P. v. Chavez

















Filed 7/25/12 P. v. Chavez CA2/3















NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



SECOND APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANTHONY CHAVEZ, Defendant and Appellant.

B231576 (Los Angeles County Super. Ct. No. PA065347)

APPEAL from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Harvey Giss, Judge. Affirmed.

John L. Staley, under appointment by
the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Louis W. Karlin and Blythe J. Leszkay, Deputy Attorneys
General, for Plaintiff and Respondent.



_________________________











Defendant
and appellant, Robert Anthony Chavez, appeals the judgment entered following
his conviction for premeditated attempted murder and href="http://www.fearnotlaw.com/">possession of a firearm by a felon, with
firearm use, great bodily injury and prior prison term enhancements
(Pen. Code, §§ 664/187, [former] 12021, 12022.53, 12022.7, 667.5).href="#_ftn1" name="_ftnref1" title="">[1] Chavez was sentenced to state prison for a
term of life plus 28 years to life.

The
judgment is affirmed.

>BACKGROUND

Viewed
in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence
established the following.

Richard
Mercardo lived with his girlfriend Gloria and her children, Lorraine
and Joe. There was a rear house on the
property where Gloria’s daughter Rachel lived with defendant Chavez, who was
her boyfriend. Richard’s sister Olivia
lived in a house next door with her two sons.

On
August 30, 2009,
Richard was barbequing and drinking in front of the garage with his brothers,
Andy and Fernando, and Olivia’s sons.
Richard testified Lorraine
left the house at one point and opened a gate, inadvertently allowing their pit
bull to run into the street. When Lorraine
returned to the house without the dog, Richard reprimanded her and said she had
to retrieve it. Lorraine
got upset and denied having let the dog out.

Rachel
heard Lorraine yelling and came
out of the back house to investigate.
She had a drink in her hand and appeared to be intoxicated. She joined Lorraine
in yelling at Richard. Then Chavez came
outside and stood next to Rachel.
Richard told him to take Rachel inside, but Chavez just stood
there. Richard got mad because Chavez
wasn’t trying to help the situation.

“Q. As you continued to get angrier and angrier
the less he responded the worse it got for you?

“A. The whole thing was he didn’t seem he was
drinking. He seemed mellow, you
know? I’m asking him, he’s not
responding. These girls were just
constantly yelling at me talking shit to me cussing every word they know, you
know?

“Q. And you felt disrespected?

“A. Yeah.
I mean, it wasn’t the first time it happened.”

Richard testified
he told Chavez that “if he ain’t gonna try to help out the situation he can
just get out. Get the fuck out of the
yard, out of the house.”

Richard’s brother
Andy testified Richard was saying he wanted Chavez to leave because Chavez had
been selling drugs out of the back house.
Richard was upset and Andy tried to calm him, but Chavez kept egging
Richard on. Richard hit Chavez and they
started fighting.

The
fight was pretty even at first, with both men grappling and throwing
punches. But then, while Richard was on
top of Chavez, Rachel kicked Richard in the face and knocked him to the
ground. Chavez took advantage of this and
started getting the best of Richard.
Then someone pulled Chavez off Richard and the fight ended. Andy saw Chavez go into the back house and
make a phone call:

“Q. Did you hear what was being said?

“A. Just like hurry up and come, . . .
hurry up and get here.

“Q. You heard the defendant say that?

“A. Yeah.
He was talking loud and still kind of full of adrenaline . . .
he was talking loud and just telling them to hurry up and get here
. . . .”

Olivia,
who had come next door upon hearing the commotion, saw people trying to calm
down Richard, who was very upset. Olivia
then returned to her house, but five or ten minutes later she heard the
commotion start up again. She saw four
family members holding Richard and forcing him toward the front house. Richard was really upset and screaming.

About 20 or 30
minutes later, Olivia saw Chavez “leisurely” walk up the street from the
corner.href="#_ftn2" name="_ftnref2" title="">[2] He had a gun in his handhref="#_ftn3" name="_ftnref3" title="">>[3]
and, according to Andy, he was dressed differently than he had been during the
fight.href="#_ftn4" name="_ftnref4" title="">[4] Chavez pointed the gun at Richard and said
something about a fight. Richard tried
to run and dive behind a car. Chavez
fired two to four shots from about 10 or 12 feet away. Richard fell and blacked out. According to Olivia, Chavez then turned and
“leisurely” walked away.href="#_ftn5"
name="_ftnref5" title="">[5]

Richard’s
brother Fernando followed Chavez, taking cover behind some cars. Chavez turned around and fired three or four
times, shooting either at Fernando or at the house. Chavez then ran toward a silver Dodge Charger
parked on the corner and jumped into the rear seat. He pointed the gun out the window and fired
again, shooting four or five times toward where Fernando had been
standing. The Dodge drove off.

Richard
had been hit in the elbow and the back, and he was in the hospital for a week.

Chavez
did not present any evidence at trial.

>CONTENTIONS

1. The trial court erred by not instructing the
jury, sua sponte, on attempted voluntary manslaughter as a lesser included
offense.

2. The trial court improperly punished Chavez
for both attempted murder and being a felon in possession of a gun.

>DISCUSSION

1. Instruction
on attempted voluntary manslaughter was not warranted.

Chavez contends the trial court
erred by failing to instruct the jury, sua sponte, on attempted voluntary
manslaughter as a lesser included offense of attempted murder. This claim is meritless.

a. Legal
principles.

“When
there is substantial evidence that an element of the charged offense is
missing, but that the accused is guilty of a lesser included offense, the court
must instruct upon the lesser included offense, and must allow the jury to
return the lesser conviction, even if not requested to do so. [Citations.]”
(People v. Webster (1991) 54
Cal.3d 411, 443.) In this context,
“substantial evidence” is evidence from which reasonable jurors could conclude
the lesser offense, but not the greater, had been committed. (People
v. Breverman (1998) 19 Cal.4th
142, 162.) “[O]n appeal we employ a de
novo standard of review and independently determine whether an instruction on
the lesser included offense . . . should have been given.” (People
v. Manriquez (2005) 37 Cal.4th 547, 584.)


Attempted
voluntary manslaughter is a lesser included offense of attempted murder. (See People
v. Avila> (2009) 46 Cal.4th 680, 705-707.) “An intentional, unlawful homicide is ‘upon a
sudden quarrel or heat of passion’ (§ 192(a)), and is thus voluntary
manslaughter [citation], if the killer’s 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 from judgment.” ’
[Citations.] ‘ “[N]o
specific type of provocation [is] required . . . . ” ’ [Citations.]
Moreover, the passion aroused need not be anger or rage, but can be any
‘ “ ‘[v]iolent, intense, high-wrought or enthusiastic
emotion’ ” ’ [citations] other
than revenge [citation]. ‘However, if
sufficient time has elapsed between the provocation and the fatal blow for
passion to subside and reason to return, the killing is not voluntary
manslaughter . . . . ’
[Citation.]” (>People v. Breverman, supra, 19 Cal.4th at p. 163.)

b. Discussion.

Chavez
contends the lesser included offense instruction should have been given because
the evidence showed he reasonably responded to adequate provocation, since he
“was the victim of an assault and shot Richard in response to that physical
provocation,” and it should have been left to the jury to decide if he had
sufficient time to cool down before shooting Richard. We disagree.
Even if Chavez satisfied the objective element of attempted voluntary
manslaughter by showing he reasonably responded to adequate provocation, which
we doubt, there was certainly no substantial evidence of the subjective
element, i.e., that Chavez’s reason had been obscured by a strong passion.

As
the Attorney General points out, the witnesses “generally did not testify to
appellant’s demeanor during the shooting.
To the extent they did, their descriptions of the shooting were consistent
with appellant being calm and collected.”
“There was no evidence appellant acted rashly, under the sway of intense
emotion. Rather, appellant reflected and
planned his attack. He changed clothes,
left the house without notice, got a gun, and [apparently] met up with a
getaway driver before approaching Richard.
Appellant deliberately and precisely fired two shots at Richard, both of
which hit him as he was diving for cover.
This planning and exacting method of attempted murder is a strong indication
that appellant did not act in the subjective heat of passion. . . . In short, there was absolutely nothing
passionate about appellant’s calculated attempt at revenge.” The Attorney General’s argument is firmly
grounded on established principles because first degree murder “is evidenced by
planning activity, a motive to kill or an exacting manner of death,” a state of
mind “ ‘manifestly inconsistent with having acted under the heat of
passion – even if that state of mind was achieved after a considerable period
of provocatory conduct’ ” (>People v. Carasi (2008) 44 Cal.4th 1263,
1306.)

Chavez argues the
jury could have reasonably concluded he had not cooled off by the time he shot
Richard: “Appellant was obviously
extremely angry that he had been assaulted by Richard. The fact that appellant engaged in a certain
amount of deliberate behavior to acquire a gun did not mean that he had cooled
down before the shooting occurred. . . . Indeed, it appeared that Richard had not
calmed down. He was agitated when the
shooting occurred and had to be restrained by his family members from
attempting to remove appellant from the house.
It was only reasonable to presume that appellant was equally agitated.” However, Chavez cites no authority giving
this court the power to make such a presumption on appeal, and we cannot
envision a possible basis for that power.


Chavez also argues
his “shooting at [Richard], by itself, demonstrated anger and passion.” But the mere act of firing a gun at someone
cannot by itself demonstrate that the shooter’s reason was obscured by passion;
consider the example of an assassin-for-hire.
As Chavez recognizes, there was plenty of evidence showing >Richard’s state of mind that day. Various witnesses, including Richard himself,
testified he was extremely upset, screaming and yelling, and had to be calmed
down by family members. There was,
however, no evidence showing Chavez
was similarly upset. The only arguable
state of mind evidence we came across is Andy’s testimony that after the fight,
when Chavez went into the house to use the phone, he “was talking loud and
still kind of full of adrenaline.”
Chavez does not even suggest this testimony constitutes substantial
evidence he “acted while under ‘the actual influence of a strong passion’
. . . [which] caused him to ‘ “act rashly or without due
deliberation and reflection, and from this passion rather than from
judgment.” ’ ” (>People v. Moye (2009) 47 Cal.4th 537,
553.)

In sum, we agree
with the Attorney General there was simply no substantial evidence of the
requisite subjective element of attempted voluntary manslaughter,
i.e., that Chavez’s “reason
was actually obscured as a result of a strong passion . . . .” (People v.
Breverman, supra, 19 Cal.4th at p. 163.) And even assuming arguendo this had been the
case during or right after the fight, the evidence showed Chavez actually
cooled down before shooting Richard. “ ‘If,
in fact, the defendant’s passion did cool, which may be shown by circumstances
such as the transaction of other business in the meantime . . . [or]
evidence of preparation for the killing, etc., then the length of time
intervening is immaterial.’ ” (>People v. Golsh (1923) 63 Cal.App. 609,
617; see, e.g., People v. Fenenbock
(1996) 46 Cal.App.4th 1688, 1704 [“The only inference to be drawn is that any
passions that may have been aroused upon first hearing the reports of
molestation had cooled so that the killing became an act of revenge or
punishment.”].) “[A] passion for revenge
. . . will not serve to reduce murder to manslaughter.” (People v.
Gutierrez (2002) 28 Cal.4th 1083, 1144.)

The trial court
did not err by failing to instruct the jury, sua sponte, on attempted voluntary
manslaughter as a lesser included offense.

2. Chavez
was properly sentenced for both attempted murder and being a felon in
possession of a firearm.

Chavez
contends his sentence on count 2 for being a felon in possession of a
firearm ([former] § 12021)href="#_ftn6"
name="_ftnref6" title="">[6]
should have been stayed under section 654.
This claim is meritless.

a. Legal
principles.

As we said in People v. Jones (2002) 103 Cal.App.4th 1139, 1142-1143: “Section 654, subdivision (a), provides
in pertinent part, ‘[a]n act or omission that is punishable in different ways
by different provisions of law shall be punished under the provision that
provides for the longest potentialname="citeas((Cite_as:_103_Cal.App.4th_1139,_*"> term of imprisonment, but
in no case shall the act or omission be punished under more than one
provision.’ Section 654 therefore
‘ “precludes multiple punishment for a single act or for a course of conduct
comprising indivisible acts. ‘Whether a
course of criminal conduct is divisible . . . depends on the
intent and objective of the actor.’
[Citations.] ‘[I]f all the
offenses were merely incidental to, or were the means of accomplishing or
facilitating one objective, defendant may be found to have harbored a single
intent and therefore may be punished only once.’ [Citation.]”
[Citation.]’ [Citations.] However, if the defendant harbored ‘multiple
or simultaneous objectives, independent of and not merely incidental to each
other, the defendant may be punished for each violation committed in pursuit of
each objective even though the violations share common acts or were parts of an
otherwise indivisible course of conduct.
[Citation.]’ [Citations.] [¶] name="#HI;b3">Whether section 654 applies in a
given case is a question of fact for the trial court, which is vested with
broad latitude in making its determination.
[Citations.] Its findings will
not be reversed on appeal if there is any substantial evidence to support
them. [Citations.] We review the trial court’s determination in
the light most favorable to the respondent and presume the existence of every
fact the trial court could reasonably deduce from the evidence. [Citation.]”

“ ‘Whether
a violation of [former] section 12021, forbidding persons convicted of
felonies from possessing firearms concealable upon the person, constitutes a
divisible transaction from the offense in which he employs the weapon depends
upon the facts and evidence of each individual case. Thus where the evidence shows a possession
distinctly antecedent and separate from the primary offense, punishment on both
crimes has been approved. On the
other hand, where the evidence shows a possession only in conjunction with the
primary offense, then punishment for the illegal possession of the firearm has
been held to be improper where it is the lesser offense.’ [Citation.]”
(People v. Bradford (1976)
17 Cal.3d 8, 22.)

“Applying this
rule, courts have determined that section 654 applies where the defendant
obtained the prohibited weapon during
the assault in which he used the weapon.
[Citations.] However,
section 654 has been found not to apply when the weapon possession
preceded the assault. [Citation.]” (People
v. Wynn (2010) 184 Cal.App.4th 1210, 1217.) Hence, “when an ex-felon commits a crime
using a firearm, and arrives at the crime scene already in possession of the
firearm, it may reasonably be inferred that the firearm possession is a separate
and antecedent offense, carried out with an independent, distinct intent from
the primary crime. Therefore,
section 654 will not bar punishment for both firearm possession by a
felon . . . and for the primary crime of which the defendant is
convicted.” (People v. Jones, supra,
103 Cal.App.4th at p. 1141.)

b. Discussion.

Chavez argues: “The evidence established that appellant
possessed the gun solely for the purpose of shooting the victim. Because appellant possessed the gun solely
for the purpose of shooting . . . Richard, and there was no evidence
of an antecedent possession, the sentence for count two must be stayed.” Chavez contends that because he “had one
objective when he retrieved a firearm – to shoot at [Richard],” he cannot be
punished for both crimes.

But
the case law says otherwise. In >People v. Ratcliff (1990) 223 Cal.App.3d
1401, the defendant was involved in two armed robberies within a 90-minute
period. Because the evidence showed he
already had the gun in his possession when he arrived at the scene of the
first robbery, the Court of Appeal concluded:
“A justifiable inference from this evidence is that defendant’s
possession of the weapon was not merely simultaneous with the robberies,
but continued before, during and after those crimes. Section 654 therefore does not prohibit
separate punishments. [Citation.]” (Id.
at p. 1413.) “Commission of a crime
under [former] section 12021 is complete once the intent to possess is
perfected by possession. What the
ex-felon does with the weapon later is another separate and distinct
transaction undertaken with an additional intent which necessarily is something
more than the mere intent to possess the proscribed weapon. [Citations.]”
(Id. at p. 1414.)

We
reached the same conclusion in People v.
Jones, supra, 103 Cal.App.4th 1139, where the defendant carried out a
drive-by shooting. “Jones committed two
separate acts: arming himself with a
firearm, and shooting at an inhabited dwelling.
Jones necessarily had the firearm in his possession before he shot at
[the victim’s] house, when he and his companion came to the house 15 minutes
before the shooting, or, at the very least, when they began driving toward the
house the second time. It was therefore
a reasonable inference that Jones’s possession of the firearm was antecedent to
the primary crime. . . .
[¶] The evidence likewise
supported an inference that Jones harbored separate intents in the two crimes. Jones necessarily intended to possess the
firearm when he first obtained it, which, as we have discussed, necessarily
occurred antecedent to the shooting.
That he used the gun to shoot at [the victim’s] house required a second
intent in addition to his original
goal of possessing the weapon. Jones’s
use of the weapon after completion of his first crime of possession of the
firearm thus comprised a ‘separate and distinct transaction undertaken with an
additional intent which necessarily is something more than the mere intent to
possess the proscribed weapon.’
[Citation.] That Jones did not
possess the weapon for a lengthy period before commission of the primary crime
is not determinative. [Citations.]” (Id.
at pp. 1147-1148.)

As the Attorney General points
out, there is no dispute here that Chavez arrived at the shooting scene already
in possession of a gun. Although the
evidence did not disclose where or when Chavez acquired the gun, all the
witnesses testified he had it in his possession when he came walking up the
street before shooting Richard. Chavez
does not dispute the obvious inference he had armed himself prior to returning
to the scene of his fight with Richard.

Alternatively,
Chavez argues count 2 must be stayed because he was also sentenced for a
firearm enhancement under section 12022.53 in connection with
count 1, citing our Supreme Court’s recent decision in >People v. Ahmed (2011) 53 Cal.4th
156. But in Ahmed the question was the relevance, if any, of section 654
to a situation in which the jury convicted the defendant of one crime (assault
with a firearm) and found true two sentence enhancement allegations in
connection with that crime (firearm use and the commission of great bodily
injury). The holding in >Ahmed simply has no application to
Chavez’s situation,href="#_ftn7" name="_ftnref7"
title="">[7]
because here he is attacking the sentence on a crime, not an enhancement.

>DISPOSITION

The judgment is
affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS









KLEIN,
P. J.





We concur:







KITCHING,
J.









ALDRICH,
J.