P. v. Limon

Filed 10/13/06 P. v. Limon CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. Affirmed.

Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Kristen K. Chenelia, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction^[1]

Defendant, a 16-year-old member of a street gang, challenged six young men and, without provocation, fired a shotgun at them, injuring three.

A jury convicted defendant and a codefendant, Jesus Sanchez, of eight criminal counts: three counts (counts 1, 3, and 4) of attempted murder (§§ 187, subd. (a) and 664); one count (count 2) of engaging in gang crime (§ 186.22, subd. (a)); three counts (counts 5, 6, and 7) of assault with a firearm (§ 245, subd. (a)(2)); and one count (count 8) of shooting at an occupied car. (§ 246.) Defendant was acquitted on count 9 for shooting from a car. (§ 12034, subd. (d).) Additionally, the jury found true the charged enhancements for personally discharging a firearm, causing great bodily injury (§ 12022.53, subd. (d)); personally using a firearm. (§ 12022.5 subd. (a)); and committing all crimes, except count 2, to benefit a criminal street gang. (§ 186.22, subd. (a).) The jury also found true the deliberation enhancement (§ 664, subd. (a)(1)) on count 1 but not on counts 3 and 4. The court pronounced a collective sentence of 40 years to life.

On appeal, defendant claims the jury could not have found the deliberation enhancement on count 1 to be true because it was uncharged. He also urges the court committed several kinds of instructional error involving CALJIC No. 8.66.1, the lesser included offense of attempted voluntary manslaughter, attempted voluntary manslaughter, and CALJIC No. 2.70.

2. Facts

According to two witnesses, Israel Medina and Victor Zamudio, at 9:30 p.m. on July 25, 2004, defendant, in a car driven by Sanchez, confronted six people, Medina, Zamudio, Alfredo Acevedo, Edgar Galindo, Leopold Lopez, and Aaron Roman, in a Lincoln Navigator. Defendant demanded of Medina, “Where the fuck [are] you Vatos from?” Medina held up his empty hands and said, “I ain’t from nowhere, bro’. . . . I don’t gang bang.” Defendant responded, “This is South Side Fontana Locotes” and “What the fuck [are] you looking at?” Medina replied, “Nothing,” and looked down and away, toward the car’s center console. Medina and Zamudio denied having acted in a threatening or provoking manner. As Sanchez blocked the Lincoln with his car, defendant jumped out and fired a shotgun at the Lincoln’s front windshield, shattering it and striking Galindo, Garcia, and Roman.

According to Acevedo and Galindo, defendant first “hit up” Galindo before confronting Medina. Galindo said defendant yelled “Westside Crazy Demon” before shooting. Acevedo and Roman denied defendant making gang references during the encounter but Acevedo recalled there being an argument. A bystander, Andres Mercado, also observed a dispute.

When the police interviewed defendant, he admitted being a member of the Neighborhood Locos street gang but initially denied being at the scene of the shooting. He subsequently admitted his involvement and that he had asked the occupants of the Lincoln where they were from. When they ignored him, he asked again. He claimed one of them made a gang sign for the West Side Rivas. Defendant became angry about being cutoff by the Lincoln and the occupants’ subsequent conduct. He fired, aiming the shotgun at the Lincoln’s hood. He was surprised he injured three people because he was trying to hit the front of the truck.

3. Deliberation Enhancement

Defendant urges this court should direct the lower court to strike the jury’s true finding of a deliberation enhancement under section 664, subdivision (a), (and the attendant life term with a 15-year parole eligibility date) because the deliberation enhancement was not charged.

In count 1 of the amended information, the district attorney accused defendant of violating “section 664/187, subdivision (a), a felony, in that . . . [he] did willfully, unlawfully, and with malice aforethought attempt the willful, deliberate and premeditated murder of [Medina], a human being.” The central accusation was followed by a street-gang and two firearm enhancements. Defendant contends the foregoing does not sufficiently plead a deliberation enhancement because the deliberation enhancement is not described in a separate sentence and the charging language does not specifically refer to section 664, subdivision (a). Defendant also maintains the amended information uses the word “accuses” to describe offenses and the word “charges” to describe enhancements.

Section 1170.1, subdivision (e) provides: “All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.” Section 664, subdivision (a), provides: “. . . if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. . . . The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.” The jury was separately instructed on attempted murder and the allegation that the attempted murder was willful, deliberate, and premeditated.” (CALJIC Nos. 8.66 & 8.67.) The prosecutor emphasized the separate nature of the enhancement in closing argument and the jury received two separate verdict forms.

Reading sections 664 and 1170.1 together, we hold the amended information sufficiently pleaded a deliberation enhancement because the fact that the attempted murder was willful, deliberate, and premeditated was alleged in the accusatory pleading. Defendant was given sufficient notice of the charges against him. (§§ 952 & 960; People v. Thomas (1987) 43 Cal.3d 818, 823, 826; People v. Riva (2003) 112 Cal.App.4th 981, 1002.) It was not necessary for the amended information to make the wholly duplicative effort of first accusing defendant of deliberate murder followed by charging defendant with deliberate murder. The record demonstrates that, from the beginning, the prosecution treated the case as involving deliberated attempted murder. The defense understood the charges and enhancements pleaded against defendant and defended the case accordingly. There was no lack of notice and no prejudice to defendant based on the style of pleading in the first count. (People v. Polowicz (1992) 5 Cal.App.4th 1082, 1094-1095.)

4. CALJIC No. 8.66.1

Defendant contends the trial court erred by instructing on the “kill zone” theory of intent to kill.

The prosecution charged defendant with three counts of attempted murder (§§ 187/664) for firing a single shot at the Lincoln. The trial court gave the jury an instruction based on CALJIC No. 8.66.1 (Attempted Murder -- Concurrent Intent), as follows: “A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. [This zone of risk is termed the ‘kill zone.’] 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 kill the primary victim by killing everyone in the victim’s vicinity. Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a [‘kill zone’] [zone of risk] is an issue to be decided by you.”

This instruction is derived from People v. Bland (2002) 28 Cal.4th 313, involving a factual scenario similar to the present one. In Bland, the defendant and an accomplice both fired into a car, evidently intending to kill a rival gang member who was in the car; two non-gang members, who were also in the car, were wounded. (Id. at p. 318.) The Supreme Court held that the defendant could be convicted of attempted murder of each of the two non-gang members, even though neither was his primary target: “[T]he fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what it termed the ‘kill zone.’ ‘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. For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider 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. . . . 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.] [Emphasis added.]” (Id. at pp. 329-330, quoting Ford v. State (1992) 330 Md. 682, 716-717 [625 A.2d 984].)

Defendant argues that the challenged instruction erroneously allowed the jury to find him guilty, based on a reasonable inference, even if he lacked the intent to kill two of the victims, as long as he intended to kill someone. Here, the challenged instruction correctly informed the jury that, if defendant intended to kill one person by killing other people in the vicinity, he could be found guilty of the attempted murder “either as a primary target or as someone within a [‘kill zone’] . . . .” There is nothing wrong with the instruction’s language “it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in the victim’s vicinity.” Bland expressly approved the use of “a reasonable inference.” Under its holding, he could be guilty of attempted murder of two victims, even though his primary target was a third victim.

Furthermore, the theory of concurrent intent has been consistently applied in other, similar circumstances, such as where a defendant fires a gun into a crowd of people. (People v. Vang (2001) 87 Cal.App.4th 554, 563-564.) Accordingly, the trial court correctly gave CALJIC No. 8.66.1.

5. Attempted Voluntary Manslaughter

Defendant next argues that substantial evidence supported giving an instruction on attempted voluntary manslaughter through imperfect self-defense. (People v. Flannel (1979) 25 Cal.3d 668, 680, 683.) He claims violations of constitutional and state law. We disagree there was evidence substantial enough to merit a jury’s consideration. (People v. Breverman (1998) 19 Cal.4th 142, 162, citing Flannel, supra, at p. 684, fn. 12.)

Defendant points to the evidence that he was a known gang member, previously acquainted with Garcia and Roman, and that defendant and Sanchez had a gang-flavored encounter two weeks before with Garcia, Roman, Acevedo, Lopez, and Zamudio. There was equivocal testimony about whether the victims had been drinking beer before they were confronted by defendant. Acevedo broke with the testimony given by the other Lincoln occupants and said there was an argument with defendant and Sanchez, evidence that was supported by Mercado, the bystander, and by defendant, who said a Lincoln occupant “threw” gang signs at him. Defendant also contends the evidence that Medina did not display a gun and other evidence exculpating the Lincoln occupants was questionable. Defendant extrapolates from the foregoing and argues it is reasonable to infer there was mutual antagonism and Medina pulled a gun on defendant, causing defendant to have an honest but unreasonable belief in the need to defend himself. (People v. Flannel, supra, 25 Cal.3d at pp. 680, 683.)

The foregoing does not constitute substantial evidence requiring a jury instruction on attempted voluntary manslaughter. Defendant was friendly with Roman. In the past, defendant and other Lincoln occupants had been cordial and not antagonistic. There was no evidence of gang rivalry. Medina had a BB gun in the car’s center console but there was no mention of it being used during the incident. Defendant claimed the Lincoln cut off his car and the occupants then “maddogged” him, ignoring him and angering him. One occupant made a gang sign, the only possible provocation. Instead of departing, Sanchez blocked the Lincoln and defendant emerged and fired.

This sequence of events does not support a finding defendant actually believed he was in imminent danger and acted in imperfect self-defense. Instead, the only reasonable interpretation is defendant acted aggressively and without belief in the need to defend himself. Nor was defendant’s right to due process violated. (See Hopper v. Evans (1982) 456 U.S. 605, 611-612.)

6. CALJIC No. 2.70

Defendant’s final assignment of error was the trial court gave CALJIC No. 2.70 [defining admission and confession],^[2] but refused CALJIC No. 2.71 [defining admission]^[3], concerning defendant’s statements during the police interview. Defendant contends he made admissions but not a confession because he did not acknowledge intent to kill or guilt. Therefore, it was not proper to give an instruction about confession.

First, defendant did confess to the four crimes of assault with a firearm and shooting at an occupied car. The evidence warranted giving CALJIC No. 2.70 on those offenses. (People v. Carpenter (1997) 15 Cal.4th 312, 392.)

Second, defendant acknowledged that when he aimed at the hood of the car, he endangered the passengers. Under CALJIC No. 2.70, the jury was properly instructed to determine whether defendant’s statements were admissions or confessions.

7. Disposition

We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/McKinster

Acting P. J.

s/King

J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

^[1] All statutory references are to the Penal Code unless stated otherwise.

^[2] CALJIC No. 2.70, as rendered by the court, instructs: “A confession is a statement made by a defendant in which [he] has acknowledged [his] guilt of the crime[s] for which [he] is on trial. In order to constitute a confession, the statement must acknowledge participation in the crime[s] as well as the required [state of mind].

“An admission is a statement made by [the] defendant which does not by itself acknowledge [his] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] guilt when considered with the rest of the evidence.

“You are the exclusive judges as to whether the defendant has made a confession [or an admission], and, if so, whether that statement is true in whole or in part.

“[Evidence of [an oral confession] [or] [an oral admission] of the defendant not made in court should be viewed with caution.]”

^[3] CALJIC No. 2.71 provides: “An admission is a statement made by [a][the] defendant which does not by itself acknowledge [his/her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his/her] guilt when considered with the rest of the evidence.

“You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part.

“[Evidence of an oral admission of [a][the] defendant not made in court should be viewed with caution.]”