P. v.
Sandoval
Filed 8/8/12 P. v. Sandoval CA2/7
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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and
Respondent,
v.
RAFAEL VICENTE SANDOVAL,
Defendant and
Appellant.
B234556
(Los Angeles County
Super. Ct. No. BA326469)
APPEAL from the judgment of
the Superior
Court
of
County, Bob S. Bowers, Jr., Judge. Affirmed.
Jennifer A. Mannix, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General of California, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Stephanie A. Miyoshi and
Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant and appellant
Rafael Vicente Sandoval was convicted by a jury of murder (Pen. Code,
§ 187, subd. (a)) and attempted
murder (§ 664/187, subd. (a)). He asserts instructional error requires
reversal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sandoval and Marina Amaya dated for about two
years.~(RT 42-43)~ After the breakup,
Sandoval repeatedly asked Amaya to be his girlfriend again until Amaya told him
she was seeing someone else. A few weeks
later, on July 29, 2007, Amaya and her family
friend Oscar Miranda were sitting in Miranda’s car; Sandoval drove up and
parked behind them. Sandoval then drove
next to Miranda’s car and fired into it.
Amaya was not wounded but Miranda died from gunshot wounds.
Sandoval was charged with murder and attempted murder;
shooting at an occupied motor vehicle (§
246); and two counts of shooting
from a motor vehicle (§ 12034,
subd.(c) & (d)). Each
count also bore special allegations (§
12022.53, subd. (d); § 190, subd. (d); §190.2, subd. (a)(21)). At trial, the court instructed the jury as to
the elements and degrees of murder (CALJIC Nos. 8.10, 8.20, 8.25.1, 8.30, 8.31)
and the elements of attempted murder (CALJIC Nos. 8.66, 8.67). The court also instructed the jury on
voluntary manslaughter and attempted voluntary manslaughter, along with
instructions on heat of passion or provocation (CALJIC Nos. 8.40, 8.41.
8.42). At the request of both attorneys,
the court then instructed the jury with
CALJIC No. 8.50, which focuses on the distinction between murder and
manslaughter. That instruction informs
the jury that the burden is on the prosecution to prove beyond a reasonable
doubt each element of murder and the absence of heat of passion or a sudden
quarrel.
Neither counsel objected to the jury
instructions. The jury found Sandoval
guilty on all counts and also found true all special allegations. Sandoval appeals.
Following the murder and
manslaughter instructions, the court instructed the jury with CALJIC No. 8.50: “The distinction between murder and
manslaughter is that murder requires malice while manslaughter does not. When the act causing the death, though
unlawful, is done in the heat of passion or is excited by a sudden quarrel that
amounts to adequate provocation, the offense is manslaughter. [¶] In
that case, even if an intent to kill exists, the law is that malice, which is
an essential element of murder, is absent.
[¶] To establish that a killing
is murder and not manslaughter, the burden is on the People to prove beyond a
reasonable doubt each of the elements of murder and that the act which caused
the death was not done in the heat of passion or upon a sudden quarrel.”
On appeal, Sandoval argues that a portion of CALJIC
8.50—that the prosecution had to prove beyond a reasonable doubt “that the act
causing death was not done in the heat of passion”—should have also been read
directly following the murder instructions.
Because this portion was only read after the manslaughter instructions,
Sandoval claims the instructions as read presented the absence of adequate
provocation as an exclusive element of manslaughter and not murder. According to Sandoval, this could have led
the jury to believe that it could convict him of murder without considering
whether the killing was committed in the heat of passion.
The People contend that Sandoval is barred from
raising this claim because his counsel, by expressly requesting CALJIC No.
8.50, invited any error. (
610, 675.) However, because Sandoval
also claims his counsel provided ineffective assistance by failing to request
modified instructions, we address the merits of his claim.
Sandoval’s contention focuses on an isolated
portion of CALJIC
No. 8.50 and the order in which it was read.
However, “the correctness of jury instructions is to be determined from
the entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction. [Citation.]” (People
v. Carrington (2009) 47 Cal.4th 145, 161.)
In fact, Sandoval’s argument was rejected by the Court of Appeal in
212. In that case, defendant also argued
that the order of instructions led the jury to convict him of murder without
considering whether the killing was adequately provoked. (Id.
at p. 227) The court noted that the jury
heard all of the instructions in their entirety—including the instruction on
the prosecution’s burden of proving the absence of adequate provocation—before
retiring to deliberate. (
understood and considered all of the instructions as a whole, in whatever order
they might have been read, and found that the defendant was properly convicted
of murder. (Ibid; see also People v.
Castaneda (2011) 51 Cal.4th 1292, 1321 [jurors are presumed to be
“‘“capable of understanding and correlating all jury instructions
. . . given.”’”].)
Here, we can do more than presume that the jurors
understood and considered all of the instructions given. The jury sent out two questions during
deliberations. First, the jury requested
clarification on whether the “drive-by murder” instructions applied to
attempted murder. Then the jury asked,
“Does the element of ‘drive-by’ murder negate any relevance of ‘heat of
passion’ for the first degree murder”
In response to the second question, the court instructed the jury to
consider heat of passion when deliberating on the “drive-by” murder charge.
Moreover, the court gave additional instructions that
reinforced CALJIC No. 8.50’s provision that the prosecution must have shown an
absence of provocation beyond a reasonable doubt for Sandoval to be convicted
of murder. For example, CALJIC No. 8.40
informed the jury that malice is not established “if the killing occurred upon
a sudden quarrel or heat of passion.”
The jury was instructed that “if [it] should find [Sandoval] guilty of
an unlawful killing, [it] must agree unanimously as to whether he is guilty of
murder of the first degree or murder of the second degree” or voluntary
manslaughter. (CALJIC No. 8.74) The jurors were also told that they could not
find Sandoval guilty of manslaughter unless they also unanimously found him not
guilty of murder. (CALJIC No. 8.75) When all of these instructions are read a
whole, we do not find that the jurors could have reasonably inferred any
preclusion from considering heat of passion during deliberations.
We conclude the jury was properly instructed on the
applicable law. We identify neither a
deficient performance by Sandoval’s counsel nor any prejudice from the failure
to request modified instructions.
The judgment is affirmed.
ZELON,
J.
We concur:
WOODS,
Acting P.J.
JACKSON,
J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise indicated.
all criminal defendants have a right to effective representation, ineffective
assistance does not warrant reversal of criminal convictions unless the
defendant suffered prejudicial error. (
668, 691). The court may therefore
“dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice,” rather than counsel’s deficient performance. (Id.
at p. 697.)
