P. v. Salcedo

Filed 9/29/06 P. v. Salcedo CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Eliesar Salcedo appeals his conviction by jury verdict of four counts of attempted murder (Pen. Code, §§ 187/664;^[1]. counts 2-5). The jury found true the allegations that he intentionally and personally discharged a firearm and proximately caused great bodily injury during commission of these offenses. (§ 12022.53, subds. (c) & (d).) He contends that there is insufficient evidence to support three of the four attempted murder convictions because there is insufficient evidence of intent to kill, and that the court incorrectly instructed that the jury could infer an intent to kill from an intent to harm.^[2]

BACKGROUND

The York Street Shooting

Robert Martinez (Robert) and his sister Leticia Ramirez (Leticia) lived in a pair of flats at 1161/1163 York Street. At approximately 3:00 a.m., Saturday, April 28, 2001, they and their friends Barbie Ledesma (Barbie), Veronica Martinez (Veronica), and Pablo Ojeda (Pablo)^[3] were sitting and/or standing on the stoop or front sidewalk of the York Street residence, talking, drinking and listening to music. A burgundy Honda with lightly tinted windows pulled into a driveway two houses to the right of 1161/1163 York Street, then backed out of the driveway into the street, where it stopped with its engine running. Because he thought it belonged to a friend who had similar-looking car, Robert, carrying a red cup with a drink in one hand, walked toward the Honda, nodded his head in greeting, and may have said, “‘What’s up?’” Appellant got out of the passenger door. He was carrying a black pistol. Robert saw a flash, heard a fireworks-like sound, and ran toward his companions, yelling at them to get down. He heard more gunshots as his companions scattered. He covered his sister on the ground, and when he looked back toward the burgundy Honda, he saw appellant and the Honda’s driver standing on either side of the rear of the Honda with their hands in a forward position. They were at the midpoint of the street, approximately 15 feet from the curb. The shooting stopped when the burgundy Honda departed.

Patrol Officer Michael Browne heard a radio call on the shooting at 3:10 a.m. Eight to ten minutes later he saw a burgundy Honda at the intersection of Bayshore Boulevard and Industrial Avenue, which he estimated to be a four to eight minute drive from 1161/1163 York Street. The Honda sped away after he signaled it to stop. Browne gave chase, and the Honda eventually stopped near the edge of San Francisco Bay. Two men got out of the Honda and ran away. Appellant was apprehended hiding behind a parked car. The other man, Mauricio Sandoval, was apprehended in the water of the bay, holding onto a pier piling. Robert was brought to the site and unhesitatingly identified appellant as a shooter.

The police recovered a .25 caliber automatic weapon from the passenger floorboard of the Honda, a live .25 caliber round from the driver’s seat, and a purse containing a mobile telephone subscribed to Mona Lisa Frias from under the front passenger seat. The Honda had no bullet damage, although it contained gunshot residue on its passenger door. The DNA profiles of appellant and Sandoval were found on the gun grip of the .25 caliber weapon. The Honda was registered to Veronica Martinez.^[4]

Police inspectors recovered 12 bullet casings at the York Street shooting scene, five from a .25 caliber automatic weapon and seven from a nine millimeter weapon. A white car parked in front of 1161/1163 York Street had six bullet holes; the garage door of 1161/1163 York Street and the house next door also had bullet holes. The inspectors opined that the white car was struck by bullets from the nine millimeter gun and that the shooter stood in the street near the driver’s side of the white car. They also opined that the shooters were in the midpoint of the street, approximately 15 feet from the curb, during the shooting.

Leticia died from a single bullet wound to the forehead. The bullet recovered from her body was deformed, indicating it had ricocheted off a hard object, like a car or concrete, before hitting her. It was likely a nine millimeter bullet. Robert and his other companions were not injured.

The Oakdale Avenue Events

At approximately 11:30 p.m., Friday, April 27, 2001, Veronica Martinez^[5] drove her burgundy Honda to the Oakdale Avenue house of her boyfriend, Richard Rojas. She was accompanied by her cousins Cindy Quijeda and Susannah Frias. Frias did not take her purse and mobile telephone into the house; she left them under the Honda’s front passenger seat. Although Frias had the use of the telephone, it belonged to her mother, Mona Lisa.

Mauricio Sandoval was at the house when Martinez and her cousins arrived. Appellant and two other men, known as T and Pee Wee, subsequently arrived.

At approximately 2:45 a.m., at T’s request, Martinez gave her car keys to appellant so he could go to a liquor store. She did not see appellant or Sandoval leave the house. Some time later, Martinez, who had been in the bedroom, came into the living room to ask if her car had been returned; it had not. T was not in the house. He returned approximately 15 minutes later and, seemingly in a hurry, told Rojas and Pee Wee “Let’s go.” The three men left the house, and when they returned 20 minutes later they were very quiet and downcast. After Martinez twice asked them about her car’s whereabouts, T yelled, “You’re going to get your car back. We’re not going to get our boys back.” Pee Wee told Frias that he had “‘lost [his] homies.’”

Martinez arrived home at 4:00 a.m., Saturday, April 28. She told her mother the Honda was stolen from a club, and at 5:00 a.m. she filed a car theft report at the police station. Later that day she learned from a friend that her car was involved in a homicide.

On April 29, Martinez was asked to come to the police station. She reiterated that her car had been stolen and, after being shown pictures of appellant and Sandoval, denied knowing them. Frias was also contacted by the police and told them the Honda was stolen.

Three weeks later, accompanied by their lawyers, Martinez and Frias met with a deputy district attorney and gave statements as to what had actually happened in the early morning of April 28. Frias originally lied about Martinez’s car because she feared T, Pee Wee or Rojas would injure her if she “snitched” on them.

Records of the mobile telephone registered to Mona Lisa Frias showed two calls from it to T’s mobile telephone on April 28: a one minute call at 3:10 a.m. and a 14 minute call at 3:17 a.m.

DISCUSSION

I. Sufficiency of Evidence -- Attempted Murder

Appellant was convicted of the attempted murder of Robert (count 2), Pablo (count 3), Veronica (count 4) and Barbie (count 5).^[6] He does not dispute there is sufficient evidence to support a conviction for attempted murder of Robert. He contends there was insufficient evidence to sustain the count 3, 4, and 5 convictions because there was insufficient evidence of specific intent to kill these three individuals.

A. Standard of Review

In a challenge to the sufficiency of the evidence to support a conviction, the appellate court views the evidence in the light most favorable to the judgment and presumes in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Hernandez (1988) 47 Cal.3d 315, 345.) To be sufficient, evidence of each essential element of the crime must be substantial, and the appellate court resolves the question of sufficiency in light of the record as a whole. (Id. at p. 346.)

B. Attempted Murder

To prove a defendant guilty of attempted murder, the People must prove (1) a direct but ineffective act toward killing another person and (2) the specific intent to kill that person. (People v. Guerra (1985) 40 Cal.3d 377, 386; CALCRIM No. 600.) Appellant argues that the evidence was sufficient to support a finding that Robert was the only intended victim. As he argues, the shooting was a reaction to Robert’s approaching the Honda, which was in the middle of the street, and greeting the Honda’s occupants by word and/or gesture while carrying an object in his hand. On the other hand, he continues, the shots occurred in single, rapid sequence as Robert ran from the street to his house; appellant and his co-defendant remained in the middle of the street; they did not approach Robert’s house or the people gathered in front of his house, nor did he and his co-defendant move so as to avoid the obstacles (parked white car, tree) that prevented their having a clear shot at the people in front of Robert’s house; their shots hit the white car parked front of Robert’s house, his garage, and the corner of the neighbor’s house, not the stairs or front of Robert’s house; and there was no evidence that appellant knew any of the people gathered at Robert’s house. Appellant argues that, while these facts would readily support a conviction for assault with a deadly weapon on Pablo, Barbie, and Veronica, they cannot support an attempted murder of them because these facts are insubstantial to support a specific intent to kill them.

We disagree. Appellant correctly observes that the requisite element of specific intent to prove attempted murder cannot be premised on the doctrine of transferred intent, which, in its classic form, applies when a defendant shoots with the intent to kill one person but instead hits and kills another person. Under that factual scenario, the shooter is subject to the same criminal liability that would have been imposed had the fatal shot reached the intended victim. (People v. Bland (2002) 28 Cal.4th 313, 317, 321, 326.) To be guilty of an attempted murder charge, however, “the defendant must intend to kill the alleged victim, not someone else. The defendant’s mental state must be examined as to each alleged attempted murder victim. Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others.” (Id. at p. 328.) Thus, the finding that appellant specifically intended to kill Robert does not, standing alone, suffice to find that he also intended to kill Pablo, Barbie, and Veronica.

However, the fact that a defendant wanted to kill a particular target does not preclude finding that he also, concurrently, intended to kill others within what is termed the “‘kill zone.’” (Bland, supra, 28 Cal.4th at p. 329.) “‘The intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity. . . .[C]onsider a defendant who intends to kill A and, in order to ensure A’s death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a “kill zone” to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. When the defendant escalated his mode of attack from a single bullet aimed at A’s head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A’s immediate vicinity to ensure A’s death. . . . Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone. . . .’ [Citation.]” (Id. at pp. 329-330.)

In this case the jury, which was instructed on the “zone of harm” theory of specific intent in attempted murder, could reasonably conclude that even if appellant’s primary target may have been Robert, he also intended to kill Pablo, Barbie, and Veronica by creating a “kill zone.” Appellant did not simply stay in his car and fire one shot directly at Robert. Rather, he got out of the car and, from a relatively short distance of 15 feet, fired numerous shots from a semi-automatic weapon in the direction of a small group of unarmed men and women who were socializing in close proximity in a locale from which there was no ready escape, and he continued shooting after the group hit the ground. Furthermore, he was accompanied by another shooter who also fired multiple shots from the same vantage point. The fact that appellant did not come any nearer to the house or the group of people as he was shooting, and that his shots hit the garage, the house next door, and a parked car does not militate against an intent to kill by creating a zone of harm. Rather, the jury could instead conclude that, fortuitously, appellant was not a good marksman and that he wanted to stay close to the car for a fast getaway.

The jury was presented with substantial evidence from which to find appellant had the intent to kill Pablo, Barbie, and Veronica and thus to reach a verdict of attempted murder of these three people.

II. CALJIC No. 8.66.1

Appellant contends the court erred in instructing that the jury could infer a specific intent to kill Robert, Pablo, Barbie and Veronica from an intent to harm.

CALJIC No. 8.66.1, as given to this jury, states: “A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. 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 victim’s vicinity.

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.” (Italics added.) The language of this instruction is taken directly from Bland: “‘The intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity.’” (Bland, supra, 28 Cal.4th at p. 329.)^[7]

Appellant argues this instruction misstates the law because the “kill zone” theory of liability permits an inference of intent to kill all persons in the zone when the defendant targets one person therein, and the substitution of “harm” for “kill” fundamentally changes the definition of inferred concurrent intent. He further argues that permitting a finding of intent to kill based on intent to harm reduced the People’s burden of proof on the attempted murder charges and denied him his constitutional rights of due process and a fair trial.

Whether a jury instruction is correct is determined from the court’s entire charge, not from a consideration of parts of an instruction or a particular instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Even if the instruction was incorrect, the question for the reviewing court is whether, by itself, the instruction infected the entire trial to such an extent that the resulting conviction violated some constitutional right. (Estelle v. McGuire (1991) 502 U.S. 62, 72.) Additionally, when the instruction is ambiguous, the reviewing court asks whether there is a reasonable likelihood the jury applied the instruction in a manner that violated the Constitution. (Ibid.)

As given in this case, CALJIC No. 8.66.1 was arguably ambiguous. On the one hand it refers to the defendant’s “concurrent inten[t] to kill” persons within a particular zone of risk. On the other hand it refers to this intent being concurrent if there is a reasonable inference the defendant intended to “ensure harm” to the primary victim by harming all people in the primary victim’s vicinity. However, when the instruction is read (1) as a whole, (2) with the other instructions governing attempted murder, and (3) with the parties’ closing arguments, we conclude there was not a reasonable likelihood that the jury understood the instruction to mean it could convict appellant of attempted murder only upon a showing he intended to harm the named victims.

First, the instruction itself begins by speaking of a defendant who “intends to kill” one person also “intend[ing] to kill other persons,” and it concludes by informing the jury that it must decide whether the defendant “actually intended to kill” the victims as persons in the risk zone. The overall thrust of the instruction relates to the defendant’s intent to kill, not his intent to harm.

Second, the jury was instructed that, to prove defendant guilty of the four attempted murder charges, the People had to prove that defendant harbored “a specific intent to kill unlawfully another human being.” The jury was also instructed to consider the instructions as a whole and each in light of all the others and not to single out any particular sentence or individual point or instruction and ignore the other instructions. These instructions reinforced the requirement that the jury had to find appellant intended to kill before it could convict him of attempted murder.

Third, the prosecutor and defense counsel both emphasized the requisite element of intent to kill. The prosecutor headlined a segment of her argument by stating the phrase: “Intent to kill.” She then discussed at length and in detail the evidence that demonstrated appellant intended to kill all five people grouped in front of the York Street house. She concluded this segment by stating: “Very compelling evidence I would submit to you of the intent to kill.”

In response, defense counsel argued that appellant and Sandoval shot at the parked white car because they thought Robert, who had crouched behind it, had a gun. “. . . I think the shots were directed at that car. I don’t think there was an intent to kill. I think there was an intent[,] actual but unreasonable[,] to keep that man [Robert] pinned down because they thought he had a gun and [they wanted to] get out of there quickly.”

Defense counsel also argued that the rapid firing of the guns was expressive of appellant and Sandoval’s fear, whereas “an intent to kill” would have been manifested in slower shots which would demonstrate “aiming” and “trying to accomplish” something. “If there’s an intent to kill in this case, I think this car [the burgundy Honda] would have been stopped, people would have been shot. You had this situation where a car pulled up and again it’s not until the car is approached in a manner that gave an actual or unreasonable belief in the necessity of imminent peril and necessity to defend one’s self. That you have this situation. That doesn’t excuse it. But it brings it down from murder, which requires specific intent, a deliberate intent, premeditative if it’s first degree, brings it down to manslaughter. And I think that’s closer to the facts in this case.”

In rebuttal to appellant’s argument, the prosecutor argued that, even assuming appellant felt threatened when Robert approached the burgundy Honda, the more logical reaction of the Honda’s occupants would have been to speed away, not to open the door and shoot, or, at most, to fire a single shot and drive off. Instead, the prosecutor reiterated, the assailants continued to fire multiple times after Robert had turned away from them and run to the sidewalk, and his companions had taken cover, all of which was consistent with an intent to kill all the people on the sidewalk “[b]ecause there is no other explanation why 12 rounds would be fired.”

In light of the instructions as a whole and the parties’ arguments, there is no reasonable likelihood that the jury was misled by the use of “harm” and “harming” in CALJIC 8.66.1 to believe it could find appellant guilty of attempted murder without finding he intended to kill.

Appellant argues that the length of the jury’s deliberations reflects “an extremely close case” in which any error in the jury instructions, such as the erroneous CALJIC 8.66.1, “could easily have improperly tipped the balance against [him] in favor of conviction.”

The jury retired to deliberate on Monday, August 9. It did not deliberate on Thursday, Saturday, Sunday, or Wednesday, August 12, 14, 15, and 18.

On late afternoon Thursday, August 19, the jury notified the court as to the counts and special allegations on which it had reached unanimous verdicts and those on which it was unable to reach a unanimous verdict. On Friday morning, August 20, the court instructed it to continue deliberating. On Friday afternoon it asked the jury for all the verdicts or special allegations on which it had reached agreement. The clerk then read the verdict forms. The verdict form that had been signed Monday, August 16, found appellant guilty of count 2, attempted murder of Robert, and found true the allegation that he intentionally and personally discharged a firearm in commission of the crime.

The verdict forms that had been signed Tuesday, August 17, found appellant guilty of counts 3, 4, and 5, attempted murder of Pablo, Barbie, and Veronica, and found true the accompanying section 12022.53, subdivision (c) allegations; guilty of count 7, discharge of a firearm at an inhabited dwelling, and found true the accompanying allegation that he intentionally and personally discharged a firearm and inflicted death on Leticia; guilty of count 8, unauthorized possession of a firearm; and not guilty of count 6, discharge of a firearm from a vehicle.

The jury did not present a verdict form as to count 1, murder of Leticia.^[8]

The court then instructed the jury to return on Monday, August 23 to deliberate further. On Tuesday afternoon, August 24, the jury notified the court it was deadlocked on all remaining charges and special allegations. The prosecutor then dismissed count 1 to the extent it charged first degree murder with special circumstances as to both defendants. As to count 1 the jury was instructed to make a decision on second degree murder or lesser included charges.

On Wednesday, August 25, the jury found appellant guilty of count 1 and found true the allegations that he personally discharged a firearm and inflicted great bodily harm or death on Leticia.^[9]

Appellant’s argument that the length of the deliberation reflects prejudice from CALJIC No. 8.66.1 is, at best, speculative. Trial in this case, i.e., from opening statements through closing arguments, lasted seven weeks (June 15-August 6). Two defendants were each charged with eight counts and 19 special allegations, including the extremely serious charge of murder with special circumstances. The charges against co-defendant Sandoval, other than the charge of evading a peace officer, were problematic because there had been no eyewitness identification of him by any of the York Street victims. According to the verdict forms, the jury reached its verdicts in the attempted murder counts as to appellant after four days of deliberation (count 2, Robert) and five days (counts 3, 4 & 5, Pablo, Barbie, Veronica), respectively. The deliberations were not disproportionate to a trial of this length, with its voluminous quantity of witnesses and exhibits, and the number and gravity of the offenses the jury had to decide.

DISPOSITION

The judgment is affirmed.

_________________________

Jones, P.J.

We concur:

________________________

Simons, J.

________________________

Bruiniers, J.*

*Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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

^[2] Appellant was also convicted of second degree murder (§ 187; count 1), discharging a firearm at an inhabited dwelling (§ 246, count 7), and possession of a firearm by a felon (§ 12021, subd. (a); count 8). As to count 1, the jury found true the allegation that appellant intentionally and personally discharged a firearm and proximately caused great bodily injury (§ 12022.53, subds. (c) & (d)), and as to count 7 it found true that appellant intentionally and personally discharged a firearm during the offense (§ 12022.53, subd. (c)). In a bifurcated proceeding the court found true the allegation that appellant had a prior felony conviction for which he had served a prison term. (§ 667.5, subd. (b).) Appellant does not appeal these convictions.

^[3] For purposes of clarity, we refer to Robert Martinez, Leticia Ramirez, Barbie Ledesma, Veronica Martinez, and Pablo Ojeda by their first names.

^[4] As discussed, post, this is not the same Veronica Martinez who was socializing with Robert and Leticia on York Street.

^[5] As noted in footnote 4, above, burgundy Honda owner Veronica Martinez is different from York Street guest Veronica Martinez. To distinguish the two women, this opinion will refer to the Honda owner as Martinez and the York Street guest as Veronica.

^[6] Sandoval and appellant were charged in the same information with count 1 (murder of Leticia), counts 2 through 5 (attempted murder of Robert, Pablo, Veronica, and Barbie), count 6 (discharge of a firearm from a vehicle) and count 7 (discharge of a firearm at an inhabited building.) Appellant alone was charged with count 8 (felon in possession of a firearm), and Sandoval alone was charged with count 9 (evading a peace officer). Appellant and Sandoval were tried together. The jury found both men not guilty of count 6. It was unable to reach a verdict as to any of the other charges against Sandoval except count 9, of which it found him guilty.

^[7] The bound volume of CALJIC is published twice a year, in January and July. CALJIC No. 8.66.1, as given in this case, was the version in the January 2004 edition. The July 2004 edition contains a revised CALJIC No. 8.66.1, in which “harm to” was replaced with “kill,” and “harming” was replaced with “killing.” The use note to CALJIC No. 8.66.1 in the January and July 2004 editions states that the instruction is derived from People v. Bland, supra, 28 Cal.4th 313.

The opening statements in this lengthy trial were June 15, 2004. The jury was not instructed until August 4, 2004. As it existed in 2004, section 5 of the “Standards of Judicial Administration Recommended by the Judicial Council,” an appendix to the California Rules of Court, recommended that a judge use the CALJIC instruction in “the latest edition” of CALJIC if it is applicable to the case. (Sec. 5 was repealed, effective Aug. 26, 2005.) Under then-extant section 5, the jury should have been instructed with the revised version of CALJIC No. 8.66.1 that appears in the July 2004 edition.

^[8] The verdict forms signed Thursday, August 19 also found co-defendant Sandoval not guilty of count 6 and guilty of evading a police officer (Veh. Code, § 2800.2), a charge not brought against appellant. The jury had no verdict forms as to counts 1 through 5 and 7 for Sandoval.

^[9] On Thursday, August 26 the court found the jury deadlocked as to the remaining counts against Sandoval and declared a mistrial.