P. v. Perez

Filed 8/29/07 P. v. Perez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Judith L. Champagne, Judge. Affirmed in part and reversed in part.

Koryn & Koryn and Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant Felix Perez of second degree murder ( 187, subd. (a))[1]with a finding that he personally used a firearm ( 12022.5) and assault with a firearm ( 245, subd. (a)(2)) with findings that he personally used a firearm ( 12022.5) and inflicted great bodily injury ( 12022.7, subd. (a)). The trial court sentenced defendant to a term of 23 years to life.

The primary issue on appeal is the effect of the trial courts conceded failure to instruct the jury that the great bodily injury enhancement included a specific intent requirement. We conclude this constitutes federal constitutional error which, for the following reasons, cannot be shown to be harmless beyond a reasonable doubt. The record contained significant evidence that defendant was intoxicated. The jury was properly instructed it could consider that evidence in determining whether defendant acted with the intent to kill or acted with deliberation and premeditation but it was not instructed (as it should have been) that it could consider the intoxication in regard to the great bodily injury allegation. The jury quite possibly relied upon the evidence of intoxication when it rejected the prosecutions theory of a willful, deliberate and premeditated murder and instead convicted defendant of second degree murder. Coupling those circumstances with the fact that very little specific evidence was presented about the commission of the assault, we cannot say that the failure to instruct about specific intent to inflict great bodily injury was harmless beyond a reasonable doubt. We therefore will reverse the finding of the enhancement and the three-year sentence imposed therefor. In addition, we will strike two fines from the abstract of judgment because the trial court did not impose them and the statutes authorizing the two fines were enacted many years after defendant committed the crimes.

STATEMENT OF FACTS

This case arises out of a love triangle. Defendant shot and killed Gonzalo Hernandez, the common law husband of his girl friend Blanca Sosa. In addition, defendant shot and wounded Liborio Aleman.

1. The Prosecutions Case

The prosecution presented two witnesses to the crimes: Liborio Aleman (the assault victim) and Rodrigo Castillo Adame.

Aleman is the cousin of the murder victim Hernandez. Aleman testified that during the late afternoon of July 25, 1982, he, Adame and Florentino Romero went to the courtyard apartment Hernandez shared with Sosa. Aleman brought a pack of 12-ounce beers. The men began to drink and Aleman consumed five beers. About an hour after their arrival, defendant came to the apartment. Because Sosa told him not to come in, defendant stood in the front doorway and conversed with Sosa and Hernandez. Aleman did not hear the specifics of the three-way conversation but did testify that no one appeared angry or excited and that there was no physical contact between the three. During this time, Aleman gave defendant a 12-ounce bottle of beer.

During the next hour, Aleman had approximately seven more beers. At one point, Aleman went to the kitchen for more beer. When he returned, he was told that defendant and Hernandez had gone outside. Aleman opened the front door and saw [Hernandez] falling down. Aleman went to help him. As Aleman lay Hernandez down on the ground, Hernandez told Aleman that he had been shot. Aleman looked up and saw that defendant was shooting in [their] direction. Aleman started to walk toward defendant until he realized he had been shot. Aleman, feeling blood on his back, passed out. Defendant had shot Aleman through the collarbone, with the bullet exiting his back. Aleman did not know how far defendant was from him when he shot.

Adame testified much as Aleman had about the events at Sosas apartment. Defendant remained in the front doorway for approximately 30 minutes. While standing there, defendant drank two or three 12-ounce beers. After awhile, Hernandez told Sosa to make up her mind who she was going to stay with. When neither Sosa nor defendant responded, Hernandez said in a loud voice to his friends: Lets go. Defendant said nothing and walked out, followed first by Hernandez and Aleman and then by Adame.[2] As Adame left the apartment, he saw defendant run and shoot Hernandez approximately three times. Adame, who conceded he was drunk that evening, gave no specific testimony about the shooting of Aleman.

The evidence established that defendant had shot Hernandez three times and Aleman once.

2. The Defense Case

Defendant testified that at the time of the shootings, he had been dating Sosa for two months. He telephoned her the afternoon of July 25, 1982. She sounded worried and told him not to come over. Despite her instruction, defendant went to her apartment to see her. He brought a loaded revolver, concealed in the waistband of his pants.

At the apartment, Sosa introduced Hernandez as her husband to defendant. Defendant stayed in the doorway, speaking with them. Hernandez told Sosa to resolve the problem with defendant and to choose between the two of them. Sosa did not respond whereupon Hernandez said in a loud voice to his friends Lets go. Hernandez, Aleman, and Adame then left the apartment. Defendant decided to leave because Hernandez was angry. Defendant testified that as he walked out of the apartment, he could hear Hernandezs groupwhich was walking in front of him toward the streetsay that they wanted to take [him] somewhere else and beat [him] up. Defendant was scared because Sosa had told him that Hernandez possessed a gun. When defendant reached the sidewalk, the three men, who were about a foot away, lunged at [him] to grab [him]. [He] ran back. [He] pulled out the revolver and [he] fired it. He then fled, not realizing he had shot anyone.

Defendant testified he was drunk at the time of the shooting. He had had about four beers at Sosas apartment and, prior to going there, had consumed an unidentified amount of alcohol.

3. Jury Instructions

The trial court submitted the pattern instructions explaining the general principles of homicide, self-defense, murder with malice aforethought (express and implied), degrees of murder, voluntary manslaughter (intentional killing and imperfect self-defense), and involuntary manslaughter (unintentional killing and unreasonable belief in self-defense).

Given the evidence of defendants intoxication, the court also submitted CALCRIM No. 625 (Voluntary Intoxication: Effects on Homicide Crimes). It explained, in relevant part: You may consider evidence, if any, of the defendants voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation. [] . . . [] You may not consider evidence of voluntary intoxication for any other purpose. CALCRIM No. 875 (Assault with Deadly Weapon or Force Likely to Produce Great Bodily Injury) stated: Voluntary intoxication is not a defense to assault.

In addition, the jury was instructed that [p]rovocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder.

As for the allegation of infliction of great bodily injury, the jury was instructed that the enhancement required a general criminal intent: the defendant not only commit[s] the prohibited act, but must do so intentionally or on purpose. (CALCRIM No. 252 (Union of Act and Intent: General and Specific Intent Together).) CALCRIM No. 3160 explained that the prohibited act was the personal infliction of great bodily injury during the commission of the crime. In contrast, the jury was told that the homicide crimes required a specific intent or mental state as explained in the instruction for each crime.

4. Prosecutors Closing Argument

The prosecutor devoted the bulk of his argument to the homicide charge, primarily arguing that defendant committed first degree murder. As for the assault count, the prosecutor (correctly) noted that he was not required to show that defendant intended to hit Aleman but only that defendant acted willfully in shooting the gun at Aleman. The prosecutors only reference to the great bodily injury allegation was a passing argument that Aleman had suffered a substantial, not trivial, injury.

5. Defense Closing Argument

Defense counsel, conceding that defendant had shot Hernandez and Aleman, focused on defendants mental state. She did not separately discuss the various theories of criminal homicide set forth in the jury instructions but, instead, painted a picture of an angry husband (Hernandez), an intoxicated group of men, and a sudden confrontation. She urged there was insufficient evidence of intent to kill but that if there was, there was no evidence to establish a premeditated and deliberate first degree murder. She urged that CALCRIM No. 625 was very relevant to this case in all respects. If you find that [defendant] was voluntarily intoxicated, basically that he drank voluntarily and he was intoxicated and that affected his state of mind, he does not have malice aforethought. At another point, she said: What you basically have here is you have at least three men [Hernandez, Aleman and Adame] to one [defendant]. You have a great deal of alcohol involved. Everyone has been drinking and you have one angry husband [Hernandez]. That is, as I said, what it is. It is an involuntary manslaughter. This is not a murder. It is not a murder one, it is not a murder two. It is an involuntary manslaughter. That is all it is.

Defense counsel also argued that evidence of provocation precluded first degree murder. She said: If you find that he [defendant] was provoked in any way, if for whatever reason you believe he was the one upset in finding [Sosas] husband, come back and you find that he was enraged and jealous, . . . [] It is not a first degree murder at a minimum if you find that he was provoked.

6. The Prosecutors Rebuttal Argument

The prosecutor explained that intoxication doesnt negate malice. Voluntary intoxication negates specific intent to kill, which is express malice, or it could, if he couldnt form the specific intent to kill, it negates premeditation and deliberation. It doesnt eliminate malice because you still have implied malice. You dont get to drink yourself into a stupor and then go shooting at people and claim, I want an involuntary manslaughter.

The prosecutor closed his argument by stating the evidence established a first degree murder. He made no mention of the assault or the allegation of infliction of great bodily injury.

7. The Verdicts and Sentencing

The jury convicted defendant of the second degree murder of Hernandez with a finding of personal use of a firearm and assault with a firearm of Aleman with findings of personal firearm use and infliction of great bodily injury.

At the sentencing hearing, defense counsel pointed out the instructional error regarding the great bodily injury allegation: the jury had not been informed that to render a true finding, it had to find that defendant had the specific intent to inflict that injury.

The court responded:

As counsel correctly points out, there was a problem with the instruction on the great bodily injury. On the other hand, I dont believe the jury could have come back with any other finding even if the additional terminology had been included. The nice thing about these proceedings is that there is an appellate court that can review it. If it feels the great bodily injury enhancement should not be imposed in count 2 [assault with a firearm] because the word intentional was not included, I will certainly accept their determination.

I feel that if one reviews the record and the evidence presented, the defendant turning to the victim in count 2 [Aleman], who had gone to the aid to the victim in count 1 [Hernandez], the victim in count 1 was on the ground. He turned, he aimed, he fired. I dont believe if the word intentional had been included that there would have been any other possible outcome. I would hope that the appellate court will find the error to be of the harmless variety. If they dont feel that way then they will instruct me to strike that portion from his sentence.

The court sentenced defendant to a term of 23 years to life, including a consecutive three-year sentence for the finding of infliction of great bodily injury.

DISCUSSION OF INSTRUCTIONAL ERROR

When defendant committed the crimes in 1982, section 12022.7, subdivision (a) provided for an additional three-year term if the defendant, with the intent to inflict such injury, personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony.[3] (People v. Cole (1982) 31 Cal.3d 568, 570, fn. 1, quoting the statutory language, italics added.) The pattern instruction (CALJIC No. 17.20) used at that time explained, in relevant part: If you find a defendant guilty of _______, you must determine whether or not such defendant, with the specific intent to inflict such injury, did personally inflict great bodily injury. (People v. Clark (1997) 55 Cal.App.4th 709, 714, fn. 1, italics added.)

Defendant urges, and the Attorney General concedes, that the jury was not properly instructed in this case. The bone of contention is whether the failure to instruct the jury to find that defendant had the specific intent to inflict great bodily injury on Aleman requires us to reverse that one finding.

Defendant first contends that the failure constitutes structural error within the meaning of the federal constitution so that it is error per se. We disagree. For structural error to be present, the case must contain a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. [Citation.] Such errors infect the entire trial process, [citation], and necessarily render a trial fundamentally unfair, [citation]. Put another way, these errors deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair. [Citation.] (Neder v. United States (1999) 527 U.S. 1, 8-9.) Structural errors include complete denial of counsel, a biased trial judge, racial discrimination in the selection of the grand jury, denial of the right of self-representation, denial of a public trial, and a defective reasonable doubt instruction. (Id. at p. 8.) However, an instruction that omits one element of an offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. (Id. at p. 9.) It therefore follows that an instruction that omits one element of a sentencing enhancement does not result in structural error, requiring an automatic reversal. (See People v. Rubio (2004) 121 Cal.App.4th 927, 934-935; People v. Magee (2003) 107 Cal.App.4th 188, 193-194.)

The appropriate standard of review was explained in People v. Sengpadychith (2001) 26 Cal.4th 316. Except for sentence enhancement provisions that are based on a defendants prior conviction, the federal Constitution requires a jury to find, beyond a reasonable doubt, the existence of every element of a sentence enhancement that increases the penalty for a crime beyond the prescribed statutory maximum punishment for that crime. [Citation.] Therefore, a trial courts failure to instruct the jury on an element of a sentence enhancement provision (other than one based on a prior conviction), is federal constitutional error if the provision increases the penalty for [the underlying] crime beyond the prescribed statutory maximum. [Citation.] Such error is reversible under Chapman [v. California (1967) 386 U.S. 18] 24, unless it can be shown beyond a reasonable doubt that the error did not contribute to the jurys verdict. (Id. at p. 326; see also People v. Flood (1998) 18 Cal.4th 470, 491-504.)
We therefore come to the crux of the matter: was the trial courts error in failing to instruct the jury that it was required to find defendant entertained the specific intent to inflict great bodily injury upon Aleman harmless beyond a reasonable doubt? In analyzing that question, we must be mindful that had the trial court instructed the jury about the specific intent required for the great bodily injury allegation, it would also have instructed the jury that it could consider defendants intoxication in deciding whether the People had proven the predicate facts for the enhancement beyond a reasonable doubt.[4] On the record before us, we cannot conclude beyond a reasonable doubt that a rational jury would have found the enhancement true absent the trial courts failure.

Significant evidence of defendants intoxication was presented at trial. The jury was properly instructed that it could consider that evidence in deciding whether the People had established beyond a reasonable doubt that he had the specific intent to kill and that the murder was deliberate and premeditated. The jury rejected the prosecutors entreaty to convict of first degree murder and instead convicted only of second degree. Defense counsel advanced two arguments, supported by appropriate instructions, to reach second degree murder. The first was defendants intoxication and the second was provocation. The verdict, of course, does not disclose the basis of the jurys decision. But coupling the jurys verdict with the significant evidence of defendants intoxication, we cannot conclude beyond a reasonable doubt that the failure to properly instruct about specific intent and intoxication vis--vis the enhancement allegation did not contribute to the jurys true finding on that enhancement. Or stated another way, the record contains evidence from which a properly instructed jury could have entertained a reasonable doubt that defendant had the specific intent to inflict great bodily injury upon Aleman and therefore returned a not true finding on the enhancement allegation.

The Attorney General concedes that the jury rejected the prosecutors theory of a first degree murder but nonetheless claims that the jurys guilty verdict on a second degree murder necessarily means that no rational and properly instructed jury could have found defendant lacked the specific intent to inflict great bodily injury upon Aleman. The Attorney General reasons that the jury also rejected [defendants] argument[s] that he acted in self-defense [because it declined to find him not guilty of all homicide offenses] and did not act with an intent to kill [because it declined to find him guilty of involuntary manslaughter]. As the jury found that [he] specifically intended to kill Hernandez, the jury could not have found that [he] lacked the specific intent to inflict great bodily injury on Aleman, who was shot within seconds or at most moments after Hernandez. (Italics added.) We are not persuaded.

The jury was instructed that either express malice or implied malice established the state of mind required for murder. While express malice includes the intent to kill, implied malice does not. In regard to the latter, the jury was instructed that defendant acted with implied malice if: [] 1. He intentionally committed an act; [] 2. The natural consequences of the act were dangerous to human life; [] 3. At the time he acted, he knew the act was dangerous to human life; AND [] 4. He deliberately acted with conscious disregard for human life. The guilty verdict on second degree murder does not, of course, indicate which theory of malice the jury relied upon. Consequently, the jurys conviction of second degree murder does not necessarily equate, as the Attorney General now suggests, with a finding that defendant had the specific intent to kill Hernandez and therefore (inferentially) the specific intent to inflict great bodily injury upon Aleman. This is particularly so because, as set forth earlier, the prosecutors rebuttal argument had explained that even were the jury to credit the evidence about defendants intoxication, it could still convict him of second degree murder based upon implied malice. Furthermore, scant evidence was introduced about defendants shooting of Aleman, let alone his intent when he shot and injured Aleman. Aleman simply testified that as he lay Hernandez down on the ground, defendant shot in their direction. Adame gave no specific testimony about defendants shooting of Aleman. And defendant merely testified that he shot at Hernandez, Aleman and Adame after they lunged at him. Given the paucity of evidence about the specific circumstances of defendants shooting of Aleman and the significant evidence of defendants intoxication, we reiterate our conclusion that we cannot find the instructional error harmless beyond a reasonable doubt.

IMPOSITION OF FINES

At the sentencing hearing, the court imposed a $500 restitution fine ( 1202.4, subd. (b)) and stated: I dont think there was a court security fee at that time [when defendant committed the crimes]. However, the abstract of judgment includes, in addition to the $500 restitution fine, a $500 parole revocation fine ( 1202.45) and a $20 security fine ( 1465.8, subd. (a)(1)). The inclusion of the latter two fines in the abstract of judgment appears to be a result of clerical error because the transcript of the sentencing proceeding indicates the trial court did not impose them. (See People v. Price (2004) 120 Cal.App.4th 224, 242.) In any event, the two fines cannot be imposed upon defendant because the statutory provisions authorizing them did not exist in 1982 when defendant committed the crimes. (See, e.g., People v. Thompson (1998) 61 Cal.App.4th 1269, 1276.) We will therefore strike these two fines from the abstract of judgment.

DISPOSITION

The fines imposed pursuant to sections 1202.45 and 1465.8, subdivision (a)(1) are stricken from the abstract of judgment. The finding made pursuant to section 12022.7, subdivision (a) that defendant inflicted great bodily injury in the course of violating section 245, subdivision (a)(2) and the three-year consecutive sentence imposed for that finding are reversed. If the People elect not to retry defendant on the section 12022.7, subdivision (a) allegation within 60 days of the issuance of the remittitur ( 1382, subd. (a)(2)), the trial court shall prepare and forward to the Department of Corrections an amended abstract of judgment reflecting an indeterminate term of 20 years to life and deleting the two stricken fines. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J. SUZUKAWA, J.

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

[2] Adame testified that he was accompanied by Florentino Romero. Romero did not testify at trial.

[3] In 1995, section 12022.7 was amended and the requirement that the great bodily injury be inflicted with the intent to inflict such injury was deleted. (Stats. 1995, ch. 341,  1, p. 1851.)

[4] Although the trial court had stated its belief that the instructional error was harmless, no one had raised the issue of defendants intoxication and its relationship to the required finding of specific intent.