Opinion
B158026.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO RIOS, JR., Defendant and Appellant.
Phillip I. Bronson, under appointment by the Court of Appeal; and Mark S. Devore for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Stephen A. McEwen, Deputy Attorney General, for Plaintiff and Respondent.
Alberto Rios, Jr., appeals the judgment entered after conviction by jury of shooting at an occupied motor vehicle and attempted murder committed for the benefit of a criminal street gang in which Rios personally discharged a firearm. (Pen. Code, §§ 246, 664/187, 186.22, subd. (b)(1), 12022.53, subd. (c).) The trial court sentenced Rios to a term of 37 years in state prison. We affirm.
Subsequent unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prosecutions evidence.
The evidence established that on December 18, 2001, at approximately 3:30 p.m., 25-year-old Jose Borja was driving a pickup truck on Trafalgar Avenue near his home in East Valinda when he felt pain in his back and noticed blood. Borja stopped at home to speak to his mother then drove to Queen of the Valley Hospital emergency room where he was treated for a superficial gunshot wound to the back of his shoulder. Borja refused to discuss the matter with Sheriffs Deputies at the hospital. Borja admitted he formerly had been a member of the Hurley Street gang and had tattoos so indicating but denied current gang activity. Hurley Street and the East Side Dukes had not been rivals when Borja was an active gang member.
Borja testified in handcuffs. Outside the presence of the jury, the prosecutor indicated Borja was in custody on a drug charge for which he faced a third strike term.
Shortly before the shooting, Vivian Esparza was talking on the telephone outside her home near the corner of Trafalgar Avenue and Rorimer Street. Esparza saw a male riding a BMX bike toward Trafalgar Avenue. Less than a minute later, Esparza heard shots. Esparza called 911 then saw the same male, pedaling "very, very quickly," go back the same way he came. Esparza heard other people standing outside in the neighborhood exclaim, "Oh, my God. He just shot somebody." Esparza had never seen the male in the 23 years she had lived in the neighborhood. Esparza testified the male had a shaved head and wore blue jeans and a white shirt.
Araceli Mendez was at the side door of her home on Rorimer Street when the driver of a pickup truck made the turn at Trafalgar Avenue too fast and "burned . . . rubber." Mendez told police officers she thought the bicyclist shot at the truck driver because the truck was going to crash into the bicyclist. Sheriffs Deputies took Mendez to a field show-up to identify a young male in custody but she did not make an identification. Mendez admitted she did not wish to be involved in this case.
Mendezs children, 12-year-old Cynthia Reyes and fifth grader Cesar Reyes testified at trial. Both heard gunshots then saw a pickup truck occupied by a male and a bicycle ridden by another male wearing jeans and a white shirt and a blue cap. Cesar Reyes testified the male on the bike put something into his waistband before pedaling east on Rorimer Street.
Sheriffs Deputy Christian Mezzano testified Mendez said "she was sitting on her porch when she saw the suspect riding his bicycle on Trafalgar Avenue. [¶] She saw a red truck driving rapidly down Trafalgar Avenue nearly striking the suspect. Moments later she heard several gunshots. She looked up and saw [the suspect] riding on his bicycle east on Rorimar at a high rate of speed." Cesar similarly told Mezzano he had seen the pickup truck nearly collide with the bicycle and heard gunshots several moments later.
Sheriffs Deputy Alfredo Gomez heard a radio broadcast regarding a male Hispanic riding a chrome bike and, shortly thereafter, saw Rios on a chrome bike at Lochmere Street. When Gomez and Rios made eye contact, Rios began to pedal faster. Rios dropped the bike and ran through the yard of 519 Lochmere Street. Three or four minutes later, a female ran toward Gomez exclaiming a male had jumped into her backyard and hid in her garage. Rios was apprehended in the garage at 509 Lochmere Street.
Margaret Martinez testified at trial that Rios jumped into her backyard, pointed a gun or a knife at her, and then jumped out of the yard.
In the backyard of 519 Lochmere Street, scattered along the fence line, Gomez found a blue baseball cap, a black trench coat, a black beanie, two gloves, a flashlight, and 14 live .380 caliber rounds of ammunition. In the backyard of 515 Lochmere Street, Gomez found a loaded .380 handgun and a .32 caliber revolver. Testing revealed the five expended shell casings found at the scene of the shooting had been fired from the .380 handgun. A criminalist found one particle unique to gunshot residue and four particles consistent with gunshot residue in swabs taken from Rioss hands.
A search of Rios home on Abery Avenue, approximately five blocks from the scene of the shooting and one block from Lochmere Avenue, produced four live .380 caliber rounds.
Borjas truck was impounded and found to have a bullet hole in the rear bumper, another below the tailgate and one by the drivers seat to the right of the headrest. The holes were aligned so as to suggest the trajectory of a single bullet and were consistent with the injury to Borjas shoulder.
When Borja went to the Sheriffs Station to retrieve the pickup truck, Borja told Sheriffs Detective Steven Mills he noticed a male on a bicycle, heard gunshots from behind him and felt a burning sensation in his back. Borja refused to identify the shooter or look at photographs and told Mills, "You know . . . I cant say anything. You know how it works out there." Borja did, however, indicate the shooter likely had been a member of the East Side Dukes.
Mills testified as an expert that Rios was an admitted member of the East Side Dukes. In Mills opinion, this shooting had been gang related because there was an ongoing gang war between the two gangs and the shooting occurred in territory claimed by Hurley Street. Mills testified there was a clear dividing line between the territory of the East Side Dukes and the Hurley Street gang and that a member of the East Side Dukes would be at risk of a violent confrontation if he entered Hurley Street territory. Mills opined Rios would not have entered rival gang territory unless he was expecting a confrontation. Mills indicated a gang member gains respect among his peers by carrying a gun and that use of a handgun in broad daylight benefits the gang by increasing fear of the gang in the community.
The parties stipulated East Side Dukes is a criminal street gang.
2. Defense evidence.
Rios presented no affirmative defense. However, defense counsel argued the case to the jury as one of mistaken identity.
In opening statement, defense counsel told the jury there was no evidence connecting Rios to the shooting or the physical evidence recovered by the deputies. In closing, defense counsel argued Rios had been charged with the crime only because "[h]e is a young male Hispanic on a bicycle riding past Deputy Gomez." Defense counsel argued the evidence did not establish Rios was the shooter.
CONTENTIONS
Rios contends the trial court erroneously failed to instruct on self-defense and attempted voluntary manslaughter, defense counsel rendered ineffective assistance and the evidence is insufficient to sustain the convictions.
DISCUSSION
1. Instruction on self-defense and attempted voluntary manslaughter.
Rios contends the trial court had a sua sponte obligation to instruct on self-defense and attempted voluntary manslaughter, a lesser offense included within attempted murder, based on imperfect self-defense and sudden quarrel or heat of passion. Rios argues the evidence suggests Rios acted in self-defense when he shot Borja, a rival gang member who had at least two serious or violent felony convictions. Rios notes Mendez testified the pickup truck "burned rubber" as it turned at high speed from Rorimer Street onto Trafalgar Avenue and Mendez told Mezzano she saw the pickup truck nearly collide with the male on the bicycle and moments thereafter she heard gunshots. Mendezs son, Cesar, told Mezzano he heard shots after he saw the truck "suddenly turn[] south at Trafalgar nearly striking the person later identified as the suspect." Rios asserts Borja, an admitted member of the Hurley Street gang, had a motive to attack Rios in that the gang expert testified the two gangs were at war and a violent confrontation was to be anticipated whenever a member of one gang entered the territory of the other. Rios concludes the trial court should have instructed on self-defense and attempted voluntary manslaughter.
We first address Rios self-defense claims.
a. Self-defense.
To justify a homicide as self-defense, the accused must establish a subjectively honest belief in the need for self-defense because of imminent danger to life or great bodily injury, and an objective need for self-defense based on a reasonable person standard. (People v. Flannel (1979) 25 Cal.3d 668, 674-675.) To reduce a homicide to voluntary manslaughter based on imperfect self-defense, the accused must kill with an actual but unreasonable belief in the need to defend from imminent peril to life or great bodily injury. (In re Christian S. (1994) 7 Cal.4th 768, 771.) "[F]or either perfect or imperfect self-defense, the fear must be of imminent harm." (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) "The subjective elements of [perfect] self-defense and imperfect self-defense are identical." (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.)
Here, the evidence showed Rios shot Borja in the back as Borja drove from the scene. Thus, at the time of the shooting, Borja posed no immediate threat of great bodily harm to Rios and there was no need for Rios to defend himself. It follows that instruction on both perfect and imperfect self-defense was unwarranted because there was no evidence of actual fear of imminent harm.
Instruction on attempted voluntary manslaughter based on heat of passion presents a closer issue.
b. Heat of passion.
An accused who intentionally attempts to kill in sudden quarrel or heat of passion is guilty only of attempted voluntary manslaughter. (People v. Rios (2000) 23 Cal.4th 450, 461; People v. Ochoa (1998) 19 Cal.4th 353, 422; Pen. Code, § 192, subd. (a).) Sudden quarrel/heat of passion voluntary manslaughter is a lesser included offense included within, not a defense to, murder. (People v. Lasko (2000) 23 Cal.4th 101, 106; People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Barton (1995) 12 Cal.4th 186, 199-201.)
A trial court has a sua sponte duty to instruct on lesser-included offenses when the evidence raises a question regarding whether all the elements of the charged offense were present and the evidence would justify a conviction on the lesser offense. (People v. Hughes (2002) 27 Cal.4th 287, 365; People v. Lewis (2001) 25 Cal.4th 610, 645; People v. Breverman, supra, 19 Cal.4th at pp. 148-149.) The sua sponte duty to instruct on lesser-included offenses, unlike the duty to instruct on mere defenses, arises even against the defendants wishes, and regardless of the trial theories or tactics the defendant has actually pursued. (People v. Breverman, supra, at p. 162; People v. Barton, supra, 12 Cal.4th at p. 198.) This means that substantial evidence of heat of passion may exist, and the duty to instruct sua sponte may therefore arise, even when the defendant claims that the killing was accidental, or that the state of mind on which the theory depends was absent. (People v. Breverman, supra, at p. 163, fn. 10; People v. Barton, supra, 12 Cal.4th at pp. 194-198.)
"On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman, supra, 19 Cal.4th at p. 162.) Substantial evidence, in this context, means evidence that a reasonable jury could find persuasive. (People v. Lewis, supra, 25 Cal.4th at p. 645, People v. Breverman, supra, at p. 162.) Doubts as to the sufficiency of the evidence should be resolved in favor of the accused. (People v. Flannel, supra, 25 Cal.3d at p. 685, superseded by statute on another ground as stated in In re Christian S., supra 7 Cal.4th at p. 777.)"
`An intentional, unlawful homicide is "upon a sudden quarrel or heat of passion" [citation], and is thus voluntary manslaughter [citation], if the killers reason was actually obscured as the result of a strong passion aroused by a "provocation" sufficient to cause an "`ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than judgment. "[Citations.]" (People v. Ochoa, supra, 19 Cal.4th at pp. 422-423; People v. Koontz (2002) 27 Cal.4th 1041, 1086; People v. Lasko, supra, 23 Cal.4th at p. 108.) To establish heat of passion, case law requires a defendant to show: (1) he was actually provoked to a heat of passion; and (2) a reasonable person also would have been provoked to a heat of passion under the circumstances. (See, e.g., People v. Steele (2002) 27 Cal.4th 1230, 1252.
The defendants reason must be "actually obscured as the result of a strong passion aroused by a `provocation sufficient to cause an `"ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment." [Citations.]" (People v. Breverman, supra, 19 Cal.4th at p. 163.) Any violent, intense or highly wrought emotion other than revenge may satisfy the subjective component of heat of passion. (People v. Steele, supra, 27 Cal.4th at pp. 1252, 1254; People v. Breverman, supra, at p. 163.)
c. Rios was entitled to instructions on heat of passion.
Although the burden generally is on the defendant to negate the existence of malice (see People v. Sedeno (1974) 10 Cal.3d 703, 719, disapproved on another point in People v. Flannel, supra, 25 Cal.3d at pp. 684-685), where the Peoples evidence itself demonstrates circumstances capable of arousing passion in an average reasonable man, the jury must be permitted to consider the lesser charge.
Here, the People concede there may have been evidence of provocation in that Borja may have tried to strike Rios with the pickup truck. They claim the evidence is insufficient to warrant instruction. However, based on the near collision between Borjas truck and Rioss bicycle, a reasonable trier of fact could conclude Rios had been the victim of assault with a deadly weapon, to wit, motor vehicle, and that he acted while his reason was clouded when he shot at Borja. The initial statements of the Rorimer Street residents who witnessed the incident was "`substantial enough to merit consideration by the jury" and justify the instruction on heat of passion. (People v. Breverman, supra, 19 Cal.4th at p. 162.)
Analogous results have obtained in other cases. In People v. Elize (1999) 71 Cal.App.4th 605, the defendant was working at his job as a security guard when two females who were vying for his affections accosted and threatened him with iron pipes. The defendant testified he accidentally fired his gun in the air during the fray. However, one of the assailants had two bullet holes in her shirt. (Id. at p. 609.) Elize found reversible error in the failure to instruct on self-defense because the jury had sufficient basis to find that the defendant fired his gun either actually attempting to hit one of the women or to scare them. (Id. at p. 616.)
In People v. Breverman, supra, there was evidence that a sizeable group of young males, armed with dangerous weapons and harboring a specific hostile intent, trespassed upon defendants property in a menacing manner. This intimidating conduct included challenges to the defendant to fight, followed by use of the weapons to batter and smash defendants vehicle parked within a short distance from the front door. Defendant and the other persons in the house all indicated that the number and behavior of the intruders, which defendant characterized as a "mob," caused immediate fear and panic. Breverman held that, "[u]nder these circumstances, a reasonable jury could infer the defendant was aroused to passion, and his reason was thus obscured, by a provocation sufficient to produce such effects in a person of average disposition." (People v. Breverman, supra, 19 Cal.4th at pp. 163-164; see also People v. Barton, supra, 12 Cal.4th at p. 202.)
The facts here suggest the same result should obtain. Accordingly, the conviction of attempted murder is flawed by instructional error. However, where as here, the prejudicial error goes only to the degree of the offense, an appellate court may reduce the conviction pursuant to section 1260, and affirm the judgment as modified, thereby obviating the need for a retrial. (See People v. Edwards (1985) 39 Cal.3d 107, 118.) Applying this rule here, we reduce Rioss conviction of attempted murder to attempted voluntary manslaughter. However, the disposition will preserve the Peoples right to retry the attempted murder charge, should they elect to do so.
This resolution renders moot Rioss further claims of ineffective assistance of counsel in failing to request instruction on self-defense and attempted voluntary manslaughter and failing to cross-examine Borja about Borjas prior felony convictions.
2. The evidence supports the conviction of attempted murder.
Rios contends the evidence proves the shooter acted in self-defense after nearly being run down by Borja. Rios argues a properly instructed jury would have convicted Rios of no more than attempted voluntary manslaughter. Because the People may retry the charge of attempted murder, we address the merits of Rioss claim.
As has been noted, the claim of self-defense is defeated because Rios shot Borja in the back as Borja drove from the scene. As to the sufficiency of the evidence to demonstrate Rios was the shooter, Rios fled from Deputy Gomez on a chrome bicycle a short time after and a few blocks away from the scene of the shooting. Rios discarded numerous items of clothing, 14 rounds of live ammunition and two handguns, including the gun that fired the expended casings found at the scene, in the backyards adjacent to where he was found hiding in a garage. One of the residents of Lochmere Avenue identified Rios as the individual who jumped into her yard, pointed a weapon at her and jumped out of the yard. Rios had a particle unique to gunshot residue on his hands and officers found additional live rounds of .380 caliber ammunition at Rios home.
Thus, abundant evidence connected Rios to the shooting of Borja. Accordingly, there is no evidentiary impediment to the conviction of attempted voluntary manslaughter or retrial on the charge of attempted murder.
DISPOSITION
With respect to the conviction of shooting at an occupied motor vehicle, the judgment is affirmed.
With respect to the conviction of attempted murder, the judgment is reversed with directions as follows: If the People do not retry Rios within 60 days after the filing of the remittitur in the trial court pursuant to Penal Code section 1382, subdivision (a)(2), the trial court shall proceed as if the remittitur constituted an order modifying the judgment to reflect a conviction of attempted voluntary manslaughter (Pen. Code, §§ 664/192) and resentence Rios accordingly.
We concur: CROSKEY, J. and ALDRICH, J.