P. v. Negrette

Filed 4/19/06 P. v. Negrette CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael M. Johnson, Judge. Affirmed.

Gregory L. Cannon, under appointment by the Court of Appeal, and Cannon & Harris for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, and Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.

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Alex Negrette appeals from the judgment entered following a jury trial in which he was convicted of three counts of attempted premeditated murder of a peace officer, five counts of assault on a peace officer with a semiautomatic assault weapon, and possession of a firearm by a convicted felon. He contends the trial court erred in failing to instruct, sua sponte, on imperfect self-defense. We affirm.

BACKGROUND

Around midnight of May 3–4, 2004, Samuel Murillo arrived at a friend's apartment building on Eastern Avenue in Los Angeles and was confronted by three men. The men asked Murillo for his gang affiliation and demanded his backpack and bicycle. One of the men displayed a gun. Murillo fled and heard gunshots. Once away from the men, Murillo called 911.

A radio dispatch put out about the incident was heard by Officers Dominguez and Rubio, who were on patrol in a marked car. As they drove to the apartment building they met Officers Rodriguez and Garcia, who were also in a marked car. The two patrol cars then proceeded to the scene from different directions.

As Dominguez and Rubio approached, they saw two men wearing clothes that fit descriptions in the radio broadcast. They stopped their car perpendicular to the curb, facing the two men, and shined a spotlight on them. Defendant, who was one of the two, began firing at Dominguez with a two and one-half foot long semiautomatic firearm that had been hanging from a sling around his shoulder. Rubio fired back at defendant. Dominguez, who had been the driver, got out of the patrol car and also fired at defendant. Defendant fled, and when Dominguez followed, defendant turned and fired again. Defendant continued to flee and fired more shots at Rubio. The officers lost sight of the man who had been with defendant, and Dominguez put out a radio call for help.

Rodriguez and Garcia heard Dominguez's radio call and also heard gunshots. They saw defendant running on Eastern and followed him. Rodriguez pointed his gun at defendant and told defendant to stop. Defendant initially failed to comply. He then stopped, turned around, and aimed his gun at Rodriguez and Garcia. Rodriguez ducked and fired at defendant. Rubio soon arrived and also ordered defendant to stop and drop his weapon. Defendant ultimately complied and was taken into custody. Apparently, none of the shots hit their mark and no one was injured.

Testifying in his defense, defendant asserted that on the day of the incident he was upset about his sister's medical condition and got high on methamphetamine. About 10 p.m., he told a friend named David that he felt like there was nothing good in his life and that he wanted to kill himself. David gave defendant a semiautomatic assault weapon. Defendant and David then went to the apartment house mentioned by Murillo. Defendant saw three men approach Murillo but did not see what happened and did not hear any gunshots.

Defendant continued that he and David eventually walked on Eastern toward his uncle's house. At one point, defendant saw bright headlights, which affected his vision. He did not see that the lights were coming from a police car. After the car stopped, defendant heard gunshots coming from the car. He was aware of gang activity in the neighborhood and thought this might be a drive-by shooting. Based on such fear, defendant started to run from the scene, holding his firearm by the grip in order to defend himself. While pointed downward, the firearm discharged accidentally as defendant turned. Once defendant realized that it was police officers who were chasing him, he stopped. Defendant denied that he ever pointed his gun or fired at any police officers. Defendant claimed to clearly remember what had happened, although he was â€