P. v. Ybarra

Filed 6/18/07 P. v. Ybarra CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County,

Raul Anthony Sahagun, Judge. Affirmed.

Patricia Ihara, 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, Lance E. Winters and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

Alex Ybarra appeals from the judgment entered following his convictions by jury on count 1 first degree murder (Pen. Code,  187)^[1]and two counts of attempted willful, deliberate, and premeditated murder ( 664, 187; counts 2 & 3) with, as to each offense, jury findings that a principal personally used a firearm ( 12022.53, subds. (b) & (e)(1)), a principal personally and intentionally discharged a firearm ( 12022.53, subds. (c) & (e)(1)), a principal personally and intentionally discharged a firearm causing great bodily injury or death ( 12022.53, subds. (d) & (e)(1)), and the offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)), and with court findings that appellant suffered a prior felony conviction ( 667, subd. (d)), a prior serious felony conviction ( 667, subd. (a)), and a prior felony conviction for which he served a separate prison term ( 667.5, subd. (b)). The court sentenced appellant on count 1 to a prison term of 50 years to life, plus 30 years and, on each of counts 2 and 3, to a term of life with the possibility of parole, plus 25 years to life, with service of a 14-year minimum parole eligibility term, and with the sentences on counts 2 and 3 consecutive to count 1 but concurrent with each other.

We reject appellants claim that the trial court had a duty to give sua sponte CALJIC No. 8.73 to the jury. The court had no such duty because CALJIC No. 8.73 is a pinpoint instruction. Moreover, appellant has failed to demonstrate that there was substantial evidence to support such an instruction and, in any event, it was inconsistent with his alibi defense.

We reject appellants claim that there is insufficient evidence to support the gang-related firearm enhancements imposed pursuant to section 12022.53, subdivisions (d) and (e)(1). Appellant argues there is insufficient evidence that he had the requisite specific intent to promote, further, or assist in any criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1). Appellant argues that in order to violate these sections he had to have a specific intent to promote, further, or assist in criminal conduct other than the offenses of which he was convicted. Appellant and fellow gang members in one car made gang signs to, and pursued, rival gang members in another car. The two gangs were at war. One of appellants confederates shot at three of the rival gang members, killing one. A gang expert opined the crimes were committed with intent to help out appellants gang. There was sufficient evidence that appellant harbored the requisite specific intent, and it was not required that he have a specific intent to promote, further, or assist in criminal conduct other than the offenses of which he was convicted.

Finally, appellants claim that his sentence constituted cruel and unusual punishment is unavailing since he failed to object below on that ground. In any event, on the merits, we reject his claim.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v.Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which as to the substantive offenses is not in dispute, established that on August 12, 2003, appellant was driving a brown car in South Gate. Juan Rivas was the front seat passenger. Appellant and Rivas were members of the Ivy Street Watts gang. Appellant was pursuing a green Pontiac containing Hector Medrano, Diego Avendano, and George Zamudio, members of the rival Watts Varrio Grape Street gang. Medrano was driving the Pontiac. None of the Pontiacs occupants were armed with a gun.

On the above date, the Ivy Street Watts gang and the Watts Varrio Grape Street gang were at war. While appellant pursued the Pontiac, Rivas repeatedly fired a gun at the Pontiacs occupants, mortally wounding Medrano and causing the Pontiac to crash. Avendano and Zamudio exited the Pontiac and fled.

After the crash, appellant drove near the Pontiac. Rivas exited the brown car and pursued Avendano and Zamudio. However, appellant and another person in the brown car told Rivas to come so they could all leave. Rivas reentered and appellant drove away.

Medrano was shot twice in the back, and two bullets were recovered from him during his autopsy. Seven bullets struck the Pontiac from behind. One struck the base of the drivers side headrest. Three bullets went through the headrest. A fourth shattered the back windshield. Two struck an area to the left of the Pontiacs exhaust pipe. Eight .25-caliber bullet casings were recovered from the scene. The casings, and bullets recovered from Medrano, were fired from the same gun. A gang expert testified the crime was committed for the benefit of the Ivy Street Watts . . . gang, with the intent to do so, with the intent to help out Ivy Street. Appellant presented an alibi defense.

CONTENTIONS

Appellant contends (1) the trial court erred by failing to give CALJIC No. 8.73, (2) there was insufficient evidence to support the gang-related firearm enhancements, and (3) appellants sentence constituted cruel and unusual punishment.

DISCUSSION

1. The Court Did Not Err by Failing To Give CALJIC No. 8.73.

a. Introduction.

CALJIC No. 8.73 permits the jury to consider provocation evidence to reduce the degree of murder from first to second degree, even though the evidence is insufficient to reduce murder to manslaughter. That instruction states, 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.

As discussed below, there was evidence that Medrano made gangs signs during the previously mentioned pursuit, and appellant claims this was provocation. We set forth that evidence below and other evidence relevant to appellants instructional claim.

b. Pertinent Facts.

At the 2005 trial, Avendano acknowledged that, during prior testimony in 2003, he had testified that he first found out that Medrano was from a gang when Medrano was throwing it up. Avendano also had given prior testimony that Medrano was throwing the signs when Medrano said Grape Street Watts. At trial, Avendano denied that his prior testimony was true, and testified I just seen him. They just seen us and they follow us. (Sic.)

Later at the trial, Avendano acknowledged that, during prior testimony, he was asked before this car chase started, did you hear anyone inside the brown car say anything at all to you guys? Avendano replied No. I just seen fingers. Avendano was asked What do you mean fingers? What did you see? Avendano replied, I just seen because when we got off, they was throwing signs to [Medrano].^[2] Still later at the trial, Avendano acknowledged that, during prior testimony, Avendano was asked if he told a South Gate police officer that Medrano yelled back the words Grape Street. Avendano replied yes.

During jury argument, appellant argued, not that Medranos alleged provocative act reduced the degree of the murder, but that appellant was not the shooter and had an alibi. For example, appellants counsel argued, This is an identification case and later argued, I have proven to you that my client is at Glendale College signing up for classes on August 12th when the shooting happened. Counsel also argued, please keep in mind this is a case of identity.

At the Peoples request, the court instructed, inter alia, on voluntary manslaughter (CALJIC No. 8.40), and on sudden quarrel, heat of passion, and provocation (CALJIC No. 8.42). The court also instructed on alibi evidence (CALJIC No. 4.50). However, the record does not reflect that appellant asked the court to give CALJIC No. 8.73, and the court did not give it.

c. Analysis.

Appellant claims the trial court was required to give sua sponte CALJIC No. 8.73, based on the alleged provocation reflected in Avendanos statement to the police that Medrano flashed gang hand signs and yelled Grape at the brown car[.] The essence of appellants claim was squarely rejected in People v. Rogers (2006) 39 Cal.4th 826 (Rogers). In that case, the defendant, like appellant, claimed the trial court was required to give sua sponte CALJIC No. 8.73. Our Supreme Court, after a careful review of its precedent, held that CALJIC No. 8.73 is a pinpoint instruction that need not be given on the courts own motion. (Rogers, at p. 880.)

In addition, we note that provocation evidence offered to reduce the degree of murder must justify a jury determination that the accused had formed the intent to kill as a direct response to the provocation and had acted immediately . . . . [Citation.] (People v.Fenenbock (1996) 46 Cal.App.4th 1688, 1705 (Fenenbock), emphasis omitted.) Moreover, a trial court is under no duty to give an instruction unsupported by substantial evidence. (Cf. People v.Tufunga (1999) 21 Cal.4th 935, 944; People v.Flannel (1979) 25 Cal.3d 668, 684.) Further, the burden is on appellant to demonstrate error from the record; error will not be presumed. (In re Kathy P. (1979) 25 Cal.3d 91, 102; People v. Garcia (1987) 195 Cal.App.3d 191, 198.) Accordingly, we conclude, for the reasons below, that appellant has failed to demonstrate that there was substantial evidence to support the giving of CALJIC No. 8.73.

First, assuming appellant was aware of Medranos alleged conduct in making gang signs, appellant has failed to demonstrate that there was substantial evidence that appellant decided to kill (Fenenbock, supra, 46 Cal.App.4th at p. 1705) Medrano as a response to the alleged provocation. We note Avendano testified, They just seen us and they follow us. He also testified, when we got off, they was throwing signs to [Medrano]. These facts viewed with the rest of what happened in this case provided evidence that appellants intent to kill preexisted any provocation from Medrano. Second, appellant failed to demonstrate that there was substantial evidence that appellant killed while in the grip of passion or any intense emotion (People v.Brown (1981) 119 Cal.App.3d 116, 136) resulting from the alleged provocation.

Third, the defense evidence presented an alibi defense. Accordingly, appellant argued to the jury, not that he was provoked to shoot, but that he did not shoot and was elsewhere at the time of the shooting. The trial courts failure to give CALJIC No. 8.73 was not error because that instruction would have been inconsistent with appellants defense. (Cf. People v. Johnson (1993) 6 Cal.4th 1, 43 (Johnson); People v. Rich (1988) 45 Cal.3d 1036, 1113.)

The fact that the trial court instructed on voluntary manslaughter, sudden quarrel, heat of passion, and provocation does not compel a conclusion contrary to the above. As Johnson similarly noted, Defendant contends that because the trial court instructed on provocation/manslaughter, there must have been evidence to support a provocation/second degree murder theory. We have previously rejected similar contentions. [Citations.] (Johnson, supra, 6 Cal.4th at p. 44.) If the court through an abundance of caution, or neglect or mistake, gives partial instructions . . . when no such instructions are warranted, it should not be ruled as a matter of law that all inquiry into the nature of the evidence on the issue is precluded . . . . (People v.Frierson (1979) 25 Cal.3d 142, 157.) Accordingly, The fact that the prosecutor requested a heat of passion instruction for manslaughter does not establish that the evidence would have necessitated a sua sponte [CALJIC No. 8.73] instruction. Such instructions are commonly requested out of an abundance of caution. (People v.Perez (1992) 2 Cal.4th 1117, 1130.) The trial court did not err by failing to give CALJIC No. 8.73.

2. Sufficient Evidence Supported the Gang-Related Firearm Enhancements.

Appellant claims the true findings as to the gang-related firearm enhancements imposed as to each of counts 1 through 3 pursuant to section 12022.53, subdivisions (d) and (e)(1), must be reversed because there is insufficient evidence that he harbored the requisite specific intent to promote, further, or assist in any criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1).^[3] Section 186.22, subdivision (b)(1), has two parts. The first part states: any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang. Appellant does not dispute that the evidence supports the first part. The second part states: with the specific intent to promote, further, or assist in any criminal conduct by gang members. Appellant argues in order to violate this section he had to promote, further, or assist in criminal conduct other than the offenses of which he was convicted.

In particular, appellant, relying on Garciav. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia), effectively argues (1) specific intent to promote, further, or assist in any criminal conduct by gang members (italics added) within the meaning of section 186.22, subdivision (b)(1), means specific intent to promote, further, or assist in criminal conduct other than the current offense(s) of which a defendant is convicted, and (2) there was insufficient evidence of the latter specific intent.

In Garcia, a jury convicted the defendant of robbery with a gang-related firearm enhancement ( 12022.53, subds. (b) & (e)(1)) and a federal district court granted his petition for a writ of habeas corpus on the ground there was insufficient evidence of the specific intent required by section 186.22, subdivision (b)(1). (Garcia, supra, 395 F.3d at pp. 1100-1101.) Garcia was a case in which, like the present one, the defendants accomplice, and not the defendant, allegedly used the firearm during the substantive offense; therefore, the defendant was subject to the firearm enhancement only if the crime was gang-related within the meaning of section 186.22, subdivision (b)(1) (id. at p. 1011), and that, in turn, depended upon whether there was sufficient evidence of the specific intent required by that subdivision. In a majority decision, the Ninth Circuit in Garcia affirmed the district courts ruling on the ground there was insufficient evidence that the defendant committed the substantive offense (robbery) with the intent to further other criminal activity (id. at p. 1104, italics added) of the gang. As we discuss below, the California courts have rejected the holding of Garcia.

In this case, there was substantial evidence as follows. Appellant and other members of the Ivy Street Watts gang were in the brown car. Medrano, Avendano, and Zamudio, members of the rival Watts Varrio Grape Street gang, were in the Pontiac. The two gangs were at war. The occupants of the brown car pursued the occupants of the Pontiac. The Ivy Street Watts gang members gave gang signs to Medrano during the pursuit. Appellant was driving the brown car while Rivas committed the shootings. A gang expert opined the crime was committed for the benefit of the Ivy Street Watts . . . gang, with the intent to do so, with the intent to help out Ivy Street.^[4] There was ample evidence, and there is no dispute, that appellant committed the present offenses for the benefit of, . . . or in association with any criminal street gang within the meaning of section 186.22, subdivision (b)(1). Based on the facts of this case, we conclude he also had the specific intent to promote, further, or assist in any criminal conduct by gang members (italics added) within the meaning of section 186.22, subdivision (b)(1), that is, the criminal conduct of the current offenses of which he was convicted. (Cf. People v.Romero (2006) 140 Cal.App.4th 15, 19-20 (Romero); People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) In Romero and Morales, the appellate courts concluded there was sufficient evidence that the defendant had the requisite specific intent.

As People v.Hill (2006) 142 Cal.App.4th 770 (Hill), explained, Garcia . . . misinterprets California law. In Garcia, the Ninth Circuit found insufficient evidence of specific intent to promote, further, or assist in other criminal conduct by the defendants gang. We disagree with Garcias interpretation of the California statute, and decline to follow it. [Citations.] By its plain language, the statute requires a showing of specific intent to promote, further, or assist in any criminal conduct by gang members, rather than other criminal conduct. ( 186.22, subd. (b)(1), italics added.) ([Romero, supra,] 140 Cal.App.4th [at p.] 19 . . . , italics in original.) We agree with Romero. (Hill, supra, 142 Cal.App.4th at p. 774.)

Hill continued, There is no requirement in section 186.22, subdivision (b), that the defendants intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense the defendant commits. To the contrary, the specific intent required by the statute is to promote, further, or assist in any criminal conduct by gang members. (Pen. Code,  186.22, subd. (b), italics added.) (Hill, supra, 142 Cal.App.4th at p. 774.) We agree with Hill.

Appellant suggests the conflict between, on the one hand, Garcia, and, on the other, cases such as Hill and Romero, demonstrates the specific intent language in section 186.22, subdivision (b), is susceptible to two interpretations; therefore, we should employ the rule of lenity. We disagree. The specific intent requirement of section 186.22, subdivision (b), is not ambiguous. The rule of lenity is not applicable. (Cf. People v. Hagedorn (2005) 127 Cal.App.4th 734, 742; People v. Spurlock (2003) 114 Cal.App.4th 1122, 1132-1133.)

3. Appellants Sentence Was Not Cruel Or Unusual Punishment.

a. Pertinent Facts.

On November 17, 2005, the People filed a sentencing memorandum. The memorandum listed as aggravating factors that the crime involved great violence, great bodily harm, a threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness, and appellant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants. The memorandum also listed as an aggravating factor that appellant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or illegally interfered with the judicial process. The memorandum listed this as an aggravating factor on the ground that the jury, by convicting appellant, necessarily concluded he committed perjury by presenting an alibi defense and suggesting a third party committed the crime.

The memorandum also listed as an aggravating factor that appellant had a pending attempted murder case in which he was accused of shooting a rival gang member in the face at point blank range, and appellants prior convictions, current convictions, and pending case demonstrated he was a clear and present danger to society.

The memorandum listed as an additional aggravating factor that appellants prior convictions as an adult or juvenile adjudications were of increasing seriousness, he had served a prior prison term, and he was on probation or parole at the time he committed the present offenses. The memorandum indicated there were no mitigating factors. A supplemental Peoples sentencing memorandum filed on November 18, 2005, requested that the court sentence appellant to prison for the maximum possible term, which the People calculated as 159 years to life, and which included consecutive sentences on counts 2 and 3.

At sentencing on November 22, 2005, the court considered appellants request to strike, pursuant to section 1385, the Three Strikes law prior conviction. The People opposed the request, noting, inter alia, the strike was gang-related. The court denied appellants request, noting the strike was recent, his probation had expired shortly before the present offenses, and its clear to the court that [appellant] had not reformed, that he was still acting in an extremely violent fashion[.] The record does not contain a sentencing memorandum from appellant.

After argument, the court stated, Well, Mr. Ybarra, youve chosen a very dangerous and reckless life of a gang member, and its just tragic the way this has developed. And theres nothing, no mitigation. The only thing in mitigation is your youth. But youve shown that youre very violent. And you just finished a period of probation which you committed another violent act. [Sic.] So the court finds nothing in mitigation on this case. The court sentenced appellant to prison as previously indicated. Appellant did not object on the ground his sentence was cruel or unusual punishment.

A postsentence probation report prepared for a January 31, 2006 hearing reflects as follows. Appellant was born in 1982 and had five aliases and three monikers. As to appellants juvenile history, the Department of Children Services filed two petitions alleging risk of physical harm due to neglect, and sibling abuse or neglect. In 1994, the petitions were sustained. In 1998, appellant suffered a sustained petition for receiving stolen property.

As an adult, in 2000, appellant was convicted of assault with a deadly weapon and placed on probation for three years. In 2004, appellant was convicted of possession of a firearm by a felon. The report summarized the present offense based on arrest reports and the district attorneys file.

b. Analysis.

Appellant claims his sentence was cruel and unusual punishment. We conclude otherwise. Appellant waived the cruel and unusual punishment issue by failing to raise it below. (Cf. People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7; People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)

Finally, we have set forth the facts pertinent to appellants cruel and unusual punishment contention. Nothing about the crime or appellant compels the conclusion that his punishment is so disproportionate to the crime or his culpability that it shocks the conscience or offends fundamental notions of human dignity. We conclude his sentence did not violate constitutional proscriptions against cruel or unusual punishment. (Cf. People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212-1216; People v. Cooper (1996) 43 Cal.App.4th 815, 823-826; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1631.) None of the cases cited by appellant compels a contrary conclusion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

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

^[2] We have replaced the name Medrano in brackets for the name Tiny. Evidence was presented at trial that Tiny was Medrano.

^[3] Murder and attempted murder are both felonies specified in section 12022.53, subdivision (a). ( 12022.53, subds. (a)(1) & (18).) Section 12022.53, subdivisions (d) and (e)(1), state, in relevant part, (d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), . . . personally and intentionally discharges a firearm and proximately causes . . . death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life. [] (e)(1)  The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [] (A)  The person violated subdivision (b) of Section 186.22. [] (B) Any principal in the offense committed any act specified in subdivision . . . (d). Section 186.22, subdivision (b)(1), states, in relevant part, (b)(1) . . . any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows . . . . (Italics added.)

^[4] We note the prosecutor summarized facts of this case and, more formally, asked the gang expert whether, based on those facts, the expert had an opinion as to whether the crimes (1) were done in association, at the direction of, and for the benefit of the criminal street gang[,]and (2) were done with the specific intent to promote, further or assist in criminal conduct by gang members[.] The expert indicated he had an opinion, then gave the opinion described in the text above.