P. v. Puga
Filed 9/6/12 P. v. Puga CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
RUDY PUGA,
Defendant and
Appellant.
2d Crim. No.
B233473
(Super. Ct. No.
2009030906)
(Ventura
County)
Appellant Rudy Puga
appeals the judgment following his conviction for
§ 664/187), and shooting at an occupied motor vehicle (§ 246).
he personally discharged a firearm in the attempted murder. (§ 12022.53, subd. (c).)
prison, consisting of concurrent terms of 7 and 5 years for the
respectively, plus a consecutive term of 20 years for personal discharge of a
firearm. He contends the trial court
erred by failing to instruct the jury,
on the lesser included offense of attempted voluntary manslaughter based on the
theory of imperfect defense of another.
We affirm.
FACTS
At approximately 3:00 p.m. on August 22, 2009, Daniel Rodriguez was at the home of his
girlfriend Liliana Puga to attend a barbeque with the Puga family. He lived there part time, and had a child
with Liliana.
title="">[3] Ivan Puga and his girlfriend were also
present at the Puga house. Appellant was not there. Ivan is appellant and Liliana's brother.
Ivan and Liliana, who
had been drinking alcohol, were playing a game called "body blows"
where each person took turns hitting the other.
At some point during the game, Liliana called out to Daniel for
help. Ivan, Daniel, Liliana, Liliana's
sister Elizabeth, and Ivan's girlfriend all went outside. After a verbal argument, Ivan and Daniel
began to punch each other and Daniel wrestled Ivan to the ground. When Ivan's girlfriend started to kick
Daniel, Daniel let Ivan up and walked away.
Shortly thereafter, Daniel decided to leave.
Daniel had left his car
keys in the Puga house. He decided not
to go into the house to retrieve them.
Instead, he made a telephone call to arrange to be picked up by his
brother Jesse. Driving his mother's
Tahoe "SUV," and accompanied by his girlfriend Brenda Martinez, Jesse
drove to the Puga house. They picked up
Daniel, and drove off. A few minutes
later, Jesse decided to turn around and drive back to the Puga house to talk to
Maria Ceja (appellant's mother), Liliana and Ivan. Jesse was concerned about Daniel's car as
well as his own car which he previously had left at the Puga house in
inoperable condition. When Jesse
arrived, members of the Puga family, including appellant who had come home,
were standing outside. Jesse told Ceja
he just wanted to get Daniel's car and arrange to have his car towed away.
An intoxicated Ivan
started yelling at Jesse, and a fight began between Jesse, Ivan, and
Daniel. Appellant joined in the fight by
attacking Jesse allegedly with a screwdriver and telling Daniel that Daniel
"was going to get blasted."
Someone called the police and, upon hearing that the police were on the
way, Jesse, Daniel and appellant ran off.
The police arrived and interviewed Liliana and Martinez. Liliana and Martinez
began fighting with each other while the police were there. The police made no arrests but ordered Martinez
to drive away in the Tahoe SUV.
Martinez
found Daniel and Jesse a few minutes later.
They decided to return to the Puga house one more time to get Daniel's
and Jesse's cars which they feared might be damaged by the Pugas. They stopped on the way to pick up Daniel's
and Jesse's mother, father and uncle to help calm the situation.
When the five
individuals arrived at the Puga house. Jesse jumped out of the Tahoe and ran
towards Ivan Puga who appeared to be vandalizing Jesse's car. Before Jesse reached Ivan, appellant came out
of the house with a gun and fired six to eight shots at Jesse. Jesse ran back to the Tahoe as shots were
being fired. Neither Jesse nor anyone
inside the Tahoe was wounded but multiple bullets hit the vehicle itself. Jesse yelled for his mother to drive
away. Although two of the Tahoe's tires
had been flattened by bullets, she was able to get away and call the police.
Appellant was identified
as the shooter by Brenda, Jesse and Daniel.
The identification by Daniel was based on the shooter's clothing which
was otherwise identified as the clothing worn by appellant at the time of the
shooting. None of the Pugas identified
appellant as the shooter and the Rodriguezes' father was unable to make any
identification. Appellant presented
alibi evidence consisting of testimony from a cousin that he was at the
cousin's house at the time of the shooting.
Appellant was charged
with attempted murder of Jesse, shooting at an occupied motor vehicle, and
assault with a deadly weapon.
(§ 245, subd. (a)(1).) The
assault charge was based on the earlier fight between appellant and Jesse
involving appellant's alleged use of a screwdriver. Appellant was acquitted of the assault
charge.
DISCUSSION
Appellant contends the
court erred in failing to instruct the jury, sua sponte, on attempted voluntary
manslaughter based on the doctrine of imperfect defense of another. (See CALCRIM No. 604.) He argues that there was substantial evidence
that appellant repeatedly fired a gun at Jesse in the actual, if unreasonable,
belief that he was defending Ivan Puga from imminent death or great bodily
injury at the hands of Jesse. We
disagree.
Even in the absence of a
request, the trial court must instruct on the general principles of law closely
and openly connected with the facts before the court, and which are necessary
for the jury's understanding of the case.
(People v. Breverman (1998) 19 Cal.4th 142, 154.) The trial court must give instructions on
there is substantial evidence that all the elements of the lesser, but not the
greater, offense was committed. (
Substantial evidence is not any evidence, no matter how weak, but
evidence from which a reasonable jury could find the existence of the facts
underlying the instruction and that the defendant was guilty only of the lesser
offense. (People v. Moye (2009)
47 Cal.4th 537, 553.) A trial court has no sua sponte duty to
instruct on defenses which are not inconsistent with the defendant's theory of the case,
but has such a duty to instruct on lesser included offenses even if
inconsistent with the defendant's trial theories and tactics provided the
instruction is supported by substantial
evidence. (People
v. Breverman, supra,
at p. 159; People v. Moye, supra,
at p. 541.)
In any event, the trial court is not required to instruct on
theories the jury could not reasonably find to exist. (People v. Oropeza (2007) 151 Cal.App.4th
73, 78.)
California
recognizes the doctrine of imperfect defense of another. (People v. Randle (2005) 35 Cal.4th
987, 994–1001, overruled on a different point in People v. Chun (2009)
45 Cal.4th 1172, 1201.) Under the
doctrine, when a defendant kills or, as in this case attempts to kill, a person
in the actual but unreasonable belief the victim was in imminent danger of
death or great bodily injury, the defendant is deemed to have acted without
malice and can be found guilty of no crime greater than
Randle, supra, at
pp. 996–997.) As with imperfect
self-defense, imperfect defense of another requires that the
defendant must have had an actual belief in the need to defend
another. (Id. at pp. 994,
997.) "'"[T]he peril
must appear to the defendant as immediate and present and not prospective or
even in the near future.
appearances, must be instantly dealt with." . . .' [Citation.]" (In re
Christian S. (1994) 7 Cal.4th 768, 783, italics in original.)
As we have stated, although
appellant relied on an alibi defense, he would still be entitled to a jury
instruction on the lesser included offense of imperfect self-defense if there
was substantial evidence supporting the instruction. Here, we conclude that there was no substantial
evidence that appellant actually believed Ivan was in imminent danger of death
or great bodily injury, or that appellant acted for the purpose of defending
Ivan. Although
there had been two prior fights on the same day, the fighting earlier in the
day was limited to shoving, wrestling and the use of fists. When Jesse and the other people in the Tahoe
arrived at the Puga house for the third time, appellant opened fire as soon as
he saw Jesse get out of the vehicle, before Jesse had reached Ivan standing
near the Rodriguez cars, and after Ivan had started to run to safety. There is no evidence that appellant believed
either Ivan or Jesse were armed with a weapon and, in fact, they were not. There is also no eyewitness testimony
supporting the conclusion that Jesse may have posed a deadly threat to Ivan.
The only reasonable
conclusion supported by evidence is that appellant fired shots in retaliation for
the fighting that occurred earlier in the day, not because he was in fear for
Ivan's life. The evidence shows that he
simply took the matter into his own hands by firing a volley of shots as soon
as Jesse and the others arrived at the Puga house.
Although appellant's failure to
testify at trial was within his rights, the necessity for evidence of a state
of mind consistent with imperfect defense of another remains. (See People v.
Viramontes (2001) 93 Cal.App.4th 1256, 1262 [self-defense and unreasonable
self-defense].) Such evidence might
consist of out-of-court statements by appellant, or witness testimony
indicating that he was frightened or rushing to the aid of the victim. (People v. Oropeza, supra, 151
Cal.App.4th at pp. 81-82.) Here, there
was no such evidence. We are also mindful that
judicial authority may require an instruction on a
lesser included offense even if such a theory of the case was not pursued by
the defendant. (See People v.
Breverman, supra, 19
Cal.4th at p. 162.) But, a duty to
instruct must arise from the evidence, not speculation.
asserts that there was evidence of a history of "problems" between
the two families. Our review of the
record does not reveal any such evidence. There was evidence that Jesse was an imposing
figure who helped Daniel settle disputes, but no evidence of prior altercations
or disputes between the Puga and Rodriguez families. Also, contrary to appellant's argument,
evidence that various Puga family members were fearful because of the events
earlier in the day does not constitute substantial evidence that Ivan was in
imminent peril from Jesse at the time of the shooting.
The trial court instructed
the jury on perfect defense of another, and appellant argues that, if there was
sufficient evidence for that instruction, there was necessarily sufficient
evidence of imperfect defense of another instruction. Appellant cites a Bench Note to CALCRIM No.
604 (2010 rev.) stating that some courts have stated that, when a perfect
self-defense or defense of another instruction is given, the trial court should
also give the imperfect version of the instruction. Other courts, however, have held that a
perfect defense of another instruction does not necessarily require a parallel
imperfect defense of another instruction.
(See People v. Szadziewicz (2008) 161 Cal.App.4th 823, 833–834; People
v. Rodriguez (1997) 53 Cal.App.4th 1250, 1273.)
In this case, the record
indicates that the perfect defense of another instruction was given for
purposes of the assault with a deadly weapon charge arising from the fight
earlier in the day. Perfect defense of
another was argued at trial regarding the assault charge only. Neither counsel nor the court indicated in
any manner that the defense of another doctrine or instruction applied to the
shooting incident.
Appellant did not
present evidence that he acted in defense of his brother and the record
discloses a long day of physical conflict among members of the Puga family and
Daniel. The day ended in appellant's
gunfire in response to the likelihood of another conflict involving Daniel's
brother Jesse. There is no evidence that
anyone other than appellant was armed with a weapon and no direct evidence that
appellant believed he needed to intercede in the conflict. To the contrary, evidence shows that
appellant was not even present during much of the day. The trial court had no duty to instruct on
either reasonable or unreasonable defense of another.
The
judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P.J.
YEGAN, J.
Charles
W. Campbell, Judge
Superior
Court County of Ventura
______________________________
Mark R. Feeser for
Defendant and Appellant.
Kamala D. Harris.,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising
Deputy Attorney General, Eric E. Reynolds, Deputy Attorney General, for
Plaintiff and Respondent.
otherwise stated.
[2] The
17-year-old appellant was deemed 16 years of age or older pursuant to Welfare
and Institutions Code section 707, subdivision (d)(1).
