P. v. Fernandez
Filed 1/2/13 P.
v. Fernandez CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS ENRIQUE
FERNANDEZ,
Defendant and Appellant.
B235878
(Los Angeles County
Super. Ct. No.
NA086013)
APPEAL
from a judgment of the Superior Court of
county. Arthur Jean, Jr.,
Judge. Affirmed.
Thomas
T. Ono, 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, Mary Sanchez and Louis
W. Karlin, Deputy Attorneys General, for Plaintiff and Respondent.
________________________
Luis
Enrique Fernandez appeals from the judgment entered upon his convictions by
jury of first-degree murder (Pen.
Code, § 187, subd. (a), count 1)
robbery (§ 211, count 2). As to the
murder charge, the jury found to be true the special circumstance allegation
that it was committed in the course of committing an attempted robbery (§
190.2, subd. (a)(17)). The jury also
found to be true as to both counts the allegation that the offense was
committed for the benefit of, at the direction of, or in association with a
(b)(1)(C)) and the allegation that appellant personally and intentionally
discharged a firearm causing great bodily injury and death (§ 12022.53, subd.
(d)). The trial court sentenced
appellant on the murder charge to a life term without the possibility of parole
and on the robbery charge to the high term of five years, doubled as a second
strike, plus 25 years to life for the firearm enhancement.
Appellant contends
that (1) there was insufficient evidence to support the felony-murder
conviction and robbery special circumstance, (2) the trial court erred in
refusing to give the requested voluntary intoxication instruction, thereby
lightening the prosecution’s burden of proof and violating appellant’s rights
to due process and trial by jury, and (3) imposition of the second-strike
sentence based on a juvenile adjudication violates his rights to
We
affirm.
FACTUAL BACKGROUND
shooting
On May 29, 2010,
near 11:00 p.m., appellant visited Loverette Moye (Moye), a long-time, close
friend, at her Long Beach residence. He
appeared sober when he arrived. Moye was
celebrating her deceased brother’s birthday.
Her friends Jimmy Mack (Mack), Lamar Cooks (Cooks) and Naomi Johnson,
and Jasmine, who was staying with Moye, were present. Several of the guests observed that appellant
had a black revolver in his waist band.
Each guest
chipped in so Moye and appellant could go to the store and purchase vodka,
which they all drank. Moye testified
that no one drank too much because “it was a lot of people. It was not like we was buying gallons. I wasn’t like drunk drunk.†She testified that she was feeling “buzzed,â€
but not drunk. As the night wore on,
appellant seemed to her to be buzzed.
Appellant said he needed to get money to buy cigarettes, as he did not
have enough to buy a pack, and the store that sold single cigarette for 50
cents was closed.
The partyers
continued drinking until 4:00 a.m., when Moye went outside for fresh air. Appellant was already outside. A young man, later identified as Ryan Helm
(Helm), was skateboarding down the street.
Appellant stopped him, pushed him and tried to pull something out of
Helm’s pockets. Helm resisted, trying to
defend himself. The two men began to
punch each other. Appellant grabbed for
his revolver, but Helm, who was pushing appellant away, slapped the gun out of
his hand and onto the ground, as the two men continued fighting. Helm was getting the best of the fight.
Moye ran inside
to get Cooks to break up the fight.
Cooks came outside, and saw appellant pointing his gun at Helm and
stepped between them to separate them.
appellant was robbing the man. Cooks saw
Helm with a knife in his hand after the gun was pointed at him. At some point after the combatants separated,
Helm put his hands in the air and said, “For real, homie, are you serious†or
“Come on man.†Appellant said either,
“Insane Crip,†“on Insane Crip,â€
Crip,†as he ran to pick up the revolver.
He then chased Helm with the revolver as Helm was walking away, trying
to gather his belongings, and fired three or four shots at Helm. After shooting Helm, appellant ran back to
Moye’s house, but no one would allow him in.
investigation
Officer
Daisy Ortiz arrived at the murder scene with her partner at 4:14 a.m. Helm was being treated by emergency
personnel. He had been shot twice; once
in the arm and a fatal shot though his back.
On the ground nearby, there was a trail of blood and numerous items,
including Helm’s business cards, an identification card and a folding knife
with the blade open.
On June 9, 2010,
Detective Scott Lasch conducted a recorded interview with Mack. Mack told the detective that appellant
complained at the party that he had no money and said, “[W]e should just go hit
the lick or something,†meaning commit a robbery. He also reported that, in the early morning,
Mack heard three or four gunshots outside.
He ran outside and saw appellant running with the gun in his hand. At trial, however, Mack denied seeing
appellant with a gun, although he admitted hearing shots fired.
On June 11,
2010, Moye gave a recorded statement to police.
She denied that the police threatened to take away her children if she
did not talk to them and denied telling others that the police had done
so. She identified appellant in a
photographic six-pack and wrote, “I seen Luis fighting the victim and I seen
them. And I seen him pick up the gun and
shoot the victim.â€
Approximately a
week after the shooting, Detective Lasch spoke with Cooks and showed him a
six-pack that included a photograph of appellant. Cooks also identified appellant in the
six-pack as the person who shot Helm.
evidence
Officer Sean Magee testified as a gang expert that the Insane Crips
were a dominant Long Beach gang. Its
primary activities were committing street robberies, assaults with deadly
weapons, murders, and narcotics crimes.
Officer Magee opined that appellant was a member of that gang based
upon, among other things, appellant’s admissions. The officer testified to two predicate
offenses.
In
response to a hypothetical based on the evidence, Officer Magee opined that the
crime was committed for the benefit of, at the direction of, or in association
with a criminal street gang. By claiming
the name of the gang during the crime, appellant vindicated his reputation as a
member of the Insane Crips and demonstrated that resisting gang crimes would
lead to deadly consequences.
Appellant
testified and called witnesses to establish an alibi defense. The mother of his best friend testified that
her son worked with appellant, and they were working the weekend of the
shooting. Moye told the mother that Moye
had given a false story to the police because they threatened to take Moye’s
children. Moye told her that appellant was
not at the scene of the shooting.
Appellant testified that he did not visit Moye on the weekend of May 29,
2010, but worked in Costa Mesa that weekend.
He was subject to a gang injunction that required him to be home by
10:00 p.m., with which he complied that weekend.
DISCUSSION
I. Sufficiency of the evidence
A. Background
The prosecution
premised its first degree murder case
against appellant on two theories.
First, it asserted that it was a premeditated and deliberate
murder. Alternatively, it asserted that
appellant was guilty of felony murder.
Appellant
contends that there is insufficient evidence to support his felony-murder
conviction and the robbery special-circumstance allegation.
and the robbery were not part of a continuous transaction because the attempted
robbery was completed before the murder, “which rendered the attempted robbery
merely incidental to the subsequent homicide.â€
“[W]hen . . . Cooks successfully intervened between
appellant and . . . Helm, the attempted robbery was
completed. Appellant never renewed his
direct but ineffectual attempts to remove property from Helm’s pockets.†Further, appellant argues that the gang
expert’s testimony that obtaining respect for his gang membership was the
motive for the murder provided an independent intent for the murder apart from
the robbery. This contention is
meritless.
C. Standard of review
“In assessing
the sufficiency of the evidence, we review the entire record in the light most
favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citations.]â€
(People v. Bolin (1998) 18
Cal.4th 297, 331.) We resolve all
conflicts in the evidence and questions of credibility in favor of the verdict,
and indulge every reasonable inference the jury could draw from the
evidence. (People v. Autry (1995) 37 Cal.App.4th 351,
358.) Reversal on this ground is
unwarranted unless ‘“upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’†(People v. Bolin, supra, at
p. 331.) This standard of review is
the same in cases involving circumstantial evidence. (People
v. Stanley (1995) 10 Cal.4th 764, 792.)
felony-murder and special circumstance
In California,
felony murder is established by statute.
(People v. Young (2005) 34
Cal.4th 1149, 1175; § 189.) Section 189
provides: “All
murder . . . which is committed in the perpetration of, or
attempt to
perpetrate, . . . robbery, . . . is
murder of the first degree.†By virtue
of this statute a killing in the commission of, or attempted commission of, a
robbery is deemed to be first degree robbery.
(People v. Young, supra, at p.
1175.) The only mental state required is
to commit the underlying felony. (
197.)
The robbery
special circumstance, which makes a defendant subject to the death penalty or
life imprisonment without the possibility of parole, similarly provides: “The murder was committed while the defendant
was engaged in, . . . the commission of, [or] attempted
commission of, or the immediate flight after committing, or attempting to
commit . . . [¶ . . . (A)
Robbery.†(§ 190.2, subd.
(a)(17)(A).) A robbery that is merely
incidental to the murder is insufficient for the special circumstance
allegation. (People v. Lewis (2008) 43 Cal.4th 415, 464.) The perpetrator must have an independent
felonious purpose to commit the robbery.
E. Elements of robbery and the escape rule
Robbery is the “‘felonious taking of
personal property in the possession of another, from his person or immediate
presence, and against his will, accomplished by means of force or fear.’†(People
v. Tafoya (2007) 42 Cal.4th 147, 170.)
A killing committed in the perpetration of robbery is first degree
murder. (People v. Cavitt, supra, 33 Cal.4th at p. 197; § 189.)
Attempted robbery requires only an intent
to commit a robbery and a direct but ineffectual act done toward its
commission. (People v. Medina (2007) 41 Cal.4th 685, 694.) Appellant does not question the sufficiency
of the evidence of his intent to commit robbery or his ineffectual acts done
towards its commission. Rather, he
claims that the attempted robbery was completed before Helm’s murder. Consequently, he argues, the felony-murder
rule is inapplicable because the murder was not committed in the attempt to
perpetrate robbery, and the robbery special circumstance is inapplicable
because the murder was not committed while the defendant attempted commission
of robbery. We disagree.
The first degree felony-murder rule does
not require proof of a strict causal relationship between the felony and the
homicide if the killing and the felony are parts of a continuous
transaction. (People v. Whitehorn (1963) 60 Cal.2d 256, 264; People v. Mason (1960) 54 Cal.2d 164, 168–169; People v. Young, supra, 34 Cal.4th at p. 1175.) In dictum, our
Supreme Court stated in People v. Wilson (2008)
43 Cal.4th 1, 17: For purposes of the
felony murder rule, “‘[a] robbery is not complete until
the perpetrator reaches a place of temporary safety which is not the scene of the robbery.’†(Italics added; see also People v. Young, supra, at p. 1177 [a robbery for purposes of the
felony-murder rule is not complete until the perpetrator reaches a place of
temporary safety].) The place of
temporary safety rule is also applicable to assessing whether the murder was
committed in the attempted commission of a robbery for purposes of the robbery
special circumstance. (
984, 1025; § 190.2, subd. (a)(17)(A).)
The jury here was so instructed with CALJIC No. 8.21.1. Whether a defendant has reached a place of
temporary safety is a question of fact for the jury. (People
v. Johnson (1992) 5 Cal.App.4th 552, 559.)
part of continuous transaction
The evidence here amply supports the
conclusion that the attempted robbery and murder were interrelated and that the
murder occurred in the course of the attempted robbery and before appellant
reached a place of temporary safety.
Some of the guests saw that appellant had a revolver before he went
outside. There was evidence that
appellant intended to commit a robbery because he needed money to purchase
cigarettes. Mack told police that
appellant complained of a lack of money and suggested that they “hit the lick,â€
meaning commit a robbery. Moye observed
appellant attempting to rob Helm.
Appellant pushed Helm, attempting to remove something from Helm’s
pockets, and pointed his gun at Helm.
But Helm did not submit to
appellant. He pushed him away and
knocked the gun out of appellant’s hand.
They then began fist fighting until Cooks intervened. Helm then went to pick up items that had
apparently fallen from his pocket, and appellant ran to retrieve his gun. He then chased Helm, firing multiple shots,
hitting Helm in the back, as appellant yelled reference to the Insane
Crips.
Thus, the attempted robbery and the
murder occurred, if not concurrently, only a matter of seconds apart. It was a natural and totally foreseeable
consequence of the robbery attempt that Helm might resist, causing the robbery
to escalate into appellant’s use of his revolver. Contrary to appellant’s claim that the
attempted robbery ended when Cooks intervened, in fact, the fight merely
escalated as appellant immediately went for his gun to continue his
assault. Thus, the virtually concurrent
robbery attempt and murder justify application of the felony-murder rule and
the special circumstance allegation.
Furthermore, appellant had clearly not
yet reached a place of temporary safety.
He was still at the scene of the robbery, which cannot be a place of
temporary safety. (
That is the place where the victim was still located, witnesses who
could identify him were present, the police were certainly likely to soon
arrive, and the danger of citizen or police intervention was highest.
Appellant argues that the asportation
requirement is inapplicable because the robbery was unsuccessful and there was
no loot to carry away. It was therefore
only an attempted robbery. We
disagree. In People v. Keith (1975) 52 Cal.App.3d 947, the defendant made a
similar argument. He claimed that
although a robbery is not complete while the robber only has scrambling
possession of the loot and has not reached a place of temporary safety, that
principal does not apply to unsuccessful robberies that do not result in the
taking of any loot. (
stating: “While no case has been found
applying the Salas
precise facts of this case, we have no doubt that it does. Robbery ‘is but larceny aggravated by the use
of force or fear to accomplish the taking of property from the person or
presence of the possessor . . .’
[Citation.] It requires no
extended discussion to show that the element in a robbery which justifies the
application of strict criminal liability concept incorporated in the
felony-murder doctrine is the use of force or fear rather than the taking of
property. [Citations.]†(People
v. Keith, supra, at p. 953.)
Appellant also argues against application
of the place of temporary safety rule because there was no flight or hot
pursuit. There was therefore an absence
of danger that the use of force or fear in the commission of the robbery would
continue. We are unpersuaded. This argument ignores the fact that though appellant
was not immediately fleeing the scene, there was no way to predict how
appellant would respond to the arrival of the police. The risk of further danger is inherent when
an armed suspect remains at the scene of the murder when law enforcement arrives.
Finally,
appellant argues that the place of temporary safety rule for felony-murder and
the robbery special circumstance is not applicable because Helm’s killing was
not committed for the purpose of carrying out or advancing the commission of
the attempted robbery, to facilitate the escape or to avoid detection. He points to the evidence that he yelled a
reference to his gang as he fired at Helm, and the gang expert’s testimony that
he shot Helm to vindicate his and his gang’s reputation. We reject this argument. “The jury did not have to find that defendant
killed [the victim] for the purpose of robbery:
‘The prosecution only needed to prove that the victim was killed during
the course of a robbery—accidentally or otherwise.’†(People
v. Wilson, supra, 43 Cal.4th at p. 17.)
Moreover, the fact that appellant may have killed Helm for the purpose
of vindicating his gang reputation did not preclude a concurrent intent to kill
him related to appellant’s efforts to rob him.
As stated in People v. Brents (2012)
53 Cal.4th 599, 609: “We have, however,
found sufficient evidence to support this special circumstance so long as there
was a concurrent purpose to commit both the murder and one of the listed
felonies.â€
II. Instructional error
Appellant
requested a jury instruction on voluntary intoxication.
requested such an instruction in accordance with a modified version of CALCRIM
No. 4.21. CALCRIM No. 4.21, as modified
for this case, states: “In the crimes of
murder and attempted robbery of which the defendant is accused in Counts one
and two, a necessary element is the existence in the mind of the defendant of
the specific intent defined in the instructions for each those crimes. [¶] If
the evidence shows that the defendant was intoxicated at the time of the
alleged crime, you should consider that fact in deciding whether defendant had
the required specific intent. [¶] If from all the evidence you have a
reasonable doubt whether the defendant formed that specific intent, you must
find that he did not have such specific intent.†(CALJIC No. 4.21.)
In response to
the request for the instruction, the trial court stated: “I think it becomes utterly speculative for a
jury to talk about the state of intoxication.
We have no evidence from the defendant that he was intoxicated. I think at least one person said that he was
either buzzed or drunk. What does that
mean in terms of his ability to function?
That simple statement I don’t think is enough to base an intoxication
instruction unless you [prosecutor] think so.â€
The prosecutor said he did not think the instruction was appropriate and
submitted. The trial court then denied
appellant’s request.
B. Contention
Appellant
contends that the trial court erred in refusing to instruct the jury on
voluntary intoxication, thereby lightening the prosecution’s burden of proof
and denying him his rights to a jury trial and due process. He argues that because there was evidence
that appellant drank alcohol for five hours and appeared buzzed or drunk, he
was entitled to a requested pinpoint instruction for the jury to decide if his
intoxication prevented him from forming the intent to kill. This contention is without merit.
C. The duty to instruct
“A criminal defendant
is entitled, on request, to instructions that pinpoint the theory of the
defense case.†(People v. Gutierrez (2002)
28 Cal.4th 1083, 1142.) A requested
instruction must be given on every material question “upon which there is any
evidence deserving of any consideration
whatever . . . . The fact that the evidence may
not be of a character to inspire belief does not authorize the refusal of an
instruction based thereon. . . .†(People v. Burns (1948) 88 Cal.App.2d
867, 871.) But, a defendant is entitled
to an intoxication instruction “only when there is substantial evidence of the
defendant’s voluntary intoxication and that the intoxication affected
the defendants ‘actual formation of the specific intent.’†(People v. Williams (1997) 16 Cal.4th
635, 677, italics added; see also People v. Horton (1995) 11 Cal.4th
1068, 1119.)
D. Voluntary intoxication
Section 22,
subdivision (b) provides that intoxication is admissible only on the issue of
whether the defendant actually formed a required specific intent, premeditated,
deliberated or harbored express malice aforethought when murder or a specific
intent crime is charged. However, simply
because appellant was drinking alcohol, does not compel the conclusion that he
was intoxicated.
The only
evidence on the subject of alcohol consumption here was that appellant drank
alcohol on the night of the offense and was buzzed. Moye testified that appellant arrived at her
home at approximately 11:00 p.m. and was sober.
She also testified that all of the guests chipped in to buy some
alcohol. When asked the quantity of
alcohol that was consumed at the party, she suggested that each person did not
drink that much, as she stated: “I mean
it was a lot of people. It was not like
we was buying gallons. I wasn’t like
drunk drunk.†She said she was merely
feeling “buzzed.†The only evidence
regarding appellant’s drinking was Moye’s testimony that he got “buzzed†and
emotional because it was the birthday of her deceased brother. There was no evidence (1) of what she meant
by “buzzed,†(2) of the quantity of alcohol appellant consumed, (3) that he was
intoxicated, (4) that intoxication affected his actual formation of the
specific intent to murder Helm, or (5) how appellant was acting that might have
reflected on whether or not he was intoxicated.
“The mere fact
that a defendant may have been drinking prior to the commission of a crime does
not establish intoxication . . . .†(People v. Miller (1962) 57 Cal.2d
821, 830–831.) Even if there is evidence
of intoxication, a jury could still have reasonably concluded that appellant
retained the capacity to intend to commit the crime. (See People v. Hernandez (1988) 47 Cal.3d 315,
346–347.)
Consequently, we
conclude that there was insufficient evidence to have required the trial court
to instruct on voluntary intoxication.
The evidence was nothing more than that appellant had been drinking
alcohol, which is simply not enough. We
also observe that intoxication was inconsistent with appellant’s theory of the
case. He presented an alibi defense that
he was not present at the party at all and did not shoot Helm. Hence, whether or not he was intoxicated was
irrelevant under appellant’s theory of the case and did not require an instruction.
III. Use of juvenile court adjudication as prior
felony strike
A. Background
Appellant was
sentenced on the murder conviction to life without the possibility of
parole. He was sentenced on the
attempted robbery conviction to the upper term of five years, doubled to 10
years as a second striker, based upon a 2007 juvenile adjudication for robbery.
Before the court
trial of the bifurcated prior conviction allegation, appellant objected to the
use of his prior juvenile court conviction to increase his sentence under the
three strikes law. The trial court
admitted the juvenile court adjudication over appellant’s objection and found
the second strike allegation true.
Appellant also objected to the use of the juvenile adjudication as a
prior strike in his sentencing memorandum.
B. Contention
Appellant
contends that imposing a second strike sentence based upon a prior juvenile
court adjudication violates his rights to due process and to equal
protection. He argues that the exception
for prior convictions in Apprendi v. New
Jersey (2000) 530 U.S. 466, 490 (Apprendi),
from its mandate that facts that increase a sentence beyond the maximum term
permitted by the conviction of the charged offense be based upon a jury
determination beyond a reasonable doubt, is inapplicable to a juvenile
adjudication. In such a proceeding the
minor had no right to a jury trial. This
contention is without merit.
C.
Juvenile Adjudication is prior conviction for
In Apprendi,
the United States Supreme Court stated, “Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.†(Apprendi, supra,
530 U.S. at p. 490.)
Trial by jury in a juvenile court
adjudication is not a constitutional requirement (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 545), and California
has not accorded a juvenile a right to a jury trial. (See In
re James F. (2008) 42 Cal.4th 901, 915; In
re Alex U. (2007) 158 Cal.App.4th 259, 264.)
Our Supreme Court
recently concluded that a juvenile court prior adjudication may be used for
sentencing under the three strikes law.
(People v. Nguyen (2009) 46
Cal.4th 1007, 1028.) We are of course bound
by that decision. (
450, 455.)
DISPOSITION
The judgment
is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
P. J.
BOREN
_______________________________,
J.
DOI TODD
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise indicated.
name="_ftn2" title="">[2] Cooks testified that Jasmine told him to see what was
happening outside and that he did not go outside but yelled for the men to stop
fighting from the doorway.
