P. v. Raygoza
Filed 5/22/13 P. v. Raygoza CA2/8 (reposted 7/5/13 to
correct posting malfunction on 5/22/13)
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opinion has not been certified for publication or ordered published for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
EIGHT
THE PEOPLE,
Plaintiff
and Respondent,
v.
CLEMENTE RAYGOZA,
Defendant
and Appellant.
B238501
(Los Angeles
County
Super. Ct.
No. BA372270)
APPEAL
from the judgment of the Superior Court
of
County. Alex Ricciardulli,
Judge. Affirmed in part, as modified,
and reversed in part.
David
L. Polsky, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Susan Sullivan Pithey and David Zarmi, Deputy
Attorneys General, for Plaintiff and Respondent.
* *
* * * * * * * *
Defendant Clemente
Raygoza was charged by second amended information with
Code, §§ 664, 187, subd. (a); count 1)
assault with a deadly weapon (§ 245, subd. (a)(1); count 2), assault by means
likely to produce great bodily injury (§ 245, subd. (a)(1); count 3), and
dissuading a witness from testifying (§ 136.1, subd. (a)(1); count 4). It was alleged that defendant used a
dangerous and deadly weapon (§ 12022, subd. (b)(1); count 2) and caused great
bodily injury (§ 12022.7, subd. (a); counts 1, 2 & 3). The jury found defendant guilty, and all
special allegations were found to be true.
He was sentenced to an aggregate term of 11 years, consisting of seven
years on count 1, and four years for the enhancements on count 1. His sentences on the remaining counts and
enhancements were stayed under section 654.
On appeal, defendant
contends the trial court erred by failing to instruct on the lesser included
offense of voluntary manslaughter under the theories of heat of passion and
imperfect defense of others. Defendant
also contends, and respondent concedes, that he may not be convicted of both
counts of assault, because the counts
arose from the same conduct and were merely alternative theories of the same
offense. He therefore maintains that
only one assault conviction may stand. Lastly,
defendant contends there was insufficient evidence he actually dissuaded a witness from testifying, as alleged in the information,
as the witness testified at the preliminary hearing and trial. Alternatively, he contends the evidence shows
only that he attempted to influence her testimony, rather than discourage her
from testifying. While we conclude
defendant was entitled to an instruction on voluntary manslaughter under an imperfect
defense of others theory, we find that the error in failing to give the
instruction was harmless. We also find that
only one of defendant’s assault convictions may stand. We are not, however, persuaded by defendant’s
remaining contentions.
FACTS
Violeta Islas and
victim Juan Bautista lived together in an apartment on West
17th Street in Los Angeles. There was a history of
relationship. In September 2009, Islas
and Bautista were at a 7-Eleven store when Bautista became angry and jealous
and shoved Islas, believing Islas was cheating because her neck was red. According to witnesses, he also headbutted and
punched her. She was carrying a child in
her arms at the time. Islas called the police
to report the incident. But at trial, when
asked whether Bautista headbutted her, Islas responded, “No. Not really.â€
Sometime
during the afternoon of May 13, 2010, Bautista ran into Ulysses Martinez on the
street in front of Bautista’s apartment building. Martinez
wanted beer, and Bautista offered to give him a ride to the local convenience
store. They purchased an 18-pack of beer
and returned to their meeting place.
In
the meantime, Islas went to dinner with her daughter and her daughter’s
father. Islas’s niece called during
dinner and told Islas that Bautista had come home and was upset. Islas left the restaurant and returned
home. When she arrived, she noticed
Bautista socializing with some men by his car.
He followed her to their apartment and berated her for going out. However, because he was late for a
construction job, Bautista angrily said they would discuss things later. He grabbed his tools and left the apartment.
As
he walked to his car, Bautista saw defendant searching through the car’s
contents. Martinez
and others were standing near the trunk of the car and appeared angry. As Bautista approached, Martinez
struck him and said, “Get the f--- out of here.†Bautista got in his car and drove away. The men chucked beer cans at his car.
At
around 8:30 p.m., after Bautista left, Martinez,
Jimmy Navas, and Jesus Lopez knocked on Islas’s apartment door. As they were knocking, Bautista called home,
telling Islas he forgot his wallet and was coming back to get it. Once she got off the phone with Bautista, Islas
answered the door. She knew two of the
men from the neighborhood and considered them acquaintances. They warned her to be careful because
Bautista was angry and might hurt her. They said they did not like men like Bautista,
and told Islas to warn him to stay out of the area because they had already hit
him, and if he came back, “something else would happen.â€
Bautista
returned home while the men were still speaking with Islas. Bautista charged at Martinez. Bautista and Islas’s roommate, Jose Aguilar, heard
Bautista say, “So I wasn’t coming back, huh?â€
Bautista and Martinez fought. Navas and Lopez joined in, hitting
Bautista. Martinez
tried to get Bautista to the ground, but Bautista remained on his feet. Bautista had recently had back surgery. Islas was worried that his back would be
injured so she wrapped her arms around him from behind to protect his
back.
At
this point, defendant rode up on a bicycle.
According to Islas, he steered his bicycle directly into her, causing
her to fall from Bautista’s back. Islas
saw defendant “ma[king] motions towards [Bautista’s] back,†but the sleeve of
defendant’s sweatshirt concealed his hand from her view. Bautista immediately yelled that he had been
stabbed. Aguilar also saw defendant
strike defendant in the stomach. After
attacking Bautista, defendant quickly mounted his bicycle and rode away. Islas yelled for someone to call 911. The other men continued to hit Bautista, but
fled before authorities arrived.
Bautista
was bleeding, and his intestines protruded from his abdomen. He was taken to the hospital by ambulance,
where he was treated for four stab wounds to his back, and one to his
abdomen.
A
week or so after the stabbing, Islas encountered Martinez
and defendant in a Ralphs parking lot. Defendant
and Martinez started talking to her
about the night of the stabbing. Frightened,
she walked into a beauty salon to get away from them. But the men followed her and sat on either
side of her. Defendant asked Islas if she
and Bautista were going to court. He
admitted to kicking Bautista, but denied stabbing him. He told her that Navas was not present when
Bautista was stabbed (which was untrue), and that she should say that. Also, either Martinez
or defendant said that one of their friends was also stabbed during the
fight. The conversation lasted about 12
minutes.
A
number of witnesses testified for the defense, but it is unnecessary in the
resolution of this appeal to describe all the testimony offered by the defense. We summarize below defendant’s testimony in
his own defense.
Defendant
testified he was playing football with friends on May 13, including Martinez,
Navas, Lopez, Oscar Locon, and Alex Obledo.
Bautista arrived in his car, and appeared to be drunk and high on
methamphetamine. When he got out of the
car, he asked if any of the men had seen Islas.
Defendant told Bautista he had seen her leave with a man in a
truck. This made Bautista angry, and he
threatened to kill Islas. Lopez and Martinez
told Bautista to calm down, but he was very agitated and became angry with Martinez. Earlier that day, defendant saw Bautista with
a knife clipped on his back pocket.
Bautista
offered to buy the men beer in exchange for methamphetamine and marijuana. Martinez
and Bautista left to get beer. When they
returned, the group drank together. Islas
returned home, and Bautista followed Islas into the apartment. About five or 10 minutes later, Bautista left
the apartment carrying construction equipment.
Bautista became angry when he saw Locon rummaging through his car. Bautista and Locon began to argue, and Locon
started throwing items out of Bautista’s car.
He told Bautista, “Get the f--- out of here.†Defendant also told Bautista to leave. Bautista yelled at Locon, got in his car, and
drove away. As he drove off, the group
threw beer cans at his car. Bautista put
his car in reverse, and backed towards the group, forcing them to jump out of
the way to avoid being hit. Martinez
punched Bautista through the open driver’s window. Bautista then drove off.
Lopez
suggested they warn Islas that Bautista was angry. Initially, defendant remained behind. However, a couple minutes later, he walked
over to the apartment and joined his friends in telling Islas about the threats. Defendant then turned around and walked back
across the street. He mounted his
bicycle and rode away, but he then heard the gate to the apartment complex
rattle, and became “kind of worried†that Bautista had returned and would hurt
his friends. Defendant rode his bike
back to the apartment.
Defendant
saw Bautista, Martinez, and Lopez
fighting. Because his bike did not have
brakes, defendant accidentally crashed into Islas’s leg. He was worried for his friends because
Bautista had a knife in his back pocket and was already angry at them. Defendant joined the fight for “two seconds†and
then turned his back on all the others to leave. Defendant “figured [he] could just turn
around and leave, because there was [sic]
already three people on [Bautista].†He
heard Bautista say “I got stabbed.†He
did not stab Bautista.
Approximately
two weeks after the stabbing, defendant saw Islas at a Ralphs grocery store
parking lot. She walked into a nail
salon. Defendant was with Martinez,
and told him to wait in the car.
Defendant wanted to talk to Islas about the incident because Navas had
recently been arrested for participating in the fight even though he was not
there.
In
the salon, defendant sat next to Islas and asked if she and Bautista were going
to court. She said yes. Defendant told her that Navas did not
participate in the fight. Islas accused
defendant of stabbing Bautista. Defendant
denied stabbing him, and Islas admitted that she did not see a knife in his
hand. Martinez
entered the salon, and Islas looked scared.
Defendant did not try to dissuade Islas from attending court. He never threatened her and never told her
what to say.
DISCUSSION
Defendant
contends the trial court erred by denying his request for an instruction on the
lesser included offense of voluntary manslaughter. Defendant also claims, and respondent
concedes, that he may not be convicted of both counts two and three because
they arose from the same conduct and were merely alternative theories of the
same offense, punishable under the same statute. Lastly, defendant contends there was
insufficient evidence to support the conviction in count 4 of dissuading a
witness from testifying.
Attempted
Voluntary Manslaughter
Defendant contends
the trial court erred when it denied his request for an instruction on the
lesser included offense of attempted voluntary manslaughter, because the
evidence supported a finding the stabbing resulted from heat of passion or defendant’s
unreasonable belief that he needed to defend his friends. Defense counsel argued that defendant’s
testimony provided a basis for the instructions, but the court refused to give
the instructions because defendant testified he never used the knife. Defense counsel argued that it did not matter
that defendant denied stabbing Bautista.
The court reasoned that “[o]ne conclusion the jury could draw is that he
came in and he punched and kicked the victim while he was trying to defend his
right. I think there’s a substantial
basis for that. [¶] . . . [¶] Another possibility that the jury could draw
is that he came in with a knife and tried to kill the victim.†The court was concerned that to convict
defendant of voluntary manslaughter on the basis that he believed he needed to
defend his friends, the jury “[would] have to reject part of the defendant’s
testimony [that he did not use the knife.] [¶] . . . [¶] -- and then accept -- [¶] . . . [¶] -- the other part [that he believed he
needed to defend his friends]. [¶] . . .
[¶] Under these circumstances, I don’t
think that that forms a substantial basis so I’m going to deny both attempted
voluntary manslaughter and attempt in both -- [¶] . . . [¶] -- of those theories.â€
Voluntary manslaughter,
based on the theories of heat of passion or unreasonable self-defense, is a
lesser included offense of murder. (
142, 153-154.) It therefore follows, and
respondent does not dispute, that attempted voluntary manslaughter is a lesser
included offense of attempted murder, under heat of passion and imperfect defense
of others theories. (
A trial court is required to instruct on a lesser included offense when
the lesser offense is supported by evidence substantial enough to merit
consideration by the jury. The trial
court need not instruct, however, if there is no evidence that the offense
committed was less than that charged. (
196, fn. 5.) The trial court should not
refuse to instruct on a lesser included offense because of conflicts in the
evidence, which must be resolved by the jury.
(People v. Glenn (1991) 229
Cal.App.3d 1461, 1465-1467.)
We find no error in the
trial court’s refusal to instruct on a heat of passion theory of attempted
voluntary manslaughter. Heat of passion
has both objective and subjective components.
(People v. Cole (2004) 33
Cal.4th 1158, 1215.) The defendant must
subjectively act in the heat of passion.
(Ibid.) And the claimed provocation must be
sufficient to cause a reasonable person under the same circumstances to act
rashly, without deliberation and reflection, from passion rather than from
judgment. (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) The provocation must be such that a “reasonable person in
defendant’s position would have reacted with homicidal rage.†(People v. Koontz (2002) 27 Cal.4th 1041,
1086.)
Here, there was no
evidence that defendant’s participation in the fight was prompted by any kind
of homicidal rage. By his own testimony,
he only participated for two seconds until he was confident that his friends
had the advantage in the fight. Defendant
claimed that he acted to protect his friends, rather than “rashly.†His participation in the fight was the result
of reasoned judgment rather than impulse.
(Carasi, supra, 44 Cal.4th at p. 1306.) Moreover, nothing happened that was
sufficiently provocative to cause an average person to react with deadly
passion. Accordingly, an instruction on
this theory was not required.
Respondent contends the
voluntary manslaughter instruction was not required on the alternative theory
of imperfect defense of others because there was no substantial evidence that
defendant unreasonably believed he had to stab Bautista to defend his friends,
defendant denied stabbing Bautista, and his defense was that someone else had
done it. (Lopez and Martinez testified
that Locon admitted to stabbing Bautista.)
Imperfect defense of others applies when a person kills under an
actual but unreasonable belief in the necessity to defend another person from
imminent peril to life. (People v. Randle
(2005) 35 Cal.4th 987, 996-997, overruled on other grounds in
1201.) “[O]ne who kills in imperfect
defense of others—in the actual but unreasonable belief he must defend another
from imminent danger of death or great bodily injury—is guilty only of manslaughter.†(Randle,
Defendant’s denial that he
stabbed Bautista conflicted with Islas’s and Aguilar’s testimony that defendant
stabbed Bautista. Though he denied the
stabbing, defendant admitted that he briefly participated in the fight out of
concern for his friends’ safety. Thus, a
reasonable jury could believe defendant’s testimony about why he joined the
fight, but reject his claim that he did not stab Bautista, if the jury believed
the testimony of Islas and Aguilar was true.
It was for the jury, not the court, to resolve the conflict in the
evidence.
The “duty to instruct on
lesser included offenses . . . arises . . . regardless of
the trial theories or tactics the defendant has actually pursued.†(People v. Breverman, supra,
19 Cal.4th at p. 162; see also People v.
Barton, supra, 12 Cal.4th at pp.
194-195; but see People v. Sinclair (1998)
64 Cal.App.4th 1012, 1019, 1020 [There is no “duty to instruct on lesser
offenses when there is a complete denial of any complicity in the charged crime
by the accusedâ€; but a “defendant’s . . . denial she or he committed
a homicide may be colored by other testimony, which creates substantial
evidence sufficient to support manslaughter instructionsâ€].)
Nevertheless,
we find the failure to give the instruction was harmless, and there is no
reasonable probability that the error affected the outcome. (People v. Breverman, supra, 19 Cal.4th at p. 165.)
Defendant’s testimony that he
was “worried†for his friends and thought Bautista would hurt them was
extremely weak, particularly since, according to defendant, he only joined the
fight for “two seconds†then quickly turned his back on his friends and left the
scene, having satisfied himself that his friends had gained the advantage in
the fight. Defendant fled immediately
after the stabbing, not staying behind to check on his friends to see if they
were okay, or to ensure their continued safety.
The evidence also showed that he used his bicycle to shove Islas out of
the way, dispelling any claimed concern for her safety.
Moreover,
the trial court instructed the jury on the defense of others, a theory which
the jurors rejected when they convicted defendant of attempted murder. The jury also found defendant guilty of
assault, even though they were instructed that in order to convict, they must
find “defendant did not act in defense of someone else.†Under these circumstances, there is no
reasonable probability that the jury would have reached a different result had
they received the instruction.
Assault
Defendant argues,
and respondent concedes, that one of his two assault convictions (either his
conviction for assault with a deadly weapon in count 2, or his conviction for assault
by means of force likely to produce great bodily injury in count 3) must be
vacated. While it is well settled that
the same conduct may be punished under multiple statutes, a single crime cannot
be fragmented into more than one offense.
(§ 954; People v. Rouser (1997)
59 Cal.App.4th 1065, 1073; People v.
Schroeder (1968) 264 Cal.App.2d 217, 228.)
In In re Mosley (1970) 1
Cal.3d 913, our Supreme Court held that “[t]he offense of assault by means of
force likely to produce great bodily injury is not an offense separate from . . .
the offense of assault with a deadly weapon.â€
(Id. at p. 919, fn. 5.) Defendant’s conviction is based on the same
act of stabbing Bautista; therefore, the conduct constituted a single crime of
assault, punishable under the same statute under different theories. We therefore agree that only one conviction
may stand. Accordingly, the conviction on
count 3 should be stricken and vacated, and the judgment modified to reflect
one conviction for assault with a deadly weapon under section 245, subdivision
(a)(1), with the corresponding enhancements attaching to that count.
Dissuading a
Witness
Defendant contends that
conviction under section 136.1, subdivision (a)(1), which makes it a crime to
“[k]nowingly and maliciously prevent[] or dissuade[] any witness or victim from
attending or giving testimony at any trial, proceeding, or inquiry authorized
by law.†The witness he was accused of
dissuading was Islas. She was not
dissuaded from testifying; she testified both at the preliminary hearing and at
trial. Defendant contends respondent’s
theory at trial was that he attempted to
dissuade Islas from testifying, a violation of section 136.1, subd. (a)(2). But the information alleged a violation of
subdivision (a)(1) (actual dissuading) and did not allege a violation of subdivision (a)(2) (attempted dissuading).
The jury was instructed that
a conviction on count 4 required evidence that “defendant maliciously
from attending or giving testimony in court†and that “[i]t is not a defense
that the defendant was not successful in discouraging the witness.†(Italics added.) During closing argument, the prosecutor emphasized
that “dissuading†meant that defendant tried “to influence and discourage
someone from coming to court to testify.â€
Although defendant has styled his appeal as a challenge to the
sufficiency of the evidence, we will treat the challenge as a claim he was
denied due process by having been convicted of an uncharged offense.
Due process requires that a
criminal defendant receive adequate notice of the nature of the accusation
against him and an opportunity to be heard.
(Cole v. Arkansas (1948) 333
U.S. 196, 201.) Consistent with due process, an accusatory pleading is intended
“‘to provide the accused with reasonable notice of the charges.’†(People
v. Sandoval (2006) 140
Cal.App.4th 111, 132.) Therefore,
“except for lesser included offenses, an accused cannot be convicted of an
offense of which he has not been charged, regardless of whether there was
evidence at his trial to show he committed the offense. [Citation.]
An exception exists if the accused expressly or impliedly consents or
acquiesces in having the trier of fact consider a substituted, uncharged
offense. [Citations.]†(People v. Haskin (1992) 4 Cal.App.4th
1434, 1438.)
Respondent
concedes that defendant was “incorrectly charged under section 136.1,
subdivision (a)(1).†However, respondent
contends the information was impliedly amended with defendant’s consent to
substitute section 136.1, subdivision (a)(2) for subdivision (a)(1). In People v. Toro (1989) 47 Cal.3d 966 (Toro), the defendant was charged with attempted murder and assault
with a deadly weapon. (Id. at
p. 970, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn 3.) After a conference on jury instructions the
trial judge listed by CALJIC number each of the instructions he proposed to
give “‘absent any objection.’†(
at p. 977.) Among the instructions
was one on battery with serious bodily injury, a lesser related (but not a
lesser included) offense of the crimes charged in the information. The defendant did not object to the proposed
instructions on battery, and did not object to the jury’s
consideration of this offense.
Our Supreme
Court found the failure to object constituted an implied consent to the jury’s
consideration of the battery charge.
been uniformly held that where an information is amended at trial to charge an
additional offense, and the defendant neither objects nor moves for a
continuance, an objection based on lack of notice may not be raised on
appeal. [Citations.] There is no
difference in principle between adding a new offense at trial by amending the
information and adding the same charge by verdict forms
and jury instructions. . . .
The risk of unfair surprise to the defendant is the same in either case,
as is the potential benefit to the defendant of affording the jury a wider
range of verdict options. To prevent
speculation on a favorable verdict, a reasonable and fair rule in both
situations is that a failure to promptly object will be regarded as a consent
to the new charge and a waiver of any objection based on lack of notice.†(Toro,
Here,
defendant never objected to the instruction that he could be convicted upon a
finding that he tried to dissuade
Islas, and never claimed lack of notice when the jury followed the court’s instructions,
and found defendant guilty Throughout
the preliminary hearing and trial, the parties and the court proceeded as if
defendant had been charged with attempting to dissuade Islas from testifying,
rather than having actually dissuaded her.
While
Toro addressed a conviction for a lesser related offense, we believe its
rationale is equally applicable here, where the information merely reflected an
incorrect subdivision number, and the crimes had nearly identical elements and
were both misdemeanors. (See § 136.1,
subd. (a).) Defendant’s acquiescence
prevents him from contending on appeal that he received inadequate notice, or
that the evidence was insufficient to support his conviction.
To the extent that defendant
alternatively argues there is insufficient evidence of an attempt to dissuade
Islas from testifying, we disagree.
Defendant approached Islas
and asked her if she was going to court.
She was frightened by his approach.
When she walked away, defendant followed her into a beauty salon and sat
down beside her. He told her he did not
stab Bautista and that his friend Navas (who at the time was under arrest for
the attack on Bautista) was not there, even though defendant and Islas both
knew Navas was there and participated in the attack. Defendant acknowledged that she appeared
frightened during this conversation, yet he persisted. The obvious implication of the evidence is
that defendant was trying to dissuade Islas from testifying.
DISPOSITION
The judgment of conviction on count 3 is stricken and vacated. The judgment of conviction for count 4 is
modified to reflect defendant’s conviction under section 136.1, subdivision
(a)(2). The trial court is directed to forward a certified
copy of the amended abstract of judgment to the
affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J.
WE CONCUR:
RUBIN, Acting P. J.
FLIER, J.
name="_ftn1" title="">[1] All undesignated statutory references
are to the Penal Code.
name="_ftn2" title="">[2] We note that the abstract of judgment
reflects a conviction under section 136.1, subdivision (a)(1), even though the
jury was instructed on the elements of a violation of subdivision (a)(2).
