Gilbert
The jury found Jose Luis Cervantes, Jr., and David Antonio Estrada guilty of second degree attempted murder. (Pen. Code, §§ 187, 664.) It also found true that Cervantes was a principal and Estrada personally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)), that they discharged a firearm from a motor vehicle ( § 12022.55) and that they acted for the benefit of a criminal street gang ( § 186.22). The trial court sentenced each defendant to 42 years to life.
All statutory references are to the Penal Code.
We modify Cervantes sentence to 32 years to life, and Estradas sentence to 47 years to life. In all other respects we affirm.
FACTS
On January 27, 2001, Ludwig Juarez (Louie) was walking toward his home in Valinda. He saw Cervantes driving a gray Honda. Louie knew Cervantes by the name "Hanjy." Louie and Cervantes exchanged gang signs. Cervantes stopped the car, opened the drivers door and pulled the door panel away from the door. Louie knew gang members often hid guns behind a door panel, so he was afraid Cervantes might be armed.
Louie started to run down the street. Cervantes drove up next to him and asked where he was from. Louie replied he was from "Varrio Puente." Cervantes replied, "Fuck the Varrio. Im from Blackwood." Louie, still fearful Cervantes was armed, jumped a fence and went home. At home, Louie saw his brother, Rony Juarez (Rony). Louie told Rony what had happened. Rony told Louie not to worry and to stay home. Rony went back to sleep.
Rony awoke to the noise of a loud stereo. He looked out the window and saw Cervantes and Estrada in the Honda. Cervantes was driving and Estrada was in the front passenger seat. They drove away. Rony had known Cervantes for about six months. Cervantes had thrown gang signs at Rony. Rony also knew Cervantes girlfriend, Kathy Moreno. Moreno owned a gray Honda.
After Cervantes and Estrada drove away, Rony quickly left the house to find his brother, Louie. When Rony stopped his car at a stop sign, he saw Cervantes and Estrada driving toward him. They parked at the corner.
Cervantes and Estrada stared at Rony as if they intended to do something. Rony suspected they had a weapon. He believed it would be best to leave his car and say something, rather than to stay in his car and risk being shot.
Rony got out of his car and approached the Honda. He took an anti-theft device known as the "club." He held the club at his side. Rony asked Cervantes and Estrada what they were doing at his house. Estrada asked him where he was from. He replied, "I used to bang, I used to be from Varrio Puente, but it doesnt matter no more." Estrada said he was from Rama Street, Puente. He asked where Louie was from. Rony said he was not going to tell him. Estrada said, "Tell [Louie] we have something for him." Rony replied, "Dont be surprised if I dont have something for you, too." They stared at each other, then Estrada began shooting. Rony was hit four times: in the leg, the arm, the chest and in the back. When the fourth bullet struck Rony in the back, he fell to the ground. His lower extremities are paralyzed.
Oscar Baltazar was in his front yard at the time of the shooting. He saw Estrada shoot at Rony six times. After Baltazar saw Estrada fire the first shot, Rony turned away from the Honda. Baltazar never saw Rony raise the club, and it did not appear Rony was going to fight. Baltazar estimated that Rony was five feet from the Honda. Rony testified he was approximately 30 feet away, as measured by distance in the courtroom.
Marisela Banuelos was in her home. She saw the passenger of a Honda shoot at Rony. She called 911.
Detective Jon Hinds, a deputy sheriff for the County of Los Angeles, testified as a gang expert. Hinds testified that he is familiar with the Puente 13 gang. There are cliques or sub-sets of the gang. Varrio Puente, Blackwood Street and Rama Street are all cliques of the Puente 13 gang. The Rama and Blackwood cliques associate with each other, but they do not get along with Varrio Puente. The association between the Rama and Blackwood cliques was active in 2001.
Based on Estradas admission and tattoos, Hinds stated Estrada is a member of the Rama Street clique. Based on a large tattoo of "Blackwood" across Cervantes chest, Hinds stated Cervantes is a member of the Blackwood Street clique. Hinds stated Rama Street and Blackwood Street members engage in criminal conduct including theft, burglary, robbery, drug sales, carjacking, murder, kidnapping, mayhem and torture.
Hinds opined that the shooting was gang related. It started earlier in the day when Louie and Cervantes confronted each other over gang membership. Cervantes found Estrada to "back him up." They went looking for Louie and found Rony. They confronted Rony about his and Louies gang membership. The shooting was part of the gang conflict that originated earlier in the day.
Defense
Rony told sheriffs deputies at the scene of the shooting that Hanjy shot him. When Rony arrived at the hospital, he told a deputy that Hanjy shot him.
Baltazar told a deputy that he saw the shooter remove his hat, exposing his hair. Estradas mother testified that Estrada has shaved his head since he was 17 years old.
Neither Cervantes nor Estrada testified on his own behalf.
DISCUSSION
I
Cervantes contends the trial court erred in limiting cross-examination of prosecution witnesses Baltazar and Hinds.
Estrada joins in all applicable contentions of Cervantes.
Baltazar
Cervantes asked Baltazar, "Is it fair to say that Rony started this fight? Rony walked up to the car; Rony was yelling?" The trial court sustained the prosecutors relevancy objection over Cervantes argument that the question was relevant to the issue of self-defense. Cervantes claims that the trial court prevented him from exploring the issue of self-defense by showing Rony was the initial aggressor.
But the question was compound. Cervantes asked whether Rony started the fight and whether Rony was yelling when he got out of his car. The question whether Rony started the fight impermissibly calls for a conclusion on a matter in which the witness could adequately describe his observations. (People v. Callahan (1999) 74 Cal.App.4th 356, 380.) Moreover, Baltazar previously testified on Estradas cross-examination about whether he heard Rony raise his voice.
In any event, the trial court did not prevent Cervantes from exploring whether Rony was the initial aggressor. Immediately after the trial court sustained the prosecutors objection, Cervantes asked Baltazar without objection whether anyone in the car tried to go toward Rony; whether Rony went after the people in the car; whether Rony went after the people in the car in an angry, aggressive manner; and whether Rony was hostile or violent like he was going to fight.
The trial court did not deny Cervantes the right to confront witnesses or the right to a defense. If the court erred in sustaining the objection to Cervantes question on cross-examination, the error was harmless by any standard.
Hinds
Defense counsel attempted to cross-examine Hinds, the prosecutions gang expert, on whether he knew when the Puente Street and Rama Street cliques were founded; when the amiable relationship between the Rama and Blackwood cliques began; who initiated that association; and when the conflict between the Varrio Puente and the Rama and Blackwood cliques began. The trial court prevented the line of questioning on the ground that gang history is irrelevant. Cervantes claims that the questions are relevant to test Hinds status as an expert on gangs.
Defense counsels questions on gang history involve a collateral matter. The trial court has broad discretion to limit cross-examination to prevent the trial ". . . from degenerating into nitpicking wars of attrition over collateral credibility issues." (People v. Ayala (2000) 23 Cal.4th 225, 301, citing People v. Wheeler (1992) 4 Cal.4th 284, 296, 841 P.2d 938.) The trial court did not abuse its discretion here.
II
Cervantes contends the court erred by failing to give instructions on self-defense. Cervantes counsel requested instructions, but the trial court refused to give them. Estradas counsel stated that the instructions were not warranted for Estrada. Estradas defense was misidentification.
A defendant is entitled to an instruction on a defense theory if it is supported by substantial evidence. (People v. Lemus (1988) 203 Cal. App. 3d 470, 477, 249 Cal. Rptr. 897.) The question is not whether the trial court believes the evidence underlying the defense, but whether a jury composed of reasonable people could find the facts underlying the instruction exist. (Ibid.)
To constitute self-defense, the defendant must actually believe in the need to defend himself. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, 921 P.2d 1.) For self-defense to exonerate a defendant completely, the belief must be objectively reasonable. (Ibid.) This is sometimes called "perfect self-defense." (Ibid.) Where the belief subjectively exists but is objectively unreasonable, the defendant is deemed to have acted without the malice necessary for murder and can only be convicted of manslaughter. (Ibid.) This is sometime called "imperfect self-defense." (Ibid.) In either case, the defendant must have a fear of imminent danger to life or great bodily injury. (Ibid.) Fear of future harm will not suffice. (Ibid.)
Here the evidence is essentially uncontradicted. Rony stood no closer than five feet from the car in which Cervantes and Estrada sat. Rony was carrying a club, and was talking loudly. But he held the club at his side, and made no threatening gesture. Cervantes and Estrada sat within the protection of a car, armed with a gun. There is nothing to indicate they were intimidated by Rony. In fact, they issued a challenge by asking Rony where he was from. Estrada shot six times. After the first shot, Rony turned his back. Thereafter, Estrada shot Rony in the back.
No jury composed of reasonable people could find the facts underlying any self-defense instruction, perfect or imperfect, exist. The trial court did not err by refusing to instruct the jury on self-defense.
III
Cervantes contends the trial court erred by failing to give sua sponte instruction on the lesser included offense of attempted voluntary manslaughter.
Cervantes contention is based on the theory that the attempted killing was "upon a sudden quarrel or heat of passion." (§ 192, subd. (a).) Cervantes argues there is substantial evidence that he acted in a heat of passion caused by the exchange of insults earlier that day between Cervantes and Ronys brother.
One problem with Cervantes theory is that for a heat of passion to constitute mitigation, the provocation must have been given by the victim. (People v. Spurlin (1984) 156 Cal. App. 3d 119, 126, 202 Cal. Rptr. 663.) Thus an earlier argument with Louie would not be sufficient to mitigate the attempted murder of Rony.
Another problem with Cervantes theory is that the heat of passion must be such as would naturally be aroused in an ordinary reasonable person under the circumstances. (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 217, pp. 828-829.) An exchange of insults over gang membership may arouse the heat of passion in some gang members, but as a matter of law we cannot say such passion would naturally be aroused in an ordinary reasonable person.
The trial court did not err by failing to instruct on attempted voluntary manslaughter.
IV
Cervantes contends the trial court improperly commented on the evidence.
During deliberations, the jury asked, "Do all of the questions for Jose Cervantes relate to aid and abet or the actual firing of the gun?" The court replied: "As I understand the evidence in the case, and the theory of the prosecution . . . and I believe of the defense as well — that there was no evidence in the case — well, there was some evidence from the victim who at first blush said that Cervantes — or using his gang name — shot me[.] But from the other evidence as to who was the passenger and driver, the only theory on Cervantes was aid and abetting rather than actually firing of the gun."
Cervantes argues the courts comment was improper because it established a critical point that was still contested by the defense: whether Cervantes gang name was Hanjy.
But the court did not tell the jury that Cervantes gang name was, in fact, Hanjy. Nor did the court indicate the jury should so find. The court simply stated there was "some evidence" that the victim stated Cervantes, "using his gang name," shot him. Indeed, there was some such evidence. Rony identified Cervantes in court as the person he knew as Hanjy. There was also evidence Rony told sheriffs deputies Hanjy shot him.
Article VI, section 10 of the California Constitution provides in part, "The court may make any comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause." The trial courts comment must be accurate, temperate, nonargumentative and scrupulously fair. (People v. Rodriguez (1986) 42 Cal.3d 730, 766, 230 Cal. Rptr. 667, 726 P.2d 113.)
Here the trial court simply told the jury that although there was some evidence Cervantes shot Rony, the prosecutions theory was that Cervantes was only an aider and abettor. The courts comments were proper and well within constitutional bounds.
V
Cervantes contends the 10-year gang enhancement imposed pursuant to section 186.22, subdivision (b) must be stricken.
The trial court imposed seven years for attempted second degree murder and a twenty-five-year-to-life enhancement pursuant to section 12022.53, subdivisions (d) and (e). It also imposed a 10-year gang enhancement pursuant to section 186.22, subdivision (b), for a total of 42 years to life.
Cervantes points out, and the Attorney General concedes, that he did not personally use a firearm; Estrada was the actual shooter.
Section 12022.53, subdivision (d) provides for a term of 25 years to life for any person who in the commission of a specified felony intentionally and personally discharges a firearm causing great bodily injury. Section 12022.53, subdivision (e)(1) allows the 25-year-to-life term provided in subdivision (d) to be imposed where a violation of section 186.22, subdivision (b) is pled and proved, even where the defendant did not personally use a firearm. But subdivision (e)(2) of section 12022.53 provides that unless the defendant personally used a firearm, the gang enhancement "shall not be imposed."
The Attorney General argues that the gang enhancement should be imposed and stayed. But section 12022.53, subdivision(e)(2) expressly states that the gang enhancement "shall not be imposed." Thus Cervantes is correct. The 10-year enhancement imposed pursuant to section 186.22, subdivision (b) must be stricken, and his sentence modified to 32 years to life.
VI
Estrada contends the jury was not instructed on all the elements of the gang enhancement.
The Attorney General concedes the instruction given to the jurors omitted to state they must find Estrada committed the crime "with the specific intent to promote, further, or assist in any criminal conduct by gang members[.]" ( § 186.22, subd. (b); CALJIC No. 17.24.2.) The Attorney General argues, however, that the error is harmless.
The standard of harmless beyond a reasonable doubt set forth in Chapman v. California (1967) 386 U.S. 18, page 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, is applicable only where the gang enhancement increases the penalty for the underlying crime beyond the statutory maximum. (People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) Because here the maximum penalty is an indeterminate life term, the gang enhancement does not increase the penalty for the underlying crime beyond the statutory maximum. Thus the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243 applies. (Sengpadychith, supra, at p. 327.)
We agree with the Attorney General that the error was harmless. The prosecutor told the jurors they must "decide whether [Cervantes and Estrada] did this and when they did it, whether they were acting together and when they were acting together, whether they did it for the purpose of benefiting a criminal street gang." In addition, the verdict forms required the jury to determine whether Cervantes and Estrada committed the attempted murder "for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members[.]" Finally, as discussed in the next section, the evidence Estrada acted with the required specific intent is overwhelming.
VII
Estrada contends the gang enhancement was not supported by substantial evidence.
In reviewing the sufficiency of the evidence we view the evidence in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.) We discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the evidence or judge the credibility of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if we determine that any rational trier of fact could find the elements of the crime beyond a reasonable doubt. (Johnson, supra, at p. 578.)
Estradas contention focuses on the element of specific intent. He argues there is nothing but speculation to support the finding that he committed the crime "with the specific intent to promote, further, or assist in any criminal conduct by gang members[.]" ( § 186.22, subd. (b).)
Estrada claims that the only evidence on the purpose or motive for the shooting came from Detective Hinds. Hinds testified in his opinion the shooting was "gang related." Estrada argues Hinds did not explain why or how shooting Rony benefited either gang.
But, contrary to Estradas claim, there is more evidence than Hinds opinion. The most compelling evidence of Estradas intent is the events prior to the shooting. Earlier in the day, Cervantes and Louie had a confrontation that began with flashing gang signs, continued with each party identifying his gang and Cervantes saying, "Fuck the Varrio," and ended with Louie running from the confrontation because he is fearful Cervantes will shoot him. Cervantes and Estradas confrontation with Rony proceeds in much the same manner, except that it ends in an actual shooting. It is true, Rony denied any present gang affiliation. But Estrada clearly did not believe him. The entire confrontation involved only gang rivalry; there was simply no other motive for the shooting.
VIII
Estrada contends he received ineffective assistance of counsel.
A criminal defendant is constitutionally entitled to the effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215, 233 Cal. Rptr. 404, 729 P.2d 839.) This means an attorney must act with reasonable competence as defendants " . . . diligent conscientious advocate." (Ibid.) To establish abridgment of this constitutional right, defendant must demonstrate counsels deficient performance and a reasonable probability the result would have been different but for counsels failings. (In re Sixto (1989) 48 Cal.3d 1247, 1257, 259 Cal. Rptr. 491, 774 P.2d 164.)
Here Estradas claim of ineffective assistance is based on his counsels failure to object to alleged errors committed by the trial court. Because the trial court committed no prejudicial error, Estradas contention is without merit.
IX
Finally, the Attorney General argues the trial court erred in sentencing Estrada.
The trial court sentenced Estrada to seven years for second degree attempted murder ( §§ 187, 664) plus twenty-five years to life for personal use of a firearm causing great bodily injury ( § 12022.53, subd. (d)), plus ten years for the gang enhancement ( § 186.22, subd. (b)(1)(C)), for a total of forty-two years to life.
Section 186.22, subdivision (b)(1)(C) provides for a 10-year gang enhancement if the underlying crime is a violent felony "except as provided in paragraphs (4) and (5)." Paragraph (4)(B) provides for a 15-year-to-life term if the felony is a violation of section 12022.55, discharge of a firearm from a motor vehicle causing great bodily injury.
The Attorney General is correct. Here the jury found the section 12022.55 allegation to be true. Instead of 10 years under section 186.22, subdivision (b)(1), a 15-year-to-life enhancement under subdivision (b)(4) should have been imposed.
Estrada appears to argue that his total sentence should be 15 years to life. But nothing in section 186.22 or any other law so limits the term. In addition to the 15 years to life imposed pursuant to section 186.22, subdivision (b)(4), we must impose a 25-year-to-life term pursuant to section 12022.53, and 7 years for second degree attempted murder for a total of 47 years to life.
Cervantes sentence is modified to 32 years to life. Estradas sentence is modified to 47 years to life. In all other respects the judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.