P. v. Gonzalez



























Filed 4/19/13 P. v. Gonzalez CA4/3

















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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




>

THE PEOPLE, Plaintiff and Respondent, v. ARNULFO GONZALEZ, Defendant and Appellant.

G045904 (Super. Ct. No. 10CF0597 ) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Thomas M. Goethals, Judge. Affirmed.

Jennifer Peabody, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Barry J.T. Carlton and A. Natasha Cortina,
Deputy Attorneys General, for Plaintiff and Respondent.

*
* *

A
jury found Arnulfo Gonzalez guilty of href="http://www.fearnotlaw.com/">second degree murder for the unlawful
killing of Samuel Valdivia (Pen. Code, § 187; all further references are to the
Penal Code unless otherwise specified), and also found true he personally used
a knife in the commission of the murder within the meaning of section 12022,
subdivision (b), subsection (1).
Gonzalez contends the trial court erred by providing an unmodified
version of CALCRIM No. 625, which addresses the effect of voluntary
intoxication in homicide crimes. Gonzalez argues the instruction could have
caused a reasonable juror to disregard evidence of the victim’s and witnesses’
intoxicated state. For the reasons
expressed below, we affirm.

I

Factual and Procedural Background

In
early March 2010, Gonzalez stayed with his friend Manuel Cervantes for 10 days
while visiting Orange County to attend court hearings. On the afternoon of March 13, Gonzalez and
Cervantes gathered at Samuel Valdivia’s apartment. Joining them were Valdivia, Guillermo Macias,
and Valdivia’s nephew, Adan. The men drank beer and used methamphetamine
in the days leading up to the homicide.

In
the late afternoon, Gonzalez and Valdivia borrowed Cervantes’s car to meet
another friend for drinks. Cervantes,
Macias, and Adan drove to Cervantes’s sister’s home, where they continued
drinking and smoking methamphetamine.
When Cervantes and Macias returned to Valdivia’s apartment around 1:00 a.m., Gonzalez and Valdivia were arguing about
whether Gonzalez had driven Cervantes’s car recklessly. Gonzalez appeared upset and challenged Valdivia to fight.
Valdivia declined and told Gonzalez to calm
down. Gonzalez suggested they “get
knives and fight,” but Valdivia refused Gonzalez’s repeated challenges.
When Gonzalez angrily struck Valdivia’s furniture, Valdivia ordered Gonzalez to leave and pushed him out
of the apartment.

Gonzalez
left and moved his truck closer to Valdivia’s apartment.
He returned to the apartment five to 10 minutes later holding an open
pocketknife. He repeatedly challenged Valdivia to come outside and fight. Valdivia initially refused, invited Gonzalez inside
and urged him to forget about the argument.
But Gonzalez continued to challenge Valdivia, who eventually relented
and walked outside. The two men began fighting,
and during the melee Gonzalez stabbed Valdivia seven times:
once fatally under the armpit, which pierced Valdivia’s lung and heart; twice in Valdivia’s abdomen; and four times on Valdivia’s left forearm.

Cervantes
and Macias heard Valdivia exclaim, “he got me.” They found Valdivia bleeding and still struggling with
Gonzalez. Both men intervened to wrest
the knife away from Gonzalez, who promptly fled the scene.

Around
3:00
p.m. that afternoon,
police officers found Gonzalez driving his truck and pulled him over in a
parking lot near the police station.
Gonzalez admitted wounding Valdivia with the knife. Two hours later, authorities conducted a
blood test on Gonzalez, which revealed the presence of methamphetamine.

The
medical examiner testified the wounds on Valdivia’s forearm were consistent with “defensive
wounds” received when using the forearm to fend off blows. An autopsy revealed Valdivia’s blood alcohol level was 0.26 and he had a
low level of methamphetamine in his system.


At
trial in August 2011, Gonzalez testified that at the time of the homicide he
had not slept for four days, and he admitted he had been drinking alcohol and
using methamphetamine with his friends.
Gonzalez claimed Valdivia challenged him to fight and pushed him out of the apartment. Gonzalez retrieved the pocketknife from his
truck, but testified he did this to convince Valdivia to apologize for the argument, not to stab
him. Gonzalez claimed he stabbed
Validivia because he was frightened when Validivia, who was considerably taller
and outweighed Gonzalez by 80 pounds, threatened and hit him.

Following
the trial, a jury convicted Gonzalez of second degree murder and found he
personally used a knife in the commission of the murder. The trial court sentenced Gonzalez to 16
years to life in prison.

II

Discussion

name="SR;954">A. >Trial Court Did Not Err By Providing an
Unmodified Version of CALCRIM No. 625 (Voluntary Intoxication Effects on
Homicide Crimes)

Gonzalez contends the
trial court’s instruction on the effects of voluntary intoxication misled the
jury by suggesting they could not weigh and consider evidence that Valdivia and
the eyewitnesses were intoxicated. The
trial court instructed the jury under Judicial name=SearchTerm>Council of
California Criminal Jury Instructions CALCRIM No. 625: “You may consider evidence, if any, of the
defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in
deciding whether the defendant acted with an intent to kill, or the defendant
acted with deliberation and premeditation.
[¶] A person is voluntarily
intoxicated if he or she becomes intoxicated by willingly using any
intoxicating drug, drink, or other substance knowing that it could produce an
intoxicating effect, or willingly assuming the risk of that effect. [¶]
You may not consider evidence of voluntary intoxication for any other
purpose. [¶] Voluntary intoxication is
not relevant to the issue of ‘implied malice.’
If all the elements of ‘implied malice’ as I have defined them to you
are established, the fact the defendant may have been voluntarily intoxicated
is not a defense and does not negate the theory of implied malice.”

Gonzalez argues “all of the percipient
witnesses consumed drugs and alcohol in the hours before the altercation and .
. . the victim [] had a blood alcohol level of [0.26] and had consumed
methamphetamine. [¶] The witnesses, likely because of their level
of intoxication, had difficulty recalling the details and provided inconsistent
versions of the verbal and physical altercations. Moreover, the coroner testified that
methamphetamine use can cause aggressive, bizarre, violent and unexpected
behavior. According to the coroner,
typically a person with a [0.26] blood alcohol level would have impaired
judgement [sic] and motor
skills. Moreover, the ability to move
volitionally would be impaired, and a person may become clumsy, unable to judge
distance, violent, and have difficulty controlling themselves. Appellant’s defense at trial was that he was
provoked by [the victim] and feared [him] because of his size and aggressive
conduct and that he stabbed him in the heat of passion or in unreasonable
self-defense.”

Gonzalez asserts CALCRIM No. 625 misled the
jury into believing “it was precluded from considering [Valdivia’s]
intoxication as relevant evidence negating the mens rea required from murder to manslaughter. A juror could also reasonably believe that
he/she was also precluded from considering the witnesses’ intoxication in
evaluating their testimony and determining their ability to accurately observe,
perceive, recall and recollect the incident.”


We review CALCRIM No. 625 in light of
the entirety of the instructions to determine whether there is a “reasonable
likelihood the jury applied the instruction in an impermissible manner.” (People
v. Houston
(2012) 54 Cal.4th 1186, 1229.) The trial
court in a criminal case must instruct sua
sponte on “general principles of law relevant to the issues raised by the
evidence and necessary for the jury’s understanding of the case.” (People
v. Anderson (2011) 51 Cal.4th 989, 996–997 (Anderson).) The trial
court’s duty requires giving the jury instructions regarding the essential
elements of a charged offense. (>People v. Breverman (1998) 19 Cal.4th
142, 154-155.) It also extends to
instructions on the defendant’s theory of the case, including defenses the
defendant relies on if there is substantial evidence to support the defense and
it is not inconsistent with the defendant’s theory. (Anderson,
supra, at pp. 996–997.) But a party may not “‘complain on appeal that
an instruction correct in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying or amplifying
language.’ [Citation.]” (>People v. Hudson (2006) 38 Cal.4th 1002,
1011-1012.) If the court correctly instructs the jury on
basic principles of law applicable to the charges, the burden is on the
defendant to request a clarifying instruction.
(People v. Garvin (2003) 110
Cal.App.4th 484, 488.)

The introductory sentence of the voluntary
intoxication instruction explicitly directed the jury to consider “the >defendant’s voluntary intoxication only
in a limited way. You may consider that
evidence only in deciding whether the defendant acted with an intent to kill
[etc.]” (Italics added.) The instruction’s later statement the jury
“may not consider evidence of voluntary intoxication for any other purpose”
must be considered in context, and therefore a reasonable juror would
understand the statement refers to the defendant’s
voluntary intoxication.

That was clearly the way the parties
construed the instruction in the lower court.
The prosecutor argued the instruction applied to Gonzalez’s voluntary
intoxication, which he asserted was not “a defense to implied malice.” During
rebuttal argument, the prosecutor noted, “The defense argues to you, well, if
[Gonzalez] premeditated and deliberated, why would he telegraph that? Why wouldn’t he just walk up and stab him? Well, he did have alcohol on board and he did
have meth on board. We know that. Did that clear [sic] his judgment? Did it
affect his judgment? Probably. Did it affect it to the point where he didn’t
form the intent to kill? Absolutely
not. And even if did, you still have the
implied malice murder.”

Defense counsel’s argument did not suggest
the instruction applied to anyone other than Gonzalez. Counsel argued Gonzalez had used
methamphetamine and “clearly was intoxicated at the time” of the crime, which
“shows . . . he didn’t intend to kill [Valdivia] and he didn’t premeditate and
deliberate . . . .” Defense counsel also elicited testimony
concerning the victim’s level of intoxication and the effect it would have on
his conduct. Gonzalez testified he was
afraid that Valdivia, 80 pounds heavier and eight inches taller, would hurt or
even kill him. Defense counsel argued
Gonzalez had testified “he was afraid he was going to be torn to pieces. He was going to be pummeled. This guy [Gonzalez] who’s five-two,
five-three, 115 pounds, versus a person [Valdivia] who’s six feet tall and
nearly 200 pounds. Who’s been drinking
all day, since at least three or four o’clock in the afternoon, until now,
three o’clock in the morning. Who’s
smoked meth or ingested meth sometime or another during the day because his
blood, as we stipulated to, is positive for methamphetamine. . . . [¶]
That’s the provocation that we’re talking about that makes this not a
murder.” He also argued, “It’s the fact
that this drunk guy, this big, drunk, aggravated, aggressive guy came out the
door and grabbed him. Shoved him out the
door. Tried to hit him in the head. That’s what heat of passion is.” He made a similar argument concerning
imperfect self-defense and self-defense theories.

Neither
side suggested the instructions precluded consideration, as Gonzalez now
contends, of Valdivia’s intoxication as relevant to the victim’s “conduct,
attitude and demeanor.” A reasonable
juror would have understood CALCRIM No. 625 applied only to Gonzalez’s
voluntary intoxication and did not preclude consideration of Valdivia’s
intoxication as it may have related to provocation and Gonzalez’s belief in the
need to defend himself. The trial court
directed the jury to consider the instructions as a whole, and provided
comprehensive instructions addressing the elements of first and second degree
murder and the state of mind required for murder (CALCRIM Nos. 520, 521,
560B), provocation and its effect on the degree of murder (CALCRIM No. 522),
sudden quarrel and heat of passion manslaughter based on provocation (CALCRIM
No. 570), imperfect self-defense (CALCRIM No. 571), self-defense
(CALCRIM No. 505), and mutual combat (CALCRIM No. 3471).

The trial court also separately instructed
the jury concerning evaluation of witness testimony. CALCRIM No. 226 provided in relevant
part: “You alone must judge the
credibility or believability of the witnesses. In deciding whether testimony is
true and accurate, use your common sense and experience. You must judge the
testimony of each witness by the same standards, setting aside any bias or
prejudice you may have. [¶] You may believe all, part, or none of any
witness’s testimony. Consider the
testimony of each witness and decide how much of it you believe. [¶] In
evaluating a witness’s testimony, you may consider anything that reasonably
tends to prove or disprove the truth or accuracy of that testimony.” The instruction included a nonexclusive list
of considerations for evaluating credibility, including “How well could the witness see, hear, or
otherwise perceive the things about which the witness testified?” (See also CALCRIM No. 105.)

Although neither the prosecution nor the
defense emphasized intoxication evidence to attack credibility, neither side suggested the jury could not
consider it, or that the evidence was irrelevant to an assessment of
credibility. Defense counsel argued the methamphetamine
found in Valdivia’s blood suggested the witnesses were “not being honest” when
they denied using drugs in Valdivia’s presence, and they were trying to place
Valdivia in the best light because of “the guilt they” felt about his death and
“the things they didn’t do in this case to help out their friend.” CALCRIM No. 625, reasonably construed, did not prevent
the jury from considering this argument, or from considering how alcohol and
methamphetamine use affected the ability of witnesses to perceive or
recollect.href="#_ftn1" name="_ftnref1" title="">[1]

Because
CALCRIM No. 625, reasonably construed, was not erroneous or ambiguous, we
need not address whether Gonzalez forfeited his contentions, the error was
prejudicial, or counsel acted ineffectively by failing to object or seek
additional or clarifying language. Nor
has Gonzalez shown how this instruction violated his federal constitutional
rights to a fair trial or to present a defense.

III

Disposition

The
judgment is affirmed.









ARONSON,
ACTING P. J.



WE CONCUR:







FYBEL, J.







IKOLA, J.