Opinion
2d Crim. No. B195166
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. EDWIN MEDRANO, Defendant and Appellant.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen, Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Edwin Medrano appeals a judgment following conviction of attempted murder, with a finding that he used and discharged a firearm, and the making of criminal threats. (Pen. Code, §§ 187, subd. (a), 664, 12022.53, subds. (b) & (c), 422.) We affirm.
FACTS AND PROCEDURAL HISTORY
In October, 2005, Medrano lived with his sister, Marisa, and her husband, Enrique Sanchez, in a residence in Huntington Park. Medrano and Sanchez had an argument concerning rules of the residence that Medrano had broken. Medrano was "bothered" and "very upset." Marisa suggested that Medrano move from their home.
When Medrano walked to the bedroom, Marisa followed and attempted to discuss the matter. He then left the home, but stated that he would return and "smoke" Sanchez. Marisa understood this statement to mean that Medrano would return and kill her husband. As a result, she was frightened that day.
In the morning of November 8, 2005, Marisa was leaving her home when she saw Medrano approach. She advised him to return to the home in one hour to retrieve his belongings. Marisa wanted to be present when Medrano removed his possessions because Sanchez was asleep inside the residence.
Instead, Medrano waited until Marisa left. He and another man walked to the front door of the residence. They knocked on the door and Sanchez answered. Medrano shouted: "Open the fucking door. I want to get my fucking things." The second man urged Sanchez to allow Medrano to retrieve his possessions.
Sanchez had opened the door several inches, and stood behind the center of the door. Medrano suddenly pulled a gun and fired it three times through the center of the door. Sanchez moved to the side of the door and to the floor to avoid being shot.
Medrano and his companion then fled to a pickup truck with an open door. A neighbor testified that the men were laughing as they ran. They "took off very quickly" in the truck.
Huntington Park police officers arrived and investigated the shooting. They found three bullet holes in the center of the front door, approximately 50 inches from the ground. They also found a distorted bullet approximately 15 feet inside the residence.
In an interview with police officers, Medrano waived his constitutional rights and admitted firing the gun three times. He stated that he was angry because Sanchez would not open the door. Medrano admitted that he "just shot at [Sanchez]" because he was angry. He also stated that he did not intend to harm Sanchez.
The jury convicted Medrano of attempted murder and the making of criminal threats. (§§ 187, subd. (a), 664, 422.) It also found that he personally used and discharged a firearm. (§ 12022.53, subds. (b) & (c).) The trial court sentenced him to five years imprisonment for the attempted murder, enhanced by 20 years for the firearm allegation. It also sentenced him to 2 years imprisonment for the making of criminal threats, to be served concurrently to the attempted murder sentence. The trial court imposed a $1,000 restitution fine and a $1,000 parole revocation restitution fine, and awarded 408 days of presentence custody credits.
Medrano appeals and contends that: 1) the trial court erred by denying his request for instruction regarding a related offense; 2) the trial court erred by excluding evidence of the victims prior inconsistent statement; 3) insufficient evidence supports his conviction of making criminal threats; 4) the trial court erred by instructing that the threat made to Marisa qualifies as a criminal threat; and 5) punishment for the firearm use enhancement constitutes cruel and unusual punishment.
DISCUSSION
I.
Medrano argues that the trial court erred by refusing his instruction regarding the related criminal offense of discharging a firearm into an inhabited dwelling. (§ 246.) He asserts that the error denies him the constitutional right to a jury trial and to present a defense. (United Sates v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1198 [defendant entitled to instruction regarding his theory of the case if it has support in law and evidence].) Medrano points out that instruction on a lesser-related offense is permitted if the parties agree, and adds that the trial court did not solicit an agreement from the prosecutor. (People v. Birks (1998) 19 Cal.4th 108, 136, fn. 19.) He contends the error is reversible per se, or alternatively, reversible under any standard of review. (People v. Stewart (1976) 16 Cal.3d 133, 141 [defendant entitled to instruction regarding affirmative defenses]; People v. Elize (1999) 71 Cal.App.4th 605, 616 [discussing tests of prejudicial error when trial court refuses to instruct upon a defense].)
The trial court did not err because there exists no constitutional right to instruction upon a lesser-related offense. (Hopkins v. Reeves (1998) 524 U.S. 88, 96-97; People v. Birks, supra, 19 Cal.4th 108, 136.) "Almost all States . . . provide instructions only on those offenses that have been deemed to constitute lesser included offenses of the charged crime. . . . We have never suggested that the Constitution requires anything more." (Hopkins v. Reeves, supra, 524 U.S. 88, 96-97.) The prosecutors discretion to choose the actual charges from among those potentially available rests upon the constitutional principle of separation of powers and generally is not subject to supervision by the judicial branch. (People v. Birks, supra, 19 Cal.4th 108, 134.)
Moreover, the trial court did not deny Medrano the constitutional right to present a defense. Medrano offered evidence that Sanchez was standing to the side of the door when he discharged the weapon, and that he did not intend to shoot him. In summation, Medrano argued that he did not intend to kill Sanchez when he fired the weapon. Medrano may not dictate what instructions a court should give relating to offenses not charged or not included in the charged offense. (People v. Birks, supra, 9 Cal.4th 108, 134.)
II.
Medrano contends that the trial court erred by excluding evidence of Sanchezs prior inconsistent statement made to Marisa regarding his physical position behind the door. (Evid. Code, § 1235.) Medrano points out that Sanchez testified that he initially stood to the side of the door, then moved to the center and behind the door because "air was coming in", and then fell to the floor to the side of the door when the gunshots were fired. Medrano offered Marisas testimony that the "only position [Sanchez] changed" was when he fell to the floor. The trial court refused this testimony, ruling that it was not an inconsistent statement. Medrano argues that the trial courts ruling denied him the right to present a defense. (Chambers v. Mississippi (1973) 410 U.S. 284, 294-295.)
Assuming there was an inconsistency, any error in excluding the statement is harmless. (People v. Humphrey (1996) 13 Cal.4th 1073, 1089.) "When the reviewing court applying state law finds an erroneous exclusion of defense evidence, the usual standard of review for state laws error applies; the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant." (Ibid.)
Here Sanchez testified that he was standing behind the door when Medrano fired the gun. He also testified, however, that "possibly" he informed police officers immediately following the shooting that he avoided being shot because he was standing to the side of the door. Medranos companion, an eyewitness to the crime, also testified that Sanchez stood to the side of the door during the entire encounter. There is no reasonable probability of a more favorable result had the trial court admitted evidence of Sanchezs statement to Marisa.
Moreover, application of the ordinary rules of evidence does not impair a defendants right to present a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1102.) "Although completely excluding evidence of an accuseds defense theoretically could rise to [constitutional error], excluding defense evidence on a minor or subsidiary point does not impair an accuseds due process right to present a defense." (Id., at p. 1103.) Here Medrano presented evidence and argued that Sanchez stood by the side of the door throughout the encounter.
III.
Medrano asserts that there is insufficient evidence that either Sanchez, the target of his threat, or Marisa was in sustained fear of harm. He points out that section 422 does not punish emotional outbursts; rather, it punishes those who intend to instill fear in others. (People v. Felix (2001) 92 Cal.App.4th 905, 913.)
In assessing the sufficiency of evidence to support a judgment, we review the evidence most favorably to the judgment to determine whether reasonable and credible evidence exists from which a reasonable trier of fact could have determined guilt beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66.) We do not redetermine the weight of the evidence or the credibility of witnesses. (Ibid.) We also do not substitute our reasonable inferences drawn from the evidence for those drawn by the trier of fact. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Section 422 punishes the criminal offense of making criminal threats. The statute requires proof of five elements, including that the threat actually caused the person threatened "to be in sustained fear for his or her own safety or for his or her immediate familys safety." (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 228.) "Sustained fear" requires a fear that exists for a period of time that extends beyond the momentary, fleeting, or transitory. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.)
Sufficient evidence supports the judgment. Marisa testified at the preliminary examination that she was fearful following her brothers threat to "smoke" Sanchez, that she "just got scared," and that she "took it like, he was going to come back and kill [Sanchez]." At trial, she acknowledged her preliminary examination testimony and stated that she was "scared that day [of the threat]." Later, during cross examination, she stated that she did not believe the threat when it was made. The trier of fact considered and resolved the inconsistencies in Marisas testimony. We do not reweigh the evidence or redetermine her credibility.
Moreover, section 422 punishes a threat of harm to a person or a member of "his or her immediate family." Here the information alleges that Marisa was the victim of Medranos threat. Sufficient evidence exists that Medrano threatened to kill her husband and that she was in sustained fear of that threat. There is no statutory requirement that Marisa or another person convey the threat to the person to be physically harmed. The evidence establishes the requisite elements of section 422 because the threat was made against the victims family member and caused her a reasonable fear of that family members safety.
IV.
Medrano argues that the trial court erred by instructing that the threat made to Marisa qualifies as a criminal threat. He reasons that section 422 does not apply to criminal threats that are not conveyed to the intended target. Medrano asserts that the instruction denied him the right to trial by jury and to due process of law.
As discussed, III., ante., there is sufficient evidence that Marisa, the victim of Medranos threat, was in sustained fear for her husbands safety. Under the circumstances, there is no requirement that her husband also know of the threat and be in sustained fear. Thus, the trial court was not required to instruct that the threat must be communicated to Sanchez and that he must be in sustained fear as a result.
The trial court did err, however, by including in CALCRIM 1300 a requirement that the threat be communicated to Sanchez. Under any standard of review, this surplus element is harmless because it merely required the jury to find an additional fact beyond the necessary elements of the offense. (People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130 [People v. Watson (1956) 46 Cal.2d 818, 836, test of prejudice applies where jury receives instruction upon unsupported theory].)
V.
Medrano contends that the trial court erred by denying his motion to strike the firearm use enhancement of section 12022.53, subdivision (c), because the 20-year enhancement constitutes cruel or unusual punishment. He relies upon People v. Dillon (1983) 34 Cal.3d 441, 479 [analysis of cruel or unusual punishment claim involves consideration of nature of the offense and offender]. Medrano points out that he is 22 years old, has no prior criminal record, the victims urged leniency, and counsel related his remorse to the court. He adds that the trial court erred by refusing his request to substitute a section 12022.5, subdivision (a), enhancement. He reasons that a "person who fires a gun has both used and discharged the weapon."
Medranos sentence is not disproportionate for Eighth Amendment purposes. (Rummel v. Estelle (1980) 445 U.S. 263, 284-285 [life sentence for three nonviolent crimes is constitutional]; Harmelin v. Michigan (1991) 501 U.S. 957, 1004 [life without possibility of parole for possession of 650 grams of cocaine is constitutional].) Moreover, disproportionality has little or no relevance in non-capital cases. (Harmelin v. Michigan, supra, 501 U.S. 957, 965.)
Nor is Medranos sentence disproportional under People v. Dillion, supra, 34 Cal.3d 441, 479. There, defendant, an immature youth, panicked and killed a guard at a marijuana farm, where he and his friends had planned to steal marijuana. (Id., at pp. 451-452.) Our Supreme Court found Dillions life sentence for murder excessive, considering his immaturity and moral culpability. (Id., at pp. 486-489.) The successful disproportionality analysis in Dillion, however, is an exception and an "exquisite rarity." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.)
Here Medrano threatened to "smoke" his brother-in-law, and returned to the family home several weeks later with a loaded firearm. He waited until his sister left the home. Medrano then confronted his brother-in-law and fired the weapon several times at close range through a door behind which his brother-in-law stood. Afterward, Medrano and his companion fled to a waiting pickup truck. A neighbor testified that they appeared to be laughing as they ran.
Moreover, it is the exclusive province of the Legislature to determine a criminal offense and its punishment. (§ 6.) Likewise, the prosecutor possesses "the sole discretion to determine whom to charge with public offenses and what charges to bring." (People v. Birks, supra, 19 Cal.4th 108, 134.) The trial court did not err by refusing to punish Medrano with a section 12022.5 enhancement rather than the section 12022.53 enhancement alleged and proven at trial.
The judgment is affirmed.
We concur:
COFFEE, J.
PERREN, J. --------------- Notes: All statutory references are to the Penal Code unless stated otherwise.