P. v. Alvarez

Filed 1/5/10 P. v. Alvarez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Roger A. Luebs, Judge. Affirmed.

Nancy J. King, 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, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Jorge H. Alvarez appeals after he was convicted of the attempted premeditated murder of Jose Pedro. Defendant contends that there was insufficient evidence of intent to kill and that the jury instructions on reasonable doubt were improper. We affirm.

FACTS AND PROCEDURAL HISTORY

The victim, Jose Pedro, was driving his vehicle, running errands, on April 15, 2006. He made a left turn at an intersection, and noticed a red pickup truck coming up behind him. As the red truck came closer and moved next to Pedros car on the drivers side, Pedro heard an explosion and the shattering of his windows. Pedro instinctively ducked and threw himself down across the seats. Pedros vehicle soon veered off the road and crashed into a pole.

When Pedro sat up again, he saw the red truck, stopped. The driver pointed a gun at Pedro and fired several more shots. Pedro again dived low to avoid the gunfire. Two bullets wounded Pedro in the leg. The red truck sped away.

Officers responded to the scene. Bystanders described a red pickup truck that had fled the scene. Later the same day, an officer spotted defendant sitting inside a red pickup truck matching the specific description of the truck involved in the shooting. Defendant was acting disoriented and told the officer he had run out of gas. As defendant got out of his truck, the officer noticed a spent shell casing on the floorboard and a magazine clip under the passenger seat. On searching the truck, the officer found an assault rifle, three magazine clips and a spent casing

Defendant was arrested and interviewed at the police station. Defendant admitted the assault rifle was his. He indicated that he was the only person who had driven the red truck that morning.

Bullets recovered from Pedros vehicle and from a house near the shooting matched defendants assault rifle. Pedro survived his wounds, but had to have several surgeries and had still not fully recovered as of the time of trial.

Defendant was charged with attempted murder. The jury convicted defendant of this offense, and also found true allegations that defendant acted with premeditation and deliberation, and that he personally discharged a firearm causing great bodily injury.

Defendant appeals, contending the evidence was insufficient to support a finding that he acted with the specific intent to kill, or with premeditation and deliberation. He further contends that the jury instruction on reasonable doubt was improper.

ANALYSIS

I. The Evidence Was Sufficient to Support a Finding

of Intent to Kill, and Premeditation and Deliberation

Defendant urges that there was no evidence by which to determine his state of mindintent to kill or premeditation and deliberationat the time of the shooting. That is, there was no evidence he knew the victim, and no evidence of provocation or other action that would explain a motive. Later in the day, when defendant was found and arrested he seemed somewhat confused and disoriented. Thus, defendant argues, there was no evidence, but only speculation, as to defendants mental state at the time of the shooting.

We review the matter under the deferential substantial evidence standard. (People v. Kraft (2000) 23 Cal.4th 978, 1053; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [99 S.Ct. 2781, 61 L.Ed.2d 560].) We presume in favor of the verdict every fact that the jury could reasonably infer from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.)

The evidence here was more than sufficient to support a finding of specific intent to kill. Initially, we note that motive is not an element of the charged offense. Conversely, the absence of motive does not negate the existence of an intent to kill. Much crime is senseless and inexplicable to the outside observer. (People v. Whisenhunt (2008) 44 Cal.4th 174, 202.) A perpetrators internal thought process is rarely subject to direct evidence. In almost all cases, intent must be inferred from other observable phenomena, such as the defendants actions and words. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.)

Here, defendant shot at the victim with an assault rifle while both were driving down a street. Defendants initial attack blew out the windows of the other vehicle, and caused the other driver to lose control and crash into a pole. Not content to leave things thusly, defendant deliberately pulled his truck even with the crashed car and stopped. He took direct aim at the victim once more and fired off numerous shots, seven to ten bullets, at close range.

Relying on People v. Ratliff (1986) 41 Cal.3d 675, 695, defendant urges that specific intent to kill cannot be presumed from the aiming and firing of a gun. Defendant has misinterpreted the purport of Ratliff. As the California Supreme Court explained in People v. Arias (1996) 13 Cal.4th 92, where the evidence is consistent with mere recklessness, reflex, or intent to frighten, then the evidence of intent to kill is not so conclusive as to render harmless an erroneous failure to instruct on that issue. (Id. at p. 129, fn. 10, citing Ratliff.) Here, of course, the jury was fully instructed on intent to kill, and the evidence was wholly inconsistent with mere recklessness, reflex, or intent to frighten. Ratliff is inapposite.

As to the issue of premeditation and deliberation, defendant points to the suggested framework of analysis in People v. Anderson (1968) 70 Cal.2d 15, 26-27, and urges that there was insufficient evidence of planning, motive, or manner of killing (or attempted killing). To the contrary, there was substantial evidence to demonstrate premeditation and deliberation. Defendant was carrying a loaded assault rifle within easy reach as he drove his truck. He admitted to the arresting officer that he had placed the gun in the truck that morning. The manner of defendants attack also supports a finding of premeditation and deliberation: he approached the victims vehicle from behind and moved into the blind spot on the drivers side. He fired at the victim, completely blowing out the windows. The victim took evasive action, flinging himself across the seats, but this caused the car to crash into a pole. Defendant, not content to leave things as they were, purposely pulled his truck next to the crashed car and stopped. He then took aim and popped-off at least seven additional rounds at close range into the crashed vehicle. The car was riddled with bullet holes, and at least two bullets actually wounded the victim, causing severe and continuing injury.

[P]remeditated means considered beforehand and 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. [Citation.] The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . . [Citation.] The fundamental inquiry is whether a rational jury could have concluded that the crime occurred as a result of preexisting reflection rather than a rash or unconsidered impulse. [Citation.] (People v. Felix (2009) 172 Cal.App.4th 1618, 1626.)

Here, defendant had time to reflect and to consider his actions, particularly with respect to his continued pursuit of the attack after he caused the victim to crash. He fired multiple shots directly at the victim from close range. There was sufficient evidence to support a finding of premeditation and deliberation.

II. The Reasonable Doubt Instructions Were Proper

Defendant next contends that the jury instructions, CALCRIM Nos. 220, 222 and 223, (defining reasonable doubt, evidence, and direct and indirect evidence)^[1]undermined the presumption of innocence, lowered the prosecutions burden of proof, and imposed on him a burden to prove his innocence. That is, defendant complains that the instructions limited the jurys determination of reasonable doubt to the evidence received at trial, thereby precluding it from considering the lack of other evidence corroborating the weak eyewitness testimony, and, by referring to the use of both direct and circumstantial evidence to prove or disprove the elements of an offense, improperly implied that defendant had a burden to disprove the charge against him.

Defendant raised no objections to the instructions below, and thus has forfeited the issue on appeal. (People v. Jenkins (2000) 22 Cal.4th 900, 1020.)

In any case, the instructions are constitutional. The identical argument (i.e., that instructing jurors to consider the evidence admitted at trial prohibits them from considering the lack of evidence on certain issues in determining guilt) has already been considered and rejected in numerous cases. (See, e.g., People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510.) The sentence to which defendant objects, as in Westbrooks, merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial. The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendants guilt. (Id. at p. 1509.)

CALCRIM No. 223 is likewise constitutional. Defendants argument lifts a single word out of context for exaggerated emphasis. In context, CALCRIM No. 223 merely informs jurors that both direct and circumstantial evidence are acceptable means of proof. The language of the instruction is substantially similar to the previously approved language of CALJIC No. 2.00. (See, e.g., People v. Bloyd (1987) 43 Cal.3d 333, 351; People v. Barker (2001) 91 Cal.App.4th 1166, 1177.) The instructions as a whole clearly informed the jury that the prosecution bore the burden of proof and that defendant was not required to disprove anything.

DISPOSITION

The contentions raised are without merit. The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKINSTER

Acting P. J.

We concur:

/s/ RICHLI

J.

/s/ MILLER

J.

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^[1] CALCRIM No. 220 provides in part: In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial.

CALCRIM No. 222 defines evidence as the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.

CALCRIM No. 223 defines direct and circumstantial evidence, and states that both kinds of evidence are acceptable to prove or disprove the elements of a charge.