P. v. Muro

Filed 10/18/06 P. v. Muro CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Patrick O’Hara, Judge.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, David A. Eldridge and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant, Benito Muro, was found guilty after a jury trial of attempted murder (Pen. Code, §§ 664 & 187, subd. (a), count one) and assault with a firearm (Pen. Code, § 245, subd. (a)(2), count two).^[1] The jury found true allegations appellant personally used and discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), personally used a firearm (§ 12022.5, subd. (a)), and inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced appellant on count one to an indeterminate life term, plus a term of 25 years to life for the section 12022.53, subdivision (d) enhancement.^[2] The court imposed a restitution fine, direct victim restitution, and granted applicable custody credits.

Appellant contends he was delusional when he shot the victim. Appellant argues the trial court had a sua sponte duty to instruct the jury with CALJIC No. 4.35, the mistake-of-fact instruction, and that its failure to do so prevented the jury from evaluating a viable defense.

FACTS

Prosecution Evidence

Cornelius DeJong runs the Elkhorn Dairy with two brothers. Three shifts of employees milked the cows at different times each day. In 2004, appellant milked cows from midnight to 8:00 a.m.

Appellant had three children with his common-law wife, Suzanna Aguirre. The couple had arguments in which appellant would accuse Aguirre of being unfaithful with his coworkers. Aguirre explained she was not unfaithful and did not socialize with appellant’s coworkers. On August 6, 2004, Aguirre told appellant she wanted to give birth in Mexico to a child she was expecting. Appellant did not want Aguirre to do so. He left for work between 7:30 and 8:00 p.m., which Aguirre thought was too early for appellant’s shift. Before going, appellant demanded that Aguirre leave their home. She ignored appellant’s demand.

Aguirre explained that appellant was not well because he had used drugs that day and on prior days. Aguirre initially told investigators that appellant had not used drugs. She explained that she was fearful because she was pregnant. According to Aguirre, appellant became jealous when he used drugs.

Mario Silveira was a contract worker at the dairy. On August 6, 2004, Silveira returned from dinner about 9:00 p.m. Silveira saw appellant sitting by a water fountain with his hands over his head. Appellant was wearing his uniform, but was not working. Although it was a hot August evening, appellant was wearing a jacket.

When appellant saw DeJong, he stopped DeJong to speak to him. DeJong speaks some Spanish, appellant’s native language. DeJong understood appellant to claim that employees were messing around with Aguirre in a storage room upstairs and DeJong had something to do with it. DeJong was not sure if appellant was accusing him of just providing the room for others or if he was also accusing DeJong of having an affair with Aguirre.

DeJong told appellant to wait while he got a flashlight and a translator. DeJong chose Abel Ramirez because he was fluent in Spanish and English. After listening to appellant, Ramirez confirmed DeJong’s initial impression of what appellant had told him. This time, appellant was clear that other employees and DeJong were having sex with Aguirre.

Appellant told Ramirez he wanted to quit. DeJong explained he would find someone to take care of everything and that appellant could pick up his paycheck tomorrow. Appellant raised his voice, becoming increasingly angry.

Appellant threatened to kill DeJong, anyone else then at the dairy, and then he would finish off the midnight crew. When DeJong told appellant to go home, appellant started cussing in Spanish. Appellant unzipped his jacket, revealing a gun. Appellant pointed the gun at another employee standing nearby.

Ramirez tried to calm appellant. DeJong could tell Ramirez was not getting through to appellant and told Ramirez they needed to count to three and split. When DeJong counted to three, he ran north. Appellant shot DeJong in the shoulder. The bullet tore through DeJong’s lung, broke a rib, went between two arteries, and lodged near a jugular vein and DeJong’s esophagus. As DeJong continued to run, appellant shot him in the head and the right hand.

Silveira heard a loud bang and saw DeJong run into the room holding his hand, which was bloody. DeJong said he was shot and asked for help. Silveira laid him down and saw DeJong had been shot in the back. Silveira grabbed his cell phone and called 911. DeJong was taken to Kaweah Delta Hospital. The bullet that went through his hand shattered two bones and required three surgeries.

Detective Gary Hunt of the Tulare County Sheriff’s Department arrived at 11:30 p.m. He found a plastic bag containing .22-caliber long rifle bullets and a bandoleer with more ammunition. At 10:30 a.m., detectives located appellant in a fruit orchard near London in Tulare County. Appellant was arrested. He told detectives that after shooting DeJong, he ran from the dairy and hid in a cotton field. Appellant said the gun he used was in the cotton field, but the detectives never found it.

Appellant told Detective Hunt that he used methamphetamine a day or two prior to the shooting. Appellant fired all of the rounds in the gun at DeJong. Appellant told Hunt he tried to talk to DeJong about what was going on with Aguirre, but DeJong acted as though he did not speak Spanish. This upset appellant so he shot DeJong.

Hunt spoke to appellant again at 12:50 p.m., using Detective Jacob Huerta as an interpreter. Appellant was calm and oriented to the time, place, and location. Appellant made paranoid statements about people laughing at him and trying to sleep with his wife. When asked about the bullets in his car, appellant said he bought them the day before the shooting.

Appellant’s blood was drawn at 12:45 p.m., on August 7, 2004. Roger Peterson, a forensic toxicologist, indicated appellant’s blood tested negative for alcohol and positive for amphetamines. A second, more reliable, test that Peterson described as the gold standard test showed no amphetamine or methamphetamine present in appellant’s blood.^[3] Peterson explained that methamphetamine lasts a long time in the body. If a person uses a couple of milligrams of methamphetamine, it should remain detectable for two to three days.

The possibility of a psychosis induced by methamphetamine is rare, but more prevalent in heavy users of the drug. Based on the toxicology report, Peterson did not think it was possible that appellant had ingested methamphetamine 12 to 14 hours prior to when his blood was drawn.

Defense Expert

Dr. Raymond Deutsch has a board certification as an internist and in 1982 had additional training in addiction medicine. In 1986, he was certified by the American Society of Addiction Medicine. Dr. Deutsch interviewed appellant and reviewed the toxicology reports. Appellant told Dr. Deutsch that he has used methamphetamine since 1998. Delusions, which Dr. Deutsch explained as false beliefs, are a common side effect of methamphetamine. He explained that stimulant drugs also cause paranoia. Dr. Deutsch explained that appellant’s behavior was consistent with being under the influence of methamphetamine. Dr. Deutsch stated that appellant had an addiction disorder caused by his use of methamphetamine. This was true even though the toxicology report came back negative for the presence of methamphetamine. When Dr. Deutsch interviewed appellant, his mental status was normal and he did not show signs of paranoia.

DISCUSSION

Appellant was charged in count one with attempted murder. The jury was instructed, also, on the lesser included offense of attempted voluntary manslaughter based on sudden quarrel/heat of passion. This was not, however, the theory upon which defense counsel argued the case to the jury. Instead, defense counsel argued the jury should find that appellant was delusional at the time of the offense, such that the jury should reject both the attempted murder charge and the lesser, attempted voluntary manslaughter charge and, instead, find appellant guilty only of assault with a firearm as charged in count two^[4]:

DEFENSE COUNSEL: “[The prosecutor] said that jealousy is a strong emotion . . . that would be a reason that you would want to go and kill another person. I would suspect that at some point in our lives we were jealous for some reason . . . but it didn’t cause us to kill to go out and try and kill another person. There has to be an explanation here. And the explanation is he was delusional. He didn’t--it is not rational, what he was thinking. He’s thinking that all of these workers at the dairy including the owner . . . all of these people are having sex with his wife in the room that clearly nobody has access to. That is not reasonable thinking. He’s got some kind of delusion. And it is the methamphetamine psychosis that the doctor talked about that affected his ability to form the specific intent to kill Mr. Dejong. That’s what this case is about. So when you are back there . . . talk about specific intent. And I think when you remember what the Judge says, when you look at the action of Benito Muro, you should be able to come back confident in a verdict of not guilty on count one. And the lesser included offense requires the specific intent, also, and I’m asking you to find him not guilty of that. Take a look at that count two. And the count two is really what this case is about . . . and that’s what Benito [Muro] is guilty of.”

To support this theory of defense, the trial court instructed the jury in the terms of CALJIC No. 3.32 (evidence of mental disease to negate specific intent) and CALJIC Nos. 4.21.1 and 4.22 (voluntary intoxication to negate specific intent) with regard to both attempted murder and attempted voluntary manslaughter.

Appellant now contends that the trial court erred in failing to instruct, sua sponte, in the terms of CALJIC No. 4.35, on mistake of fact, and that the prosecutor exacerbated the impact of the error by arguing that “if you believe that your wife is sleeping with somebody but you are wrong, but you act on it anyway, you are still completely responsible for that act.” There are several reasons why we disagree with appellant’s position.

First, in People v Mejia-Lenares (2006) 135 Cal.App.4th 1437, this court rejected the defendant’s argument that he was entitled to an instruction combining the theory of imperfect self-defense with a mistake of fact theory based on his delusional belief that his victim was the devil and would try to kill him. We noted it is settled that a mistake of fact defense pursuant to section 26, class Three, cannot be predicated upon delusions that are the product of mental illness. We found no reason “to see why the rule should be any different because we are considering a specific intent crime or a mistake-of-fact defense under section 188.” (Id. at p. 1454.) We noted that nothing would preclude a delusional defendant from pursuing an insanity defense. (Id. at pp. 1454-1455.)

Anticipating the roadblock of Mejia-Lenares, appellate counsel argues that, in fact, appellant’s mistaken belief here was not a delusion. It was instead entirely reasonable, given the fact, primarily, that the victim DeJong never denied to appellant that he had engaged in sexual relations with Aguirre. But this, of course, is inconsistent with appellant’s evidence and argument at trial. We decline appellate counsel’s invitation to give the evidence a new twist based on his imagination.

Second, as the terms of CALJIC No 4.35 make clear, a mistake of fact defense applies only where, had the defendant not been mistaken, his conduct would not have been unlawful. (See e.g. People v. Scott (2000) 83 Cal.App.4th 784, 800.) Appellant was not therefore entitled to CALJIC No. 4.35 based on his mistaken belief that the victim had been sexually involved with his wife. (See also People v. Geddes (1991) 1 Cal.App.4th 448, 456.)

Third, though the mistake of fact defense is available in cases of involuntary intoxication, it cannot be used in cases, such as this one, of voluntary intoxication. (People v. Scott (1983) 146 Cal.App.3d 823, 832, fn. 4 [mistake of fact possible where defendant involuntarily drugged at a party because conduct still possibly reasonable]; People v. Gutierrez (1986) 180 Cal.App.3d 1076, 1083 [mother under drug induced delusion who beat her children was not entitled to mistake of fact instruction].)

Though appellant’s argument is thoroughly confusing, its real crux appears to be that the jury should have been instructed on the heat of passion defense in combination with instructions on the theory that his mistaken belief about relations between Aguirre and the victim sent him into a heat of passion that negated the intent to kill. The crux of this argument does not appear until it is stated in the appellant’s reply brief. We will, nonetheless,^[5] attempt to address it.

Appellant may be correct that a mistake of fact which forms the basis for, or causes, a heat of passion does not negate the heat of passion defense. (Compare People v. Logan (1917) 175 Cal. 45, 49 [“the sight of a wife in adultery, or even a reasonable belief that his wife was committing an act of adultery, although the belief may be unfounded, has been held sufficient evidence to go to the jury as creating ‘the heat of passion’ in the mind of the defendant”] with People v. Scott, supra, 83 Cal.App.4th at p. 801 [mistake of fact defense available only where it would exonerate the criminal act entirely].) We need not decide that question here, because of the following.

This is a new theory on appeal. Appellant did not argue heat of passion at the trial level and did not request instruction on it. Neither did he argue or request instruction on mistake of fact. His position was that he labored under a delusion, caused by methamphetamine psychosis, which negated the intent to kill. While a trial court has a duty to instruct on general principles of law relevant to the issues raised by the evidence (People v. Breverman (1998) 19 Cal.4th 142, 154), the court has no duty to give pinpoint instructions, relating general principles to the specific facts of a case, without request. (People v. Pollack (2004) 32 Cal.4th 1153, 1176.)

The trial court here did instruct on mental illness (CALJIC No. 3.32) and voluntary intoxication (CALJIC Nos. 4.21.1, 4.22) as they impact proof of specific intent. The court also instructed on heat of passion as it impacted the charge of murder. More was not required.

DISPOSITION

The judgment is affirmed.

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^*Before Cornell, Acting P.J., Dawson, J., and Kane, J.

^[1] Unless otherwise noted, all statutory references are to the Penal Code.

^[2] The court struck the section 12022.7, subdivision (a) enhancement and stayed sentences on count two and the remaining enhancements.

^[3] The second test was conducted nine months after appellant’s arrest on blood drawn earlier. It was used to detect the presence of amphetamine, methamphetamine, ephedrine, pseudoephedrine, and phenalmethapronolamene. The initial positive test for the presence of amphetamine or methamphetamine could have been caused by an interfering substance which errantly caused a false positive result, or, an amene present in the sample was not detectible by the confirmation system unless there was a specific test to detect it.

^[4] This count had been added to the information, at the request of the prosecutor, at the end of presentation of evidence.

^[5] We are entitled to decline consideration of such matters at such a late stage of the appellate process. (People v. Mitchell (1995) 36 Cal.App.4th 672, 674, fn. 1.)