P. v. Paz
Filed 1/31/14 P. v. Paz CA5
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prohibits courts and parties from citing or relying on opinions not certified
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE MADRIGAL
PAZ,
Defendant and Appellant.
F064457
(Merced Super. Ct. No. CRM012907)
APPEAL
from a judgment of the Superior Court of
Merced County. John D. Kirihara,
Judge.
Barbara
Michel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, William K. Kim and Tiffany J. Gates, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
Appellant/defendant
Jose Madrigal Paz shot and seriously
wounded his employer, Edward Trindade, when Trindade fired him for being
drunk on the job. Defendant fired three
shots into Trindade’s chest and back, and took away Trindade’s cell phone to
prevent him from calling for help. When
Trindade pleaded that he was going to die, defendant suddenly decided to help
the gravely wounded man
and drove him to the hospital. Trindade
survived his wounds.
After
a jury trial, defendant was convicted as charged of count I, attempted murder
(Pen. Code,
title="">[1] §§ 664/187), with the
special allegation that he personally and intentionally discharged a firearm
causing great bodily injury
(§ 12022.53, subd. (d)); count II, assault with a firearm (§ 245,
subd. (a)(2)), with the special allegations that he personally used a firearm
(§ 12022.5, subd. (a)), and personally inflicted great bodily injury
(§ 12022.7, subd. (a)); and count III, possession of a firearm by a felon
(§ 12021, subd. (a)(1)).
Defendant was
sentenced to the midterm of seven years for count I, attempted murder, plus a
consecutive term of 25 years to life for the section 12022.53, subdivision (d) firearm
allegation. The court stayed the terms
imposed for the remaining counts and special allegations pursuant to section
654.
On appeal,
defendant contends the court committed prejudicial
error when it denied his request to instruct the jury on personal use of a
firearm pursuant to section 12022.5, as a “lesser included enhancement†to
special allegation charged as to count I, attempted murder, that he personally
and intentionally discharged a firearm causing great bodily injury (§ 12022.53,
subd. (d)). We affirm.
Edward
Trindade owned and operated a farm in Merced County. In 1989, he hired defendant to work as a
tractor driver. They became friends and
their families socialized together.
However, Trindade testified defendant had a drinking problem. Defendant was often drunk when he operated
the tractor, and caused a mess in the field.
Trindade usually sent him home to sober up.
One
morning in 2004, defendant arrived at the farm when he was drunk. He held a rifle out of his vehicle and asked Trindade
if he was going to be fired. Trindade
said he would be fired if he came to work while drunk, but he would always have
a job if he quit drinking. Defendant
went home that day, “sobered up,†and kept his job. Trindade testified defendant continued to
work for him, but defendant kept drinking despite Trindade’s lectures and
warnings.
At some point in
2008, Trindade fired defendant because of his drinking. On or about February 20, 2008, defendant
arrived at the farm and confronted Trindade’s adult son, Aaron, and Justin
Booth, another farm employee. Trindade
was not there. Defendant was drunk and
said he was looking for Trindade. Defendant
waved around a gun and said he wanted to kill Trindade. He pointed the gun at Aaron and Booth, and
said he was going to kill them. Aaron
and Booth thought he was acting like a lunatic.
They called the sheriff’s department, and defendant was arrested and
taken to jail.
Defendant was
later charged with a criminal offense based on the 2008 incident.
the hearing to support defendant and his family. Trindade spoke on defendant’s behalf and said
he was a good man. He urged the court to
release defendant from jail and place him on probation. Trindade said the court should order defendant
into a treatment program, and prohibit him from owning a firearm, so defendant
would “ ‘become a good man and learn his lesson.’ â€
defendant in a treatment program.
Defendant completed the program, and Trindade gave him another chance
and hired him back. Trindade described
defendant as a good guy when he was sober.
Trindade
testified defendant stayed sober for about one year. However, he started drinking heavily again and
his work deteriorated. Trindade
testified defendant was “pretty out of his mind†and acted “crazy†when he was
drunk. Defendant kept working, and
Trindade tried to convince him to stop drinking.
The shooting
On
or about September 20, 2010, Trindade learned defendant damaged one of the
farm’s pickup trucks when he was drunk. While
backing up the tractor, defendant damaged the truck.
At
9:00 a.m. on September 21, 2010, defendant was operating the tractor in the
field. Trindade called defendant’s cell phone
and complained about the damaged truck. Trindade
could tell that defendant was drunk.
Defendant told Trindade to drive out to the field to meet him.
Trindade
drove his truck to defendant’s location in the field. Defendant stopped the tractor and jumped off.
Trindade testified it was obvious
defendant was “completely out of his mind drunk[,]†and the smell of alcohol
hit him in the face. Defendant’s eyes
were bulging out and he had a weird look on his face. Trindade climbed onto the tractor and shut
off the engine. Trindade told
defendant: “ ‘Jose, no more chances[,]’ â€
and fired him.
As Trindade
stepped off the tractor, defendant shot him once in the back with a nine-millimeter
handgun. Trindade fell down, then got up
and faced defendant. Defendant
said: “ ‘Oh, you want some more?’ †Defendant fired two more shots into the front
of Trindade’s chest. Trindade fell to
the ground.
Trindade was lying
in the dirt and bleeding profusely. He
reached for his cell phone and tried to call 911. Defendant took the cell phone away from
him. Trindade told defendant, “ ‘Jose,
I’m going to die ….’ â€
Defendant said no, that he was not going to die. Trindade testified defendant seemed to come
to his senses. Defendant picked up
Trindade and carried him to Trindade’s truck.
Trindade believed defendant put the gun in his belt. After he placed Trindade inside the truck, defendant
went back to the tractor and retrieved a 12-pack of beer. Defendant put the beer under the driver’s
seat of the truck, and he drove out of the field and headed to the hospital in
Merced.
Defendant
drove Trindade to the hospital, which was 5 to 10 miles from the shooting scene. Trindade described it as a “[t]errible†drive
because defendant drove very fast, jumped curbs, and blew two tires. Trindade was bleeding from his chest and in a
great deal of pain. Defendant mistakenly
drove to the old hospital complex, and then realized he was in the wrong
place. Defendant proceeded driving to
the new hospital facility. When they
arrived, defendant got out of the truck, and some of the beer bottles fell out
of the driver’s door. Trindade heard
defendant call out for help.
There were
several construction workers outside the hospital when defendant drove up. Defendant nearly hit their work truck when he
arrived. Defendant shouted that someone
needed help, and then he walked away.
The workers found Trindade in the vehicle and alerted the emergency
room. Some of the workers followed
defendant as he walked around the hospital building. They found defendant in the bushes. They surrounded him and persuaded him to
return to the hospital so he could talk to the police. Defendant agreed and walked back to the
truck.
Trindade
was still conscious when he arrived in the emergency room, but he was in shock
from massive internal bleeding. The emergency
room physicians believed he was not going to live, and allowed an officer to
briefly speak with him and ask what happened.
Trindade said defendant shot him.
Trindade
suffered major internal injuries from three bullet wounds into his chest and
back. The bullets entered his body very
close to his heart and spine, and severely damaged his colon. He was on life support and received 17 pints
of blood. He was in the hospital for 18
days and needed multiple operations.
Defendant’s statements
Defendant
was detained at the hospital by deputies from the Merced County Sheriff’s
Department. A deputy advised him of the
warnings pursuant to Miranda v. Arizona (1966)
384 U.S. 436, and defendant agreed to answer questions. Defendant’s eyes were red and his speech was
slurred. Defendant consented to a
breathalyzer test, and his blood-alcohol content was 0.20 percent, which was
two and one-half times the legal limit. Defendant
claimed he only had one beer.
When asked about
Trindade’s wounds, defendant claimed a former farm employee had arrived in a
red truck, argued with Trindade, and shot him.
Defendant said he rushed to help Trindade and drove him to the
hospital. About two hours later,
defendant was again questioned and said he had consumed four beers that day,
but again insisted Trindade was shot by a former employee. The deputies asked defendant if he had ever
threatened Trindade. Defendant said no,
but admitted he once threatened Trindade’s son.
Defendant
eventually admitted he shot Trindade, but claimed the shooting happened because
Trindade climbed on the tractor and grabbed him. Defendant became very emotional, and said he
loved his friend and did not want to do it.
The deputies
asked defendant what happened to the gun.
Defendant thought he left it in the field, and agreed to show them. The deputies drove defendant to the shooting
scene and found the tractor in the field.
Defendant walked around the area and then said he threw away the
gun. The deputies could not find the weapon,
and defendant eventually admitted he left it at the hospital. They went back to the hospital, and defendant
showed them where he buried the gun in a landscaped area. A deputy testified the gun was so well hidden
they would not have found it without defendant’s assistance.
The deputies
recovered a nine-millimeter semiautomatic handgun. There was one live cartridge in the chamber,
and an unexpended cartridge in the magazine.
One expended bullet was recovered from Trindade’s body. A spent casing was in defendant’s pocket, and
two spent casings were found at the shooting scene in the field.
Defendant
did not testify.
Dr.
Phillip Hamm, Jr., a licensed psychologist, testified defendant had a mood
disorder. Such people are paranoid,
easily agitated, have problems managing their anger, and have seriously
impaired judgment. In addition, such
people often have substance abuse problems because they self-medicate with
drugs and alcohol. Dr. Hamm testified
alcohol was a poor substitute for the correct medication, and exacerbated the
symptoms of a mood disorder. A person
with a mood disorder is already predisposed to act impulsively, and alcohol
further lowers that person’s inhibitions and impairs their judgment.
Dr. Hamm further
testified to his opinion that defendant was an alcoholic. Defendant told Dr. Hamm that he started
drinking when he was 14 years old, and he drank on a daily basis for 15
years. Defendant estimated he had
experienced 15 to 20 alcoholic blackouts.
Defendant’s father was also an alcoholic. Defendant suffered from Type 2 diabetes, and
alcohol could make such a person sedated and lethargic.
Dr. Hamm
testified defendant was extremely intoxicated at the time of the shooting. He was also taking several medications for
depression. The combination of alcohol,
medication, and his mood disorder magnified his disorientation, poor judgment,
and paranoia, and he was not able to discern what was actually happening. Defendant told Dr. Hamm he did not recall shooting
Trindade, but he remembered hearing gunshots and felt he was “up in the
clouds.†Defendant said his attention
became focused when Trindade said he was going to die, which allowed defendant
to take some action to help him.
DISCUSSION
THE JURY WAS
PROPERLY INSTRUCTED
In
count I, defendant was charged with attempted murder, with the special
allegation that he personally and intentionally discharged a firearm causing
great bodily injury, pursuant to section 12022.53, subdivision (d). On appeal, he contends the court should have
granted his request to instruct the jury with the “lesser included†special allegation
of “simple use of a firearm,†pursuant to section 12022.5.
A.
Background
During
the instructional phase, the jury was instructed that attempted voluntary manslaughter
was a lesser included offense of count I, attempted murder. The jury was further instructed that it could
only consider defendant’s voluntary intoxication to determine if he acted with
the intent to kill as to count I, attempted murder; the lesser included offense
of attempted voluntary manslaughter; and the special allegation that he
personally and intentionally discharged a firearm causing great bodily injury.
During
the lunch break in the midst of instructing the jury, defense counsel asked the
court to instruct the jury with “personal use of a firearm†as a “lesser
included†for the special allegation that he personally and intentionally
discharged a firearm causing great bodily injury. Defense counsel argued the jury could
determine that defendant may have intended to murder Trindade, and “did fire
the weapon[], but [he] did not intentionally fire the weapon. And I’m not sure how they would get there, but
they could believe that, that he attempted to murder, but that he did not
intentionally discharge the firearm. It
seems like it is a lesser included enhancement.â€
The
prosecutor replied they had been going “back and forth†on the issue, but
argued it was “almost an impossibility†for the jury to find defendant had the
intent to kill for attempted murder, and that the gun was accidentally or
unintentionally discharged. The
prosecutor believed an alternate firearm instruction would open up “a whole can
of worms†and create “a mess….â€
The
court replied that it would address the matter if possible, and took it under
submission to research the issue. The
trial continued as the prosecutor and defense counsel gave their closing
arguments.
After
the parties completed their arguments, the court denied defendant’s
instructional request for a “lesser included†firearm enhancement, and held it
did not have a sua sponte duty to instruct on a lesser included “enhancement.â€
B.
Lesser included instructions
The trial court
is required to instruct on its own motion on all
that are supported by the evidence. (People
v. Breverman (1998) 19 Cal.4th 142, 148-149.) However, a court does not have a sua sponte
duty to instruct a jury on lesser included
v. Majors (1998) 18 Cal.4th 385, 410-411.)
The superior
court correctly concluded it did not have a sua sponte duty to instruct the
jury on “lesser included enhancements.â€
However, defendant argues this issue does not involve sua sponte
instructions since he expressly requested the court to instruct the jury with a
“lesser included†firearm allegation. Defendant
argues the court should have granted his request for a lesser included
instruction on the “simple use of a firearm†pursuant to section 12022.5, based
on the evidence about defendant’s intoxication, his frantic efforts to save
Trindade’s life, and that he “did not intend to murder his long-time friend.â€
Even assuming
the court should have given the defense instruction on request, we find the
alleged error is harmless under any standard.
The failure to instruct on a lesser included offense is not prejudicial
properly given instructions, or if an examination of the
entire record establishes no reasonable probability that the error affected the
outcome of the case. (People v.
Sakarias (2000) 22 Cal.4th 596, 620-621; People v. Blair (2005) 36
Cal.4th 686, 747.) We will presume the
same standard would apply for the court’s refusal to instruct on a lesser
included firearm allegation.
C.
Firearm allegations
We find that to
the extent the court should have given a personal use instruction, the failure
to do so was not prejudicial based on the entirety of the instructions and the jury’s
verdict. As to count I, attempted
murder, it was alleged defendant personally and intentionally discharged a
firearm within the meaning of section 12022.53, subdivision (d), which states
in relevant part:
“Notwithstanding
any other provision of law, any person who, in the commission of a [specified
felony] …, personally and intentionally
discharges a firearm and proximately causes great bodily injury, as defined
in Section 12022.7, or death, to any person other than an accomplice, shall be
punished by an additional and consecutive term of imprisonment in the state
prison for 25 years to life.â€
For
the purposes of this allegation, great bodily injury is defined as a
significant or substantial injury. (§ 12022.7.)
Great bodily injury need not meet any
particular standard for severity or duration but need only be a substantial
injury beyond that inherent in the offense itself. (People v. Escobar (1992) 3 Cal.4th
740, 746-747; see, e.g., People v. Wolcott (1983) 34 Cal.3d 92, 107 [gunshot
wounds to a victim’s leg constituted great bodily injury where the victim lost
little blood, no sutures were used, and he returned to work the next day]; People
v. Le (2006) 137 Cal.App.4th 54, 57-59 [victim endured great bodily injury
when he was struck by a bullet while a passenger in a car, and suffered soft
tissue and muscular injury to both legs but was released from the hospital
within 24 hours]; People v. Lopez (1986) 176 Cal.App.3d 460, 465
[victims suffered great bodily injury when they immediately fell to the ground from
penetrating gunshot wounds, and were disoriented, screamed, or felt fiery heat].)
Section 12022.5,
subdivision (a), the purported lesser allegation
“[A]ny person who personally uses a firearm in the commission of a felony or
attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm
is an element of that offense.†(Italics
added)
Defendant
contends his request for a section 12022.5, subdivision (a) instruction was
supported by the defense evidence that he did not intend to kill Trindade. “A firearm-use enhancement under section
12022.5, subdivision (a) requires an element of intent. [Citations.]â€
(People v. Mehserle (2012) 206
Cal.App.4th 1125, 1139.) The “use†prohibited
by section 12022.5, subdivision (a) “means ‘to display a firearm in a menacing
manner, to intentionally fire it, or
to intentionally strike or hit a human being with it.’ [Citations.]â€
(In re Tameka C. (2000) 22
Cal.4th 190, 197, italics added.) “[T]he
prosecution must prove that the defendant ‘intentionally’ used the firearm [citation],
and that this use occurred ‘in the commission of’ the crime. An intentional use of a firearm in the
commission of a crime does not encompass any specific intent.†(People
v. Wardell (2008) 162 Cal.App.4th 1484, 1494.) “No intent to ‘do some further act or achieve
some additional consequence’ is part of the statutory definition.†(Ibid.)
As
applied to the instant case, it was undisputed that defendant personally fired one
shot from a nine-millimeter handgun into Trindade’s back. When Trindade struggled to his feet and faced
defendant, defendant asked if he wanted some more and fired two shots directly
into his chest. There was overwhelming
evidence that Trindade suffered great bodily injury from the grievous wounds
which nearly resulted in his death. The
bullets entered his body very close to both his heart and spinal cord, he
suffered massive bleeding before he reached the hospital, and the emergency
room staff believed he was going to die.
Defendant argues
the personal use allegation was supported by evidence that he did not have the
specific intent to kill Trindade, and the shooting was accidental. However, that theory was placed before the
jury based on the instructions on the elements of attempted murder (CALCRIM No.
600), voluntary intoxication (CALCRIM No. 625), and defense counsel’s closing
arguments that defendant did not intend to kill Trindade. Evidence of a defendant’s voluntary intoxication
is not an affirmative defense to a crime. (§ 29.4, subd. (a); People v. Martin
(2000) 78 Cal.App.4th 1107, 1116-1117; 1 Witkin & Epstein, Cal. Criminal
Law (3d ed. 2000) Defenses, § 26, pp. 355-356.) Evidence of a defendant’s voluntary intoxication
is inadmissible to negate the existence of a general criminal intent for a
charged offense. (People v. Atkins
(2001) 25 Cal.4th 76, 81.) As to a
specific intent crime, however, evidence of a defendant’s voluntary
intoxication may be admissible on the issue of whether the defendant actually
formed the required specific intent to commit attempted murder. (§ 29.4, subd. (b); People v. Castillo (1997) 16 Cal.4th 1009, 1014-1015; People v.
Atkins, supra, 25 Cal.4th at p. 81; People v. Carr (2000) 81 Cal.App.4th
837, 843; People v. Pensinger (1991) 52 Cal.3d 1210, 1242-1243.)
In this case, the
jury was instructed that as to attempted murder, defendant had to intend to
kill the victim, and he was guilty even if, “after taking a direct step toward
killing, [he abandoned] further efforts to complete the crime.â€
intoxication, the jury was instructed that it could only consider that evidence
to decide whether defendant “acted with an intent to kill†as to count I, attempted
murder.
Despite
these instructions, defendant was convicted of attempted murder and the jury rejected
his defense theory that his voluntary intoxication negated his specific intent
to kill. Given the jury’s verdict on
count I, it necessarily concluded that he personally and intentionally
discharged the firearm, as required by section 12022.53, subdivision (d), when
he fired the first shot into Trindade’s back, asked Trindade if he wanted some
more, and then fired two more shots into his chest. We thus conclude the question posed by defendant’s
requested instruction on personal use of a firearm was necessarily resolved by
the jury adversely to defendant on other, properly given instructions, and
there was no reasonable probability that the purported instructional error affected
the outcome of the case.
The judgment is affirmed.
_____________________
Poochigian, J.
WE CONCUR:
______________________
Levy, Acting P.J.
______________________
Kane, J.
Penal Code unless otherwise indicated.
convicted of a felony in 2008.
