P. v. Vargas
Filed 4/26/13 P. v. Vargas CA4/2
TO BE PUBLISHED IN 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opinion has not been certified for publication or ordered published for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.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ARNOLDO
ESTEVEZ VARGAS,
Defendant and Appellant.
E055811
(Super.Ct.No. HEF005066)
OPINION
APPEAL
from the Superior Court of
County. Mark Mandio,
Judge. Affirmed with directions.
Michael
B. McPartland, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting, and
Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Arnoldo Estevez Vargas appeals from judgment
entered following a jury conviction for premeditated
murder (Pen. Code, § 187, subd. (a)
murder was committed for the benefit of a criminal
street gang (§ 186.22, subd. (b)) and that defendant personally used a
firearm (§ 12022.53, subd. (d)). The
trial court sentenced defendant to 50 years to life, plus three years for the
gang enhancement.
Defendant
contends the trial court erred in denying his request for instruction on provocation
(CALCRIM No. 522). Defendant also
asserts the trial court erred in imposing a fixed three-year term for the gang
enhancement under section 186.22, subdivision (b)(1). We conclude there was no
three-year gang enhancement term because the murder conviction carries a life
term and, therefore, the gang enhancement must be stricken. The judgment is affirmed in all other
respects.
II
FACTS
In
November 1998, defendant and Joshua McKendry lived in the Lake Elsinore area and were both members
of the Elsinore Young Classics street gang (EYC). The victim, Harry Estrada and his friend,
Armando Solis, were members of the Elsinore Vatos Locos street gang (EVL). EYC and EVL were rival gangs. Estrada’s house was located on the same
street as McKendry’s father’s house.
On November 8, 1998, at around 4:00 p.m., while Estrada and Solis
were talking in front of Estrada’s house, a caravan of three or four vehicles
carrying EYC gang members stopped in front of Estrada’s house. Eight EYC associates got out of their cars
and began fighting with Estrada and Solis.
McKendry testified he rode
in one of the caravan vehicles that stopped nearby, in front of his father’s
house. McKendry ran over to back up his
fellow EYC gang members. He saw Estrada
fall to his hands and knees. Defendant
and the other EYC gang members kicked and punched Estrada. Defendant removed a gun from his waistband
and fired four times at Estrada as he tried to crawl away on his hands and
knees. Defendant and the other EYC gang
members then left the scene in their vehicles.
The autopsy confirmed that Estrada was shot once in the arm and three
times in the back. He died a short time
afterwards.
On November 8, 1998, Officer Zerkel found one expended projectile and
seven shell casings at the crime scene.
Two expended projectiles were later recovered during Estrada’s
autopsy. Officer Takenaga determined
that the seven shell casings were fired from the same gun and the projectiles
were consistent with each other.
After the homicide,
defendant absconded to Mexico. Eleven years later, in 2009, he was
extradited back to the United States and was interviewed at the Riverside County jail. During his recorded police interview,
defendant admitted shooting Estrada, but claimed he shot Estrada when Estrada
was running toward him. Defendant
explained that he fired at Estrada because defendant was afraid Estrada was
going to do something to him. Defendant
also said he was unsure whether Estrada was running toward him or away from the
others or toward the house Estrada was standing in front of.
Officer Thompson, an expert
on Hispanic gangs in Lake Elsinore, testified that in 1998,
defendant was a member of the EYC gang.
The EYC and EVL gangs were rival gangs.
Thompson testified as to EYC’s primary criminal activities and predicate
offenses, and concluded that Estrada’s murder was committed for the benefit of
defendant’s gang, because it enhanced EYC’s reputation for violence.
III
INSTRUCTIONAL ERROR
Defendant
contends the trial court prejudicially erred in refusing to instruct on
provocation for purposes of negating the premeditation and deliberation
elements of first-degree murder. We
disagree.
Defense counsel requested the
court to give CALCRIM No. 522 on provocation, arguing that provocation can be
based on any emotion that causes a defendant to act with passion or without
malice aforethought. Defendant argued
that evidence Estrada was running toward him supported a finding of
provocation. The prosecution argued
there was insufficient evidence of provocation because there was no evidence
that defendant believed Estrada would inflict fatal or great bodily injury upon
defendant. The fight was not a violent
two-way struggle and Estrada was attempting to flee because he was outnumbered
and had been violently beaten.
The trial court rejected the
provocation instruction because the evidence established that defendant shot
Estrada after eight rival EYC gang members had severely beaten Estrada and were
chasing him as he was attempting to flee.
Estrada was outnumbered and was not fighting back.
CALCRIM No. 522 states: “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.†This instruction is a pinpoint
instruction, to be given on request. (
Cal.App.4th 1327, 1333; see also CALCRIM No. 522 Bench Notes.) A defendant may request, and a trial court
must give, pinpoint instructions relating to the theory of the defense. (People
v. Earp (1999) 20 Cal.4th 826, 886.)
However, “a trial court need not give a pinpoint instruction if it is
argumentative [citation], merely duplicates other instructions [citation], or
is not supported by substantial evidence
[citation].†(People v. Bolden (2002) 29 Cal.4th 515, 558.)
A defendant is entitled to
instruction on the defense theory of provocation “if it is supported by
substantial evidence, i.e., if a reasonable jury could conclude the particular
facts underlying the instruction existed.
[Citations.]†(
1446, 1450.) “We consider the
instructions as a whole and assume the jurors are intelligent persons capable
of understanding and correlating all the instructions. [Citation.]â€
(People v. Hernandez, supra,
183 Cal.App.4th at p. 1332.)
“The evidentiary premise of
a provocation defense is the defendant’s emotional reaction to the conduct of
another, which emotion may negate a requisite mental state.†(People
v. Ward (2005) 36 Cal.4th 186, 214-215.) Provocation, as commonly understood, means
“‘something that provokes, arouses, or stimulates’; provoke means ‘to arouse to
a feeling or action[;] . . . to incite to anger.’ (Merriam-Webster’s Collegiate Dict. (10th ed.
2001) p. 938; see People v. Ward (2005) 36 Cal.4th 186, 215 [30
Cal.Rptr.3d 464, 114 P.3d 717] [‘provocation . . . is the defendant’s emotional
reaction to the conduct of another, which emotion may negate a requisite mental
state’].)†(People v. Hernandez, supra, 183 Cal.App.4th at p. 1334.) Provocation arouses the emotions and can give
rise to a rash, impulsive decision, and this, in turn, negates premeditation
and deliberation. (Ibid.)
At trial, defendant argued
the theory of self-defense. During
defendant’s recorded interview in 2009, 11 years after the crime, defendant
admitted shooting Estrada but claimed he shot Estrada because Estrada was
running toward defendant. Defendant said
that when he arrived at the scene, other EYC members had already arrived and
were fighting Estrada. They were beating
up Estrada “badly†while chasing him in circles, as Estrada was trying to
flee. While being chased, Estrada ran
toward defendant, who was standing on the sidewalk. Defendant thought Estrada was going to attack
him. Estrada was six to eight feet from
defendant when defendant pulled out his gun and started shooting at
Estrada. When defendant fired at
Estrada, defendant was standing in front of a nearby house. Defendant did not know if Estrada was running
toward him to attack him or running toward the house to escape into the
house. Defendant fired about three
rounds at Estrada. When defendant first
fired at Estrada, Estrada was standing.
Defendant did not remember if, when he fired the other shots, Estrada was
on the ground. After Estrada fell to the
ground, defendant and his EYC companions fled.
Even assuming the homicide
occurred as defendant described it in his recorded statement, there was
insufficient evidence to support a provocation instruction. Estrada was being chased by eight gang
members from defendant’s own gang.
Estrada was out-numbered and had been badly beaten up. He was fleeing, not fighting, and did not
have a weapon. Defendant was not even
sure Estrada intended to do anything to defendant. Estrada was fleeing and defendant happened to
be in his path. On these facts, there
was insufficient evidence that defendant shot Estrada in the immediacy of any
ostensible provocation, since there was nothing in the record to show that
Estrada represented a threat to defendant.
Not
only was there insufficient evidence to support a pinpoint provocation
instruction but, in addition, any error in not giving the provocation
instruction was harmless. (
836.) The trial court instructed the
jury on homicide (CALCRIM No. 500), self-defense (CALCRIM No. 505), imperfect
self-defense (CALCRIM No. 571), and first and second degree murder (CALCRIM
Nos. 520 and 521). Based on these instructions,
the jury rejected the defense theories of self-defense and imperfect
self-defense, finding that defendant acted with deliberation when he fired at
Estrada. It is therefore unlikely that,
had the jury been instructed on the provocation pinpoint instruction, the jury
would have found defendant did not act with deliberation but, rather, acted
rashly, out of fear Estrada would do something to harm him. In addition, there was overwhelming evidence
that the incident involved a gang fight, in which defendant’s gang was brutally
beating up Estrada and defendant deliberately shot Estrada as he attempted to
flee. Accordingly, we find no
instructional error.
IV
SENTENCING ERROR
Defendant
was convicted of first degree murder, and the jury found true the allegation
that the murder was committed for the benefit of a
sentence on the murder conviction, and a consecutive three-year term on the
gang enhancement under section 186.22, subdivision (b)(1). Defendant contends, and the People agree, the
trial court erred in imposing the fixed, three-year term for the gang
enhancement. Under the exception for
felonies punishable by an indeterminate life term under section 186.22,
subdivision (b)(5) (formerly section 186.22, subd. (b)(4)), the court should
therefore strike the three-year gang enhancement term attached to the murder
offense.
Ordinarily,
the court may sentence a person who commits a violent felony for the benefit of
a criminal street gang with an additional term of 10 years (three years under
the former version of the statute in effect in 1998, when the charged crime
occurred). (§ 186.22, subd.
(b)(1)(C).) Section 186.22, subdivision
(b)(5), provides a different penalty for a person who commits a felony
punishable by life imprisonment, namely, an increased minimum parole period of
15 years. As noted by the parties, the
California Supreme Court held that the Legislature intended to apply this penalty
instead of the additional consecutive enhancement term under section 186.22,
subdivision (b)(1). (
1007; see also People v.
attached to count 1 must be stricken.
V
DISPOSITION
The trial court is directed
to strike the three-year gang enhancement under section 186.22, subdivision
(b)(1), attached to count 1. In all
other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RICHLI
Acting P. J.
KING
J.
otherwise noted, all statutory references are to the Penal Code.
