P. v. Leon-Guerrero



















Filed 4/25/13 P. v. Leon-Guerrero CA1/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



FIRST
APPELLATE DISTRICT



DIVISION
ONE




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THE PEOPLE, Plaintiff and Respondent, v. JULIEANN LEON-GUERRERO, Defendant and Appellant.

A134353 (Solano County Super. Ct. No. FCR 275753)

Defendant was convicted following a
jury trial of attempted voluntary
manslaughter (Pen. Code, §§ 664, 192, subd.
(a)),href="#_ftn1" name="_ftnref1"
title="">[1]
infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)),
and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), with
enhancements for personal infliction of great bodily injury (Pen. Code,
§ 12022.7, subd. (e)). In this
appeal she claims the trial court erred by failing to instruct the jury as
requested by the defense that the specific intent required to prove attempted
voluntary manslaughter may be negated by voluntary intoxication. We conclude that the instructions given by
the trial court when viewed in the aggregate properly and adequately advised
the jury on the law of specific intent and voluntary intoxication as related to
the lesser offense of attempted voluntary manslaughter. Therefore, we affirm the judgment.

>STATEMENT OF FACTS

Defendant and the victim Arnell
Leon-Guerrero were married in 2002.href="#_ftn2"
name="_ftnref2" title="">[2] They had two children together, and Arnell
adopted defendant’s son from a previous relationship. By all accounts their marriage was marked by
frequent hostility and quarrels, increasingly so as time went on.

In 2007, defendant and Arnell moved
with their children to California. They lived in Antioch and Rodeo, and by August of
2008, they purchased a home in Suisun, but their relationship continued to
deteriorate. On February 26, 2010, defendant attempted to commit suicide in front of
two of the children by taking pills, and was briefly hospitalized. Soon thereafter, Arnell filed for divorce and
obtained a “restraining order and a move-out order” against defendant. Arnell and the children stayed in the Suisun
residence while defendant lived temporarily with a friend and in a women’s
shelter. Arnell’s aunt Norma Taitano
moved into the house to help Arnell with the care of the children.

Although the divorce proceeding
continued, Arnell and defendant decided to “work on the marriage.” In March, defendant moved back into the house
with Arnell and the children, but she “was constantly crying” and
depressed. Arnell and defendant
continued to have arguments, primarily over money. Arnell slept “on the couch,” and the
relationship did not improve.

On Sunday,
April 25, 2010, the entire family attended church services, then Arnell
planned to attend his “study group” in Fairfield. Arnell testified that defendant attempted to
prevent him from leaving the house by blocking the door and yelling, “No,
you’re not going. I’m going with you.” Arnell ran out of the house through the
garage and left in his truck.

While on the way to his study group
at the University of Phoenix in Fairfield, Arnell became concerned
for the children left at home with defendant “screaming,” so he called Taitano
and asked her to meet him to “take the kids to The Jungle in Concord.” Taitano and the children met with Arnell at
around 2:30 p.m. They all went
to The Jungle, where they stayed until 6:30 p.m. Taitano then took the children home, while
Arnell drove his truck to a park in Suisun to rest and recover from “allergies”
and a “really bad migraine.” Two hours
later, Arnell drove home.

When Arnell arrived home at around 8:30
p.m.,
defendant was at a neighbor’s house, “sitting in front of their garage, just
waiting.” The children and Taitano were
in the bedroom, sleeping. After checking
on the children Arnell took allergy pills and Tylenol with codeine, and
“basically . . . went to sleep” on the couch in the living room. Later, defendant came into the living room to
sleep with defendant on the couch.
Arnell was awakened momentarily, but “just went back to sleep.” Later still, Arnell woke up again when he was
hit in the head. He looked up from the
couch to see defendant standing above him, holding two knives. Arnell rolled over onto his back and asked
why defendant hit him. She struck down
with the two knives, one in each hand, slicing open his stomach. As Arnell rolled off of the couch and stood
up, his “intestines came out.” He
“pushed it back in,” and fell on top of defendant, with both of them lying face
down onto the hardwood floor in the kitchen.

Arnell yelled for help and held
defendant’s arms. Defendant still had a
knife in her left hand and continued to stab at Arnell from underneath
him. Taitano heard a “thump” and Arnell’s
call for help. She came out of the
bedroom and saw Arnell and defendant on the floor under the dining room
table. They were facing each other, with
Arnell’s arms around defendant. As
Taitano attempted to pull them apart, she noticed defendant raise her arm above
her head, with a “sharp object” in her hand.
Taitano pulled defendant onto her back, away from Arnell, and tried to
pry the knife away from her. The knife
blade snapped as they struggled, but defendant maintained her hold on the
broken blade. Taitano and Arnell continued
to restrain defendant and attempt to extract the knife from her hand. At Taitano’s directive one of the children
called 911.

When a police officer arrived at the
house Arnell and Taitano were still holding defendant on the floor. Defendant still had the tip of a broken steak
knife in her hand. Arnell had a severe,
extensive gash from his belly button to his left side. The officer stood with his foot on
defendant’s wrist until paramedics arrived to treat the victim and place him on
a gurney for transport to the hospital.
Defendant then released the knife, whereupon the officer pushed it away
from her. The officer observed that
defendant had blood on her hands and body, but did not notice any stab wounds
or injuries to her face.

At the hospital Arnell was treated
for 16 separate stab wounds. The most
critical injury was a six-inch wound to the left side of the abdomen, which
damaged his colon. He also suffered stab
wounds to the heart area, sternum, neck, right arm, and scalp.

Defendant testified in her defense
that Arnell was physically abusive to her a “lot of times” during nearly the
entirety of their relationship. She did
not “want him to get in trouble,” so she did not report the abuse. By the time they moved to Rodeo and then to
Suisun, Arnell was employed by Loomis as an armored car driver. He carried a .45-caliber handgun, and had a
shotgun at home. Arnell threatened
defendant with the shotgun by hitting her with it and pointing it at her
head. Arnell continued to abuse her
while they lived in Suisun by hitting her, choking her, breaking her nails, and
forcing her to “have sex with him.” To
avoid having him arrested defendant did not report the abuse. On one occasion in 2009, after Arnell hit and
choked defendant, she told him, “I will stab you with a knife,” if he touched
her again.

Defendant testified that in January
of 2010, she discovered Arnell “was cheating.”
On February 25, 2010, Arnell beat defendant and admitted to her that he
had a girlfriend named Faviola. Arnell
told defendant that he did not love her and did not want her “at the
house.” The next day defendant “took a
lot of pills,” blacked out, and was taken to the hospital. The hospital staff noticed scratches and
bruises defendant’s arms. In response to
an inquiry at the hospital, for the first time defendant disclosed that she had
been abused by Arnell. She was referred
to a battered women’s shelter, but returned home the next day.

On March 1, 2010, Arnell learned
that defendant called and texted Faviola.
According to defendant, Arnell became “really angry” and “crazy.” He grabbed, choked and hit her. The police came to the house in response to
defendant’s call, and photographs were subsequently taken that depicted bruises
and scratches inflicted on her by defendant.href="#_ftn3" name="_ftnref3" title="">>[3] Later that same day, Arnell obtained a
restraining order against her and filed for divorce in retaliation for her act
of “call[ing] the police on him.” Arnell
expressed hatred of defendant and concern that he would lose his job and
military benefits due to her report of abuse.

Two days later, defendant left the
house when the restraining order was served on her. She stayed first with a friend for a few
days, then moved to the Safe Quest women’s shelter. While at the shelter defendant obtained a
restraining order against Arnell. On
March 16, 2010, Arnell “dropped the restraining order and the divorce”
proceedings, and asked defendant to come home “to work things out.” Defendant agreed, to be with her children and
“make the marriage work.” After
defendant returned home, however, Arnell told her he wanted to continue
relationships with both her and his girlfriend.
Defendant was angry, and took their youngest son with her to temporarily
live at a friend’s house. Arnell
threatened to report to the police that defendant “kidnapped” her son, so she
returned to the house. Their arguments
continued.

Defendant testified that on the
morning of April 25, 2010, Arnell expressed that he did not want her to
accompany the rest of the family to church services. When defendant cried and pleaded with
defendant to “go with him,” he threw shoes at her, causing “big bruises” to her
legs. Arnell directed defendant to sit
in the back of the truck for the trip to church.

When the family returned from church
Arnell announced that he was “going to the library.” Defendant objected, but Arnell “left
anyway.” Later, Taitano and the children
also left, forcing defendant to stay outside the house, as Arnell had taken
away her key.

Around 8:30 that night, Arnell
returned and let defendant in the house.
The children and Taitano were asleep in the bedroom. Arnell and defendant argued in the living
room. Defendant agreed to divorce Arnell
and return to her home in the Philippines with the children, but Arnell told
her she had to leave by herself.
Defendant said, “I’m staying here.”
They continued to argue, and Arnell forced defendant to “give him oral
sex.” Arnell expressed anger that
defendant was “not doing it right,” and bit her on the arm. Defendant then went into the bedroom and took
“a lot” of pills that were in the medicine cabinet in the bedroom, along with
some alcohol Arnell was drinking.

According to defendant’s testimony
she did not recall the events that transpired thereafter until she “woke up in
the hospital.” She did not know “what
had happened” or why she was in the hospital.
Defendant asserted that she did not want to attack Arnell or intend to
kill him. She did not remember getting
any knives or attacking Arnell. She
testified that the female voice yelling, “He’s hitting me,” on the recording of
the 911 call played for the jury, was her.

A Suisun police officer who arrived
at the house not long after the stabbing occurred testified for the defense
that he secured defendant by the arm.
The officer “smelled alcohol” on defendant and noticed that she
“appeared to be intoxicated,” and in an altered mental state. When defendant was asked why she stabbed
defendant she replied, “Because he hit me.”
Another officer reported that at the crime scene defendant was “rambling
and not always comprehensible.”
Defendant repeatedly exclaimed that Arnell hit her while they were
“having sex.” Later, at the hospital,
defendant would not respond to any of the officer’s questions.

Evidence to corroborate defendant’s
testimony that Arnell abused her was presented by the defense. Defendant’s friend Maria Padua testified that
she observed defendant with injuries; defendant told Padua that her husband
“hit her.” Vanessa Adams, a domestic
violence community advocate at Safe Quest, recounted that defendant appeared at
the domestic violence shelter in February of 2010, crying, and stating that she
had been assaulted. Adams subsequently
took defendant to the Suisun Police Department, where photographs were taken of
bruises on her neck, arm and shoulder.
Adams also contacted defendant at the hospital after the stabbing of
Arnell. Defendant was upset, crying, and
did not appear to be aware of the reason for her restraint at the hospital.

Reginald Garcia, a former police
officer with the City of Vallejo, and a domestic violence volunteer at Safe
Quest, testified that he spoke with defendant in late February and early March
of 2010. Defendant disclosed to Garcia
that she had been repeatedly physically abused by Arnell, and told by him that
his girlfriend would be moved into the residence. Defendant expressed reluctance to report the
abuse for fear that “her husband would lose his job.”

The defense also presented expert
opinion testimony on Battered Women’s Syndrome from Dr. Linda Barnard, a
licensed marriage and family therapist.
Dr. Barnard described the symptoms typically exhibited by battered
women, that include: “post-traumatic stress disorder,” hyper-vigilant response
to “situations that they perceive as dangerous,” and “not reporting” or
“minimizing the violence” to protect the abuser. Battered women also may experience “traumatic
memory,” that results in memory loss of an overwhelmingly distressing event,
and “disassociation,” a subconscious phenomenon by which emotion is “split off”
from an experience. After interviewing
defendant and reviewing the records in the present case, including the police
reports and preliminary hearing transcript, Dr. Barnard concluded that
defendant “was a battered woman” and suffered from “post-traumatic stress
disorder.”

>DISCUSSION

Defendant asserts that the trial
court instructions on the lesser included offense of attempted voluntary
manslaughter and voluntary intoxication were deficient. She claims an instruction in the terms of
CALCRIM No. 3426, as requested by defense counsel, was necessary to adequately
inform the jury that “attempted voluntary manslaughter was a specific intent
crime, and that voluntary intoxication could negate the specific intent
required for that offense.”

CALCRIM No. 3426 is “a limiting
instruction regarding the use of the evidence of defendant’s voluntary
intoxication.” (People v. Lucas (2013) 214 Cal.App.4th 707, 712.) The instruction advises the jury to consider
evidence of voluntary intoxication only in deciding whether the defendant acted
with the specific intent or mental state required to establish the charged
offenses, and for no other purpose, defines voluntary intoxication, and states
that in connection with charged offenses requiring specific intent or mental
state the People have the burden of proving beyond a reasonable doubt that the
defendant acted with the specific intent or mental state required, and if the
People have not met this burden, the jury must find the defendant not guilty of
the specified offenses.href="#_ftn4"
name="_ftnref4" title="">[4] Defendant acknowledges the trial court “>did inform the jury, when instructing on
the elements of attempted voluntary manslaughter, that one of the elements was
an intent to kill,” but complains of the failure of the court to either
“specifically state” that the crime of attempted voluntary manslaughter
requires proof of specific intent to
kill, or to advise the jury “they could consider voluntary intoxication as
negating the specific intent required for attempted voluntary
manslaughter.” As a result, argues
defendant, the “instructions, as a whole,” failed to properly express to the
jury the requirement of specific intent to kill, “or that voluntary
intoxication could negate the specific intent required for attempted voluntary
manslaughter.”

“In considering a claim of
instructional error we must first ascertain what the relevant law provides, and
then determine what meaning the instruction given conveys. The test is whether there is a reasonable
likelihood that the jury understood the instruction in a manner that violated
the defendant’s rights.” (People v.
Andrade (2000) 85 Cal.App.4th 579, 585; see also Sandstrom v. Montana (1979) 442 U.S. 510, 514; >People
v. Warren (1988) 45 Cal.3d 471, 487; People v. Smith (1992) 9 Cal.App.4th 196, 201.) “A court is required to instruct the jury on
the points of law applicable to the case, and no particular form is required as
long as the instructions are complete and correctly state the law.” (People v. Andrade, supra, at p. 585.) “When a claim is made that instructions are
deficient, we must determine whether their meaning was objectionable as
communicated to the jury. If the meaning
of instructions as communicated to the jury was unobjectionable, the
instructions cannot be deemed erroneous.”
(People v. Dieguez (2001) 89 Cal.App.4th 266, 276; see also Estelle
v. McGuire (1991) 502 U.S. 62, 70–75; People v. Kelly (1992) 1
Cal.4th 495, 525; People v. Fonseca (2003) 105 Cal.App.4th 543,
549.) “ ‘[W]e look to whether it is
reasonably likely the jury understood the instruction and correctly applied
it.’ [Citation.]” (People
v. Lewis (2009) 46 Cal.4th 1255, 1312.)
“ ‘The meaning of instructions is no[t] . . . determined
under a strict test of whether a “reasonable juror” could have understood the charge as the defendant asserts, but
rather under the more tolerant test of whether there is a “reasonable
likelihood” that the jury misconstrued or misapplied the law in light of the
instructions given, the entire record of trial, and the arguments of
counsel.’ [Citation.]” (People
v. Mathson (2012) 210 Cal.App.4th 1297, 1312.)

In our determination of the adequacy
of the trial court’s instructions in the present case, we must adhere to the
precept that a challenged instruction “ ‘ “may not be judged in
artificial isolation,” but must be considered in the context of the
instructions as a whole and the trial record.’
[Citation.]” (>People v. Ramirez (1997) 55 Cal.App.4th
47, 58.) “ ‘ “[T]he
correctness of jury instructions is to be determined from the entire charge of
the court, not from a consideration of parts of an instruction or from a
particular instruction.”
[Citation.]’ [Citation.]” (People
v. Smithey (1999) 20 Cal.4th 936, 987; see also People v. Castillo (1997) 16 Cal.4th 1009, 1016.) “Jurors are presumed to be intelligent
persons capable of understanding and correlating jury instructions.” (People
v. Tatman (1993) 20 Cal.App.4th 1, 11; see also People v. Harris (1994) 9 Cal.4th 407, 426; People v. Houston (2005) 130 Cal.App.4th 279, 312.)

Looking at the offense of attempted
voluntary manslaughter, we agree with defendant that specific intent to kill is
an essential element of the crime, although intent to kill is not a necessary
element of voluntary manslaughter. (>People v. Lasko (2000) 23 Cal.4th 101,
110.)href="#_ftn5" name="_ftnref5" title="">[5] “An attempt
to commit a crime requires a specific intent to commit the crime. [Citation.]
This is true ‘even though the crime attempted does not [require a
specific intent].)’ [Citation.]” (People
v. Gutierrez, supra, 112 Cal.App.4th 704, 710; see also >People v. Villanueva (2008) 169
Cal.App.4th 41, 54, fn. 12.) The offense
of attempted voluntary manslaughter,
like any attempt to commit an offense, requires proof that the perpetrator
acted with the requisite specific intent.
(People v. Montes (2003) 112
Cal.App.4th 1543, 1546–1547; People v.
Simington (1993) 19 Cal.App.4th 1374, 1379.)

“Notwithstanding the fact that
murder may be committed without an intent to kill, it has long been held that
the crime of attempted murder does require an intent to kill. ‘ “To constitute murder, the guilty
person need not intend to take life; but to constitute an attempt to murder, he
must so intend.” ’
[Citation.]” (>People v. Montes, supra, at p. 1549.)
“If the crime of attempted murder requires a specific intent to bring
about a desired result” of the killing of a human being, “then . . .
the crime of attempted voluntary manslaughter must also require a specific
intent to bring about that same desired result (the killing of a human
being).” (Id. at pp. 1549–1550; see also People
v. Blakeley (2000) 23 Cal.4th 82, 90.)
Thus, had defendant been “successful in negating the intent to kill
element necessary for the jury to find attempted murder, the jury likewise
could not have found the elements of attempted voluntary manslaughter, which
also requires an intent to kill.” (>People v. Walker (1993) 14 Cal.App.4th 1615, 1624; see also >People v. Johnson (1996) 51 Cal.App.4th
1329, 1332; People v. Gonzales (1994)
29 Cal.App.4th 1684, 1692.)

We also have no dispute with the
premise that evidence of voluntary intoxication may negate the specific intent
necessary to prove attempted voluntary manslaughter. An instruction on
voluntary intoxication is
required when there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s
ability to form the required specific intent or mental state at the time
the crime was committed. (See >People v. Tully (2012) 54 Cal.4th 952,
1025–1026; People v. Williams (1997) 16 Cal.4th 635, 677.) Substantial evidence of defendant’s voluntary
intoxication was presented at trial, and the impact of intoxication on her
mental state was at issue.

Contrary to
defendant’s claim, however, we are persuaded that the instructions accurately
and adequately conveyed the law of voluntary intoxication as related to
defendant’s intent to kill, even without inclusion of CALCRIM No. 3426. The court gave the standard instructions on
reasonable doubt (CALCRIM No. 220) and union of act and intent (CALCRIM No.
252), which essentially advised the jury the People must prove beyond a
reasonable doubt that defendant acted with the particular intent required for
each charged crime. The attempted murder
instruction told the jury the People must prove “the defendant intended to kill
that person.” Voluntary manslaughter,
based on acts committed in a sudden quarrel or heat of passion, or in the
unreasonable but good faith belief in having to act in self-defense, was defined for the jury.

In addition,
the court specifically informed the jury that “attempted murder is reduced” to
“the lesser crime” of “attempted voluntary manslaughter” if the attempt to kill
the victim occurred “because of a sudden quarrel or in the heat of passion,” or
if the “defendant acted in imperfect self-defense,” and “the defendant intended
to kill that person” when she acted.
Immediately following an instruction that the People have the burden of
proving intent to kill “beyond a reasonable doubt,” the court also gave the
CALCRIM No. 625 voluntary intoxication instruction, in lieu of CALCRIM No.
3426, which specifically directed the jury to consider “the defendant’s
voluntary intoxication only in a limited way,” to decide “whether the defendant
acted with an intent to kill or the defendant acted with deliberation and
premeditation.”

We find no
error in the instructions considered as a whole and in the context of the trial
record. Although the attempted voluntary
manslaughter instruction did not specifically refer to voluntary intoxication
and intent to kill, the remaining instructions, including CALCRIM No. 625, unmistakably advised the jury
that attempted voluntary manslaughter required proof of intent to kill, and
that evidence of voluntary intoxication may negate the requisite intent. The jury also knew that all essential
elements of the crimes, including specific intent, must be proved beyond a
reasonable doubt. We have no doubt the
jurors were able to comprehend from the totality of the instructions given that
the People have the burden of proving beyond a reasonable doubt the defendant
acted with the specific intent or mental state required of the charged
offenses, in light of the evidence of voluntary intoxication. We assume the jurors properly correlated the
instructions given to understand the People’s burden to prove specific intent
to kill. (See People v. Kraft (2000) 23 Cal.4th 978, 1077; People v. Welch (1999) 20 Cal.4th 701, 767; People v. Frazier (2005) 128 Cal.App.4th 807, 818; >People v. Ayers (2005) 125 Cal.App.4th
988, 997.) The instructions given
adequately and unambiguously covered the law of specific intent and voluntary
intoxication. Therefore, the trial court
did not err in refusing to give CALCRIM No. 3426,
which was essentially a duplicative instruction under the circumstances. (See> People
v. Thomas (2012) 53 Cal.4th 771, 826; People
v. Friend (2009) 47 Cal.4th 1, 50;
People v. Carter (2003) 30 Cal.4th 1166, 1231.)

Defense counsel’s argument to the
jury reinforced the concept that defendant’s voluntary ingestion of drugs or
alcohol may have impaired her ability to form the specific intent to kill the
victim, a necessary element to convict her of attempted voluntary
manslaughter. Counsel specifically urged
the jury to acquit defendant of attempted murder or attempted voluntary
manslaughter, “specific intent crimes,” if “she was voluntarily
intoxicated.” Counsel’s argument
clarified that lack of proof beyond a reasonable doubt of specific intent due
to voluntary intoxication demanded acquittal.
(See People v. Mills (2012) 55
Cal.4th 663, 677–678; People v. Williams
(2010) 49 Cal.4th 405, 457–458.)
Considering the instructions given, the entire record of trial, and the
arguments of counsel, we find there is no reasonable likelihood that the jury
misconstrued or misapplied the law of specific intent and voluntary
intoxication. (See People v. Mathson, supra, 210 Cal.App.4th 1297, 1311–1312.)

Accordingly, the judgment is
affirmed.






>

	__________________________________ Dondero, J.
We concur: __________________________________ Margulies, Acting P. J. __________________________________ Banke, J.