P. v. Pagan
Filed 9/18/12 P. v. Pagan CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RYAN CHRISTOPHER PAGAN et al.,
Defendants and
Appellants.
D059505
(Super. Ct.
No. RIF137370)
APPEALS
from judgments of the Superior Court
of Riverside
County, Mark E. Petersen, Judge. Affirmed.
A Riverside
County jury found Ryan Christopher
Pagan guilty of the first degree murder
(Pen. Code,[1]
§ 187, subd. (a)) of Gary Bolt as charged in count 1 of the second amended
information, and of the willful, deliberate, and premeditated attempted murder
of Raymond Hernandez (§§ 664 & 187, subd. (a)) as charged in count
2. The jury found true both a count 1
enhancement allegation that Pagan personally and intentionally discharged a
firearm causing death during the commission of the murder within the meaning of
subdivision (d) of section 12022.53, and a count 2 enhancement allegation that
he personally and intentionally discharged a firearm during the commission of the
attempted murder within the meaning of subdivision (c) of that section.
The jury
found Pagan's codefendant, Paul David Martinez, guilty as an aider and abettor
of both the second degree murder of
Gary Bolt (§ 187, subd. (a); count 1) and the willful, deliberate, and
premeditated attempted murder of Hernandez (§§ 664 & 187, subd. (a);
count 2). The jury found not true
enhancement allegations in counts 1 and 2 that Martinez
personally used a firearm within the meaning of subdivision (b) of section
12022.53.
The jury
also found both Pagan and Martinez
not guilty of assaulting a third and fourth alleged victim with a firearm
(§ 245, subd. (a)(2)) as charged in counts 3 and 4.
The court
sentenced Martinez to a total
prison term of 22 years to life and sentenced Pagan to a total prison term of
57 years to life plus 20 years.
Martinez
appeals, contending there is insufficient
evidence to support his convictions of murder and attempted murder because
he did not aid and abet Pagan in committing either of those crimes or any other
crime of which the murder and attempted murder could be said to be natural and
probable consequences.
Pagan
separately appeals, contending (1) his convictions of must be reversed because
there is insufficient evidence to support the jury's findings that he committed
those crimes with premeditation and deliberation; (2) his convictions of must
be reversed due to ineffective assistance of counsel because his counsel
prejudicially failed to request that the jury be instructed under CALCRIM No.
522 that provocation may reduce a murder from first to second degree, and may
also negate the premeditation and deliberation elements of the attempted murder
charge; and (3) his convictions must be reversed due to ineffective assistance
of counsel because his counsel prejudicially failed to object to the
prosecutor's legally incorrect argument (which the Attorney General concedes
was incorrect) that there was insufficient evidence of provocation because a
reasonable person would not have done what Pagan did.
Martinez's
and Pagan's contentions are unavailing.
Accordingly, we affirm the judgments.
FACTUAL
BACKGROUND
A.
1.
On Friday, May 25, 2007, Pagan and Martinez
were at a bar called the Horseshoe Lounge in Mira Loma. Also present at that bar were Steven Bolt,
his cousins Raymond Hernandez and Jerry Hughes, Richard Teves, and several
other people. Steven Bolt was the
brother of the murder victim in this case, Gary Bolt.
Hernandez
had taken prescription drugs for his own joy and was intoxicated after he drank
a dozen beers. He was walking around,
putting himself into other groups of people and brandishing a "quick
flick" knife. A bouncer took the
knife from Hernandez and gave it to one of the members of Steven Bolt's
group.
After last
call, as everyone was exiting the Horseshoe Lounge, Steven Bolt saw Pagan and Martinez
standing inside the bar near the exit door.
He did not speak to them. Hughes
then got into a fight with some other people outside the bar, and Steven Bolt
and Hernandez joined in the fight. The
fight ended when Hernandez was tasered by a bouncer.
2.
The next
night, Saturday, May 26, at around 11:00 p.m.,
Pagan and Martinez were at Linda's
Bar in Mira Loma when Steven Bolt and a group of his friends, including
Hernandez, arrived at the bar.
Pagan and Martinez
talked to Hernandez about his behavior at the Horseshoe Lounge the night
before, and Pagan told Hernandez he was drunk and trying to start a
problem. Hernandez bought them beer and
then socialized with his friends.
Steven Bolt
testified he met Pagan and Martinez
in the bar, and he had seen them the night before in the Horseshoe Lounge. When asked to describe what Pagan and Martinez
were wearing in Linda's Bar, Steven Bolt testified that one was wearing a white
shirt and dark jeans, and the other was wearing a gray shirt and dark
jeans. Steven Bolt also testified that,
after he and Hernandez spoke to Martinez,
he saw Martinez leave the bar
several times that night to talk on his cell phone.
Gary Bolt
and his girlfriend, Alexandra Naglich, arrived at Linda's Bar at around 12:30 a.m., about 90 minutes after Hernandez
arrived. Gary Bolt got into an argument
with two Mexican men over the music being played on the jukebox. When Steven Bolt stepped in between Gary Bolt
and the two other men, a punch was thrown, Steven Bolt returned a punch, and a
fistfight broke out and quickly moved outside into the parking lot.
As this was
happening, Pagan and Martinez, who were not involved in the fight, went out
into the parking lot. Steven Bolt
testified he saw Pagan and Martinez speaking with a man sitting in a pickup truck. Hernandez later told an investigator he saw
Pagan retrieve a handgun from the trunk of a car parked in the parking
lot.
Hernandez,
Steven Bolt, and Teves, who was Gary Bolt's brother-in-law, were standing in
the parking lot when a beer bottle flew past them. Steven Bolt turned around and saw Martinez
rushing at him at a full run. Martinez
picked him up while hugging his legs, slammed him into the ground, and hit him
in the face. Teves kicked Martinez and
Steven Bolt grabbed Martinez's shirt, pushed him away, and got back on his
feet.
Steven Bolt
testified that when he stood back up he saw Pagan holding a chrome or silver
revolver and looking at Hernandez.
Hernandez took off running and Pagan chased him while pointing the gun
at Hernandez with his finger on the trigger.
Pagan chased Hernandez around the building and across the street. He fired several rounds at Hernandez but did
not hit him. Hernandez was able to
escape by running into a Circle K store.
As Pagan
was chasing Hernandez, Martinez turned on Gary Bolt, who was walking towards
Naglich's truck. Martinez hit Gary Bolt
from behind as he was trying to get to Naglich's truck, causing Gary Bolt to
fall down behind the truck. Gary Bolt
struggled to get back onto his feet and then opened the truck door on the
passenger's side. As he was trying to
get inside the truck, Pagan, who was running towards the truck, said "fuck
you," and shot him in the back.
3.
A
ballistics expert testified the bullet removed from Gary Bolt's body was fired
from a revolver, either a .38-caliber special or a .357-caliber magnum. A forensic pathologist for the Riverside
County Sheriff-Coroner determined that the cause of Gary Bolt's death was the
gunshot wound.
B.
Martinez
did not present a defense.
Pagan
presented the testimony of his uncle, Patrick Trumbach. Trumbach indicated that Pagan was a
nonviolent person who was not capable of committing murder.
Pagan's
neighbor, Enrique Romero, testified it was "out of character" for
Pagan to "be in this position."
Heidi
Conway testified on Pagan's behalf that she was at Linda's Bar on the night of
the murder and witnessed the fight inside the bar and the shooting. She described the shooter as "Hispanic,
six foot, with a dark shirt and tan pants or shorts."
Pagan
testified on his own behalf. He
acknowledged he was wearing a white shirt on the night of the shootings, but
said a lot of people were wearing a white shirt. Pagan indicated he did not shoot Gary Bolt or
shoot at Hernandez. He testified he
could not remember whether he was in a position to see Gary Bolt being
shot. When asked whether he knew who was
shooting, Pagan replied, "Um. Steve.
Steve and, uh, and Marvin."
When asked how he knew they were shooting, Pagan stated, "I seen
them with the guns." When asked how
he saw them with guns, Pagan stated, "I just remember just seeing them
and, I don't know, everything happened so fast.
Everything happened so fast and, you know, it was a long time ago. You know, it was three years ago. I've been locked up in jail for something I
didn't do."
DISCUSSION
I
Martinez
contends there is insufficient evidence to support his convictions of murder
and attempted murder because he did not aid and abet Pagan in committing either
of those crimes or any other crime of which the murder and attempted murder
could be said to be natural and probable consequences. This contention is unavailing.
A.
1.
aiding and abetting liability
The court
instructed the jury under CALCRIM Nos. 400 and 401 on the law governing the
liability of a person who has directly aided and abetted the perpetrator's
commission of a crime. It also
instructed the jury under a modified version of CALCRIM No. 403 on the law
governing aiding and abetting liability under the natural and probable
consequences doctrine (discussed, post). Specifically, with respect to the natural and
probable consequences theory of aiding and abetting liability, the court
instructed the jury in part as follows:
"The People are alleging that [Martinez] originally
intended to aid and abet either assault
likely to produce great bodily injury or battery. [Martinez] is
guilty of murder[ or] attempted murder . . . if you decide
that [he] aided and abetted one of these crimes and that murder[ or] attempted
murder . . . was the natural
and probable result of one of these crimes.
However, you do not need to agree about which of these two crimes
[Martinez] aided and abetted."
(Italics added.)
After the
court gave the standard instruction on assault with force likely to produce
great bodily injury (CALCRIM No. 875), it gave a modified version of CALCRIM
No. 960, the standard instruction on simple battery, stating in part:
"To prove that [Martinez] is guilty of this crime,
the People must prove that: [¶] One,
[he] willfully touched Steven Bolt and/or
Gary Bolt in a harmful or offensive manner." (Italics added.)
Thus,
regarding the prosecution's natural and probable consequences theory of aiding
and abetting liability, the court instructed the jury that (1) the crime
Martinez allegedly aided and abetted was either assault likely to produce great
bodily injury or battery committed against Steven Bolt "and/or" Gary
Bolt; (2) the murder of Gary Bolt and the attempted murder of Hernandez were
the alleged natural and probable consequences of the crime or crimes Martinez
aided and abetted; and (3) the jury could find Martinez guilty of murder and
attempted murder if it found beyond a reasonable doubt that (a) he aided and
abetted the commission of such an assault or a battery against Steven Bolt
"and/or" Gary Bolt, and (b) the murder of Gary Bolt and the attempted
murder of Hernandez were natural and probable results of the crime or crimes
Martinez aided and abetted.
2.
During his closing argument, the prosecutor
argued as follows that Martinez directly aided and abetted Pagan in murdering
Gary Bolt and attempting to murder Hernandez:
"Counts1[ and 2, Pagan] was the perpetrator who
committed the crime[s]. [Martinez] knew
[Pagan] intended to commit the crime[s]. . . . [Martinez] knew [Pagan] intended to commit
th[ese] crime[s]. He knew they called
for guns. He knew they called for
backup. They had called people to
come. He was absolutely in a position to
know and to see everything that [Pagan] was doing, to see that his friend was
armed, to know that his friend was armed, and to know that he intended to
commit the crimes that came out of this.
"Before or during the crime[s], [Martinez] intended
to aid and abet. He intended to help
encourage, facilitate, promote. Those
are the words that the law uses to define aiding and abetting, to instigate, to
encourage th[ese] crime[s]. [Martinez]
encouraged th[ese] crime[s] by calling for the backup, by waiting by the truck,
by going over to the truck and getting a gun himself, by pointing a gun at the
crowd, by punching and fighting with the individuals involved, and very specifically
by becoming involved in a fight punching and detaining Gary Bolt and keeping
him from getting in the truck so he could be shot. All of those acts show that [Martinez] aided
and abetted in these crimes."
The
prosecutor also argued as follows that even if Martinez either did not act with
intent to directly aid Pagan in murdering Gary Bolt and attempting to murder
Hernandez or did not know Pagan intended to commit those crimes, the jury
should find him guilty as to both offenses under the theory that (1) he aided
and abetted either an assault likely to produce great bodily injury or a
battery committed against Steven Bolt "and/or" Gary Bolt, and (2) the
murder and attempted murder were natural and probable consequences of the aided
and abetted assault or battery:
"Aiding and abetting goes further, and you've got
an instruction on this. It's CALCRIM No.
403 in your packet, if that helps you to go back and read it. It defines the law and lays out what needs to
be proved for this kind of further extension of aiding and abetting liability
that's known as natural and probable
consequences.
"Natural and probable consequences is actually a
very common sense theory because what it's telling you is that aiding and
abetting goes further. It states that
even if the person didn't want to aid and abet the murder or the attempted
murder . . . , even if they didn't necessarily know that
second element from before, the knowing the perpetrator intended to commit the
crime, even if they didn't want to aid and abet those acts necessarily, they're
still guilty. They're still liable and
responsible for all of the crimes if they committed a battery, in this case in
particular, if they committed a battery or an assault. This is essentially being involved in the fist
fight. And what this really applies to
is it takes it a step further.
"[Martinez] is responsible under aiding and
abetting just by his acts and that he knew what was happening in that parking
lot when he went out there and was doing these acts. But the law says that even if he didn't know
what was happening, if he chose to commit a battery or an assault likely to
cause great bodily injury -- and you'll get definitions on those
crimes. . . . So the
facts that we have here that support that are . . . [Martinez]
tackling and attacking Steven Bolt, and the evidence that [Martinez] was also
beating Gary Bolt by the truck prior to Gary Bolt being shot. [¶] . . .
" . . . [I]f [Martinez] knew
that there were guns involved, which we know he did from the testimony and the
evidence, if he knew and he chose to participate in this fight and attack
people and have a gun and he knew his buddy had a gun and was using it, if it's
a natural and probable consequence that someone would be shot or shot at . . . ,
then he is responsible for all of those acts.
[¶] . . .
" . . . [I]f [Martinez] is
working in concert . . . with [Pagan] to commit th[ese]
crime[s], he's responsible for the outcome.
He's responsible for what [Pagan] did when he shot at and shot
people . . . ."
(Italics added.)
B.
1.
When
assessing a challenge to the sufficiency of the evidence, we apply the
substantial evidence standard of review, under which we view the evidence
"in the light most favorable to the judgment below to determine whether it
discloses substantial evidence—that is, evidence that is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt." (People
v. Johnson (1980) 26 Cal.3d 557, 578; Jackson
v. Virginia (1979) 443 U.S. 307, 319.)
The
uncorroborated testimony of a single witness is sufficient to sustain a
conviction or true finding on an enhancement allegation, "unless the
testimony is physically impossible or inherently improbable." (People
v. Scott (1978) 21 Cal.3d 284, 296.)
We do not reweigh the evidence, resolve conflicts in the evidence, or
reevaluate the credibility of witnesses.
(People v. Ochoa (1993) 6
Cal.4th 1199, 1206; People v. Jones
(1990) 51 Cal.3d 294, 314.)
"Resolution of conflicts and inconsistencies in the testimony is
the exclusive province of the trier of fact." (People
v. Young (2005) 34 Cal.4th 1149, 1181.)
2.
"Because
section 31 defines as principals all who directly commit a given offense or who
aid and abet in its commission, the same criminal liability attaches whether a
defendant directly perpetrates the offense or aids and abets the
perpetrator." (People v. Montoya (1994) 7 Cal.4th 1027, 1038-1039, italics
omitted.)
A person
incurs criminal liability as an aider and abettor when he or she (1) by act or
advice, aids, promotes, encourages, or instigates the commission of the crime;
(2) with knowledge of the perpetrator's unlawful purpose; and (3) with the
intent or purpose of committing, encouraging, or facilitating the commission of
the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259.)
"When
the definition of the offense includes the intent to do some act or achieve
some consequence beyond the actus reus of the crime [citation], the aider and
abettor must share the specific intent of the perpetrator." (People
v. Beeman (1984) 35 Cal.3d 547, 560.)
"[A]n aider and abettor will 'share' the perpetrator's specific
intent when he or she knows the full extent of the perpetrator's criminal
purpose and gives aid or encouragement with the intent or purpose of
facilitating the perpetrator's commission of the crime." (Ibid.)
"'Whether
defendant aided and abetted the crime is a question of fact, and on appeal all
conflicts in the evidence and reasonable inferences must be resolved in favor
of the judgment.'" (
402, 409.) While a defendant's mere
presence at the scene of an offense is not sufficient in itself to sustain a
conviction of aiding and abetting its commission, it is a circumstance that
will tend to support a finding that the accused was an aider and abettor. (Ibid.;
People v. Miranda (2011) 192
Cal.App.4th 398, 407.) Companionship,
and conduct before and after the offense, are also relevant factors the trier
of fact may consider in determining whether the accused aided and abetted the
commission of a crime. (People v.
Campbell, p. 409; People v. Miranda,
at p. 407.)
a. Natural and
probable consequences doctrine
"The
liability of an aider and abettor extends also to the natural and reasonable
consequences of the acts he knowingly and intentionally aids and
encourages." (People v. Beeman, supra,
35 Cal.3d at p. 560.)
Under the
natural and probable consequences doctrine, an aider and abettor is guilty of
not only the offense he intended to facilitate or encourage, but also of any
reasonably foreseeable offense committed by the perpetrator. (People
v. Prettyman, supra, 14 Cal.4th
at p. 261.) "'[The defendant's]
knowledge that an act which is criminal was intended, and his action taken with
the intent that the act be encouraged or facilitated, are sufficient to impose
liability on him for any reasonably foreseeable offense committed as a
consequence by the perpetrator.'" (
The
elements of aider and abettor liability under the natural and probable
consequences doctrine are: (1) the
defendant by act or advice aided, promoted, encouraged, or instigated the
commission of the intended target crime; (2) the defendant acted with knowledge
of the perpetrator's unlawful purpose; (3) the defendant acted with the intent
or purpose of committing, facilitating, or encouraging the commission of the
target crime; (4) the defendant's confederate
committed an offense (the nontarget offense) other than the target crime; and
(5) the nontarget offense committed by the confederate was a natural and
probable consequence of the target crime that the defendant aided and abetted. (People
v. Prettyman, supra, 14 Cal.4th
at p. 262; People v. Miranda,
In
determining whether the nontarget offense committed by the defendant's
confederate was a natural and probable consequence of the target crime the
defendant aided and abetted, the question is not whether the defendant actually
foresaw the confederate's commission of the nontarget offense, but whether,
judged objectively, the commission of the nontarget crime was reasonably
foreseeable. (People v. Medina (2009) 46 Cal.4th 913, 920; People v. Miranda, supra,
192 Cal.App.4th at p. 408.) Thus,
"[l]iability under the natural and probable consequences doctrine 'is
measured by whether a reasonable person in the defendant's position would have
or should have known that the charged offense was a reasonably foreseeable
consequence of the act aided and abetted.'" (People
v. Medina, at p. 920, quoting People
v. Nguyen (1993) 21 Cal.App.4th 518, 535.)
To be
reasonably foreseeable, the consequence of the confederate's act that the
defendant aided and abetted (that is, the confederate's nontarget offense)
"'"need not have been a strong probability; a possible consequence
which might reasonably have been contemplated is enough."'" (People
v. Medina, supra, 46 Cal.4th at
p. 920, quoting People v. Nguyen,
Whether the
consequence of the confederate's act was reasonably foreseeable is a factual
issue to be resolved by the jury based on its evaluation of all the factual
circumstances of the individual case. (
C.
Viewing the
evidence in the light most favorable to the judgment, as we must
v. Johnson, supra, 26 Cal.3d at
p. 578), we conclude that Martinez's convictions of the attempted murder of
Hernandez and the murder of Gary Bolt both must be affirmed because the
prosecution presented substantial evidence from which any rational jury could
find beyond a reasonable doubt that Martinez directly aided and abetted Pagan
in the commission of those crimes.
As already
discussed, a person incurs criminal liability as an aider and abettor when (1)
by act or advice, he aids, promotes, encourages, or instigates the commission
of the crime; (2) with knowledge of the perpetrator's unlawful purpose; and (3)
with the intent or purpose of committing, encouraging, or facilitating the
commission of the crime. (
1.
With
respect to the attempted murder of Hernandez, substantial evidence shows
Martinez aided Pagan, the perpetrator, when Pagan committed this crime. In an apparently unprovoked attack outside
Linda's Bar, Martinez rushed at Hernandez's cousin, Steven Bolt, slammed him to
the ground, and hit him in the face.
Steven Bolt testified that, as he stood back up─after Gary Bolt's
brother-in-law, Teves (who was standing nearby), kicked Martinez─he saw
Pagan, who was also standing nearby, holding a revolver and making eye contact
with Hernandez, who took off running with Pagan chasing after him while
pointing the gun at Hernandez with his finger on the trigger. Pagan fired several rounds at Hernandez, but
did not hit him. By instigating a fight
with Steven Bolt, Martinez allowed Pagan to pull out his handgun and confront
Hernandez at close range and also impeded the ability of both Steven Bolt and
Teves to assist Hernandez when Pagan assaulted and then tried to kill Hernandez
with the handgun.
Substantial
evidence also shows Martinez acted with both knowledge of Pagan's unlawful
purpose and intent to commit, facilitate, or encourage the commission of the
attempted murder of Hernandez. The
prosecution presented ample evidence showing that prior to the shootings Pagan
and Martinez had a confrontational
meeting with Hernandez in Linda's Bar regarding his behavior the night before
at the Horseshoe Lounge. When Hernandez
testified that he bought beer for Pagan and Martinez at Linda's Bar, the
prosecutor asked him, "Do you remember making a statement to Investigator
Ramirez the morning after Gary [Bolt] was shot" Hernandez initially replied,
"No." Hernandez, however, then
acknowledged that he had listened to the recording of his statement and that he
had been provided with a transcript of his statement. The prosecutor then asked him, "Do you
remember . . . telling the detective who was interviewing
you that morning, that you had run into or seen two guys in the bar and you had
to squash something with
them" (Italics added.) Hernandez replied, "Yeah, I heard that
on the tape." Hernandez acknowledged
that "squash" was a word he used.
When the prosecutor asked him for the meaning of that word, Hernandez
replied, "Like if you have a problem
with somebody and you just even it out or something." (Italics added.) A rational jury could reasonably infer from
Hernandez's testimony that his conversation with Pagan and Martinez at Linda's
Bar involved a "problem" and was confrontational.
This
reasonable inference is also supported by the testimony of Senior Investigator
Benjamin Ramirez of Riverside County's central homicide unit, who was assigned
as the investigating officer in this case.
Investigator Ramirez testified that he interviewed Hernandez at the
scene of the shootings. The prosecutor
asked Investigator Ramirez, "[W]ith [Hernandez], did you discuss whether
there had been any kind of confrontation
or issue arising with anyone over something that had happened the night before
at the Horseshoe [Lounge]"
(Italics added.) Investigator
Ramirez replied, "Yes." He
testified that Hernandez said he had a conversation at Linda's Bar with two men
who had seen him the night before and that there was "some
issue." Hernandez identified Pagan
as one of those men. Hernandez informed
Investigator Ramirez that Pagan told him that he (Hernandez) was drunk the
night before and had tried to start a problem.
Investigator Ramirez stated that Hernandez told him he had
"squashed" his conversation with Pagan.
Investigator
Ramirez also testified that when he interviewed Steven Bolt at the scene of the
shootings, Steven Bolt─who was at the Horseshoe Lounge the night before
with both Hernandez and Teves─told Investigator Ramirez that Martinez and
Pagan "mad-dogged" him as soon as he entered Linda's Bar.
In light of
the foregoing substantial evidence, which Martinez largely disregards, we
reject as unsupported his claim that "[t]here was no confrontation at
Linda's [Bar] between Steven Bolt, Hernandez and appellants."
The
prosecution also presented substantial evidence from which a rational jury
could find beyond a reasonable doubt that Martinez and Pagan acted together in
planning the attack on Hernandez and, thus, that Martinez not only aided Pagan,
but also knew about and shared Pagan's intent to shoot both Hernandez and Gary
Bolt. At trial, Hernandez acknowledged
he told Investigator Ramirez that he saw Pagan retrieve a handgun from the
trunk of a car parked in the parking lot.
Steven Bolt testified that after he and Hernandez spoke to Martinez in
Linda's Bar he saw Martinez leave the bar several times that night to talk on
his cell phone. Steven Bolt also
testified he saw Pagan and Martinez speaking with a man sitting in a pickup
truck in the parking lot.
This
evidence supports a reasonable inference that Martinez and Pagan acted together
to plan the attacks: Martinez and Pagan
together confronted Hernandez at Linda's Bar prior to the shootings, Martinez
used his cell phone to call for backup assistance, Pagan armed himself by
retrieving the gun from the trunk of the car, and they acted in concert during
the shootings. Martinez and Pagan, who
were still bothered by Hernandez's behavior the night before as evidenced by
their confrontational meeting with him at Linda's Bar, stayed together after
they finished their preparations, and their respective attacks on Steven Bolt
and Hernandez occurred within a very short period of time, with Martinez acting
first by instigating a fight with Steven Bolt and Pagan then assaulting,
chasing, and trying to kill Hernandez with his handgun. We conclude substantial evidence supports
Martinez's conviction of the willful, deliberate, and premeditated attempted
murder of Hernandez under an aiding and abetting theory of liability.
2.
The
prosecution also presented substantial evidence from which any rational jury
could conclude beyond a reasonable doubt that Martinez acted in concert with
and directly aided and abetted Pagan with respect to the murder of Hernandez's
cousin, Gary Bolt, in the parking lot outside Linda's Bar. It is undisputed that after Pagan failed in
his attempt to shoot and kill Hernandez, who testified he was able to escape by
running into a Circle K store, Pagan returned to the parking lot outside
Linda's Bar and was able to shoot and kill Gary Bolt with Martinez's assistance. Specifically, the evidence shows that as
Pagan was chasing and shooting at Hernandez, Martinez attacked Gary Bolt, who
was walking towards Naglich's truck and trying to leave, causing him to fall
down behind the truck. After he managed
to get back on his feet, Gary Bolt opened the truck door on the passenger's
side. As he was trying to get inside the
truck, Pagan, who was running towards Pagan, said "fuck you" and
fatally shot him in the back. This
evidence shows that Martinez assisted Pagan by preventing Gary Bolt from
leaving in Naglich's truck, thereby allowing Pagan to shoot and kill him.
Substantial
evidence shows that Martinez and Pagan continued to act in concert after Pagan
murdered Gary Bolt with Martinez's assistance.
Pagan and Martinez encountered Brenda Strader as they walked away from
Naglich's truck. Strader testified that
Pagan pointed his gun at her head and said, "You didn't see nothing,
bitch." When Strader replied,
"You're right, I didn't see shit," Pagan and Martinez got into Pagan's
car and sped away.
We conclude
Martinez's convictions of both the attempted murder of Hernandez and the murder
of Gary Bolt must be affirmed because the prosecution presented substantial
evidence from which any rational jury could find beyond a reasonable doubt that
Martinez directly aided and abetted Pagan in the commission of those
crimes. To the extent Martinez points to
contrary evidence and contrary inferences to support his claim that his
convictions of these crimes are not supported by substantial evidence, he
misapplies the substantial evidence standard of review discussed,
In light of our conclusion, we need not address the Attorney General's
argument that substantial evidence supports Martinez's conviction of these
offenses under the natural and probable consequences doctrine.
II
A.
and Deliberation
Pagan first
contends his convictions of the first degree murder of Gary Bolt and the
willful, deliberate, and premeditated attempted murder of Hernandez must be
reversed because there is insufficient evidence to support the jury's findings
that he committed those crimes with premeditation and deliberation. We reject this contention.
1.
An unlawful
killing of a human being with malice aforethought is murder and is of the first
degree if it is willful, premeditated, and deliberate. (§§ 187, subd. (a), 189.) "To prove the killing was 'deliberate
and premeditated,' it shall not be necessary to prove the defendant maturely
and meaningfully reflected upon the gravity of his or her act." (§ 189.)
The
California Supreme Court recently explained that, "[i]n the context of
first degree murder, '"premeditated" means "considered
beforehand," and "deliberate" means "formed or arrived at
or determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action." [Citation.]'
[Citation.] 'The process of
premeditation and deliberation does not require any extended period of
time. "The true test is not the
duration of time as much as it is the extent of the reflection. Thoughts may
follow each other with great rapidity and cold, calculated judgment may be
arrived at quickly . . . ."'" (People
v. Lee (2011) 51 Cal.4th 620, 636.)
In
the California Supreme Court "distilled certain guidelines to aid
reviewing courts in analyzing the sufficiency of the evidence to sustain
findings of premeditation and deliberation.
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 are descriptive,
not normative. [Citation.] The goal of Anderson was to aid reviewing courts in assessing whether the
evidence is supportive of an inference that the killing was the result of
preexisting reflection and weighing of considerations rather than mere
unconsidered or rash impulse." (
1125.)
"[T]he
Anderson court identified three
categories of evidence pertinent to the determination of premeditation and
deliberation: (1) planning activity, (2)
motive, and (3) manner of killing. . . .
The Anderson factors, while
helpful for purposes of review, are not a sine qua non to finding first degree
premeditated murder, nor are they exclusive." (People
v. Perez, supra, 2 Cal.4th at p.
1125.)
a. Standard of
review
In assessing
Pagan's challenge to the sufficiency of the evidence regarding the elements of
premeditation and deliberation, we apply the substantial evidence standard of
review (discussed, ante). (See People
v. Perez, supra, 2 Cal.4th at pp.
1123-1124.)
2.
Viewing the
evidence in the light most favorable to the judgment, we conclude substantial
evidence supports the jury's findings that Pagan acted with deliberation and
premeditation when he attempted to murder Gary Bolt's cousin, Hernandez, and when
he murdered Gary Bolt. We first address
the sufficiency of the evidence supporting the finding that Pagan acted with
deliberation and premeditation when he attempted to murder Hernandez.
a. Pagan's willful,
deliberate, and premeditated attempted murder of Hernandez
With
respect to the first Anderson factor,
we have already concluded that the prosecution presented substantial evidence
from which a rational jury could find beyond a reasonable doubt that Pagan and
Martinez acted together in planning the attack on Hernandez. As already discussed, the evidence shows
Pagan and Martinez had a confrontational meeting with Hernandez at Linda's Bar
prior to the shootings, Martinez used his cell phone to call for backup
assistance, Pagan was seen talking to a man in a vehicle in the parking lot,
Pagan armed himself by retrieving a gun from the trunk of the car, and Pagan
and Martinez acted in concert during the incident in which Pagan shot at
Hernandez after Martinez tackled Steven Bolt.
A defendant's act of arming himself with a weapon is evidence of
planning activity for purposes of determining whether substantial evidence
supports the jury's finding of premeditation and deliberation. (People
v. Perez, supra, 2 Cal.4th at p.
1126.)
"'"The
process of premeditation . . . does not require any
extended period of time[, and] '[t]he true test is not the duration of time as
much as it is the extent of the reflection.'"'" (People
v. Harris (2008) 43 Cal.4th 1269, 1286.)
Here, the foregoing substantial evidence supports a reasonable inference
that Pagan's attempt to shoot and kill Hernandez was the result of planning and
"preexisting reflection and weighing of considerations rather than mere
unconsidered or rash impulse." (
We conclude the prosecution presented ample evidence of Pagan's planning
activity.
Regarding
the second Anderson factor,
substantial evidence supports a reasonable inference that Pagan had a motive to
kill Hernandez. We have already
concluded the prosecution presented ample evidence showing that prior to the
shootings Pagan and Martinez had a confrontational meeting with Hernandez in
Linda's Bar regarding his behavior the night before at the Horseshoe
Lounge. The fact that Pagan felt the
need to have such a meeting with Hernandez shows he was still upset about the
prior incident.
Regarding
the third Anderson factor, Pagan's
manner of attempting to kill Hernandez also supported a reasonable inference
that Pagan acted him with premeditation and deliberation. The testimony of Steven Bolt and Hernandez
shows that almost immediately after Steven Bolt stood back up after Martinez
tackled and hit him, Pagan chased Hernandez across the street and fired a
handgun at him several times. We
conclude the jury could reasonably infer from this evidence that Pagan acted
with deliberation and premeditation.
Considering
all three Anderson factors and the
entire record, we conclude substantial evidence supports the jury's finding
that Pagan premeditated and deliberated his attempted murder of Hernandez. To the extent Villalobos points to contrary
evidence and contrary inferences to support his claim there is insufficient
evidence to support the jury's finding, he misapplies the substantial evidence
standard of review. Pagan has not
carried his burden to affirmatively show on appeal that there is insufficient
evidence to support the jury's finding of deliberation and premeditation.
b. Pagan's first
degree murder of Gary Bolt
Substantial
evidence also shows Pagan acted with deliberation and premeditation when he
murdered Gary Bolt. Substantial evidence
shows that after Pagan failed to kill Hernandez, who escaped by running into a
Circle K store, Pagan returned to the parking lot outside Linda's Bar, where he
found Gary Bolt trying to get into Naglich's truck, with Martinez nearby. Pagan did not get into his car and
leave. Instead, as Martinez was
assaulting Gary Bolt, which impeded Gary Bolt's attempt to get away in
Naglich's truck, Pagan ran over to the truck and, after Gary Bolt got back on
his feet and tried to get into the truck, fatally shot him in the back. The calculated nature of Pagan's act of
shooting Gary Bolt is demonstrated by the fact that he said "fuck
you" immediately before he pulled the trigger.
Overwhelming
evidence supports the jury's findings that Pagan committed the crimes charged
in counts 1 and 2 with deliberation and premeditation.
B.
Pagan next
contends his convictions must be reversed due to ineffective assistance of
counsel because his counsel prejudicially failed to request that the jury be
instructed under CALCRIM No. 522 that provocation may reduce a murder from
first to second degree and may also negate the premeditation and deliberation
elements of the attempted murder charge.
This contention is unavailing.
1.
A criminal
defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art.
I, § 15; Strickland v. Washington
(1984) 466 U.S. 668, 684-685 (Strickland);
People v. Pope (1979) 23 Cal.3d 412,
422, disapproved on another ground by People
v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) "We presume that counsel rendered
adequate assistance and exercised reasonable professional judgment in making
significant trial decisions." (People
v. Holt (1997) 15 Cal.4th 619, 703.)
To
establish a denial of the right to effective assistance of counsel, a defendant
must show (1) his counsel's performance was below an objective standard of
reasonableness under prevailing professional norms, and (2) the deficient
performance prejudiced the defendant. (
Cal.3d at p. 425.)
To show
prejudice, a defendant must show a reasonable probability that he would have
received a more favorable result had his counsel's performance not been
deficient. (Strickland, supra, 466
U.S. at pp. 693-694; People v. Ledesma,
claim of ineffectiveness assistance of counsel on the ground of lack of
prejudice without determining whether counsel's performance was deficient. (Strickland,
at p. 697; In re Fields (1990) 51
Cal.3d 1063, 1079.)
We will
reverse on the ground of ineffective assistance of counsel "'only if the
record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.'" (People
v. Zapien (1993) 4 Cal.4th 929, 980, italics added.)
2.
Applying
the foregoing principles, we conclude Pagan has failed to demonstrate that
there could have been no rational tactical purpose for his trial counsel's
failure to request that the court instruct the jury under CALCRIM No. 522 and
that his trial counsel's performance was deficient. CALCRIM No. 522 provides in part:
"Provocation
may reduce a murder from first degree to second degree [
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. [Also, consider
the provocation in deciding whether the defendant committed murder or
manslaughter.]" (Italics added.)
CALCRIM No.
522 is a pinpoint instruction[2] that
must be given on a defense theory upon
request when there is evidence supportive of that theory; a trial court is
not required to give a pinpoint instruction on the court's own motion. (See People
v. Rogers (2006) 39 Cal.4th 826, 878-879 [addressing CALJIC No. 8.73, the
CALJIC analogue to CALCRIM No. 522]; see also bench notes to CALCRIM No. 522.)
Here, the
record shows Pagan's defense counsel made a rational tactical decision
CALCRIM No. 522 in order to downplay provocation as a basis for reducing murder
from either first degree to second degree or to manslaughter. Pagan's defense was the defense of mistaken
indentity. Specifically, Pagan testified
on his own behalf and indicated he did not shoot Gary Bolt or shoot at
Hernandez. When his counsel asked
whether he knew who the shooters were, Pagan replied, "Um. Steve.
Steve and, uh, and Marvin."
When asked how he knew they were shooting, Pagan stated, "I seen
them with the guns." During his
closing argument, defense counsel's principal argument was that various
witnesses had misidentified Pagan as the shooter. Counsel did not expressly argue to the jury
that if it found Pagan guilty of murdering Gary Bolt, it should find him guilty
of second degree murder rather than first degree murder, nor did he argue that
Pagan should be found guilty of manslaughter rather than murder. Defense counsel also did not argue that if
the jury found Pagan guilty of the attempted murder of Hernandez, it should
convict him of attempted murder without deliberation and premeditation. Such arguments would have been inconsistent
with Pagan's defense of misidentification.
Even if
Pagan had met his burden of demonstrating his trial counsel provided
ineffective assistance by failing to request an instruction under CALCRIM No.
522, he has failed to show he suffered any prejudice. For reasons discussed, ante, we have already concluded that overwhelming evidence supports
the jury's findings that Pagan committed the crimes charged in counts 1 and 2
with deliberation and premeditation.
Pagan
contends, however, that "it is reasonably likely that the jurors would
have 'found the middle ground' and returned verdicts of second degree murder
and unpremeditated attempted murder had they been instructed
that . . . provocation evidence, if not sufficient to
reduce the crimes to voluntary
manslaughter and attempted voluntary manslaughter, could reduce the crimes
to second degree murder and unpremeditated attempted murder." This contention is unavailing.
The jury's
note stated: "We would like
clarification of the 'Special Instruction─No Unanimity Required' as it
pertains to 1st degree murder and/or voluntary manslaughter. Does a simple majority of either theory place
the choice as the ruling theory (i.e. 1st degree murder)" The 'Special Instruction─No Unanimity
Required" instruction to which the jury's note referred stated:
"As long as each juror is convinced beyond a
reasonable doubt that defendant is guilty of murder, attempted murder, or
assault with a firearm as that offense is defined by the instructions, it need
not decide unanimously by which theory he is guilty. The jury need not decide unanimously whether
defendant was guilty as the aider and abettor or as the direct perpetrator. Not only is there no unanimity requirement as
to the theory of guilt, the individual jurors themselves need not choose among
the theories, so long as each is convinced of guilt."
As Pagan
points out, the court "correctly responded by advising the jury that their
verdict on any of the charges had to be unanimous."[3]
Pagan's
contention that the jury would have returned verdicts of second degree murder
and unpremeditated attempted murder had they been instructed under CALCRIM No.
522 is speculative at best and thus unavailing.
In any event, the plain language contained in the note indicates the
jury was requesting clarification of the mechanics to be used in reaching a
verdict.
C.
Prosecutor's Closing Argument
Last, Pagan
contends his convictions must be reversed due to ineffective assistance of
counsel because his counsel prejudicially failed to object to the prosecutor's
legally incorrect argument during closing arguments that there was insufficient
evidence of provocation because a reasonable person would not have done what
Pagan did. This contention is also
unavailing.
A.
During closing argument, the prosecutor stated:
"When we're talking about the lesser included
offenses, voluntary manslaughter is a lesser of murder. [T]here are two different types actually of
voluntary manslaughter. The first is
heat of passion or provocation. And in
that situation we would have to see that the defendant was provoked, that he
acted under intense emotion, and that it
was a reasonable reaction. Again,
and do not show that [Pagan] was acting with intense emotion and
have reacted in the same way. No
reasonable person chases and shoots at someone or shoots someone in the
back. That's not a reasonable response. And there wasn't provocation. So again I would submit to you that we don't
even have to get to this point. You
don't have to consider it."
(Italics added.)
B.
The
italicized portion of the prosecutor's statement is incorrect, as the Attorney
General acknowledges. An unlawful
homicide is "'upon a sudden quarrel or heat of passion' [citation], and is
thus voluntary manslaughter [citation], if the killer's reason was obscured . . . by
a provocation sufficient to cause an '"ordinary [person] of average
disposition . . . to act rashly and without due
deliberation."'" (
142, 163.) "The focus is on the
provocation—the surrounding circumstances—and whether it was sufficient to
cause a reasonable person to act rashly.
How the killer responded to the
provocation and the reasonableness of the response is not relevant to sudden
quarrel or heat of passion." (
212, 223, italics added.)
Assuming
defense counsel provided ineffective assistance by failing to object to the
prosecutor's legally incorrect argument, we conclude Pagan's claim of
ineffective assistance of counsel must fail because he has failed to meet his
burden of showing he would have received a more favorable result had his
counsel's performance not been deficient.
(See Strickland,
Pagan claims that "the evidence of premeditation and
deliberation . . . was far from overwhelming." This claim is unavailing, as we have already
concluded that overwhelming evidence supports the jury's findings that Pagan
committed the crimes charged in counts 1 and 2 with deliberation and
premeditation.
DISPOSITION
The judgments are affirmed.
NARES, J.
I CONCUR:
BENKE, Acting P. J.
I CONCUR IN THE RESULT:
McDONALD, J.
[1]
Undesignated statutory references
will be to the Penal Code.
[2]
"A pinpoint instruction
'relate[s] particular facts to a legal issue in the case or "pinpoint[s]"
the crux of a defendant's case, such as mistaken identification or
alibi.'" (People v. Ward (2005) 36 Cal.4th 186, 214, quoting
1119.)
