P. v. Vadillo

Filed 10/12/07 P. v. Vadillo CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard A. Stone, Judge. Affirmed.

Brett Harding Duxbury, 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, Lawrence M. Daniels and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

Appellant Amara Vadillo was found guilty by a jury of second degree murder. The jury also found that appellant had personally used a firearm, proximately causing great bodily injury and death.^[1]Appellant was sentenced to a term of 20 years to life for the murder and to a consecutive term of 25 years to life on the enhancements. The court imposed restitution and parole revocation fines, staying the latter, and gave appellant 499 days of presentence custody credit. We affirm the conviction.

FACTS

The events leading up to the shooting death of the victim, Carlos Gomez, a.k.a. Laura Ornelas (hereafter referred to as Ornales), took place in and about the diner Yukon Mining Company in West Hollywood and occurred in the early morning hours of March 17, 2003; this establishment is frequented by the transgender community. The events that led up to Ornelass death were a series of vicious physical attacks by appellant on Tanya Amador. As we relate below, it was when these attacks culminated in appellant firing at close range at Amador that the shot missed its intended target and hit Ornelas.

The tension between appellant and Amador apparently originated a few months prior to March 2003 when appellant, a friend of appellants, Ornelas and Amador got into an altercation outside the Yukon Mining Company (referred to as the club), which ended with appellant being barred from the club. On another occasion, and some time before March 17, 2003,^[2]appellant approached Amador and said that I [Amador] would be paying for what I did. That she [appellant] had found out that I had had another person attack her at the club. Amador testified that she never told anyone to beat up appellant.

Appellants attack on Amador commenced after 2:00 a.m. on March 17, 2003, in the womens room of the club when appellant stormed into the room and shouted at Amador that she was going to get even. Appellant hit Amador on her back, punched her in the face with her fist, grabbed her by the hair and slammed her into the wall, and then onto the floor where she kicked Amador in the face. When Amador tried to get up, appellant slammed Amadors head into the sink. Appellant accompanied these attacks with profanities that are not necessary to detail and derisive references to a sex change operation performed on Amador. Present during these attacks were Monica Acevedo, Sydney Fay and Ornelas who unsuccessfully tried to restrain appellant from attacking Amador.

Amador finally managed to leave the restroom and get to her car. Appellant pursued her but Acevedo was able to block appellants attempts to get at Amador. Neither at this point, nor before or after, did Amador strike back; all she attempted to do was to cover herself from appellants blows. When Acevedo said that she, Amador and Ornelas were leaving, appellant uttered the first of several death threats: No[,] I want to kill this fag.

Appellant walked to her SUV from where she continued to yell at Amador, threatening to kill her. Appellant then approached Amador again, trying to throw punches at her but Acevedo and Ornales managed to fend off appellant. After more yelling back-and-forth along the same lines, when appellant was once again approaching Amador, appellant pulled out a small gun, pointed it at Acevedo, and, referring to Amador, said: Get out of the way, because Im going to kill this fag.

Acevedo moved out of the way. Appellant put the gun to Amadors stomach and said: Im going to kill you, you fucking bitch. Amador grabbed appellants hand and tried to get the gun away from her stomach. As Amador described it, she put her left hand over appellants hand that was holding the gun and with her right hand grabbed appellants arm. When asked whether her left hand ever touched the trigger, Amador answered, No. No, my hands just touched her hand and with my right hand grabbing the joint between her arm and her hand. The gun fired. Amador felt something warm between her index finger and thumb, which were close to the barrel of the gun.

Amador testified that there was gunpowder residue on her left hand after the shot, a fact that was confirmed by a crime scene investigator who reported to the scene. A criminalist with the sheriffs department opined that, given the position of Amadors hand as it was described by Amador, it was to be expected that there would be gunpowder residue near Amadors thumb and index finger.

After she was shot, Ornelas ran a few steps and then collapsed on the pavement, bleeding. She was pronounced dead shortly thereafter. She had sustained a gunshot to the chest. The bullet recovered from her body matched the weapon that was found in appellants possession (see text, post).

After the shooting appellant began to drive away in her SUV. She was stopped by two deputy sheriffs who asked her if there was a gun in the car. Appellant pointed to the back of the SUV. One of the deputies searched the car and found the gun in an open purse.

The gun was a .22-caliber mini-revolver. It was single action only, meaning that the shooter had to cock the hammer and squeeze the trigger each time the gun was fired. According to a criminalist employed by the sheriffs department, the trigger required five pounds of pressure to allow the gun to fire. The only circumstance under which the gun might fire without manually pulling the trigger is if someone hit the gun very hard with a sledge hammer.

DISCUSSION

1. The Evidence Is Sufficient To Support the Allegation That Appellant Intentionally Discharged a Firearm Resulting in Death

Appellant contends that there is no solid evidence that appellant intentionally discharged the gun and that there is no principled way to determine who caused it to discharge or whether that discharge was intentional.

We cannot agree that there was no evidence that appellant intentionally discharged the gun. Appellants entire course of conduct bespeaks of intent, not the least of which were appellants repeated statements that she intended to kill Amador. There is no evidence to contradict the fact that appellant was on a murderous rampage and had every intention of shooting to kill Amador. Thus, as far as intent is concerned, the substantial evidence rule is not even implicated in this case.

As far as who pulled the trigger, Amador testified unequivocally that she did not touch the trigger. This was corroborated by the fact that there was gunshot residue on her index finger and thumb, which means that her hand was extended over appellants hand that held the weapon. It also means that Amadors hand was not in a position in which she could reach the trigger.

Appellant contends that it is possible that Amador squeezed appellants trigger finger in the struggle over the gun and therefore there is no principled way to determine who actually pulled the trigger.

The principle that is involved here is the substantial evidence rule. Based on Amadors unequivocal testimony that she did not touch the trigger and had her hand over appellants hand with Amadors index finger and thumb very near the barrel (which means that Amadors hand was in a poor position to squeeze appellants hand), the jury determined that it was appellant who pulled the trigger. Thus, at this point, it is no longer necessary to determine who pulled the trigger; that determination has been made.

We find there is substantial evidence that appellant intentionally discharged her gun. As noted, the physical evidence (the gunshot residue) corroborates Amadors unequivocal testimony that she did not pull the trigger. It is also true that the trigger required five pounds of pressure; Amadors hand and fingers were simply not in a position to exert this much pressure on the trigger.

Although we are satisfied that the evidence shows that appellant pulled the trigger, we note that, even if Amador had some part in causing the trigger to operate, the evidence shows that appellant intentionally discharged the gun. Appellant went and got the gun from her car, repeatedly threatened Amador with the weapon and then finally pressed the weapon into Amadors stomach, exclaiming that she intended to kill Amador. Given that all of Amadors actions were defensive, it is clear that throughout the entire episode appellant acted with the intent to discharge the weapon. It is appellants homicidal conduct that was the cause of Ornelass death.

2. There Was No Need To Instruct the Jury That Legally Adequate Provocation Need Not Emanate From the Victim

Appellant contends that the jury should have been instructed that, in order to reduce the conviction to voluntary manslaughter, provocation need not emanate from the victim. Appellant goes on to contend that the jury could have believed that Amador had encouraged her boyfriend to shoot appellant (a matter specifically denied by Amador), and that this constituted adequate provocation.

Appellant has no quarrel with the instruction on provocation that was given (CALJIC No. 8.42), nor with the instruction on transferred intent. Appellant relies, however, on a case cited in the use note to CALJIC No. 8.42, People v. Spurlin (1984) 156 Cal.App.3d 119, 125-126, which held that provocation is adequate only if it comes from the victim. Appellant claims that this principle is in error, and that the jury should have been instructed that provocation need not come from the victim.

This matter was not raised in the trial court. As respondent correctly notes, the trial court is not under a duty to instruct, without a request, on specific points or special theories that might be applicable to the particular case. (See generally 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial,  610, pp. 869-870.) Thus, in the first place, it appears that this matter was waived.

It is also true that, as respondent points out, under the facts of this case the jury must have interpreted the provocation instruction to relate to Amador. While the rule is that the provocation must have been given by the person who was killed (People v. Lee (1999) 20 Cal.4th 47, 59) an exception is made in those cases in which the wrong person was killed by accident or mistake. (People v. Spurlin, supra, 156 Cal.App.3d at p. 126.) In these cases, provocation, if it exists, will have emanated from someone other than the victim. This was just such a case. The jury was instructed in the terms of CALJIC No. 8.65 (when person attempts to kill but by mistake kills a different person, the crime is the same as though the original person had been killed). Thus, the jury, understanding that Ornelas was killed by mistake, necessarily related the provocation instruction to Amador. This is confirmed by the fact that it is only as to Amador that there was any evidence that justified giving the provocation instruction. The gist of this is that the instruction that appellant claims should have been given was unnecessary.

Given that the jury understood the provocation instruction to relate to Amador, there is no basis for appellants further contention that failure to instruct that the provocation need not emanate from the victim is reversible federal constitutional error. There was no error;^[3]hence, there cannot be reversible federal constitutional error.

3. It Was Not Error Not To Give Pre-instructions to the Jury on the Presumption of Innocence and the Standard of Proof

Appellant contends that the trial court should have preinstructed the jury on the presumption of innocence and the standard of proof for a verdict of guilty because Penal Code section 1122 requires the court to instruct the jury generally concerning its basic functions, duties, and conduct before the peoples opening statement.

Appellant acknowledges that the trial court has wide discretion in determining the timing of jury instructions. Nonetheless, appellant claims that there is no justification to omit such instruction[s] [presumption of innocence and standard of proof] at the outset of the case.

Initially, we note that there was no request by the defense to give these instructions before the trial commenced. Contrary to appellants claim,^[4]these instructions, as they appear in CALJIC No. 2.90, are usually given at the close of the case. Thus, if the defense wished to have this instruction given at the outset, the defense should have made a timely request. Absent such a request, the matter may be deemed waived. To put the matter at rest, however, we address the merits.

We agree with appellants point about the discretion of the trial court, but do not agree with appellant that there is no justification not to give these instructions prior to the commencement of the trial.

Given that the trial court has broad discretion in preinstructing the jury, it is appellants burden to show that this discretion was abused. Simply claiming that the court should have given these instructions before the trial commenced does not amount to a showing of an abuse of discretion.

That there is no justification not to preinstruct on the presumption of innocence and the standard of proof is not true. These somewhat complex instructions may well be lost on the jury when it knows nothing about the case it is about to hear. It may be more effective, as it was actually done in this case, for the trial court to preinstruct the jury that it should not infer guilt because appellant had been charged or infer that appellant was more likely to be guilty than not guilty. These somewhat more colloquial formulations are more helpful at the outset of the case than the instructions found in CALJIC No. 2.90. We find the preinstructions that were actually given in this case to be thorough and helpful and all that the law, and the occasion, demanded. It is also true that the instructions on these subjects were given to the jury before closing arguments.

There is no authority for the proposition that appellant espouses. While we of course agree that the presumption of innocence and the standard of proof are vital to the criminal process, a court does not abuse its discretion in concluding that the best time to give these important and difficult instructions is when the jury has heard the case and has the evidence in mind.

There being no error in not preinstructing the jury on the presumption of innocence and the standard of proof, we do not address the further argument that this alleged error was of constitutional dimension.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

RUBIN, J.

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^[1] These were enhancements alleged under subdivisions (b) and (d) of Penal Code section 12022.53.

^[2] It is unclear how much time elapsed between the event related in the text and March 17, 2003. From other testimony, it appears that these events were separated by a number of weeks.

^[3] Since it is unnecessary for our decision, we note only in the margin that appellant is wrong in contending that, as a matter of substantive law, provocation need not emanate from the victim. With the exceptions noted in the main text, ante at page 6, the rule is that provocation must have emanated from the victim. (People v. Lee, supra, 20 Cal.4th at p. 59.)

^[4] Appellant claims that there was no reason to change the order of proceedings or delay instruction on the presumption of innocence and standard of proof. Giving these instructions at the close of the case is neither a change in the order of proceedings nor a delay in giving these instructions.