P. v. Estrada

Filed 4/30/08 P. v. Estrada 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Richard Todd Fields, Judge. Affirmed.

Alisa A. Shorago, 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, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Garret Beaumont, Deputy Attorney General for Plaintiff and Respondent.

I. INTRODUCTION

In an information filed in Riverside County Superior Court, defendant was charged with three felony counts: count 1, murder of Jaime Bermudez (Pen. Code,  187, subd. (a)),^[1]count 2, attempted murder of Lorenzo Luna ( 187, subd. (a), 664), and count 3, assault with a semiautomatic firearm on Jaime Moreno ( 245, subd. (b)). Firearm enhancements attended all charges: discharge causing death ( 12022.53, subd. (d)) attended the murder charge, discharge of a firearm ( 12022.53, subd. (c)) attended the attempted murder charge, and use of a firearm ( 12022.5, subd. (a)) attended the charge of assault with a firearm. A jury found defendant guilty as charged in counts 1, 2, and 3, and found that the murder and attempted murder were willful, premeditated, and deliberate. The jury also found each of the firearm enhancement allegations true. Defendant was sentenced to an aggregate term of 70 years to life^[2]and appeals.

Defendant contends that insufficient evidence supports the jurys findings that the murder and attempted murder were willful, deliberate, and premeditated. He further contends his trial counsel rendered ineffective assistance in failing to object to portions of the prosecutions closing argument. We reject these contentions and affirm the judgment.

II. FACTS AND PROCEDURAL HISTORY

A. Prosecution Evidence

On the evening of April 19, 1999, Jaime Bermudez, his cousin Martin Servin, and his two friends Jaime Moreno and Lorenzo Luna left a group gathering and headed home in Servins pickup truck. As Servin and the three male passengers were heading down Dodd Street in Mira Loma, they heard a bottle crash against their truck.

Servin made a U-turn, drove back, and parked near the house at 5105 Dodd

Street, which was the house they were passing when they heard the bottle crash against their truck. Four people were standing in front of the house: defendant, defendants girlfriend Linda Vasquez, defendants friend Andres Salitre, and Salitres girlfriend Andrea Perez. The house belonged to Dana Reed, a friend of defendant.

Bermudez, Luna, and Moreno got out of the truck while Servin stayed inside. Moreno got out first, then Luna, then Bermudez. Bermudez, who was not wearing a shirt, walked slowly up the driveway to ask the four people in front of the house why they threw a bottle at the truck. Luna, who had begun to urinate by the side of the truck, decided to follow Bermudez, fearing something would happen. Luna walked up the driveway until he was about two feet behind Bermudez. At that point, Luna saw defendant pull out a nine-millimeter handgun and shoot Bermudez. Bermudez was shot in the abdomen and died as a result of the gunshot wound.

After Bermudez fell to the ground, defendant shot Luna in the hip area as Luna attempted to flee. Luna fell to the ground. Defendant then fired at Moreno, who had begun to make his way toward the driveway, but missed. Defendant then chased Moreno into the street. Servin, who had gotten out of the truck and was standing by the rear of the truck, got back into the truck and began to drive off. Servin stopped when he saw Moreno running toward the truck and drove in reverse to let Moreno jump into the bed of the truck. Servin then sped off. Servin and Moreno returned to the crime scene to check on Luna and Bermudez when they heard police sirens.

At the crime scene, police discovered three spent nine-millimeter shell casings. One shell casing was found a few feet west of where Bermudez was lying on the driveway, the second was found on the grass a couple of feet south of the first shell casing, and the third was found at the entry to the driveway, on or near the street. All three of the recovered shell casings were fired from the same gun. Police also found pieces of glass from a broken Corona beer bottle in the middle of the street in front of the house. An empty Corona beer bottle and an empty Corona six-pack carton were found inside the house in the kitchen.

Bermudezs autopsy revealed he had a .09 percent blood alcohol level. Marijuana and amphetamines were also detected in his blood. A forensic pathologist testified that no gunpowder or stippling was found around Bermudezs wound, indicating he had been shot from a distance of more than two feet. Stippling is the presence of soot or carbon debris around or embedded in a gunshot wound. Bermudez had no cuts, scrapes, abrasions, or other marks on his hands.

Defendant was on the run for more than five years, until July 30, 2004, when he was arrested following a traffic stop of a car driven by his sister. Defendant was a passenger in the car and falsely identified himself to police as Ernesto Romandia. In the trunk of the car, police found a black zippered bag containing paperwork in defendants name. Police arrested defendant on an outstanding warrant for Bermudezs murder.

B. Defense Evidence

Defendant testified on his own behalf. He was 20 years old at the time of the shootings and had been living at Reeds house for several months. He had been drinking outside Reeds house with his girlfriend Linda Vasquez, his good friend Andres Salitre, and Salitres girlfriend Andrea Perez. He admitted he threw a beer bottle, but said he meant to throw it into the yard and it accidentally went over the fence and onto the street. Seconds later, the truck passed by and ran over the bottle.

At that point, defendant knew there was going to be trouble. The men in the pickup truck backed up and parked in front of the house. Two of the men angrily approached defendant and his friends, with their fists clenched. The first man, Bermudez, approached defendant and asked, Who the fuck threw a bottle at the truck? In response, defendant said no one threw a bottle at the truck, he did not want any problems, and he asked the men to leave. At that point, Bermudez ran up to defendant and hit him in the mouth, and defendant stumbled backwards.

Defendant began fighting back. At the same time, he saw his friend Salitre on the ground and saw two other men, who had stayed behind, begin running up the driveway. He took the gun from his waistband and shot Bermudez, then Luna. Everything happened in a matter of seconds. He then chased Moreno out into the street because he felt he was in danger and needed to protect himself, the girls, and his friend Salitre.

Defendant explained that he had the loaded gun in his waistband that evening because he had some enemies. He only remembered shooting twice, but admitted he might have shot three times since three bullet casings were found at the scene. He also admitted he never called the police and was on the run in Mexico for several years before he was arrested.

III. DISCUSSION

A. Substantial Evidence Supports the Jurys Findings That the Murder and Attempted Murder Were Willful, Premeditated, and Deliberate

Defendant first contends that insufficient evidence supports the jurys findings that the murder of Bermudez and the attempted murder of Luna were willful, premeditated, and deliberate. We conclude that sufficient evidence supports these findings.

The applicable standard of review is well established. When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We must presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Thomas (1992) 2 Cal.4th 489, 514.) Reversal is warranted only where it clearly appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.) The same standard of review applies when a conviction rests on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)

1. The Applicable Law

A murder that is willful, premeditated and deliberate is murder of the first degree ( 189) and is punishable, at minimum, by imprisonment in the state prison for 25 years to life ( 190, subd. (a)). Attempted murder is not divided into degrees (People v. Smith (2005) 37 Cal.4th 733, 740), but an attempted murder that is willful, premeditated, and deliberate is punishable by an indeterminate term of life in prison ( 664).

As applied to murder and attempted murder, premeditated 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. (People v. Mayfield (1997) 14 Cal.4th 668, 767.) A murder or attempted murder is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. (People v. Stitely (2005) 35 Cal.4th 514, 543.)

Premeditation and deliberation do not require an extended period of time, merely an opportunity for reflection. (People v. Cook (2006) 39 Cal.4th 566, 603.) 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 . . . . (People v. Thomas (1945) 25 Cal.2d 880, 900; accord, People v. Stitely, supra, 35 Cal.4th at p. 543.)

In People v.Anderson (1968) 70 Cal.2d 15 (Anderson), the state Supreme Court surveyed a number of prior cases involving the sufficiency of the evidence to support findings of premeditation and deliberation. (People v. Perez, supra, 2 Cal.4th at p. 1125.) From the cases surveyed, the court identified types or categories of evidence pertinent to the determination of premeditation and deliberation: (1) planning activity, (2) motive, and (3) manner of killing. (Ibid.) The Anderson court concluded that courts typically sustain premeditation and deliberation findings when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3). (Perez, supra, at p. 1125, quoting Anderson, supra, at p. 27.)

Stated another way, courts have found sufficient evidence of premeditation and deliberation when (1) there is evidence of planning, motive, and a method of killing that tends to establish a preconceived design; (2) extremely strong evidence of planning; or (3) evidence of motive in conjunction with either planning or a method of killing that indicates a preconceived design to kill. (People v. Tafoya (2007) 42 Cal.4th 147, 172.) These are not the exclusive means of establishing premeditation and deliberation, however. (Ibid.) The goal of Anderson was not to establish bright-line rules, but to aid reviewing courts in assessing whether the evidence supports an inference that the killing was the result of a pre-existing reflection and careful thought and weighing of considerations rather than mere unconsidered or rash impulse hastily executed. (Anderson, supra, 70 Cal.2d at p. 27.)

Thus, an execution-style killing may be committed with such calculation that the manner of killing will support a jury finding of premeditation and deliberation, despite little or no evidence of planning and motive. (People v. Tafoya, supra, 42 Cal.4th at p. 172, quoting People v. Lenart (2004) 32 Cal.4th 1107, 1127.) Indeed, the three categories of evidenceplanning activity, motive, and manner of killingneed not be present in any particular combination to find substantial evidence of premeditation and deliberation. (People v. Stitely, supra, 35 Cal.4th at p. 543.) Still, when all three categories of evidence are present, the finding of premeditation and deliberation will generally be sustained. (Ibid.)

2. Analysis

(a) Murder of Jaime Bermudez

Defendant first argues there is insufficient evidence to support the jurys finding that the murder of Bermudez was premeditated and deliberate. Relying on Anderson, defendant claims there is no evidence of planning or motive, and little indication of design by the manner of [the shooting].

We disagree with defendants characterization of the evidence. All three elements of the Anderson testplanning activity, motive, and manner of killingare present. Moreover, the evidence as a whole indicates that defendant shot and killed Bermudez as a result of a pre-existing reflection and careful thought and weighing of considerations rather than a mere unconsidered or rash impulse hastily executed. (Anderson, supra, 70 Cal.2d at p. 27.)

First, there is strong evidence of planning. Defendant placed a loaded gun in his waistband before he went outside, threw a bottle at the passing truck, and got into the altercation with the men in the truck. As the prosecutor argued, the evidence showed that defendant was the king of the hill that day; he was the man in the neighborhood. This was his neighborhood, this was a house that he was hanging out at. He knew Dana Reed; these were his girls; his girlfriend; his buddies. And he wasnt going to let anybody question his authority or call him out. Indeed, the jury could have inferred that defendant was planning to use his loaded gun on anyone who confronted him or, as the prosecutor put it, call[ed] him out in front of Reeds house. The jury could have also inferred that defendant threw the bottle at the truck, knowing he would use his loaded gun if anyone in the truck confronted him about the bottle.

In People v. Wharton (1991) 53 Cal.3d 522, 547, the defendant claimed he had killed the victim with a hammer in a spontaneous and uncontrolled explosion of anger, frustration, and rage. The court found, however, that the defendants act of removing the hammer from its toolbox before the murder and placing it near the scene of the murder indicated he was planning to be in a rage. (Ibid.) Here, too, defendants acts of placing the loaded gun in his waistband before the altercation and throwing the bottle at the truck, indicates he was planning to use the gun on anyone who confronted him about the bottle. The evidence also indicates that defendant was angry about being confronted and therefore had a motive to kill Bermudez.

Finally, the manner of the killingshooting Bermudez in the abdomentogether with the circumstances surrounding the killing indicate that defendant intentionally killed Bermudez with premeditation and deliberation. Bermudez was not wearing a shirt and was obviously not armed with a firearm. In addition, there were no marks on Bermudezs hands, belying defendants claim that he shot Bermudez in self-defense after Bermudez punched him in the face more than once. The jury could have inferred that, rather than shooting Bermudez in self-defense, defendant had an opportunity to use the gun to merely threaten or scare off Bermudez but instead choseas a result of preexisting reflection and weighing of considerationsto shoot him in the abdomen and kill him.

(b) Attempted Murder of Lorenzo Luna

Defendant also argues there is insufficient evidence to support the jurys finding that the attempted murder of Lorenzo Luna was premeditated and deliberate. He acknowledges that there is more evidence of premeditation and deliberation in connection with the shooting of Luna than with that of Bermudez, given that he shot Luna after he shot Bermudez. Nonetheless, he claims that because the shooting of Luna occurred immediately after the shooting of Bermudez, there was insufficient time for planning or reflection. Defendant also points out that the confrontation was still in progress.

We find this argument without merit. As noted, premeditation and deliberation do not require an extended period of time for reflection, but merely an opportunity for reflection. (People v. Cook, supra, 39 Cal.4th at p. 603.) And as discussed, the evidence showed that defendant was planning to shoot and kill anyone who confronted him in front of Reeds house. The evidence of planning applies with equal force to the shooting of Luna as it does to Bermudez.

Furthermore, the jury could have reasonably inferred that the time between the shooting of Bermudez and Luna was sufficient for defendant to carefully weigh the considerations for and against killing Luna, and that defendant acted with preexisting reflection when he attempted to kill Luna. Indeed, the jury could have inferred that defendant made a cold, calculated decision to kill Luna in those short moments after he shot Bermudez, because Bermudez was already on the ground, and Luna was unarmed and attempting to flee when he was shot.

B. Defendants Claims of Ineffective Assistance of Counsel Are Without Merit

Defendant contends his trial counsel rendered ineffective assistance because he failed to object to several portions of the prosecutors closing argument. For the reasons set forth below, we conclude that defendant has failed to establish that defense counsel rendered ineffective assistance.

1. The Applicable Law

In order to establish a claim of ineffective assistance of counsel, a defendant bears the burden of demonstrating, first, that counsels performance was deficient because it fell below an objective standard of reasonableness . . . . [] . . . under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 688 [104 S.Ct. 2052, 80 L.Ed.2d 674.) Unless a defendant establishes the contrary, we presume that counsels performance fell within the wide range of professional competence and that counsels actions and inactions can be explained as a matter of sound trial strategy. (People v. Carter (2003) 30 Cal.4th 1166, 1211.) If the record sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . . (People v. Pope (1979) 23 Cal.3d 412, 426.) If the defendant meets the burden of establishing that counsels performance was deficient, he or she also must show that counsels deficiencies resulted in prejudice, that is, that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington, supra, at p. 694.)

A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such unfairness as to make the resulting conviction a denial of due process. (Donnelly v. DeChristoforo (1974)416 U.S. 637, 643 [94 S.Ct. 1868, 40 L.Ed.2d 431].) Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial. (People v. Cook, supra, 39 Cal.4th at p. 606.)

2. Analysis

As noted, defendant contends his trial counsel was ineffective because he failed to object to several portions of the prosecutors closing argument. The three allegedly objectionable arguments made by the prosecutor will be discussed in turn.

(a) The Prosecutors Statements Regarding Voluntary Manslaughter

Defendant first claims that the prosecutor misstated the law regarding voluntary manslaughter when he argued, And the provocation would have had to have caused a reasonable person, a person of average disposition, to do the same thing . . . its what a reasonable person in that situation would have done. [] . . . [W]ould a reasonable person in that situation fire a gun at two unarmed men? [] No.

This was not a misstatement of the law. Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 570 told the jury: The defendant killed someone because of a sudden quarrel or in the heat of passion if: [] 1. The defendant was provoked; [] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; [] AND [] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.

Here, the prosecutor stated the correct standard of voluntary manslaughter. Heat of passion requires that a person of average disposition be reasonably provoked to react the way the way he or she did. (People v. Manriquez (2005) 37 Cal.4th 547, 585-586.) The prosecutors argument was not that defendants conduct must have been reasonable; rather, he argued that a reasonable person would not have reacted the way defendant did and shoot two unarmed men. This correctly explained the heat of passion element of voluntary manslaughter to the jury. And because the prosecutor correctly stated the law, defendants trial counsel had no grounds to object.

(b) Prosecutors Statements Regarding Premeditation and Deliberation

Defendant next argues that the prosecutors explanation of the premeditation and deliberation element of first degree murder trivialized and misstated the prosecutions burden of proving premeditation and deliberation beyond a reasonable doubt. The prosecutor argued by analogy that a person who sees a light turn yellow at an intersection and tries to beat the light by speeding through it, has premeditated. He also argued that premeditation requires a person to decide beforehand, and this can happen quickly, and that deliberation means youre consciously weighing the decisions for and against the act; should I do it? Should I not do it? Again, we see no error with this argument. The prosecutor did not suggest to the jury that the People did not have to prove premeditation and deliberation beyond a reasonable doubt. The prosecutors argument was merely an attempt to explain to the jury how the elements of premeditation and deliberation related to a real life setting.

Defendant also claims the prosecutors argument essentially reads out the word[] careful in front of deliberation. Defendant, however, does not consider the prosecutors argument as a whole, but rather picks out a portion of the argument and claims it is error because the prosecutor did not include the word careful when he argued, Youve thought about it beforehand, youve decided what the consequences would be going through the light or not going through the light.

This was only part of the prosecutors discussion regarding premeditation and deliberation. As noted, the prosecutor began his argument by correctly explaining to the jury that premeditation simply means that youve decided beforehand, and [d]eliberation means youre consciously weighing the decisions for and against the act; should I do it? Should I not do it? In light of the prosecutors entire argument, the prosecutor did not misstate the requirements of premeditation and deliberation. Because this portion of the prosecutors argument was not objectionable, defendants counsel did not err in failing to object.

(c) Disparagement of Defense Counsel

Defendants third and final argument is that the prosecutors repeated denigration of the defense generally, as opposed to the defense witnesses, had a prejudicial effect on the jury. He claims the prosecutor improperly attacked defense counsel by suggesting he was a liar, and made unsupported claims that defense counsel had fabricated a defense. He also claims it is likely that the jury interpreted the prosecutors comments as criticizing defense counsel and that the comments caused the jury to disregard defense counsels arguments because they perceived defense counsel as a liar.

Again, the record does not bear the weight of this argument. Every portion of the prosecutors argument that defendant cites refers to defense witnesses or to the defense in general, not to defense counsel: Thats a hoax thats created by the Defense.[] . . . [] . . . you get three witnesses coming in here telling you that this guy got hit and they dont even tell you how he got hit? [] Its contrived, completely contrived. (Italics added.) [Y]ouve heard a lot of Defense witnesses coming in here and insulting your intelligence . . . . (Italics added.)

A prosecutor may vigorously argue his case . . . and he may use appropriate epithets . . . . (People v. Stanley (2006) 39 Cal.4th 913, 952.) Thus, a prosecutor may disparage defense evidence and witnesses as unbelievable or incredible. (See, e.g., People v. Marquez (1992) 1 Cal.4th 553, 575-576.) But a prosecutor may not disparage defense counsel personally, because that directs the jurys attention away from the evidence, and a defendants conviction should be based on the evidence and not on the purported improprieties of his counsel. (People v. Frye (1998) 18 Cal.4th 894, 978.)

In People v. Stanley, supra, 39 Cal.4th at page 952, the state Supreme Court found no misconduct when a prosecutor told the jury that defense counsel imagined things that go beyond the evidence and told them a bald-faced lie. The court reasoned that the prosecutors remarks were merely responsive to defense counsels own arguments to the jury on the state of the evidence and that his remarks, although intemperate in tone, did little more than urge the jury not to be influenced by counsels arguments, and to instead focus on the testimony and evidence in the case. (Ibid.)

Here, every argument made by the prosecutor referred to defense witnesses or the defense in general. The prosecutor never called defendants counsel a liar. Rather, he responded to the defense theory of self-defense by arguing that it was contrived because the evidence did not support it. The prosecutor urged the jury to reject the defenses claim of self-defense as contrived because it was unreasonable based on the evidence, not because defendants counsel had made it up. This was proper argument. None of the prosecutors comments were directed specifically at defendants counsel. Indeed, the prosecutor at one point described defendants counsel as a fine attorney.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Richli

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Defendant was sentenced to 25 years to life on count 1, plus a consecutive 25-year-to-life term for the discharge enhancement on count 1. On count 2, he was sentenced to an indeterminate life term, plus a consecutive 20-year-to-life term for the discharge enhancement on count 2. Concurrent terms were imposed on count 3 and the personal use enhancement on count 3.