Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11CF1208) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Moises Najera was charged with several crimes, including the murder of Abin Delgado. A jury acquitted him of first degree murder, but returned a guilty verdict of second degree murder with a finding he used a deadly weapon in committing that offense. The trial court sentenced defendant to a prison term of 16 years to life.
The information also charged defendant with the attempted murder of a second individual and street terrorism, and alleged he committed the murder and the attempted murder for the benefit of a criminal street gang. The street terrorism charge was dismissed at the beginning of trial. The jury returned a not guilty verdict on the attempted murder charge and not true findings on the gang enhancement allegations.
On appeal, defendant claims the trial court committed reversible error by failing to instruct the jury on the lesser crime of attempted murder and by giving an inapplicable instruction on mutual combat. Finding these contentions lack merit, we affirm the judgment.
This case arose from a fistfight between two persons belonging to rival street gangs that exploded into a gang melee during which defendant and others struck the victim with pipes and other objects. The forensic evidence established the victim died from blunt force trauma to the head, but it could not be determined which blow caused the victim's death.
The evidence presented at trial established that late one evening Fernando Solorzano, his girlfriend, and two other persons were walking northbound along Flower Street towards West Highland Street. Solorzano belonged to a street gang referred to as OCK, which claimed the 1000 block of West Highland Street as its territory.
The group saw Delgado, a member of a street gang referred to as KD and OCK's main rival, walking southbound on the opposite side of Flower Street. Delgado began yelling "KD." In response, Solorzano began complaining that Delgado was "disrespecting him" in front of his girlfriend.
Delgado and Solorzano entered Flower Street and engaged in a one-on-one fistfight. Observing several other KD members standing nearby, Solorzano's girlfriend convinced Solorzano to break off the fight and leave to avoid further trouble.
At that point, Delgado stood on a nearby street corner yelling "kick it," and claiming that he had just been "jumped." Several KD members responded by running to Delgado's location. When Delgado saw the approaching KD members, he began running along Flower towards West Highland. The other KD members followed.
As Solorzano and his group reached the corner of Flower and West Highland, they realized they were being pursued by KD gang members. They began running to an apartment complex on West Highland where several OCK members lived.
At that time, several OCK members were partying in the parking lot of the apartment complex. As Solorzano and the others approached the apartment complex one began yelling "KD is chasing us." Another telephoned one of the partying OCK members informing him of KD's approach. The group left the parking lot and ran onto West Highland to confront the KD gang members.
At this point, fighting erupted between members of the two groups. Recognizing that they were outnumbered by OCK and that the OCK gang members were armed with weapons such as knives, scooters, sticks, and pipes, the KD members began to retreat.
One KD member, Johnny Varona, fell down in front of a facility operated by Children's Hospital of Orange County (CHOC). Several OCK members attacked him with their weapons. One OCK member yelled, "Watch your homey get fucked up" "and [you] not do anything about it." Although severely injured, Varona was able to stand up and escape.
A KD member threatened to return and "blast" OCK gang members. At this point, the OCK members began chasing after the retreating KD members.
Some 370 feet farther east, an OCK gang member caught up with Delgado in front of a residence at 932 West Highland and pushed him to the ground. A group of OCK members surrounded Delgado and began punching him and hitting him with sticks, scooters, pipes, and other objects. The beating stopped when the occupant of the adjacent residence appeared, pushing the attackers away, and the gang members heard the sirens of approaching police cars.
Responding paramedics transported Delgado to a hospital where he died from his injuries. The cause of death was established to be blunt force trauma to the head.
Conflicting evidence was presented concerning defendant's participation in the fighting and the beating of Delgado. One witness testified defendant was at the party behind the apartment complex, while another witness denied he was there. Several witnesses testified to seeing defendant participate in the beating of Delgado. They variously described defendant or someone resembling him striking Delgado with a crowbar or a metal pipe. But another witness testified that he saw Ildefonso Perez, another OCK member holding a pipe. Perez later boasted, "I got that fool. Cracked him."
Nearly two years after Delgado's death, the police questioned defendant about his participation in the fracas. Initially defendant denied any involvement in the fighting. But then, he acknowledged he left his apartment and went into the street after his aunt appeared at the door and declared, "They're gonna kill" either his brother or his cousin. Near the CHOC facility defendant saw someone swinging a metal pipe. Another person grabbed that individual, causing the latter to drop the pipe. Defendant picked up the pipe. At that point, he was struck by a bottle. He then began fighting.
Defendant also acknowledged striking Delgado with the pipe in front of the residence at 932 West Highland. But he claimed that he only hit Delgado once while Delgado was facing away from him. Defendant also admitted Delgado appeared dizzy and his body went limp after defendant struck him.
A. Failure to Instruct on Attempted Murder
Count 1 of the information charged defendant with the murder of Delgado. During a discussion of jury instructions, the prosecutor suggested attempted murder was a lesser included offense of that charge. The court noted defense counsel "has indicated that he does not want, nor is he requesting an attempted murder" instruction, and concluded "[t]hat is an issue that we will resolve."
At a subsequent hearing, the prosecutor explained his theory for giving an attempted murder instruction as to count one: "defendant struck the victim first and then Mr. Perez finished him off." But he acknowledged, "in speaking up at the bench, it sounds like the defense strategically doesn't want it and is asking the court not to give it."
Turning to defense counsel, the court acknowledged that counsel had "indicated earlier you were not desirous of" giving an attempted murder instruction as to count one. Defense counsel questioned whether attempted murder constituted a lesser included crime of that charge, but argued "if it is, it is a strategic decision regardless. . . . I'm not going to argue that my client had the specific intent required for an attempted murder. I'm asking the court not to give it." The court then asked defense counsel if he had "discussed with your client the strategic aspects of your decision," and defense counsel responded, "[y]es." The court then asked defendant to confirm defense counsel's response and he also said, "[y]es."
At a later hearing, the court returned to the issue, declaring its "finding that there is not substantial evidence from which a rational jury could conclude that the defendant did commit th[e] lesser offense" of attempted murder.
Asserting that attempted murder is a lesser included crime of murder based on express malice and citing the conflicting testimony that suggested Perez may have struck the fatal blow, defendant argues "the [trial] court was obligated by law to give the [attempted murder] instruction whether or not counsel objected." We disagree.
"'"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.'" (People v. Breverman (1998) 19 Cal.4th 142, 154-155.)
The first question is whether defendant is precluded from asserting error in failing to instruct on attempted murder because the defense, with defendant's agreement, asked the court not to give the instruction. A claim that the trial court erred in failing to instruct the jury on a lesser included offense is "waived under the doctrine of invited error if trial counsel both '"intentionally caused the trial court to err"' and clearly did so for tactical reasons." (People v. Souza (2012) 54 Cal.4th 90, 114; People v. Cooper (1991) 53 Cal.3d 771, 827 ["record is clear that the court would have given the instructions but for defendant's repeated objections" and "[d]efense counsel had a deliberate tactical purpose for his objection"].)
The record supports application of the invited error doctrine in this case. The prosecutor proposed the instruction, but defense counsel repeatedly asserted that he did not want an instruction on attempted murder as to count one even if that crime constituted a lesser included offense because he did not intend to argue defendant acted with the specific intent to kill Delgado. (People v. Souza, supra, 54 Cal.4th at p. 114 ["Invited error will be found . . . if counsel expresses a deliberate tactical purpose in resisting . . . the complained-of instruction"].) Further, defendant acknowledged defense counsel had discussed the issue and his reasons for objecting to the instruction with him.
Defendant seeks to avoid the application of the invited error doctrine on two grounds. He complains the trial court's questioning of defense counsel on whether to give an attempted murder instruction reflects it "did everything possible to set up an invited error defense." Alternatively, defendant argues defense counsel's effort in urging the trial court not to instruct on attempted murder constituted ineffective assistance of counsel. Both contentions lack merit.
As summarized above, it is clear the proposal not to instruct on attempted murder as to count one was first asserted by defense counsel well before the trial court questioned him and defendant on the issue. Further, it was essential that the court ensure "the record . . . show . . . that counsel made a conscious, deliberate tactical choice between having the instruction and not having it" (People v. Cooper, supra, 53 Cal.3d at p. 831) "so that an appellate court finding invited error could be confidant that counsel in fact acted intentionally" and not "out of 'ignorance or mistake.'" (Id. at p. 830.) Thus, it was proper for the trial court to ask defense counsel to explain his reasons for objecting to the proposed attempted murder instruction.
To support an ineffective assistance of counsel claim, a defendant "bears the burden of showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice." (People v. Centeno (2014) 60 Cal.4th 659, 674.) But as discussed above, the record establishes defense counsel objected to the attempted murder instruction as to count one for a tactical reason: to avoid having to make the inconsistent claim that defendant acted with the specific intent to kill Delgado.
The record establishes a major theme of the defense was that defendant was not guilty because he acted in defense of his brother and cousin, both of whom were involved in the fracas. In opening statement, defense counsel stated, "[t]he evidence I think is going to show everything that my client did was done to defend what he thought were his brother and cousin in trouble," and "once you've heard everything, you're going to arrive at the conclusion that what my client did was not murder, was not manslaughter; it was simply defense of somebody else and taking what he believed were reasonable steps to get rid of the problem, to get rid of the threat, which, by law, he's allowed to do." Defense counsel repeated this theme in closing argument.
"'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."' [Citations.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.'" (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
Defendant still insists his trial counsel was ineffective because he "did not have to argue that [defendant] committed attempted murder," and "could have let the jury decide whether [defendant] was the one who killed Delgado." The United States Supreme Court has rejected the theory that an attorney is ineffective if he withdraws a defense where "there was nothing to lose by pursuing it." (Knowles v. Mirzayance (2009) 556 U.S. 111, 121-122 [129 S.Ct. 1411, 173 L.Ed.2d 251].) "The law does not require counsel to raise every available nonfrivolous defense. [Citations.] Counsel also is not required to have a tactical reason—above and beyond a reasonable appraisal of a claim's dismal prospects for success—for recommending that a weak claim be dropped altogether." (Id. at p. 127.) We conclude defendant has failed to show his trial counsel was ineffective.
The concurring opinion cites People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 (Mendoza Tello), for the proposition that: "The reviewing court must reject an inadequate representation claim unless there could be '"no satisfactory explanation"' for counsel's conduct." We respectfully disagree. In Mendoza Tello, the defendant was charged with a drug offense and the record on appeal was silent as to why defendant's counsel failed to move to suppress evidence. (Ibid.) The Supreme Court held: "We have repeatedly stressed 'that "[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.]" (Ibid., italics added.) The court went on to posit a possible reason for counsel's decision not to file the suppression motion and rejected the ineffective assistance of counsel claim. (Ibid.)
Here, unlike Mendoza Tello, trial counsel explained why he acted in the manner that is now being challenged on appeal (a strategic choice to avoid having to make an inconsistent argument concerning a proposed jury instruction). Thus, we employ the ordinary rule of "great deference" to counsel's tactical choices. (People v. Weaver, supra, 26 Cal.4th at pp. 925926.)
Therefore, we conclude the invited error doctrine applies in this case. However, even if we assume otherwise, we still conclude the trial court properly concluded the evidence failed to justify an attempted murder instruction as to count one. "As our prior decisions explain, the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is '"evidence from which a jury composed of reasonable [persons] could . . . conclude"' that the lesser offense, but not the greater, was committed." (People v. Breverman, supra, 19 Cal.4th at p. 162.)
"Murder is the unlawful killing of a human being with malice aforethought. [Citation.] Malice may be either express or implied. It is express when the defendant manifests 'a deliberate intention unlawfully to take away the life of a fellow creature.'" (People v. Blakeley (2000) 23 Cal.4th 82, 87, fn. omitted.) "'Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' [Citations.] 'Intent to unlawfully kill and express malice are, in essence, "one and the same."' [Citation.] Express malice requires a showing that the assailant either desires the victim's death or knows to a substantial certainty that the victim's death will occur." (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
To be sure, one case has held, under very distinguishable facts, that "Attempted murder is a lesser included offense of murder." (People v. Davidson (2008) 159 Cal.App.4th 205, 210.) In Davidson, the defendant was convicted of attempted murder after he shot the victim, causing the latter to be paralyzed. Later, the victim died and the prosecution convicted the defendant of murder. In sentencing the defendant on the latter offense, the trial court dismissed the prior attempted murder conviction. The defendant succeeded in having his murder conviction overturned on appeal. The prosecution decided not to retry the defendant for that offense, choosing instead to seek reinstatement of his attempted murder conviction. The trial court granted this request. Citing the rule that "'[i]f a greater offense is reversed on appeal, the lesser included offense may be revived by operation of law[,]'" the appellate court concluded "the reinstatement of defendant's attempted murder conviction occurred as a matter of law." (Ibid.)
But the difference between express malice murder and attempted murder is the victim's death. Here, unlike Davidson, where "the victim languished some period of time before dying" (People v. Davidson, supra, 159 Cal.App.4th at p. 211), Delgado died within hours of the beating inflicted upon him. Under these circumstances, a jury could not rationally conclude the simultaneous acts of defendant and others striking Delgado with an intent to kill could amount to only attempted murder, but not first degree murder.
Finally, even were we to assume the trial court erred in failing to instruct the jury on attempted murder as to count one, and that this error was cognizable on appeal, we would conclude the error was harmless. Contrary to defendant's reliance on the federal constitution's reversible error standard, the California Supreme Court has held "the failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and . . . that such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome." (People v. Breverman, supra, 19 Cal.4th at p. 165.)
The evidence supporting a conviction of first degree murder was minimal. The OCK members did not plan to engage in a fight with KD, but rather responded because KD gang members were chasing an OCK member and had infiltrated OCK's claimed territory. The fighting spanned a period of only a few minutes. The evidence of when defendant began participating in the fight was conflicting. He denied partying with the other OCK members and claimed he went outside only after hearing that his brother or cousin were in danger.
Additionally, the prosecution's primary theory of the case was that defendant was guilty of murder either as an aider and abettor or coconspirator and Delgado's death was the natural and probable consequences of committing a battery (Pen. Code, § 242) or fighting in public (Pen. Code, § 415). The prosecutor largely focused on second degree murder during closing argument. Thus, the prosecutor argued identifying who struck the fatal blow was irrelevant because defendant was "guilty of murder even if he never touched Mr. Delgado."
Consequently, we conclude defendant has failed to establish the lack of an instruction on attempted murder as a lesser included offense to count one entitles him to a reversal of his conviction for second degree murder. B. Instruction on Mutual Combat
Defendant's second instructional error claim relates to the instructions on his claims of self-defense and defense of others. The trial court instructed the jury on self-defense and defense of others, including CALCRIM No. 3471 (when a mutual combatant may assert self-defense). The latter instruction explained "[a] fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must be stated before the claim to self-defense arose." Defendant argues mutual combat "requires mutual intention, consent, or agreement preceding the initiation of hostilities," and thus it was reversible error to give the quoted language in this case because defendant "was not the aggressor and because there was no mutual intention, consent, or agreement preceding the initiation of hostilities."
We conclude there was no error. First, the trial court also gave the standard instruction that "[s]ome of these instructions may not apply, depending upon your findings about the facts of the case" and the jury should "not assume just because I give a particular instruction that I am suggesting anything about the facts." Appellate courts "generally presume that jurors are capable of following, and do follow, the trial court's instructions." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 447.)
Second, contrary to defendant's argument substantial evidence supports instructing the jury on what constitutes mutual combat. There was testimony that KD was OCK's main rival and that there had been previous violent interactions between the members of each gang. The prosecution's gang expert testified concerning the concept of respect in the gang subculture and the response of gang members to disrespect such as a rival's incursion of its claimed territory. (People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1233-1234 [substantial evidence to support mutual combat instruction because of prior car-to-car shooting between rival gang members].)
Further, while there was conflicting evidence on whether defendant was present when the fracas began, he admitted becoming involved in the fight after he went outside and was struck by a bottle. In People v. Ross (2007) 155 Cal.App.4th 1033, the Court of Appeal quoted from an earlier California Supreme Court decision that recognized "'the phrase "mutual combat" has been in general use to designate the branch of the law of self-defense relating to homicides committed in the course of a duel or other fight begun or continued by mutual consent or agreement, express or implied.'" (Id. at p. 1045.) Ross itself held mutual combat exists where there is "evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose." (Id. at p. 1047.) Thus, the evidence supported a finding defendant consented to mutual combat by his actions of picking up the pipe, before following the retreating KD members some 370 feet down the street and attacking Delgado from behind.
Therefore, we conclude the trial court did not err by instructing the jury on mutual combat in this case.
The judgment is affirmed.
MOORE, J. I CONCUR: BEDSWORTH, ACTING P. J.
ARONSON, J., Concurring.
I concur in the result, but write separately to voice my disagreement with the majority's conclusion Moises Najera's trial lawyer made an informed tactical choice in rejecting an attempted murder instruction. Because other reasons described in the majority's opinion show any conceivable instructional error was harmless, I concur in the result.
Najera presented evidence Ildefonso Perez, an OCK gang member, delivered the fatal blow. (Maj. opn., ante, p. 4.) Najera also relied on his pretrial statement that he joined the fracas after it had begun only to defend his brother or cousin and not to help OCK prevail in its battle with the KD gang. This evidence, if believed, would raise a reasonable doubt on whether Najera caused the victim's death or whether he aided and abetted the homicide, and therefore raise the possibility Najera was guilty of attempted murder. The trial court reasonably concluded this evidence was sufficient to support an attempted murder conviction, and the court relied on the same evidence to also instruct on attempted voluntary manslaughter based on heat of passion. But the court had no obligation to instruct on attempted murder when Najera's lawyer asked the court not to give the jury the option to return a verdict for that crime, explaining he made the request for tactical reasons. As the majority opinion correctly points out, the tactical decision of Najera's lawyer invited any error that may have occurred and therefore he cannot now raise the issue.
Najera attempts to avoid the consequences of the invited error doctrine by arguing he received constitutionally defective advice when his trial attorney asked the court not to instruct on attempted murder as a lesser included offense of murder. To prevail on a claim trial counsel rendered constitutionally defective assistance, the defendant must show his attorney's representation fell below an objective standard of reasonableness and that he suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) The reviewing court must reject an inadequate representation claim unless there could be "'no satisfactory explanation'" for counsel's conduct. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Here, the majority concludes Najera's trial attorney made a reasonable tactical choice in rejecting an attempted murder instruction on the murder charge because, as counsel explained to the court, "I'm not going [to] argue that my client had the specific intent required for an attempted murder." The majority finds this to be a satisfactory explanation. I do not.
Najera's trial attorney apparently believed he would have to argue in favor of an attempted murder conviction if the trial court gave this option to the jury. But as Najera's appellate counsel points out, Najera's trial attorney was under no obligation to hitch the defense to that wagon. Defense lawyers are not obligated legally or tactically to argue in support of lesser included offenses. (See People v. Brito (1991) 232 Cal.App.3d 316, 326, fn. 9.) Curiously, trial counsel did not object to the court instructing on second degree murder or attempted voluntary manslaughter as a lesser included offense of first degree murder, although both offenses had as an element the specific intent to kill, the same element defense counsel found objectionable in the attempted murder instruction. The logical extension of counsel's reasoning would have eliminated all the court's lesser included instructions. When the court gave instructions on the lesser offense, counsel did not argue in favor of those lesser offenses to the jury. Obviously, the same approach would have applied had counsel not intervened to eliminate an instruction on attempted murder.
For example, in an alibi defense case, defense counsel may still ask for an acquittal based on misidentification even if the court has instructed on lesser included offenses. If the jury rejects a defendant's alibi defense, it must still determine whether the defendant is guilty of the charged crime or a lesser included offense. (People v. Hill (1993) 12 Cal.App.4th 798, 806.) --------
Defendant, however, has not shown that absent counsel's uninformed choice there was a reasonable probability of a more favorable result. (Strickland v. Washington, supra, 466 U.S. at p. 694.) The evidence showed defendant used a pipe to strike the victim's head from behind while the victim attempted to defend himself from the blows of several OCK gang members. The evidence Najera aided and abetted OCK gang members in their lethal assault was overwhelming, rendering any issue as to who delivered the fatal blow beside the point.