Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. BA317074, Robert J. Perry, Judge.
Steve Cooley, District Attorney, Roberta Schwartz and Patrick D. Moran, Deputy District Attorneys, for Plaintiff and Appellant.
Sunnie L. Daniels, under appointment by the Court of Appeal, for Defendant and Appellant.
RUBIN, Acting P. J.
INTRODUCTION
During a birthday party for defendant at the home he shared with his mother, a fight broke out. Someone introduced a shotgun into the mix and in a struggle for possession of that weapon it accidentally fired, fatally wounding defendant’s mother. At defendant’s trial for second degree murder, witnesses gave evidence that was internally inconsistent, inconsistent with their prior statements to police, and inconsistent with one another. Relying on evidence that it was defendant who retrieved the shotgun from the house after a fistfight with one of the party guests, the prosecutor’s theory of the case was that the natural and probable consequences of defendant’s act of getting the gun was dangerous to life and therefore supported a finding of implied malice second degree murder. The jury was persuaded and convicted defendant as charged. Granting defendant’s Penal Code section 1181, subdivision (6) motion, the trial court reduced the verdict to the lesser included offense of involuntary manslaughter, finding insufficient evidence of implied malice. On appeal, the People contend that the trial court erred in finding the evidence insufficient. Defendant also appealed from the judgment, but his counsel filed an opening brief, which did not raise any arguable issues and requested independent review pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). After review of the record, we conclude the trial court acted within its discretion in reducing the conviction to involuntary manslaughter, and that no other errors affected defendant’s conviction. Accordingly, we affirm.
FACTS
We recount the evidence in accordance with the usual rules of appeal. (People v. Kelly (2006) 40 Cal.4th 106, 123-124; People v. Kraft (2000) 23 Cal.4th 978, 1053.) On January 20, 2007, defendant, who was known by the nickname “Meda,” and his mother, Flora Alvarez, lived in the back house at 904-906 54th Street in Los Angeles. Flora’s other son, Wilbur, lived elsewhere and her nephew, Christian Gomez, lived with his family in the front house. Maria Peralta and her brother Cesar lived next door with their respective children. Mario Marin lived across the street. The guests at defendant’s birthday party that night included Wilbur; Christian; Mario; Cesar and his brother Javier; and Juan Esteban Nunez. Witnesses gave differing accounts of the events that culminated in Flora suffering a single fatal gunshot wound to the chest.
Because many of the witnesses are related and have the same last names, we generally refer to them by their first names to avoid confusion. We refer to Cesar Peralta as “Peralta” to avoid confusion with Cesar Enriquez, another witness.
A. The Next Door Neighbors
Maria Peralta recalled that at about 7:00 p.m., she was at home when she heard loud music and talking coming from defendant’s home. At about 9:00 p.m., Maria heard what sounded like a fistfight and Flora yelling “Meda, put the gun down.” Maria heard defendant reply, “just to go back inside the house and that there wasn’t nothing happening[;] [i]t was going to be okay.” Next, Maria heard a single gunshot. Her brother dialed 911 and handed the phone to Maria; while on the phone with the operator, Maria saw the police arrive and defendant and Wilbur hugging and crying.
At trial, Maria could not remember whether Flora used a name, but when she was interviewed by police shortly after the incident she told them the woman said, “Meda, put the gun down and go inside.” Maria also told the prosecutor the same thing before she testified. Detective Johnny Villa recalled that Maria did not mention Flora using defendant’s name when she was interviewed immediately after the incident, but said it in a subsequent interview based on something another witness told her.
Cesar Peralta called 911 because his children were being upset by the loud argument next door. After he dialed, he heard a single gunshot. Before the gunshot, Peralta heard Flora say, “Get inside” and defendant respond, “Mom, you get inside.” A few weeks before trial, Peralta told the prosecutor that he had seen defendant with a shotgun three weeks before the shooting, but at trial he maintained that he was unsure the item was a shotgun and believed it could have been a piece of wood or a bat.
B. Christian Gomez
When defendant’s cousin, Christian, spoke to the police that night, he told them there had been a driveby shooting. He also told them he had been asleep when the shooting occurred. Over several interviews, he told various other versions of events. At trial, he recalled that the shooting followed a fistfight, which involved “pretty much everybody.” He gave several accounts of how the fight started. First, he claimed not to remember. But he admitted telling the police the fight started between defendant and Cesar. Cesar threatened to kill defendant.
Christian maintained that he never saw defendant with a gun. He said that Cesar arrived at the party with a rifle, which he showed to defendant; after defendant handed the gun back to Cesar, defendant went into the house and then came back out again. Christian also said that the person depicted in trial exhibit No. 8, whose name Christian did not know, was holding a “little rifle” all during the party. It is unclear whether this is the same gun Cesar brought to the party. Christian testified that after defendant and Cesar started arguing, “that guy had pointed the gun at him then they start struggling. They had took it out of his hands. My aunt came, they all start struggling with it.” Christian clarified that Flora and the person depicted in trial exhibit No. 8 were struggling with the gun. Defendant was trying to pull Flora away. Christian and defendant also tried to get the gun. Christian also testified that defendant got into an argument with the person with the gun and “that guy had pointed the gun at my cousin. I guess my cousin tried to take it away from him and they start struggling with it.” Christian tried to separate them. After the fighting started, Flora came outside and started yelling. Christian heard the shot and saw Flora fall. Defendant was one of several people struggling over the gun, but Christian did not see who was holding it when it fired. After it was fired, Christian saw defendant go to pick up Flora; he was crying and calling her name. After the shooting, everyone who was not related to defendant ran away. Christian had not seen Cesar since the shooting.
That night, the police handcuffed Christian and took him to the police station; Christian was afraid he was going to be blamed for the shooting. His recorded statement to police was only partly truthful because the police were pressuring him to adopt their version of events or else be charged himself.
C. Wilbur Paredes
Wilbur recalled that everyone at the party was drinking; defendant was intoxicated, but not as intoxicated as Wilbur. Wilbur first testified that the fight started with an argument between defendant and Cesar and when Wilbur tried to stop the fight, Cesar swung at Wilbur, too. Then, Wilbur testified that he was the one fighting with Cesar and that defendant tried to stop the fight. Flora, who was in the back, came over and “next thing you know, I just heard a shot, a gunshot. And everybody just start running.” Wilbur did not see anyone with a gun and did not see Flora struggling over a gun; Flora had been next to defendant and Christian. When he heard the shot, Wilbur looked toward Flora and saw her in defendant’s arms. Wilbur did not recall seeing the person depicted in trial exhibit No. 8 at the party.
D. Juan Esteban Nunez
Juan went to the party with Cesar and Cesar’s brother. He recalled that defendant and Cesar started arguing over something Cesar said about Flora; the verbal altercation escalated into a fistfight. Juan testified both that (1) defendant and Cesar were the only ones fighting, and (2) Wilbur was also involved in the fight. Flora tried to separate the combatants.
At first, Juan did not see anyone with a weapon. Then, he saw defendant with a small shotgun. Juan testified that he did not know how defendant came into possession of that weapon, but he admitted previously telling the prosecutor that after defendant and Cesar broke off fighting, defendant retrieved a shotgun from the house. Juan recalled that Flora said to defendant, “Don’t go outside and start shooting.” Defendant responded, “Let me go. I don’t care.” Defendant had his finger on the trigger when Flora grabbed the front of the gun and told him not to do something stupid. As Flora struggled with defendant, the gun fired and Flora fell to the ground. Juan testified that, from where he was standing on the sidewalk, Juan could see defendant’s finger squeeze the trigger. Juan testified both that defendant pointed the gun at Cesar and that defendant never actually pointed the gun because Flora intervened. Juan also testified that defendant pointed the gun at Juan before he ran after Cesar, who had fled to the street once defendant came out with the shotgun. After he heard the gunshot, Juan walked away and did not wait to talk to the police.
E. The Investigation
Police Officer Bryan Goland and his partner, Calzadillas, were the first officers on the scene when they arrived at about 10:40 p.m. Goland recalled people were yelling and defendant appeared to be in a verbal dispute with Christian; defendant yelled at Christian: “Fuck you and your homeboys,” then punched him. The officers and some family members separated defendant and Christian. Goland described defendant, who was crying, as very aggressive and belligerent toward Christian.
Detective Johnny Villa and his partner arrived at the scene at about 12:30 a.m. Although a search was made of the area, no firearms were discovered that night. No gunshot residue tests were performed on anyone at the scene. Cesar was not interviewed because the police could not find him. Defendant was Villa’s only suspect in the shooting. When the witnesses were shown photographs, they were not given the usual admonition.
Detective Villa testified that Christian was interviewed several times before he was tape-recorded. Villa believed Christian was being untruthful in his earlier interviews. During his second interview, Christian stated that Cesar arrived at the party with a gun. In his tape-recorded interview, Juan said that Cesar did not run away until after defendant came out of the house with the gun and said to Cesar, “I’m going to shoot your ass.” Juan told the police that he went into the house after the shooting. He also told them that defendant and Wilbur beat up Javier after the shooting, because Javier was Cesar’s brother. Juan told the police that Wilbur hit someone with a brick. After the shooting, Cesar said to defendant, “Mother-fucker, you killed your mom. Look, mother-fucker.” Then, Cesar ran away.
Cindy Palm, an investigator with the district attorney’s office, testified that prior to trial, she was present when Cesar Peralta told the prosecutor that he had seen defendant with a shotgun three weeks before the incident. Afterwards, Peralta told Palm that he did not want to testify to that in court because “he didn’t want to be the person that put the gun in the defendant’s hands.”
PROCEDURAL BACKGROUND
Defendant was charged by amended information with second degree murder; multiple firearm enhancements were also alleged (§§ 12022.5, subd. (a); 12022.53, subds. (b)-(d)). Following the jury trial, the trial court denied defendant’s Penal Code section 1118.1 motion to dismiss the murder charge, finding it a “close call,” but struck the Penal Code section 12022.53, subdivision (d) enhancement, finding insufficient evidence that defendant intentionally discharged a firearm. The jury commenced deliberations at 3:30 p.m. on Thursday, July 19, 2007. At 9:00 a.m. the next day, it found defendant guilty of second degree murder and found true the Penal Code section 12022.5, subdivision (a) [personal use of a firearm] enhancement.
Defendant filed a Penal Code section 1181, subdivision (6) motion for new trial and to reduce the charge to manslaughter. At the sentencing hearing on August 21, 2007, the trial court granted the motion to reduce the verdict to involuntary manslaughter, finding insufficient evidence of implied malice. It sentenced defendant to the low term of two years for involuntary manslaughter, plus a consecutive three years for the enhancement. Defendant filed a timely notice of appeal.
In part, that section provides that, upon motion of the defendant, the trial court may grant a new trial or modify a verdict to a lesser included crime when the verdict is contrary to law or evidence, but the evidence shows the defendant is guilty of the lesser included crime. (Pen. Code, § 1181, subd. (6).)
DISCUSSION
A. The Wende Appeal
We appointed counsel to represent defendant on appeal. After examination of the record, appointed counsel filed an opening brief, which did not raise any arguable issues and which requested that we independently review the record pursuant to Wende, supra, 25 Cal.3d 436.
On March 24, 2008, we advised defendant that he had 30 days within which to personally submit any contentions or issues, which he wished us to consider. Defendant has not done so. We have examined the entire record and are satisfied that appointed counsel has fully complied with his responsibilities and that no arguable issues exist on defendant’s behalf. (Wende, supra, 25 Cal.3d at p. 441.)
B. The People’s Appeal
1. The Proper Standard of Review Is Abuse of Discretion
The parties disagree on the appropriate standard of review of a trial court’s decision to reduce a verdict to a lesser included offense pursuant to Penal Code section 1181, subdivision (6). Defendant maintains the proper standard is abuse of discretion. The People concede that such a determination is usually reviewed for abuse of discretion, but contend that under People v. Knoller (2007) 41 Cal.4th 139 (Knoller), the trial court’s finding in this case should be reviewed de novo because the trial court “did not say that the circumstances of this case do not meet the requirement for implied malice, instead it said that ‘getting a gun while in an agitated state,’ in the abstract, can never be an act in conscious disregard of human life. It is thus a legal interpretation rather than a factual finding and it should be reviewed de novo.” In our view, abuse of discretion is the correct standard.
The court in People v. Dickens (2005) 130 Cal.App.4th 1245 (Dickens), recently set forth both the standard of review to be applied by the trial court in reviewing the jury’s verdict, and the standard to be applied by this court in reviewing the trial court’s ruling: “The trial court’s duty is to review the evidence independently and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. [Citation.] [¶] Although the trial court is to be ‘guided’ by a presumption in favor of the correctness of the jury’s verdict [citation], this means only that the court may not arbitrarily reject a verdict which is supported by substantial evidence. The trial court is not bound by the jury’s determinations as to the credibility of witnesses or as to the weight or effect to be accorded to the evidence. [Citations.] Thus, the presumption that the verdict is correct does not affect the trial court’s duty to give the defendant the benefit of its independent determination as to the probative value of the evidence. [Citation.]” (Id. at p. 1251.)
On appeal, “The trial court has broad discretion in determining whether the evidence has sufficient probative value to sustain the verdict [citation], and its order will not be reversed on appeal ‘absent a manifest and unmistakable abuse of that discretion.’ [Citation.] . . . [T]he appellate court reviews the evidence in the light most favorable to the trial court’s ruling, drawing all factual inferences that favor the trial court’s decision. [Citations.] The trial court’s factual findings, express or implied, will be upheld if supported by any substantial evidence. [Citation.] The order will be reversed only if it can be said as a matter of law that there is no substantial evidence to support a judgment contrary to the verdict. [Citation.]” (Dickens, supra, 130 Cal.App.4th at pp. 1251-1252.)
The People’s reliance on Knoller, for the proposition that we should review the trial court’s decision de novo construes the Knoller holding too broadly. In Knoller,our Supreme Court held that the trial court abused its discretion in granting a new trial motion because it used an incorrect test of implied malice, by confusing the objective and subjective elements of malice. The court in Knoller did not, as the People suggest, “indicate” that a trial court’s decision to reduce a verdict pursuant to Penal Code section 1181, subdivision (6) should be reviewed de novo under some circumstances. Rather, it held that a trial court abuses its discretion if it bases its decision on impermissible factors or an incorrect legal standard, in that case an incorrect understanding of implied malice. (Knoller, supra, 41 Cal.4th at p 156.) As we explain below, that is not what happened here.
2. Reduction of the Verdict from Second Degree Murder to Involuntary Manslaughter Was Not an Abuse of Discretion
Applying the proper standard of review, we find no merit in the People’s contention that the trial court erred in finding that the evidence did not support a verdict of implied malice second degree murder. As we understand their argument, it is that the trial court found as a matter of law that brandishing a gun will not support such a verdict. The People parse a few phrases from the trial court’s eight-page statement of reasons. But, the court’s ruling in its entirety makes clear that it exercised its discretion with a complete and accurate understanding of the concept of implied malice, and the role of obtaining a gun in a heated situation might play.
In People v. Nieto Benitez (1992) 4 Cal.4th 91, 96 (Nieto Benitez), the issue was whether brandishing a firearm may constitute an act sufficiently dangerous to life to support a conviction of second degree murder on an implied malice theory. The Court of Appeal held, as a matter of law, that brandishing a gun was not a sufficiently dangerous act. (Ibid.) Our Supreme Court disagreed: “Although a jury may determine, under circumstances of a particular case, that a defendant’s brandishing of a firearm did not pose a sufficient danger to human life to establish that the defendant acted with malice, in other circumstances the act of brandishing a firearm may be sufficiently dangerous to human life to support a finding of malice.” (Ibid.) The court, thus, established a rule that misdemeanor brandishing could in the proper case constitute a predicate act to support a finding of implied malice.
In Nieto Benitez, the trial court denied the motion for a new trial and the motion to reduce to involuntary manslaughter under Penal Code section 1181, subdivisions (5) and (6). (Nieto Benitez, supra, 4 Cal.4th at p. 101.) The Court of Appeal reversed, finding instructional error in the implied malice instructions. The Supreme Court vacated the appellate opinion and ordered the conviction reinstated. It did not address the trial court’s authority under Penal Code section 1181. Rather, it concluded that whether brandishing was a dangerous act turned on the facts of the case. (Id. at p. 106 [“Whether a defendant’s underlying acts are inherently dangerous in the abstract is not dispositive in the jury’s determination as to whether a defendant acted with malice”].)
Here, the trial court acknowledged that Nieto Benitez was controlling and extensively discussed that case and the cases cited therein. It noted that the circumstance that was common in all of those cases was the victim was the intended object of the defendant’s brandishing. The trial court concluded that the circumstances of this case did not support a finding of implied malice because there was “no believable or reliable evidence that the defendant intentionally fired the weapon nor is it believable or reliable evidence that the defendant deliberately pointed the gun at anyone. [¶] . . . [T]he question is, did [defendant] act in conscious disregard to human life. Did he do an act, the natural consequences of which were dangerous to human life. Those are the questions for the court. [¶] The mere act of getting a gun while in an agitated state in the court’s view is insufficient to constitute an act that would qualify as an act in conscious disregard of human life. [¶] A defendant must do something with the gun other than just get it. The defendant -- had the defendant pointed the gun at someone, had he intentionally fired the gun, either act in this circumstance would constitute conscious disregard for human life.” The trial court concluded: “When I consider the evidence in its entirety, employing my independent determination of the probative value of the evidence that was adduced at trial, I find the evidence was insufficient to prove beyond a reasonable doubt that the defendant acted with implied malice aforethought, that is, he did not act in conscious disregard for human life.”
When viewed in context, it is evident that the trial court exercised its independent judgment to conclude that the circumstances of this case did not support a finding of implied malice. It made no blanket finding that brandishing could never be a dangerous act – a conclusion foreclosed by Nieto Benitez. Nor, as the People suggest, did the trial court conclude that, if the decedent was not the intended victim, implied malice is absent as a matter of law. Rather, the trial court concluded that the act of picking up a gun without more did not constitute a dangerous act for purposes of implied malice in this case. The trial court’s conclusion was supported by substantial evidence including evidence from which the trial court could reasonably have inferred that Cesar or Juan, not defendant, brought the gun to the party and defendant was simply one of several people struggling for possession of the gun when it accidentally fired. Under Penal Code section 1181, subdivision (6), the trial court had the authority to credit this evidence, even if the jury did not. (Dickens, supra, 130 Cal.App.4th 1245.)
DISPOSITION
The judgments are affirmed.
WE CONCUR: FLIER, J., BIGELOW, J.