PEOPLE v. GONZALEZ








Filed 12/9/10




CERTIFIED FOR PUBLICATION


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. PERLA ISABEL GONZALEZ, Defendant and Appellant.

D055698 (Super. Ct. No. FVA024527)

APPEAL from a judgment of the Superior Court of San Bernardino County, Michael A. Knish, Commissioner. Affirmed.

Laura G. Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzales and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.

Roberto Canas-Fuente (Canas) killed Fernando Morales, the boyfriend of appellant Perla Isabel Gonzalez (Perla), during a fight between Morales and Canas. Morales, along with Perla, his accomplice, ambushed Canas as he was picking up his daughter at a street corner. Canas at the time did not know either Morales or Perla.
During the fight, Morales pulled out a knife with a three- to four-inch blade, thrust it at Canas and cut him in the cheek. After Canas threw Morales to the ground, Morales got up and ran to Perla, who had been standing about 10 feet away, by her car, anxiously watching the fight. From her car, Perla grabbed a rifle she had brought to assault Canas, cocked it, pointed it at Canas and then handled it to Morales. Afraid for his life, Canas ran at Morales. During the struggle for the weapon, Canas was shot three times. Although wounded, Canas gained control of the rifle and a few seconds later shot and killed Morales, as Morales ran away.
Perla was tried and convicted on a provocative act murder theory of the attempted murder of Canas and of the first degree murder of Morales. She appeals.

FACTUAL AND PROCEDURAL BACKGROUND
Because Perla challenges the sufficiency of the evidence, we describe in detail the facts surrounding the killing.[1]
A. The People's Case
Canas and his wife Joan Curiel were married but separated in May 2005. Curiel was living with Ricardo Gonzalez (Ricardo), Perla's brother. Also living with Curiel and Ricardo was the minor child of Curiel and Canas (daughter), Curiel's other children and Curiel's mother Rosalba Osguera-Alvarez (Osguera).
Canas and Curiel shared custody of their daughter. However, because Canas and Ricardo did not get along, Canas typically picked up his daughter at a prearranged location near Curiel's residence. Before the shooting, Canas and Ricardo had argued several times on the telephone and had at least one physical altercation outside of Curiel's home. Each blamed the other as the cause of their feud.
On the evening of May 21, 2005, Curiel called Canas, who worked as an emergency room technician, to arrange for treatment for Osguera. Curiel dropped Osguera off at the hospital where Canas worked. After Osguera returned home, Curiel and Ricardo began arguing over whether Curiel had lied to him about "partying" with Canas while Ricardo was away. During their argument, Canas called and spoke to Curiel. According to Ricardo, Canas bragged that he and Curiel had been intimate while Ricardo was in Mexico.[2] Canas understood Curiel to say she did not want Ricardo in the home and Canas could hear children screaming in the background. Concerned for his daughter, Canas immediately left work and drove to Curiel's residence.
When Canas arrived, Curiel was leaving the house with her children, including their daughter. Ricardo was not far behind. As Curiel drove off with the children, Ricardo got into his car and followed her; Canas in turn got back inside his car and followed Ricardo. Canas testified he pulled along side Ricardo, rolled down his window and yelled, "What the fuck are you thinkingâ€