P. v. Olivar

Filed 10/29/09 P. v. Olivar CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. William N. Sterling, Judge. Affirmed with directions.

Landra E. Rosenthal, 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, Jason C. Tran and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

Defendant Jesus Beltran Olivar appeals from the judgment entered following a jury trial in which he was convicted of first degree murder, assault with a firearm, and two counts of willful, deliberate, and premeditated attempted murder, with firearm use, firearm discharge, and gang enhancement findings. Defendant contends the trial court abused its discretion and violated due process by refusing to sever the trial of the murder charge from that of the attempted murder and aggravated assault charges. He further argues that the trial court erred in violation of his constitutional rights by refusing to instruct upon voluntary manslaughter and attempted voluntary manslaughter. We affirm.

BACKGROUND

Counts 2 through 4

On the evening of May 8, 2006, Israel Padilla parked his car partway into the driveway of his home and went inside the house to drop off something. (All further date references pertain to 2006.) Padillas nephew, Josue Dorantes, remained in the front passenger seat of the car and ate soup. Dorantes saw defendant, a shorter boy, and a girl walk in front of the car. Dorantes was not wearing his glasses, so he squinted to see the three people. Defendant raised his arms in a manner Dorantes interpreted as meaning, Whats your problem? Defendant then walked toward the passenger-side car door. Dorantes got out of the car. Defendant asked Dorantes, Why are you talking shit? and Why are you mad-dogging me? Dorantes said, I just looked at you. I was not talking shit. Defendant asked for a gun, and the shorter boy removed a gun from his waistband and handed it to defendant. Defendant pointed the gun at Dorantess head and again asked, Why are you talking shit?

Padilla emerged from the house as defendant received the gun and began pointing it at Dorantes. (Padilla testified that Dorantes got out of the car after Padilla walked outside.) Padilla told defendant that Dorantes was just eating and was not doing anything. Padilla also said, Were not from nowhere, and urged defendant to calm down and put the gun away. Defendant shoved the car door against Dorantes, causing him to spill his soup. Padillas brother, Eduardo Salinas, emerged from the house and saw defendant pointing a gun at Dorantes. Salinas urged defendant to calm down and said, with reference to Dorantes, Whatever it is that he did, hes sorry. Defendant pointed the gun toward Salinass head and asked, You want some, too? The girl who was with defendant urged him to calm down and attempted to pull him away. Defendant and his companions began walking away, but defendant turned around and fired at least four shots as Padilla and Dorantes began to get into the car. One shot struck Padilla and three struck his car.

Dorantes testified that Salinas blamed him for bringing [defendant] there and Padilla asked Dorantes what he had done to defendant.

Count 1

On the morning of June 7 defendant engaged in a three to five minute telephone argument with Wilner Fuentes. Defendants girlfriend testified that defendant sounded angry during this argument. Defendants housemate Edgar Renteria overheard some of the conversation because defendant and Fuentes were using a walkie-talkie function on their phones. Fuentes was dissing the hood. Fuentes and defendant both belonged to the 46th Street gang, but Fuentes said he wanted to join the Primera Flats gang. Defendant said, Come over, come over, Ill show you whats up. A few minutes later, Renteria saw Fuentes approaching the house, looking happy as heck. Defendant went outside with his black Beretta, said, Fuck you, homeboy, and repeatedly fired at Fuentes. One shot struck and killed Fuentes. Defendant ran away, then fled the country with his girlfriend.

The police recovered four expended nine-millimeter casings on or near the sidewalk in front of Renterias house. Defendants girlfriend testified that after the shooting she saw a lot of nine-millimeter bullets on the bed in the room she and defendant occupied in the attic of Renterias house.

Detective Herman Frettlohr interviewed defendant after his arrest. Defendant initially blamed the ATC gang for shooting Fuentes, but ultimately admitted that he had shot Fuentes. He explained that he and Fuentes had argued over the phone before the shooting. He told Frettlohr that he shot Fuentes because Fuentes was talking shit to him, telling him about some ATCs and all this, and then he came back saying fuck the hood. Fuck everybody cause he was setting up one of my friends with the villain and then I justI just almost got shot with my girl, too, because of him. The 18s, he was going out with the 18s. Defendant said he used his nine-millimeter Beretta and fired about seven times, but he did not think he would actually hit Fuentes. He said, I just shot him. I didnt even know what I was doing cause my girl had take [sic] the gun away from me. He claimed he threw the gun away as he ran away from the scene. A recording of the interview was played at defendants trial.

Ballistics testing on all of the casings recovered at both the May 8 and June 7 crime scenes and a bullet recovered from Fuentess body established that all of the shots were fired by a nine-millimeter Beretta that was recovered from Raymond Whit on November 9. (The prosecutor did not establish any link between defendant and Whit.)

The prosecutions gang expert opined that the shootings on May 8 and June 7 were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members. He testified that defendant, his girlfriend, and Renteria were known members of the 46th Street Tokers gang, and that Renterias home was the gangs headquarters. The enemies of the 46th Street Tokers gang included the 18th Street, Primera Flats, and ATC gangs. Showing disrespect to ones own gang was likely to cause a fight, and attempting to leave the gang to join a rival gang was a serious breach of gang loyalty that would prompt the gang to take violent action against the departing member. With respect to the May 8 shootings, the expert testified that the shooting would enhance the gangs reputation by creating fear in the community. It would also protect the credibility and respect of a gang member who believed another person was mad-dogging him or her.

The jury convicted defendant of first degree murder, two counts of attempted murder (pertaining to Padilla and Dorantes), and assault with a firearm (pertaining to Salinas). The jury found that both attempted murders were willful, deliberate, and premeditated. The jury further found that in the commission of the crimes, defendant personally fired a gun, causing Fuentess death and great bodily injury to Padilla (Pen. Code,  12022.53, subd. (d); all further statutory references pertain to the Penal Code unless otherwise specified); and defendant personally used and fired a gun ( 12022.53, subds. (b)(c)). Finally, the jury found that each crime was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members. ( 186.22, subd. (b).)

The trial court struck all of the gang enhancement findings and sentenced defendant to prison for 125 years to life.

DISCUSSION

1. Denial of motion to sever

Before trial, defendant moved to sever the trial of count 1 from that of counts 2 through 4. When the trial court heard the motion, defendant did not argue, but merely submitted on the moving papers. The trial court denied the motion without explanation. Defendant contends that the trial court abused its discretion by denying the motion, and that the single trial of all charges violated due process.

Offenses that are of the same class of crime or are connected in their commission may, in the trial courts discretion, be charged and tried together. ( 954.) Cross-admissibility of evidence is not required. ( 954.1.) However, severance may be required if joinder would be so prejudicial that it would make the trial unfair. (Peoplev.Musselwhite (1998) 17 Cal.4th 1216, 12431244 (Musselwhite).) The first consideration is whether some of the evidence would be cross-admissible in separate trials. (People v. Soper (2009) 45 Cal.4th 759, 774 (Soper).) Cross-admissibility pertains to the admissibility of evidence tending to prove a disputed fact of consequence, not the cross-admissibility of another charged offense. (People v. Geier (2007) 41 Cal.4th 555, 576 (Geier).) Cross-admissibility is normally sufficient to dispel any suggestion of prejudice and to justify a trial courts refusal to sever properly joined charges. (Soper, at p. 775.)

If evidence would not be cross-admissible in separate trials, the trial courts exercise of discretion is channeled (Musselwhite, supra, 17 Cal.4th at p. 1244) through the following factors to determine whether the benefits of joinder [are] sufficiently substantial to outweigh the possible spill-over effect of the other-crimes evidence on the jury in its consideration of the evidence of defendants guilt of each set of offenses: whether some of the charges are particularly likely to inflame the jury against the defendant; whether the prosecution has joined a weak case with a strong case or another weak case, so that the totality of the evidence may alter the outcome as to some or all of the charges; and whether one of the charges carries the death penalty or their joinder turns the matter into a capital case. (Soper, supra, 45 Cal.4th at p. 775.) The party seeking severance must clearly show that the substantial danger of undue prejudice outweighs the benefits of joinder, such as timely disposition of criminal charges and conservation of judicial resources and public funds. (People v. Bean (1988) 46 Cal.3d 919, 939940.)

Denial of a motion to sever is reviewed for abuse of discretion in light of the record before the trial court when it ruled on the motion, not in light of what happened at trial. (Soper, supra, 45 Cal.4th at p. 774; Musselwhite, supra, 17 Cal.4th at pp. 1244, 1246.) Defendant must make a clear showing of prejudice to establish an abuse of discretion. (Soper, at p. 774.) Due to the preference for joinder, the trial courts discretion is broader in ruling on a motion for severance that in ruling on admissibility of evidence. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1221.)

Even if the trial courts ruling denying severance was correct when made, reversal is required if defendant shows that joinder actually resulted in gross unfairness amounting to a denial of due process. (Soper, supra, 45 Cal.4th at p. 783.)

All four of the offenses in this case were connected in their commission because ballistics testing established that the same gun was used in each. (People v. Leney (1989) 213 Cal.App.3d 265, 269.) The offenses were also of the same class because they were all violent assaultive crimes against the person. (Ibid.) Accordingly, joinder was proper.

Defendants motion to sever properly conceded that the ballistics evidence would be cross-admissible if the counts were tried separately. Evidence of defendants use of the same gun to kill Fuentes would have been admissible in a separate trial of counts 2 through 4 as evidence of defendants identity as the perpetrator. (Evid. Code,  1101, subd. (b).) The conceded cross-admissibility alone warranted denial of defendants motion and dispelled any inference of prejudice. (Soper, supra, 45 Cal.4th at pp. 774775.)

On appeal defendant argues that the evidence regarding the two incidents at issue in this case do[es] not share sufficient common and distinctive marks to be admissible in the respective separate trials. Defendant is wrong with respect to both the facts and the law. As noted, cross-admissibility in this context does not pertain to the cross-admissibility of another charged offense, but to cross-admissibility of evidence that would be introduced to prove a disputed fact of consequence. (Geier, supra, 41 Cal.4th at p. 576.) The gun defendant used to kill Fuentes was the same gun used in the commission of counts 2 through 4. This shared, distinctive mark made evidence of defendants use of the gun in the Fuentes murder admissible to prove identity with respect to counts 2 through 4.

The remaining bases of defendants motion did not demonstrate grounds for severance. Defendant argued that the evidence supporting count 1 was strong because he confessed to Fuentess murder, whereas the evidence regarding counts 2 through 4 was not as strong because it was riddled with different inconsistent identifications and no inculpatory statements by defendant. Apart from the reference to inculpatory statements by defendant, this argument was both inaccurate and insufficient to warrant severance. [A]s between any two charges, it always is possible to point to individual aspects of one case and argue that one is stronger than the other. A mere imbalance in the evidence, however, will not indicate a risk of prejudicial spillover effect, militating against the benefits of joinder and warranting severance of properly joined charges. (Soper, supra, 45 Cal.4th at p. 781.) An extreme disparity in strength or inflammatory character is required in order to demonstrate the potential for a prejudicial spillover. (Beltonv.Superior Court (1993) 19 Cal.App.4th 1279, 1284.) No significant, let alone extreme, disparity existed here. The three victims in counts 2 through 4 repeatedly and consistently identified defendant as the person who confronted them in front of their house, then fired multiple gunshots at them. The testimony of the three victims at the preliminary hearing was remarkably consistent, and any differences were attributable to the varying length of time each was present during the confrontation.

On appeal defendant augments his argument regarding a disparity in strength by claiming that the circumstances of the incident [underlying counts 2 through 4] were open to question and interpretation, given the contradictory information provided by Padilla, Salinas and Dorantes. But the testimony of Padilla, Salinas, and Dorantes was consistent regarding defendants conduct, and the testimony of Dorantes and Padilla was essentially consistent regarding Dorantess conduct. The only discrepancy between the testimony of Dorantes and Padilla pertained to whether or not Dorantes got out of the car before Padilla emerged from the house, and defendant does not attach any particular significance to the timing of this event. In no sense can the testimony of these three witnesses be described as providing contradictory information. Defendant further argues that an element of uncertainty was introduced by Dorantess testimony that Padilla and Salinas at some point blamed him for causing the conflict with defendant. Dorantess testimony regarding his uncles brief accusations introduced only a speculative prior expression of opinion by Padilla and Salinas, neither of whom witnessed the start of the incident.

Defendants motion also argued that significant prejudice would result from joinder because he may wish to testify on his behalf as to one of the cases but not the other. This argument was entirely speculative and addressed a matter that has not been recognized as a valid countervailing consideration in opposition to the strong public policy preferring a single trial of properly joined charges.

Defendants motion also argued that he would be greatly prejudiced by the tendency of evidence of multiple crimes within a short period of time (that would otherwise be inadmissible in separate trials) to show merely that the defendant is the type of person who is likely to engage in criminal activity, which results in a prejudgment of guilt and denial of a fair opportunity to defend against the charges. But the mere presentation of evidence of a defendants commission of multiple offenses is a necessary concomitant of joinder and is insufficient to render joinder unduly prejudicial. (Peoplev.Hill (1995) 34 Cal.App.4th 727, 735.) If it were, joinder could never be permitted. (Ibid.) [T]he benefits of joinder are not outweighedand severance is not requiredmerely because properly joined charges might make it more difficult for a defendant to avoid conviction compared with his or her chances were the charges to be separately tried. (Soper, supra, 45 Cal.4th at p. 781.) The danger to be avoided in joinder of offenses is that strong evidence of a lesser but inflammatory crime might be used to bolster a weak case on another crime. [Citation.] That danger was not present here where neither incident was significantly stronger or more inflammatory than the other. (Hill, at pp. 735736.)

After considering all of the pertinent factors, we conclude that defendant has failed to clearly show the prejudice required to establish that the trial court abused its discretion by denying the severance motion. Defendant also has not met his high burden of establishing that his trial was fundamentally unfair and violated due process. Nothing about count 1 was likely to influence the jury in determining defendants guilt of counts 2 through 4, or vice versa.

2. Refusal to instruct upon voluntary and attempted voluntary manslaughter

Defendant asked the court to instruct upon voluntary manslaughter and attempted voluntary manslaughter on a heat of passion theory, using CALCRIM Nos. 522 and 570. The trial court noted that there was no evidence of legally adequate provocation to support a heat of passion theory. It refused to instruct upon voluntary manslaughter and attempted voluntary manslaughter, but instructed with CALCRIM No. 522^[1]to address provocation negating premeditation and deliberation.

Defendant contends that the trial court erred by refusing to instruct upon voluntary manslaughter and attempted voluntary manslaughter based on heat of passion and argues that the error was of constitutional magnitude. With respect to count 1, he argues, as he did in the trial court, that defendant was provoked when his friend, Wilner Fuentes, persisted in making derogatory remarks about their hood and about their gang, and said he was leaving their gang to join a rival gang, viewed by the 46th Street gang as an enemy. With respect to counts 2 through 4, defendant argues that there was evidence that Josue Dorantes did something to provoke [defendant]. His uncles . . . appear to have concluded that Josue did something to precipitate [defendants] actions.

A trial court must give a requested instruction only if the instruction is supported by substantial evidence. (Peoplev.Marshall (1997) 15 Cal.4th 1, 39.) An instruction on a lesser included offense is required only when substantial evidence raises a question as to whether all of the elements of the charged offense are present. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence a reasonable jury could find persuasive. (Ibid.)

Where an intentional and unlawful killing occurs upon a sudden quarrel or heat of passion ( 192, subd. (a)), the malice aforethought required for murder is negated, and the offense is reduced to voluntary manslaughtera lesser included offense of murder. (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) Heat of passion will also reduce attempted murder to attempted voluntary manslaughter. (People v. Williams (1988) 199 Cal.App.3d 469, 475.) Heat of passion has both objective and subjective components. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) The defendant must subjectively act in the heat of passion. (Ibid.) But the claimed provocation must be sufficient to cause a reasonable person under the same circumstances to act rashly, without deliberation and reflection, from passion rather than from judgment. (Carasi, at p. 1306.) The provocation must be such that a reasonable person in defendants position would have reacted with homicidal rage. (People v. Koontz (2002) 27 Cal.4th 1041, 1086.) A defendant may not set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused . . . . (Cole, at pp. 12151216, quoting People v. Steele (2002) 27 Cal.4th 1230, 1252.)

Defendant has the burden of producing sufficient evidence on heat of passion to raise a reasonable doubt of his guilt of murder or attempted murder, unless the prosecutions own evidence suggests one of these mitigating theories. (People v. Rios (2000) 23 Cal.4th 450, 461462.)

Even viewing the evidence in the light most favorable to the defense, there was no evidence of legally sufficient provocation with respect to any count. With respect to count 1, defendant relies upon statements by Fuentes denigrating the gang to which both Fuentes and defendant belonged and declaring a desire to join a rival gang. (Although not cited in his appellate brief, defendants statement to the police also made vague references to Fuentes setting up one of defendants friends and doing something to cause defendant to almost [get] shot which were insubstantial in and of themselves.) With respect to counts 2 through 4, defendant relies upon nothing more than speculation that Dorantes may have done something to annoy defendant. Nothing in the record demonstrates that Dorantes did anything other than squint at defendant. While gang members are seemingly prone to extremely violent overreactions and passions, an ordinary reasonable person does not become homicidally enraged when another person squints while looking in his or her direction, criticizes an organization to which both individuals belong, or announces an intention to join a competing organization. Requiring the instruction with respect to any of the counts in this case would effectively adopt a reasonable gang member standard, which is not the law. Given the absence of substantial evidence supporting a heat of passion theory, the trial court did not err by refusing to instruct upon voluntary manslaughter and attempted voluntary manslaughter.

Further, the first degree murder finding on count 1 shows that the jury rejected any provocation theory.

3. Correction of abstract of judgment

Our review reveals three errors in the abstract of judgment that require correction. First, the authority for the enhancement for count 3 is subdivision (c) of section 12022.53, not subdivision (d). Second, the term for the enhancement for count 3 is 20 years, not 25-years-to-life. Third, the reference to section 186.22 in the Enhancements section must be deleted because the trial court struck, not stayed, all section 186.22 enhancements.

DISPOSITION

The judgment is affirmed. If the trial court has not already done so, it is directed to issue an amended abstract of judgment correcting the following errors: (1) the authority for the enhancement for count 3 is subdivision (c) of Penal Code section 12022.53, not subdivision (d); (2) the term for the enhancement for count 3 is 20 years, not 25-years-to-life; (3) the reference to Penal Code section 186.22 and the accompanying S in the Enhancements section must be deleted.

NOT TO BE PUBLISHED.

MALLANO, P. J.

We concur:

ROTHSCHILD, J.

CHANEY, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1]The court instructed the jury as follows: Provocation may reduce a murder from first degree to second degree. The weight and significance of the provocation, if any, are for you to decide. [] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder.