P. v. Guzman

Filed 2/27/08 P. v. Guzman CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Charles A. Chung, Judge. Affirmed.

Irma Castillo, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Appellant Vicente Guzman was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code[1]section 187, one count of willful deliberate and premeditated attempted murder in violation of sections 664 and 187, and two counts of shooting at a person from a motor vehicle in violation of section 12034, subdivision (c). The jury found true the special circumstance allegation that appellant committed the murder by shooting a firearm from a motor vehicle with the intent to inflict great bodily injury within the meaning of section 190, subdivision (d). The jury also found true a variety of firearm-related allegations. The trial court struck the special circumstances allegation and the allegations that he personally used and personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (c). The court sentenced appellant to a total of 75 years to life in state prison.

Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support the jury's findings of premeditation and deliberation. Appellant further contends that the trial court erred in instructing the jury on self-defense by an aggressor and appellant's suppression of evidence and flight. We affirm the judgment of conviction.

Facts

On the night of September 18, 2004, appellant and his friend Kenny watched an Oscar De La Hoya fight at the home of a friend. Alan Toledo, Marcus Calzada and Christopher Barragan also watched the fight at the house. Alan's brother David Toledo was in a car crew with appellant, and was dating appellant's sister.

After the fight, Alan, Marcus and Chris went to a party on 50th Street. Some African-American men drove by the party in a car and shouted at Alan, Marcus and

Chris. They shouted back. The men in the car then drove away.

Later, Alan, Marcus and Chris went to a party at 47th and Essex. Appellant was there, with his friend Kenny, who was acting as the D.J. Chris's older brother Daniel was also there. During the party, Alan introduced appellant to his friends.

Sometime later during the party, an argument occurred between a group of African-American men who wanted to get into the party and were "disrespecting the house," and Marcus and Alan. No one displayed a weapon and no punches were thrown. The arguing between the African-American men and Marcus and Alan lasted for a couple of minutes, and everyone then started leaving the party. Alan did not see anyone with a gun. Chris did not hear any threats during the confrontation, but he recognized the African-American men who were involved as the same men who had driven by the party on 50th Street. Alan, however, did not recognize the men.

After the confrontation ended, Marcus called his brother, Robert Calzada, on his cell phone. Marcus told Robert that he was having some problems at a party that had just ended, and he asked Robert to come over there. Robert's and Marcus's father and older brother then drove Robert to the party's location. Once Robert arrived, he, Marcus, appellant, Alan, Chris and Daniel all agreed that they wanted to look for, find and fight with the African-American men that Marcus and Alan had the verbal confrontation with a short time earlier. They believed that the men might be at a nearby Del Taco.

All six men got into Alan's Tahoe, and Alan started driving. According to Robert, everyone in the vehicle continued talking about the confrontation that had occurred at the party on 47th and Essex, and they all were upset because one of the African-American men had pulled a gun on Marcus during the confrontation. Alan recalled, however, that there was no conversation in the Tahoe about one of the African-American men having pulled out a gun, and Marcus did not tell Alan that any of the men had pulled a gun on him.

On the way to the Del Taco, Alan stopped at appellant's house because appellant wanted to change clothes. Alan asked appellant if he could go in with him to get a drink of water. Alan was a diabetic and needed fluids. Appellant refused. This refusal was unusual. Normally, appellant would have let Alan come in and get water.

Appellant went into the house alone. When he came out about five minutes later, he had changed from casual clothes into all black clothing, including a black hooded sweatshirt. Appellant was carrying a jug of water that he gave to Alan and a bandana. Robert, Chris and Alan did not see appellant carrying a gun.

Alan then drove to the McDonald's at 25th Street East and Avenue S to see if the men they were looking for were there. At the McDonald's, Alan received a phone call from his friend Tony Martinez who told Alan to come over to the Del Taco so they could regroup. Chris and the others in the vehicle thought the people they were looking for would be at the Del Taco. Therefore, Alan started driving to the Del Taco.

There were a lot of people in the parking lot when appellant and the others arrived. Nineteen-year-old Cedric Lane was among them. Cedric had walked to the location from a nearby apartment with his twin brother Dedric. They were talking to a friend, Demoray. Cedric was wearing house slippers and a backpack. He had not been to any parties that night.

When Alan drove up to the Del Taco, appellant put the bandana he was holding over his face. Marcus and a couple of the others in the Tahoe who had been at the parties earlier that night thought they recognized Cedric and his companions as the people they had been looking for. Alan parked his Tahoe in the parking lot and all of the occupants in the vehicle then got out and started running after Cedric, Dedric and Demoray. The occupants of the Tahoe and a few other Hispanic men on the parking lot who joined them chased after Cedric and his companions, yelling racial slurs, i.e., "fuck you, nigger," and "get those niggers." The people chasing Cedric and his companions were armed with bats and pipes and what looked like chains or brass knuckles. Williams Alvarado, who was at the Del Taco, saw that one of the men chasing after Cedric and his companions was wearing a ski mask and another one of the pursuers was wearing a bandana.

Cedric, Dedric and Demoray became separated. Cedric ran across the street to a Taco Bell. There, he went to a trash dumpster, found a broom handle, broke the broom handle in half and armed himself with the part he had broken off in order to protect his and his brother's lives and "whoever else was over there."

At about the same time, appellant and his companions from the Tahoe heard sirens approaching. They all went back to the Tahoe and got inside. Alan gave his keys to Daniel and asked him to drive. Chris was sitting in the front passenger seat and appellant was seated behind him in the rear passenger seat. Marcus was seated behind Daniel, and Robert and Alan were sitting in the back seat between Marcus and appellant. The sirens were from two patrol cars, each occupied by two deputy sheriffs who had been dispatched to the area about 12:30 or 12:45 a.m. after receiving a juvenile disturbance call. The deputies began talking with juveniles in the area between the Hollywood Video Store and the Del Taco.

Daniel began driving, but stopped before driving out of a driveway onto Avenue S. Marcus saw Cedric crossing the street. Marcus, who apparently was unarmed, jumped out through the rear driver's side door and ran toward Cedric. Robert tried to follow Marcus, but Alan pulled him back into the vehicle.

Cedric was about 14 feet away from the Tahoe and when he saw Marcus running toward him, he feared for his life. Marcus was yelling, "You fuckin' nigger" and "hey, fuckin' nigger" at Cedric. Cedric recognized Marcus as one of the group of people who a short time earlier had been chasing him with sticks and bats and "all kinds of other stuff." Marcus was coming toward Cedric "like he was going to do something" to him and was making motions that made Cedric think Marcus was armed. Marcus lifted up his shirt and Cedric raised the broken broom handle he was holding to defend himself against Marcus. As Cedric lifted up the broom handle, several gunshots were fired and Marcus fell to the ground.

When Cedric heard the first gunshot, he ducked, turned around and started running away from the far side of the Tahoe, where he thought the shots were coming from. As he was running, a bullet hit him in the lower right abdomen.

When he heard the shots fired, Chris turned around and saw appellant "hanging out the back window" of the Tahoe. Appellant then pulled himself back into the vehicle. He was holding a gun in one hand, and he said that he was the one that fired the shots and to let him out of the Tahoe. Appellant then got out of the Tahoe and ran away.

The sheriff's deputies who had responded to the area started walking toward where they heard the gunshots coming from. Cedric staggered toward the deputies, still carrying his broken broomstick, and on the deputies' command, he dropped the broomstick. He told the deputies that he had been shot and he laid down on the ground in front of the main entrance to the Del Taco parking lot. Paramedics were called to the scene and they attended to Cedric. Cedric survived.[2]

Daniel drove the Tahoe a short distance and stopped, and the occupants of the vehicle got out and went over to Marcus who was down on the ground. Paramedics eventually arrived at the scene and attended to Marcus. Marcus was taken to a hospital, and Robert, Chris, Daniel and Alan went to the hospital to see how Marcus was doing.

Appellant went to David Toledo's house on East Avenue R-8th, which was about two or three blocks away from the Del Taco. Appellant appeared "edgy," "jittery," and very nervous to David. He asked David to give him a ride home because shots had been fired up at the Del Taco and his ride had abandoned him. Appellant also said he wanted to change his clothes. David then gave appellant a pair of shorts. Appellant put on the shorts, and he took the clothing he had been wearing with him.

David drove appellant home. During the drive, appellant said that some "guy" had started "blastin"' and that his (appellant's) ride "took off." David then received a cell phone call from his brother Alan. After the call, David asked appellant what had happened. Appellant replied that he was the one who had done the "shootin"' at Del Taco and that he had been "shootin' the miate." "Miate" is a Spanish word for "nigger." Appellant also said that he fired two shots at the person and he thought he had missed, that he then unloaded the gun, and on the way to David's house he "dumped" the gun and a sweatshirt, a bandana and a hat he had been wearing. Appellant did not mention shooting Marcus.

Marcus Calzada died from a single gunshot wound to the head.

Detective Todd Anderson of the Los Angeles County Sheriff's Department was the investigating officer in the case. After David Toledo went to the hospital to see Marcus, David received a telephone call from Detective Anderson. During the phone conversation, he told Detective Anderson what appellant had told him about the shooting.

Detective Anderson also interviewed Robert Calzada, who consistently referred to Cedric as a "miate." Robert told Detective Anderson that appellant had leaned out of the vehicle and shot in the direction of Marcus and Cedric.

When Detective Anderson interviewed Alan, Alan said that they were driving around in the Tahoe talking about what had happened at the party on Essex Street, and everyone in the vehicle was using racial epithets and saying things such as, "Fuck that, let's go get these niggers." Alan also said that when they were at the party on Essex Street, a group of Blacks threatened to stab a Black friend of Alan's named Marshon, and at that time, Marcus tried to "get all crazy" and had to be held back.

At Detective Anderson's request, Alan telephoned appellant on September 20, 2004. The conversation was recorded. During the conversation, Alan asked appellant what had happened and who he had dumped on. Appellant replied, "That Black - the Black fool, fool." Alan asked appellant if he was sure because Alan thought Marcus had died. Appellant replied, "Are you serious?" Alan then asked appellant if he was sure he had not hit Marcus. Appellant replied, "No, I hit the nigger, fool." Appellant also said, "I hit the Black fool, fool," that he did not see Marcus at all when he was shooting, and, "I didn't even dump no rounds that way, fool." Appellant added that he just got out of the window, and he reiterated that he did not even see Marcus; he just saw "the Black fool." Alan told appellant, "Well, Marcus died, dog, I guess the Black fool's in critical condition." Appellant responded, "Oh, fuck." Appellant went on to say that he was not even aware that Marcus was out of the truck until "we were leaving," and at that time Marcus was still standing. Appellant also told Alan, "I mean I had your back. That's why I did everything, dude." Appellant then asked, "But I got that nigger, right?" Alan replied, "I think so, dog. He's in critical condition though." Alan then told appellant that

he would call him back, and the conversation ended. A tape recording of the telephone conversation was played to the jury at appellant's trial.

During an interview Detective Anderson had with Chris Barragan, Chris said that during the incident in question, they all ran toward the African-American men shouting, "Get those niggers."

Detective Anderson also interviewed appellant after appellant had been arrested, and appellant directed Detective Anderson to the area in the desert where he said he had discarded the gun and the items of clothing. Five or six deputy sheriffs searched the area for the gun and the clothing. However, they did not find anything.

During the course of his investigation. Detective Anderson received a phone call from Ada Toledo, the mother of Alan and David. After he spoke with Ms. Toledo, Detective Anderson went to the Toledo's home and recovered a black military or law-enforcement-type holster there. Alan had found the holster under the passenger seat of the Chevy Tahoe along with a jersey that belonged to Marcus. After finding the holster and the jersey, Alan took the items into the house. His mother thereafter found the holster on top of his bed, and Alan told her that he had found the holster in the Tahoe. Ms. Toledo called the sheriff's department and, on September 21, 2004, she turned over the holster to Detective Anderson.

Four expended .45 auto caliber bullet casings were found at the location where Marcus and Cedric were shot. All four of the expended casings were fired from the same semi-automatic pistol. A bullet fragment removed from Cedric Lane's body during surgery and a bullet fragment that was removed from Marcus Calzada's head were consistent with having come from .45 auto caliber bullets and also were consistent with having been fired from a semi-automatic pistol.

Appellant testified in his own behalf at trial. He acknowledged watching the Oscar De La Hoya fight at a friend's house, then going to a party at 47th and Essex, with Kenny. Alan came to the party with three friends that appellant did not know. However, he had seen Alan's friends earlier that evening when they were all watching the De La Hoya boxing match.

Later, when appellant was in the backyard, he heard yelling from inside the house. He went to the front of the house, where he saw a group of African-American men arguing with Alan and Marcus. Alan and Marcus were pretty upset, but appellant told Alan that it was not worth it and to just "squash it." Appellant told Alan that he was on his own if he went after the men.

Appellant did not intend to leave the party with Alan, but appellant's friend Kenny abruptly left the party by jumping over a back fence. Appellant followed, as Kenny had given him a ride to the party. While appellant was trying to catch up to Kenny, Alan drove up and offered appellant a ride. Appellant accepted, believing that Alan would take him to Kenny's car. Alan drove in the opposite direction from Kenny's car. Appellant then asked Alan to take him home.

During the drive, Alan pulled up alongside a car and stopped. Robert Calzada got out of the rear passenger seat of the car and took something that looked like a sweater or a backpack from the driver. Robert then came over to the Tahoe and got into the back seat. Alan then started driving to appellant's house. On the way there, the other occupants of the vehicle were upset. They were trying to "pump" each other up and were saying, "Let's go get 'em." During the conversation, Marcus said that the African-American men had pulled a gun on him.

When Alan pulled into appellant's driveway, he asked appellant to get him some water. Appellant agreed, and went inside alone. There, he took off his leather jacket, put on a sweater and a Detroit Tigers hat, got a large jug of water, went back outside and gave the jug to Alan.

Alan asked appellant to get into the Tahoe but appellant said he wanted to wait for Kenny. Alan said that Kenny was at the Del Taco. Appellant thought that if they went to the Del Taco they would run into the African-American men who had caused the problem earlier that evening. He thought those men had a gun. Appellant got a small screwdriver for self-protection and a bandana. He did not get a gun. Appellant then got into the rear passenger seat of the Tahoe. Alan asked appellant if he had gotten a gun. Appellant said that he had not.

Alan then drove to the McDonald's at 47th and S so that Robert could eat. As Alan pulled into the McDonald's, he received a phone call. Following the call, Alan said, "They are at the Del Taco." Alan then drove to the Del Taco. There, Marcus saw an African-American man standing outside and he said, "That's him." All the people in the Tahoe except appellant agreed with Marcus.

Before Alan completed parking, Marcus jumped out of the Tahoe and said, "Let's go get those niggers." Everyone followed Marcus out of the Tahoe. Everyone except appellant started running after the African-American man. Appellant did not follow because he did not want to confront anyone who might have a gun while he only had a screwdriver with him. Appellant started walking to the north, but he saw two African-American men running toward him from the area where the other occupants of the Tahoe had chased them. Appellant started running behind the two men. As appellant was running, one of the men was saying, "Don't shoot. Don't shoot." Appellant did not know what the man was talking about, and he ran after him. The man yelled, "You don't have to shoot. We can just fight. We can just fight." Appellant did not know to whom this comment was addressed.

The African-American man reached toward his backpack as if he were going to pull it open. Appellant stopped running because he did not know if the man had a gun. Then, a police car appeared. Appellant was scared because he was holding the bandana and the screwdriver. He threw away the screwdriver, covered his face with his bandana, and ran back to Alan's Tahoe. Appellant was the last one to get back into the Tahoe, and Alan started driving.

Alan stopped the Tahoe at the Hollywood Video exit and said that someone else should drive because he did not have his driver's license with him. The person in the front passenger seat then turned around, told appellant, "hold this," and slid a gun under appellant's leg. Appellant said, "Why didn't you fuckin' tell me you had a gun?" Appellant then saw the "Black guy" coming across the street. Marcus said, "That's him." Appellant asked Marcus, "That's who?" Marcus replied, "That's the motherfucker that

pulled the gun on me at the party." Appellant asked Marcus if he was sure and Marcus repeated, "That's the mother fucker that pulled the gun on me at the party."

Marcus then got out of the Tahoe and started walking toward the man, who proved to be Cedric Lane. Appellant could not see everything that was happening, and he stuck his head out of the rear passenger window to get a better look. He then saw "movement with Cedric" and he thought Cedric had a gun and was going to shoot Marcus. Cedric and Marcus were about five feet away from each other, and Cedric made a pulling motion at the right side of his waistband and then raised his hands straight up. When appellant saw this, he fired four shots. He did not know if he hit Cedric.

When appellant fired the gun, he believed Cedric was about to do something to all the occupants of the Tahoe. He feared for Marcus's life and the lives of everyone in the Tahoe, because he believed Cedric could kill Marcus and everyone in the Tahoe. Appellant did not see Cedric holding a stick.

As the Tahoe started moving, Robert said, "That's my brother." Appellant looked out and saw Marcus on the ground. He got out of the Tahoe, and ran down the street into an area of desert. As he was running, he pulled off his hat and sweater and threw them away, and he also threw the gun toward a bush. He went to David Toledo's house.

At David's house, appellant knocked on the door. David answered the door and appellant told him, "Some shit just happened with your brother." David asked, "What? I heard gunshots." Appellant replied, "Yeah, that's with your brother," and, "I think I shot somebody." David said, "What?" and appellant replied, "I think. I don't know. Everything just happened quick."

David told appellant he had a lot of dirt on his pants. Appellant asked David for a pair of shorts. David gave appellant a pair of shorts and a ride home. During the ride, David received a phone call. After David hung up, he asked appellant, "Who did you shoot?" Appellant replied, "The guy that had - I think the guy that had a gun." Appellant also might have said that he shot the "nigger."

Appellant had heard the tape recording of the telephone conversation he later had with Alan Toledo. He claimed that he told Alan during the conversation that he shot "the other guy" to defend Marcus. The transcript of the conversation does not support this claim. Appellant explained that when he told Alan during the conversation that he did not even see Marcus there, this was a lie. Appellant lied because he did not want to take responsibility for taking anyone's life or hurting anyone else, especially "the guy" that he was trying to protect. When appellant said during his tape recorded conversation with Alan, "Did I get the nigger?" this was not racist, but rather just the way he talked. When appellant told Alan during the phone conversation, "I had your back, that's why I did everything, dude," he said this because it was because of Alan that he had gotten involved "in all of this." Appellant believed that it was all Alan's fault that appellant became involved, because if Alan had taken him to Kenny's car like he was supposed to, what happened would not have happened. Appellant explained that he lied when he told Alan that he did not know Marcus was dead. However, he was not lying when he told Alan, "I hit the nigger fool."

After appellant had been placed under arrest in the instant case, someone awakened him between 2:00 and 3:00 a.m. He was then interviewed by Detectives Anderson and Hall. Appellant acknowledged that the detectives advised him of his Miranda rights and told him they wanted to talk with him about the shooting that had occurred outside the Del Taco. At first, appellant denied involvement in the shootings and withheld information because he did not want to be responsible for anyone getting hurt or for someone else's death. However, as the interview went on, his emotions got to him and he admitted to Detective Anderson that he was the shooter.

Appellant initially told the detectives that he went over to his friend's birthday party on Essex and "they" got into a "scuffle" there, and he "heard knives and guns." Appellant also told Detectives Anderson and Hall that he did not actually get involved, and he did not get into a fight, and that some Black males pulled bats and were going to stab Marcus. Appellant did not say a gun was pulled on Marcus. Appellant further told the detectives that he wanted "them" to take him home; but when they got there, his fiance or girlfriend was not there, and he and the others then went to look for "those guys." Appellant also said he had been drinking that night and had consumed seven 24-ounce Coronas, and as they were leaving the Del Taco, someone said, "Where is the strap," and he then heard gunshots and, "As soon as I heard shots, I jumped out of the truck and I took off on foot."

Appellant lied to the detectives about who actually had fired the gun. He did not want to have the shootings on his conscience. Appellant falsely told the police that he walked home after the shooting because he did not want to get David Toledo involved. Appellant also lied to the detectives when he told them that he was not in the car with David and that he had not told David he was the shooter. After appellant told the foregoing to the detectives. Detective Hall said to appellant, "Okay. So that's what happened?" and Detective Anderson said, "No bullshit; right?" Appellant replied to the detectives, "No bullshit."

When Detective Anderson asked appellant if the guy who had a backpack on was the guy who had the stick, appellant replied, "I don't know what the hell he had." Detective Anderson then told appellant that the person he had shot had a backpack on, and appellant replied, "I don't know if he had a backpack on." Detective Anderson was referring to Cedric when he asked appellant if the person had a backpack. Appellant did not see a backpack on Cedric.

Appellant told the detectives he was chasing one "Black guy" while holding a screwdriver in his hand, and when the "Black guy" turned around, the "Black guy" had a bat, and when he saw the bat, he turned around and ran back. Appellant additionally told the detectives that he had the bandana on when he was chasing the "Black guy." However, appellant actually had the bandana tied to his hand at that time.

Appellant said to the detectives that it had to have been Marcus who handed him the gun, that he did not see Marcus get out of the truck, and he did not know why Marcus got out of the truck because they already were leaving. This statement was a lie because appellant was trying not to take responsibility for what had happened. Appellant told the detectives that he did not see Marcus outside the truck, and if he had seen Marcus, he would not have done anything because he would just have let "them" fight. This was another lie appellant told the detectives.

Appellant additionally told the detectives that he fired two rounds at Cedric and Cedric then ran, and he continued firing at Cedric as he was running away. Appellant also stated to the detectives that he was trying to hit Cedric when he fired the first two shots at him. This, however, was a lie that he told because the "guy" he was trying to protect had died. Appellant also lied when he told the detectives that he fired the first two rounds at Cedric.

When one of the detectives asked appellant about Cedric making further movements and going for his waist, appellant stated, "No, I didn't say he was going for his waist."

Later during the interview with the detectives, appellant came "clean" and told the detectives what really had happened, and when Detective Hall then asked him, "So your whole thing is a self-defense thing for Marcus?" appellant responded, "For Marcus. I was trying to protect him." Toward the end of the interview, appellant said he did it because he honestly thought Cedric had a gun or a knife and would use it on Marcus; that he did not have a gun until he was inside the truck; that he was being honest and he did have the gun; that if he had the gun, he was admitting to shooting someone, and, "Okay. I didn't have the gun." Appellant also told the detectives, "I didn't mean to hit him," meaning Cedric, and he thought Cedric was going to hurt Marcus.

Appellant testified that the reason the jury should believe appellant was telling the truth in his trial testimony after he previously had told so many lies was because he had come to accept and take full responsibility for his actions. He knew he was responsible for killing Marcus and hurting Cedric and he just wanted "you guys" to know that this is "the honest to God truth." Appellant was not afraid to go to prison for the rest of his life. It was all "a big mistake," "a big accident" and it should never have happened. Appellant was trying to scare Cedric when he fired the shots. He was not trying to hurt anybody or shoot anybody, and he never intended to hurt Cedric or Marcus. The reason he shot Marcus in the head while he was trying to scare Cedric was because "it was an accident." Appellant did not know why he did not shoot up into the air when he was trying to scare Cedric.

In rebuttal, the People presented evidence that, during his interview with the detectives, appellant never said anything about Marcus telling him prior to the shooting that Cedric had a gun.

Discussion

1. Sufficiency of the evidence

Appellant contends that there is insufficient evidence to support the jury's findings that the murder and attempted murder were premeditated and deliberate.[3] He contends that such a conviction violates his federal constitutional right to due process. We see sufficient evidence to support the conviction.

In reviewing a challenge to the sufficiency of evidence, "the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment." (People v. Mincey (1992) 2 Cal.4th 408, 432.) The court determines whether the record "discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks and citations omitted.)

"If we determine that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation], as is the due process clause of article I, section 15, of the California Constitution." (People v. Osband (1996) 13 Cal.4th 622, 690.)

In People v. Anderson (1968) 70 Cal.2d 15, our Supreme Court explained that: "The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing - what may be characterized as planning activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a motive to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support 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; . . . (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design to take his victim's life in a particular way for a reason which the jury can reasonably infer from facts of type (1) or (2)." (Id. at pp. 26-27, internal quotation marks, citations and italics omitted.)

As our Supreme Court subsequently made clear: "'The Anderson analysis was intended only as a framework to aid in appellate review; it did not propose to define the elements of first degree murder or alter the substantive law of murder in any way.' [Citation.] The Anderson guidelines were formulated as a synthesis of prior case law, and are not a definitive statement of the prerequisites for proving premeditation and deliberation in every case." (People v. Hawkins (1995) 10 Cal.4th 920, 957.)

Although the Anderson guidelines are not definitive, they are helpful. As we discuss in more detail below, we see strong evidence of motive and planning in this case. The evidence of motive and planning 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. This inference is strengthened by the manner of the killing.

Appellant contends that there is at best weak evidence of motive because he had no reason to seek retaliation. He claims that he did not know the party's intruders and had no prior connection to Marcus and Marcus was the "odd man out" in the group. There is ample evidence that appellant did intend to seek revenge. Robert testified that after he arrived at 47th and Essex, everyone present, including appellant, agreed that they wanted to fight with the men who had had the verbal confrontation with Marcus and Alan. Robert also testified that as the men drove to the Del Taco, everyone in the vehicle was upset that one of the men had pulled a gun on Marcus during the confrontation.

Appellant contends that even if there is evidence that he wanted to retaliate by fighting, there is no evidence that he wanted to retaliate by killing the intruders. He points out, correctly, that there is no evidence that he or anyone else in the vehicle threatened to kill anyone.

We find it reasonable to infer that appellant's motive to retaliate involved the use of a gun. Appellant believed that one of the African-American men that they were looking for had a gun. Along the way to Del Taco, appellant asked to stop at his house to change clothes. Appellant refused to allow Alan to come into the house. Alan testified that this refusal was unusual. Appellant later used a gun, and the other men in the vehicle testified that the gun did not come from the car. Thus, it is reasonable to infer that appellant stopped to get a gun on the way to the fight.

Appellant also contends that there is no evidence of planning. We see strong evidence of planning. At the party, appellant and the others agreed that they wanted to look for, find and fight the African-American men. They specifically wanted to check the Del Taco for the men. As we have just discussed, appellant stopped on the way to change into black clothes. It would be reasonable to infer that appellant also got a gun during this stop.

Appellant contends that if he had a preconceived plan to use the gun, he would have done so at the first opportunity. He argues that the first opportunity occurred when he was chasing Cedric and others immediately after he arrived at the Taco Bell. We do not agree.

There is evidence that suggests that appellant brandished a gun while chasing Cedric. Appellant himself testified that as he ran behind two African-American men, one of the men, who was wearing a backpack, repeatedly yelled, "Don't shoot." Cedric was wearing a backpack that night. Appellant broke off the chase as police cars arrived. Thus, the jury could have inferred that appellant did not use the gun at the first opportunity because police arrived. Further, even assuming that appellant did not brandish the gun during the chase, there could have been many other reasons that appellant did not use his gun right away. The jury could also reasonably have inferred that appellant wanted to get a better look at Cedric before shooting, did not have a clear shot at Cedric, or did not feel confident of his aim while running.

The manner of the shooting also supports a finding of premeditation and deliberation. Appellant told Detectives Hall and Anderson that he fired two rounds at Cedric and Cedric then ran. Appellant continued firing at Cedric as he ran away.

From the above evidence, a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Thus, the due process clause of the United States Constitution is satisfied.

2. CALJIC No. 5.54

Appellant contends that the trial court erred in instructing the jury with a modified version of CALJIC No. 5.54. We do not agree.

CALJIC No. 5.54, as modified, told the jury: "The right of self-defense and the right to defend another is only available to a person who initiated an assault, if he has done all the following: [] A. He has actually tried, in good faith, to refuse to continue fighting; [] B. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he wants to stop fighting; and [] C. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he has stopped fighting. [] After he has done these three things, he has the right to self-defense if his opponent continues to fight, or if the victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense." The phrase in italics was added to the standard CALJIC instruction.

Appellant contends that the trial court erred in giving the instruction because there is no evidence that he or Calzada assaulted Cedric before he fired at Cedric. Appellant is mistaken.

"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." ( 240.)

The evidence shows that appellant, Calzada and their companions got out of the Tahoe and chased Cedric and his companions. The men from the Tahoe were joined by others. Men in the group were armed with bats, pipes, chains and brass knuckles. Chasing after someone with a weapon is an assault. (See, e.g., People v. Tran (1996) 47 Cal.App.4th 253 [defendant's act of chasing adult and baby while brandishing knife is assault]; see also People v. Colantuono (1994) 7 Cal.4th 206, 219 [it is well settled that "Holding up a fist in a menacing manner, drawing a sword, or bayonet, presenting a gun at a person who is within its range" can constitute an assault].)

Appellant contends that this conduct cannot support the instruction because he and his companions abandoned the chase, got back into the car and were intent on leaving the area because they heard sirens. The issue is not as clear-cut as appellant contends. The men's intent in getting into the Tahoe may have been to leave before police arrived. It may also have been to look for Cedric, who had left his friends, to continue the fight. When Marcus saw Cedric, he immediately got out of the Tahoe. Robert attempted to get out but was restrained. There is evidence which would support an inference that appellant shot at Cedric without being aware that Marcus was nearby, suggesting that appellant had not abandoned his intent to assault Cedric. Thus, the intent of appellant and his companions in getting in the car was an issue for the jury to decide, as was what that would convey to a reasonable opponent. CALJIC No. 5.54 was appropriate.

If the jury found that the men's act of getting into the Tahoe was an attempt to break off the assault, then the jury was instructed by CALJIC No. 5.54 that the men regained the right to self-defense, and to the defense of others who had attempted to break off their assaults.

Appellant further contends that even if it was proper to give CALJIC No. 5.54 on self-defense, the modification which added the phrase "the right to defend another" made the instruction confusing and ambiguous. He contends that an incorrect argument by the prosecutor increased the confusion by arguing, incorrectly, that appellant had no right to self-defense because Marcus was an aggressor. He contends that this lessened the prosecutor's burden of proving beyond a reasonable doubt that appellant did not act in self-defense or imperfect self-defense and so violated his right to due process. We do not agree.

The prosecutor first argued that Cedric had the right to self defense, including arming himself with a stick. The prosecutor then argued as follows: "The defendant apparently feels or what he says to you is that, well, I have the right to defend [Marcus] from Cedric Lane. And can you imagine if I was in a car with a friend and I came charging at one of you with a knife and you pulled a gun and somebody in the car then shot you and said I was defending me. I'm charging at you with a knife, you pull out a gun to defend yourself, and somebody shoots you and, oh, I was acting in self defense. That's not the law. You don't get to shoot the victim and say it was self defense because the victim was defending himself. That's not the law of self defense."

We agree that the prosecutor's argument is somewhat confusing. However, the only reasonable understanding of the first part of the argument is that appellant did not have the legal right to defend Marcus because he assaulted Cedric, and Cedric's response was self-defense. That is a correct statement of the law. The second part of the argument does concern self-defense by appellant, but it says nothing about appellant being an aggressor. The only reasonable understanding of this part of the argument is that appellant did not have the right to shoot Cedric in self-defense because Cedric's actions were not directed toward appellant and did not threaten him. This is a correct statement of the law. Thus, we see no reasonable probability or possibility that the jury misapplied the instruction in the manner suggested by appellant.

Further, even assuming the instructions were understood by the jury in the manner suggested by appellant, we would see no prejudice to appellant. Appellant's statements and testimony about the encounter were rife with inconsistencies. We see no possibility that a jury would have believed his claim of self-defense in the absence of CALJIC

No. 5.54 and the prosecutor's argument. The prosecution more than met its burden of proving that appellant did not act in self-defense.

3. Consciousness of guilt instruction

Appellant contends that the trial court erred in instructing the jury with CALJIC Nos. 2.06 and 2.52 on consciousness of guilt because he admitted shooting Cedric and the only issue was the degree of his guilt. We see no error.

CALJIC No. 2.52 told the jury: "The flight of a person immediately after the commission of a crime or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide."

CALJIC No. 2.06 told the jury: "If you find that a defendant attempted to suppress evidence against himself in any manner, such as concealing evidence, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, is for you to decide."

Here, appellant pled not guilty to all the charges against him. It is well settled that when a defendant pleads not guilty to a charge, he puts in issue all of the elements of the offense and thus "[e]ven if he conceded at trial his guilt of some form of criminal homicide, 'the prosecution is still entitled to prove its case and especially to prove a fact so central to the basic question of guilt as intent.' [Citation.]" (People v. Moon (2005) 37 Cal.4th 1, 28.)

Here, appellant did admit shooting Cedric but claimed that the shooting was lawful because it was done in defense of others or self-defense. He also argued that the shooting constituted voluntary manslaughter because it was done in imperfect defense of others or imperfect self-defense. The California Supreme Court has repeatedly rejected the claim that consciousness of guilt instructions are not proper when a defendant's identify as the shooter is not contested. (See, e.g., People v. Thornton (2007) 41 Cal.4th 391, 438-439 [CALJIC Nos. 2.06 and 2.52 are proper when defendant "admits some or all of the charged conduct, merely disputing its criminal implications"]; People v. Moon, supra, 37 Cal.4th at p. 28 [instruction proper where defendant admitted shooting, and his theory was that he was guilty only of second degree murder]; People v. Smithey (1999) 20 Cal.4th 936, 983 ["According to defendant, CALJIC No. 2.52 should be given only when the identity of the perpetrator is disputed, and not when the principal disputed issue is the defendant's mental state at the time of the crime. We repeatedly have rejected this claim. [Citations.]"]; People v. Turner (1990) 50 Cal.3d 668, 694 & fn. 10 [consciousness of guilt instruction proper where prosecution contended that defendant intended to murder and rob victim and defendant claimed unintentional killing in self-defense and denied intent to steal].)

Appellant contends that the above cases do not address his claim that the instructions were erroneous under People v. Anderson, supra, 70 Cal.2d 15. The Court in Anderson discussed a defendant's "cover up" of a crime as part of a claim that there was insufficient evidence to show premeditation and deliberation. The Court in Anderson found only that lying to relatives of the victim after the crime could not support "the double inference that defendant planned to hide his crime at the time he committed it and that therefore defendant committed the crime with premeditation and deliberation." (Id. at p. 32.) The Court did not discuss the propriety of giving consciousness of guilt instructions. In light of the numerous cases holding that instructions on consciousness of guilt are proper even though the defendant concedes that he was the shooter, Anderson must be limited to its facts.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

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

[2] Cedric was airlifted to a hospital by helicopter and he spent six days there recovering from his gunshot wound.

[3] Appellant concedes that the evidence need only show that he premeditated and deliberated the attempted murder of Cedric, and that his intent would transfer to the murder of Marcus.