Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF122464, Ronald L. Taylor, Judge. Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
Andrew Rodriguez was charged with attempted murder (count 1; Pen. Code, §§ 664, 187, subd. (a)), assault with a firearm (count 2; § 245, subd. (a)(2)), first degree burglary (count 3; § 459), kidnapping (count 4; § 207, subd. (a)), child endangerment (count 5; § 273a, subd. (a)), carrying a concealed and stolen gun (count 6; § 12025, subd. (b)(2)), and carrying a loaded and stolen firearm in a public place (count 7; § 12031, subd. (a)(2)). The jury convicted defendant of willful attempted murder, assault with a firearm, first degree burglary, child endangerment, and carrying a loaded and stolen firearm in a public place. Regarding the attempted murder count, the jury found that the crime was premeditated and deliberate. The jury acquitted defendant of kidnapping and of carrying a concealed and stolen gun. He was sentenced to a total prison term of 29 years to life. Defendant appealed.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends: (1) his due process rights were violated because his conviction for premeditated and deliberate attempted murder is not supported by sufficient evidence, and (2) he received ineffective assistance of counsel when his attorney failed to request that the jury be instructed in accordance with Judicial Council of California Criminal Jury Instructions, CALCRIM No. 625, which would have pinpointed the theory that voluntary intoxication negated the requisite specific intent for premeditated and deliberate attempted murder. We reject these contentions and affirm the judgment.
I. STATEMENT OF FACTS
Cynthia Fletes and defendant started dating each other in February 2000. The couple had a son together, A.R. Fletes ended the relationship with defendant in January 2005 and rarely spoke or saw defendant between January and February 2005. On March 10, 2005, Fletes and defendant took A.R. out for ice cream. While they were out, Fletes and defendant were on speaking terms. Afterwards, defendant went over to Fletes’s home in Moreno Valley and the two talked in front of the house for half an hour.
On March 11, 2005, at approximately 4:00 p.m., defendant went to Fletes’s home. Defendant was let into the house by Fletes’s mother, who left the house shortly thereafter. When defendant arrived, Fletes and A.R. were asleep on the couch. Defendant awoke Fletes and asked her to take him to get gas. Fletes told defendant to wait until her mother came home or to let her get some more sleep and then she would take defendant to the gas station. Defendant tried to kiss Fletes, but Fletes said “no.” Defendant then sat down while Fletes fell back asleep. Fletes could not tell whether defendant was upset at the time.
Defendant awoke Fletes a second time. This time he grabbed Fletes by the hand and dragged her into the bedroom after Fletes told defendant that she did not want to go into the bedroom. While defendant dragged Fletes to the bedroom he told her, “You fucked up.” Fletes was confused and did not know what was going on. Once Fletes was in the bedroom she tried leaving but defendant pulled her back into the bedroom from the hallway by her hair. Defendant then pulled out a black gun. Once Fletes saw the gun, she fell down to the floor and leaned against the bed. Defendant was about six feet from Fletes as he pointed the gun at her. Defendant fired the gun, but missed Fletes. The bullet went through the side of the mattress.
At some point, A.R. came into the room and tried to hit defendant. Fletes told defendant that she loved him and to “[j]ust forget about it, and let’s just go[.]” Defendant then aimed the gun at Fletes’s chest and fired. The bullet hit Fletes in the right side of her abdomen. After she was shot, Fletes tried pushing the gun down because defendant still had it in his hand. Defendant looked scared and kneeled down next to Fletes, touched her stomach, and said, “Oh, God.”
Eventually, Fletes was able to run out of the house to a neighbor’s house for help. Defendant followed Fletes out of the house but was walking, not running. A.R. also followed his parents out of the house and was in the middle of the street crying. Defendant got in his car and started to drive away. He stopped the car because A.R. was in the street. Defendant opened the door, and A.R. jumped in. Then defendant drove away.
While Fletes was at the neighbor’s house the neighbor called 911. During the 911 call, Fletes told the dispatcher that defendant was “gonna shoot the baby.” She also told the dispatcher that defendant was on drugs. When Fletes was interviewed by the police at the hospital she indicated that she thought defendant was on drugs but that she did not see defendant take any drugs. Fletes testified at trial that when she initially saw defendant on that day he looked fine, like he just stepped out of the shower.
Riverside County Sheriff’s Deputy Amado Layos responded to the call about the shooting. As he was driving towards Fletes’s residence, he saw a car matching the description of defendant’s car parked on a street facing the wrong direction. Deputy Layos saw defendant standing in a driveway. As Deputy Layos approached defendant, he saw a gun handle protruding from defendant’s left front pants pocket. Deputy Layos and other deputies drew their weapons, ordered defendant to the ground, and handcuffed him. The gun in defendant’s pocket was a loaded Maverick Arms J.S. nine-millimeter semiautomatic gun. After searching defendant’s car, Deputy Layos found a Star nine-millimeter semiautomatic pistol lying in the trunk. Deputy Layos also testified that, based on his training and experience in approximately 100 drug-related cases, defendant did not appear to be under the influence of drugs. After conducting a thorough search of the car, Deputy Layos did not find any drugs or drug paraphernalia in the car.
Michele Nichols, a criminalist for the Department of Justice laboratory in Riverside, tested both the Maverick Arms J.S. nine-millimeter semiautomatic gun, as well as the Star nine-millimeter semiautomatic gun. The Star nine-millimeter (the gun found in defendant’s car trunk) functioned properly. The Maverick Arm J.S. nine-millimeter semiautomatic gun (the gun found in defendant’s pants pocket) had intermittent problems with cycling and did not always fire. These problems would require one to manually slide the slide back to eject the unfired round. Ms. Nichols also found that the pull weight on the Maverick Arms J.S. was such that it did not have a “hair trigger” and that it would take a little pressure to pull the trigger. The shell casings that were found at the scene of the shooting were fired from the Maverick Arms J.S. gun.
Prior to the date of the incident, Fletes had never seen defendant with a gun. The parties stipulated that the Star nine-millimeter semiautomatic pistol was registered to Elias Hernandez and was reported stolen on February 10, 2001. Defendant did not testify at trial.
II. ANALYSIS
A. Sufficiency of the Evidence to Support Conviction of Premeditated and Deliberate Attempted Murder
Defendant argues that his conviction for premeditated and deliberate attempted murder is not supported by sufficient, substantial evidence. We disagree.
The due process provisions of the federal and state Constitutions require sufficient evidence to support a conviction. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576-577.) To determine whether there is sufficient evidence to support a conviction, we review the entire record in the light most favorable to the judgment. (People v. Chatman (2006) 38 Cal.4th 344, 389.) Substantial evidence is evidence that is “reasonable, credible, and of solid value [such] ‘that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (Ibid.)
Defendant claims that there is not substantial evidence to support the conclusion that the attempted murder was premeditated and deliberate. The Legislature did not intend to give the words “premeditate” and “deliberate” a meaning other than the common dictionary meaning. (People v. Bender (1945) 27 Cal.2d 164, 183, disapproved on another point in People v. Lasko (2000) 23 Cal.4th 101, 110.) Therefore, “‘[t]he word “deliberate” means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word “premeditated” means considered beforehand.’” (People v. Perez (1992) 2 Cal.4th 1117, 1123.)
Courts look at three types of evidence to determine whether the attempted murder was deliberate and premeditated: (1) planning activity, (2) motive to kill the victim, and (3) the manner of killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) This list is not exhaustive and should be used to aid reviewing courts in assessing whether the evidence is supportive that the attempted killing was the result of preexisting reflection and weighing of considerations. (People v. Perez, supra, 2 Cal.4th at p. 1125.) The true test in determining whether an act is premeditated and deliberate is not the duration of time, but rather the extent of the reflection. (Id. at p. 1124.) “A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it include[s] an intent to kill, is not such deliberation and premeditation . . . .” (Ibid.)
In reviewing the sufficiency of the evidence to support a finding of premeditated and deliberate attempted murder, we must consider the evidence presented, as well as all logical inferences from that evidence in light of the definitions of premeditation and deliberation. (People v. Perez, supra, 2 Cal.4th at p. 1124.) While reviewing this evidence we must keep in mind that it is the jury, not the appellate court, which must be convinced beyond a reasonable doubt, and that our task is limited to determining whether the jury’s finding is supported by substantial evidence. (Id. at p. 1126.)
The evidence present in this case is sufficient to support a verdict of premeditation and deliberation based on the above mentioned Anderson factors. Evidence of planning activity is shown by the fact that defendant arrived at Fletes’s house with a nine-millimeter semiautomatic handgun when Fletes did not know defendant to carry a gun during their five-year relationship. Additionally, defendant was at Fletes’s house, the incident occurred while Fletes’s mother was at work, and he concealed his handgun from Fletes, Fletes’s mother, and A.R.
Evidence of motive could be logically inferred from the evidence in light of the definitions of premeditation and deliberation. Defendant and Fletes were not on regular speaking terms until the day before the incident. The day before the incident defendant and Fletes took their son out for ice cream and did not argue. On the day of the incident when Fletes and defendant first encountered each other they did not argue; Fletes merely declined to take him to get gas at that moment. It was only after Fletes refused to kiss defendant that he pulled her into the bedroom, told her that “[she] fucked up,” and shot her. Based on this evidence, it could logically be inferred that defendant’s motive in attempting to murder Fletes was his anger over her rejection of him.
The manner of the attempted murder is also suggestive of premeditation and deliberation. Between the time Fletes refused to kiss defendant and the time defendant awoke Fletes the second time, defendant had time to carefully think and weigh considerations for and against his proposed course of action. Although we do not know the length of time Fletes slept after refusing to kiss defendant, the length of time is not the test but rather the extent of reflection. Here, defendant sat quietly without anyone else in the house (besides Fletes and their son, both of whom were asleep) and had the opportunity to reflect on his course of action. Additionally, defendant made a deliberate effort to shoot Fletes a second time by standing over her and aiming the gun directly at her after firing the initial shot. Further, the physical evidence shows that because of a defect in the gun, defendant had to act in a deliberate and calculated manner to even fire a shot at Fletes, indicating that the shot was not a result of a rash impulse, but rather a premeditated and deliberate plan.
Accordingly, we conclude that based on the evidence of planning, motive, and manner of the attempted murder, the evidence is sufficient to support the jury’s finding of premeditation and deliberation.
B. Ineffective Assistance of Counsel
Defendant argues that he received ineffective assistance of counsel when his attorney failed to request the jury to be instructed in accordance with CALCRIM No. 625. We disagree.
CALCRIM No. 625 provides: “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill[,] [or] [the defendant acted with deliberation and premeditation[,]] [[or] the defendant was unconscious when (he/she) acted[,]] [or the defendant _________________.] [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose.”
In order to prove that defendant had ineffective assistance of counsel, defendant has the burden of establishing that: (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) To prove that counsel’s performance was deficient, defendant must affirmatively show counsel’s deficiency involved a crucial issue which cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Floyd (1970) 1 Cal.3d 694, 709, disapproved on another point in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) “[W]here the record shows that counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.” (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on another point in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) “[W]here counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.” (People v. Weaver (2001) 26 Cal.4th 876, 926.)
The first Strickland requirement to establish ineffective assistance of counsel is deficient performance. Defendant argues that trial counsel’s failure to request jury instructions in accordance with CALCRIM No. 625 resulted in deficient performance on the part of trial counsel. To support his position, defendant argues that there was substantial evidence supporting the giving of CALCRIM No. 625 as a pinpoint instruction and that there was no tactical reason for defense counsel’s failure to request the pinpoint instruction.
1. Insufficient Evidence to Support Giving CALCRIM No. 625
Defense counsel did not act deficiently in representing defendant because there was not sufficient evidence to support giving CALCRIM No. 625. The trial court does not have a sua sponte duty to give a voluntary intoxication instruction to the jury. (People v. Saille (1991) 54 Cal.3d 1103, 1120.) However, if requested, the court must give the pinpoint instruction when there is sufficient evidence to support such a theory. (Ibid.) In the present case, defense counsel failed to ask for CALCRIM No. 625. Defendant argues that defense counsel’s representation at trial was deficient because, had defense counsel asked for the pinpoint instruction at trial, the court would have been forced to give it to the jury because there was sufficient evidence to support it.
The only evidence presented at trial that defendant was intoxicated came from Fletes. Fletes did not see defendant take any drugs, but testified at trial that she believed defendant was on drugs. Fletes also told the 911 operator and the deputy that interviewed her at the hospital that based on defendant’s conduct she thought, but did not know for sure, that defendant was “on speed.” Fletes further testified that when she first saw defendant he did not seem to be intoxicated, but rather that he looked freshly showered and nicely dressed. Additionally, Deputy Layos, the officer who arrested defendant and has participated in nearly 100 drug-related cases, testified that it did not appear that defendant was under the influence of drugs or alcohol. There are no drug tests to support the theory that defendant was on drugs and, more importantly, Deputy Layos did not find the need to test defendant for drugs based on his experience.
In People v. Roldan (2005) 35 Cal.4th 646 (disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22), the court held that there was insufficient evidence to support the giving of a voluntary intoxication instruction where the only evidence of intoxication was the testimony of defendant’s girlfriend (the mother of his two children) and defendant’s habitual use of marijuana. (People v. Roldan, supra, at pp. 715-716.) In Roldan, the defendant’s girlfriend testified that the defendant told her that “‘they’ had been drinking (meaning he [and two associates]) in order to build up their courage before committing the robbery.” (Id. at p. 716.) However, she also testified that she did not know if the defendant “personally had been drinking. ‘He said he felt a little woozy, but that was the extent of it. He didn’t say he was drinking or anything.’” (Ibid.) The evidence of intoxication in the present case is even weaker than the evidence presented in Roldan because we have no evidence that defendant told Fletes that he was intoxicated or that he was even around people who were intoxicated. The only evidence that defendant was on drugs, Fletes’s inconsistent testimony, is further weakened by Deputy Layos’s testimony. We therefore find the evidence insufficient to support instructing the jury with CALCRIM No. 625.
2. Tactical Reasons May Have Existed for Failing to Request CALCRIM No. 625
In addition to the fact that there was insufficient evidence to support instructing the jury with CALCRIM No. 625, there were tactical reasons for failing to request CALCRIM No. 625. Defendant argues that there were no tactical reasons for failing to request the pinpoint instruction based on the theory that CALCRIM No. 625 and CALCRIM No. 3404 are not mutually exclusive of each other. CALCRIM No. 3404, which the jury was given, states, in relevant part, that “[t]he defendant is not guilty of [attempted murder] if he[/she] acted or failed to act without the intent required for that crime, but acted instead accidentally.” (Italics added.) CALCRIM No. 625, which defendant argues should have been given, states, in relevant part, that: “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether . . . the defendant acted with deliberation and premeditation . . . .”
Defense counsel’s theory at trial was that defendant did not act with the requisite intent and that his acts were an accident. This theory is consistent with trial counsel’s request to give CALCRIM No. 3404, which instructs the jury that if they do not find that defendant had the requisite intent to commit the crime, but instead acted accidently, they must find him not guilty. On appeal, defense counsel suggests that trial counsel had nothing to lose by requesting that the jury be instructed with both CALCRIM No. 625 and CALCRIM No. 3404. We disagree. Even if giving the two instructions are not inconsistent, trial counsel could easily have concluded that presenting the jury with CALCRIM No. 625 would diminish his credibility and detract the jury from the stronger defense that the shooting was an accident. By asking for instructions on both defenses, the jury could have viewed the instructions as a scattershot approach, with defendant hoping that if enough defenses are thrown up, something will stick. Trial counsel could have reasonably concluded that the effect of this approach on the jurors would be to weaken the stronger defense. (See, e.g., People v. Gallego (1990) 52 Cal.3d 115, 206 [counsel could have reasonably concluded that contesting certain prosecution evidence “more forcefully would only damage his credibility and detract from his other defenses”].)
We therefore find that defense counsel’s performance was not deficient and that it did not fall below an objective standard of reasonableness under prevailing professional norms. There was insufficient evidence to support giving CALCRIM No. 625 and there may have been tactical reasons for trial counsel’s failure to request CALCRIM No. 625. We therefore find that defendant did not receive ineffective assistance of counsel when his attorney failed to request the jury to be instructed in accordance with CALCRIM No. 625.
III. DISPOSITION
The judgment is affirmed.
We concur: Richli Acting P.J., Gaut J.