P. v. Sena

Filed 4/4/07 P. v. Sena CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. James R. Dabney, Judge. Affirmed and remanded with directions.

Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent.

____________

Appellant Nicholas Anthony Sena appeals from a judgment entered after a jury convicted him of first degree murder (Pen. Code,  187, subd. (a)),^[1]attempted murder ( 664, 187, subd. (a)) and mayhem ( 203). The jury also found true the sentence enhancement allegations that appellant used a gun ( 12022.53, subds. (b)-(e)), and acted in furtherance of criminal street gang activity ( 186.22, subd. (b)(1)) when he committed the crimes. We affirm.

CONTENTIONS

Appellant contends that: (1) the trial court abused its discretion in excluding expert testimony on witness identifications; (2) the trial court erred in failing to define heat of passion as it related to the element of deliberation; (3) the trial court erred in failing to instruct with CALJIC No. 8.73; (4) the trial court erred in failing to instruct with CALJIC No. 8.30; (5) the trial court erred in failing to instruct on voluntary and attempted voluntary manslaughter; (6) the trial courts instruction on concurrent intent, CALJIC No. 8.66.1, violated appellants right to due process; (7) the trial court erred in failing to instruct on battery with serious bodily injury as a lesser included offense of mayhem; and (8) appellant is entitled to 614 days of presentence credit.

FACTS AND PROCEDURAL HISTORY

Viewing the record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following.

In June 2003, appellant was the only active White member of the Venice Shoreline Crips gang, which is a rival of the Santa Monica 13 gang. Appellants gang moniker was Nut Case. On June 2, 2003, appellants fellow gang member, Deante Cheatham (Cheatham), was murdered.

On June 8, 2003, Los Angeles Police Department Officer Cesar Mata detained appellant in a traffic stop near the intersection of Lincoln Boulevard and Brooks Avenue. Appellant wore his hair in cornrow braids and was dressed in blue pants and a puffy blue jacket bearing a sports team logo.

On June 9, 2003, Kenneth Torrence (Torrence) was driving his trash truck in the vicinity of Lincoln Boulevard and Brooks Avenue. He saw appellant cross the street on the crosswalk in front of his truck, draw a weapon, and fire five shots in the direction of two people: Carlos Lopez (Lopez), a Santa Monica 13 gang member, who was leaning against a wall, and Zana Wainer (Wainer), a bystander, who was walking by Lopez. Lopez died of multiple gunshot wounds to his head, chest, abdomen, arm and hand. One bullet hit Wainer in the stomach, seriously injuring her. Appellant did not say anything to Lopez prior to shooting him. After he shot the two victims, appellant ran down the block. Torrence tried to call 911, and followed appellant in his truck as appellant ran off. Torrence made eye contact with appellant for about three seconds as appellant stopped to catch his breath. Torrence returned to the crime scene and described appellant to the police. Two hours later, Torrence identified appellant at a photographic lineup.

Miguel Gonzalez (Gonzalez) was driving his FedEx truck when he heard gunshots, saw a man fall to the ground, and saw appellant with his hair in cornrows and wearing a puffy blue jacket, running away. In his truck, Gonzalez pursued appellant to an apartment building where he saw appellant take his jacket off, revealing tattoos on the backs of his arms. The tattoos were of two letters, V and C, which to Gonzalez signified the Venice Shoreline Crips gang. Three days later, Gonzalez identified appellant in a photo lineup.

Los Angeles Police Department Detective Joe Lumbreras, investigating the crime scene, found five spent shell casings from a semiautomatic pistol. The bullets were all of a brand called R.P. Appellant was arrested in the lobby of his mothers apartment. Officers searching a car from which appellant was walking away, found a gun cleaning kit, unfired R.P. bullets of the same caliber as those found at the crime scene, appellants drivers license on the front seat, appellants work identification in the trunk, a box of ammunition in the trunk, and a tool kit with the initials VSLC, written on it, as well as the name Nut. VSLC stands for Venice Shoreline Crips.

Los Angeles Police Department Officer David Bambrick testified as a gang expert. He stated that appellant and Cheatham belonged to the same clique, a smaller group within the gang. A few weeks prior to his death, Cheatham had been in a fist fight with several members of Santa Monica 13. Officer Bambrick opined that the shooting was committed for the benefit of the Venice Shoreline Crips gang in retaliation for the shooting of Cheatham. He also testified that graffiti was found in Venice Shoreline Crips territory during the investigation of Lopezs murder. He deciphered the graffiti, testifying that rip tay stood for rest in peace Dionte and SM, crossed out with the letter K next to it, meant that someone from Santa Monica 13 would be killed. The graffiti was signed by Nut Case and VSL Crip.

At trial, appellant was asked to, and did, display his tattoos. Appellants gang expert testified that sometimes gang members will use someone elses moniker to show respect and to mislead police. He also testified that the use of the letter K and crossing out another gangs name does not necessarily mean that someone from that gang will be killed, but may just be an expression that the gangs do not get along with each other.

DISCUSSION

I. Whether the trial court properly excluded expert testimony on eyewitness identification

1. The requirement of significant independent corroboration

Appellant urges that the trial court abused its discretion in excluding expert testimony on identification evidence because there was no significant independent corroboration of the two eyewitness identifications, and because the expert testimony would have assisted the jurors evaluation of those identifications. We disagree.

In People v.McDonald (1984) 37 Cal.3d 351 (McDonald) [overruled on other grounds as stated in People v.Mendoza (2000) 23 Cal.4th 896, 914], our Supreme Court stated: [T]he decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial courts discretion; . . . we do not intend to open the gates to a flood of expert evidence on the subject. [Citation.] We expect that such evidence will not often be needed, and in the usual case the appellate court will continue to defer to the trial courts discretion in this matter. Yet deference is not abdication. When an eyewitness identification of the defendant is a key element of the prosecutions case but is not substantially corroborated by evidence giving it independent reliability . . . , it will ordinarily be error to exclude that testimony. (McDonald, supra, at p. 377, fn. omitted.)

2. Substantial corroborative evidence existed

Here, the record reveals strong corroborative evidence. The evidence showed that appellant, a member of Venice Shoreline Crips, had gang tattoos on his body as described by Gonzalez. The testimony of Gonzalez, Torrence, and Officer Mata regarding the description of appellants hairdo and clothing, concurred. Appellant was spotted near the crime scene on the previous day, wearing the same clothing and hairdo. Graffiti bearing appellants gang moniker, a tribute to Cheatham, and indicating a plan to kill someone from Santa Monica 13, was found in Venice Shoreline Crips territory. Appellants work identification, drivers license, tool box with his gang moniker, and gun cleaning kit were found in a car that also contained bullets of the same caliber and brand as those used to kill Lopez. Appellant was arrested as he walked away from that car into the vestibule of his mothers apartment. Also, appellant, the only active White member of Venice Shoreline Crips, was identified as White, half White or Hispanic by Gonzalez and Torrence.

Citing McDonald, appellant urges that the trial court abused its discretion in excluding expert testimony. In McDonald, however, the only evidence linking the defendant to the crime was eyewitness identification, which was equivocal. And, the defendant also had a strong alibi defense, which appellant did not present. (McDonald, supra, 37 Cal.3d at pp. 355-360.)

We conclude that the eyewitness identification of appellant was substantially corroborated by evidence that gave the identification independent reliability.

3. Appellants request to reweigh the evidence fails

Nevertheless, appellant attempts to minimize the substantial nature of the corroborative evidence, by asking us to reweigh the evidence. However, it is the exclusive province of the jury to determine the credibility of the witness. (People v.Ochoa (1993) 6 Cal.4th 1199, 1206.) Appellant cites to his experts testimony that gang members may use another persons gang moniker, and that the crossing out of a rival gang name does not necessarily mean a death threat. He argues that the bullets were of a common brand; that appellant did not own the car he was seen walking away from; that no blood, jacket, bullets or weapons were discovered in appellants home or own car; and that no prints were recovered from the bullets or the car in which they were discovered. He claims that the witness testimony was equivocal; that at the preliminary hearing Gonzalez testified that the tattoos were of the letters V and S;^[2]that appellant was mistakenly described as Hispanic or half White; that someone else could have committed the crime; and that it was unclear if a Santa Monica 13 gang member killed Cheatham. Appellant also contends that the photographic lineup contained only two White suspects, and only two with facial hair.

We simply are not persuaded by appellants arguments that the evidence corroborating the eyewitness identification was not substantial.

4. Any error was harmless

Even if the trial court erred, any error was harmless. An error is harmless if it is not reasonably probable that the defendant would have obtained a more favorable result had the excluded testimony been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.) Here, in addition to the substantial corroborative evidence cited above, the jury was instructed on factors affecting the accuracy of eyewitness identifications; appellants counsel cross-examined the witnesses about their identifications; and appellants counsel argued that the psychology of eyewitness identifications made these identifications unreliable. Thus, any error was harmless.

II. Whether the trial courts failure to define heat of passion as it relates to the element of deliberation is reversible error

Appellant urges that because substantial evidence supported the finding that appellant did not commit a deliberate murder, but was prompted to kill Lopez by a sudden heat of passion, the trial court was obligated to sua sponte define heat of passion. We disagree.

In People v. Cole (2004) 33 Cal.4th 1158, 1217-1218, our Supreme Court held that where the evidence did not support instructions on voluntary manslaughter, provocation, and heat of passion as material to voluntary manslaughter, those instructions were immaterial. The court also stated that [p]rovocation and heat of passion as used in the instructions here bore their common meaning, which required no further explanation in the absence of a specific request. [Citation.] (Id. at p. 1217.)

Here, the jury was instructed on first degree murder with CALJIC No. 8.20, which provides, in pertinent part: If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.

First, appellants argument that he may have been provoked is not based upon any evidence in the record. Appellant argues that the trial court should have defined heat of passion because he had never engaged in a gang crime and therefore must have been provoked by Lopez to murder him; something may have transpired between appellant and Lopez prior to the shooting to provoke appellant; and the eyewitnesses testimony was unreliable. But, the undisputed evidence shows that appellant walked across the crosswalk, drew out a gun, and said nothing to Lopez before he shot him. Appellants arguments are merely speculation.

Second, the trial court has no sua sponte duty to define heat of passion, in the absence of a specific request. Here, the record shows that appellant did not specifically request the trial court to define heat of passion at trial.

Accordingly, the evidence did not support further instructions defining heat of passion.

III. Whether the trial court had a sua sponte duty to give CALJIC No. 8.73

Appellant contends that the trial court had a sua sponte duty to instruct with CALJIC No. 8.73 because it was obligated to instruct the jurors on the relationship between provocation and deliberation. Again, we disagree.

CALJIC No. 8.73 provides: If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation.

Our Supreme Court has recently held that CALJIC No. 8.73 is a pinpoint instruction relating particular evidence to an element of the offense, and therefore need not be given on the courts own motion. (People v. Rogers(2006) 39 Cal.4th 826, 878.)

Here, as previously discussed, there was no evidence of provocation and we conclude that under People v. Rogers, supra, 39 Cal.4th at page 878, the trial court did not err in failing to give the instruction sua sponte.

IV. Whether the trial courts failure to instruct on CALJIC No. 8.30 is reversible error

Appellant contends that the trial court erred in failing to sua sponte instruct on second degree murder with CALJIC No. 8.30 because there was insufficient evidence that appellant deliberated before he shot Lopez. We disagree.

CALJIC No. 8.30 provides: Murder of the second degree is [also] the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation.

The trial court has an obligation to instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. (People v. Carter (2005) 36 Cal.4th 1114, 1184.) Speculation is an insufficient basis upon which to require the giving of an instruction on a lesser included offense. (People v. Valdez(2004) 32 Cal.4th 73, 116.) In support of his argument that he did not deliberate in committing the murder, appellant urges that [t]here was a paucity of convincing direct evidence as to whether or not something transpired between Lopez and appellant in the moments before the shooting. Therefore, he reasons, Lopez must have provoked the shooting in some manner. Appellant has cited no evidence at all, but merely proffers insufficient speculation.

Moreover, a lesser included offense instruction need not be given if the evidence establishes that if the defendant was guilty at all, he was guilty of the greater offense. (People v.Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524.) Appellants theory at trial was that he did not commit the crime. The People presented evidence that appellant committed the murder with premeditation, as indicated by appellants graffiti paying homage to Cheatham, and vowing to kill a Santa Monica 13 gang member. Appellant walked up to Lopez, and without speaking, shot him. Appellant then fled. Thus, the evidence supports the finding that the murder was planned revenge and the instruction as to first degree murder was proper.^[3]

Even if the trial court erred in failing to give the instruction, any error was harmless. An error is harmless if the factual question posed by the omitted lesser included offense instruction was necessarily resolved adversely to the defendant under other, properly given instructions. (People v. Elliot (2005) 37 Cal.4th 453, 475.) Here, the jury was instructed with CALJIC No. 8.20 which provides that a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder of the first degree and CALJIC No. 8.71 which provides that if the jury had a reasonable doubt whether the murder was first or second degree, it must give defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree. Given those instructions, the jury found beyond a reasonable doubt that appellant was guilty of first degree murder. Thus, because appellant would have been found guilty of first degree murder, even if more thorough instructions on second degree murder had been provided, the absence of the instruction was harmless.

We conclude that even if the trial court erred, any error was harmless.

V. Whether the trial courts failure to instruct on voluntary and attempted voluntary manslaughter is reversible error

Appellant argues that the trial court erred in failing to instruct on voluntary and attempted voluntary manslaughter because there was substantial evidence of provocation. Again, we differ.

Manslaughter is the unlawful killing of a human being without malice and constitutes a lesser included offense of murder. (People v.Manriquez (2005) 37 Cal.4th 547, 583.) One who kills in the heat of passion after being provoked by the victim is guilty of voluntary manslaughter. (Ibid.) A conviction for attempted voluntary manslaughter requires proof of specific intent to commit the crime, and a direct but ineffectual act toward its commission. (People v. Toledo(2001) 26 Cal.4th 221, 229;  21a.)

Once again, appellant speculates that Lopez may have provoked appellant, and that he reacted in the heat of passion. We reiterate that there is no evidence showing that appellant killed Lopez and attempted to kill Wainer in the heat of passion. Rather, the undisputed evidence shows that appellant crossed the street at the crosswalk, drew out a gun, and shot Lopez without speaking a word.

We conclude that the trial court did not err in failing to give the instruction.

VI. Whether the trial courts instruction on concurrent intent violated appellants rights to due process and trial by jury

Appellant complains that the giving of CALJIC No. 8.66.1 violated his federal constitutional rights to due process and trial by jury because the instruction does not reflect the requirement of People v. Bland (2002) 28 Cal.4th 313, 328 (Bland) that the jury must find that the defendant must intend to kill the alleged victim.

Under the kill zone theory set forth in Bland, supra, 28 Cal.4th at pages 329-330, the factfinder can determine that the defendant may have had the intent to kill multiple victims by employing means that create a zone of risk around the targeted victim. The intent is deemed concurrent when the nature of the attack, while directed at the primary victim, is such that the factfinder can conclude that the defendant intended to ensure harm to the primary victim by harming everyone in the vicinity. (Ibid.)

Appellant contends that CALJIC No. 8.66.1, improperly states that the evidence makes it reasonable to infer, rather than requiring that the jurors actually do inferthat the defendant intended to kill the bystanders. It is true that CALJIC No. 8.66.1 provides: The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to [ensure harm to] the primary victim by [harming] everyone in that victims vicinity. What appellant neglects to mention is that CALJIC No. 8.66.1 also provides: Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a zone of risk is an issue to be decided by you.

Thus, the instruction does not impose a lesser standard of proof on the jury, and appellants argument is without merit.

VII. Whether the trial court erred in failing to instruct on battery with serious bodily injury as a lesser included offense of mayhem

Appellant next contends that substantial evidence supported an instruction on battery with serious bodily injury as a lesser included offense of mayhem. We do not agree.

A battery is any willful and unlawful use of force or violence upon the person of another. ( 242.) Aggravated battery occurs when the battery results in serious bodily injury. ( 243, subd. (d).)

A person commits mayhem when he or she unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip . . . ( 203.) The modern rationale for the crime of mayhem in California is to protect the integrity of the victims person from disfigurement. (People v.Keenan (1991) 227 Cal.App.3d 26, 34.) The element of malice in the offense of mayhem is defined as an unlawful intent to vex, annoy, or injure another person, or an intent to do a wrongful act. (People v.Hayes (2004) 120 Cal.App.4th 796, 803-804;  7, subd. (4).)

The trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence that the defendant is guilty only of the lesser. (People v. Carter, supra, 36 Cal.4th at p. 1184.) Appellant contends that there was equivocal evidence that he maliciously intended to injure Wainer. He claims that he had no motive to injure her, and it is arguable that she was struck by a stray bullet. The crime of mayhem, however, does not require a specific intent to maim or disfigure. (People v. Hayes, supra, 120 Cal.App.4th at p. 805.) Rather, the necessary intent may be inferable from the types of injuries resulting from the intentional act. (Ibid.) By spraying Lopez and Wainer with at least five bullets, even though he admits to having no motive to hurt her, appellant intended to injure her. We can also infer the necessary intent from the fact of the serious nature of Wainers injuries: she bears a one-foot scar from her chest to her stomach; has pain; and cannot take deep breaths, yawn, or eat normally.

We conclude that the evidence supports the finding that appellant harbored malice toward Wainer for purposes of mayhem. Therefore, the trial court did not err in failing to instruct on battery with serious bodily injury.

VIII. No federal constitutional error

Appellant urges that the trial courts instructional errors and failure to admit expert testimony constituted federal constitutional error under Chapman v. California (1967) 386 U.S. 18, 24.

We first note that by failing to raise his constitutional claims below, appellant has waived the right to appeal on those grounds. (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3.) In any event, the reasonable probability standard of People v. Watson, supra, 46 Cal.2d at page 836 applies to the evidentiary and instructional issues here. (People v. Marks (2003) 31 Cal.4th 197, 227; People v. Breverman (1998) 19 Cal.4th 142, 178.) We find that in each complained-of instance the trial court did not err, and there was no reasonable probability of a different outcome.

IX. Whether the matter should be remanded to the trial court to calculate presentence custody credit

Appellant contends that he should have been awarded 614 days of presentence custody credit, despite the trial court and the parties failure to mention the issue of custody credits at sentence, and the lack of an award of credits in the sentencing minute order or abstract of judgment.

It is not the proper function of the Court of Appeal to engage in the business of correcting clerical errors in the computation of presentence custody credit. (People v.Fares (1993) 16 Cal.App.4th 954, 959.)

We agree with the People that the trial court is in a better position to resolve the issue of custody credit because, among other things, the record does not indicate whether appellant may have been awarded custody credits for prior crimes.

We therefore remand the matter to the trial court for calculation of presentence custody credit.

DISPOSITION

The case is remanded to the trial court to determine the number of days of custody credit to which appellant is entitled. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

ASHMANN-GERST

We concur:

___________________, P. J.

BOREN

___________________, J.

CHAVEZ

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

^[2] Gonzalez testified at trial that he misspoke at the preliminary hearing because he was nervous.

^[3] As the People note, appellants trial counsel initially refused CALJIC No. 8.30, then decided to request the instruction out of an abundance of caution. The trial court agreed to give the instruction. Although the instruction was somehow omitted, the omission was proper, as previously discussed, and any error was harmless, as discussed, infra.