as respondent concedes, two enhancements based on prior prison commitments were not established by competent evidence. Accordingly court remand for the limited purpose of retrying those enhancements or striking them from the judgment.
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