P. v. Vasquez

 

 

 

 

 

 

 

 

 

 

Filed 9/14/12  P. v. Vasquez CA4/2

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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.

 

 

 

IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA>

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 

 
>

THE PEOPLE,               Plaintiff and Respondent,   v.   GLENN ADAM VASQUEZ,               Defendant and Appellant.

E054057               (Super.Ct.No. FVA022463)               OPINION

 

            APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Bernardino
County.  Ingrid Adamson
Uhler, Judge.  Affirmed.

            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, Lilia E. Garcia, and
Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

            Defendant Glenn Vasquez was 15 years old in July 2004
when he participated in a shooting that killed Sergio Sanchez.  In May 2011, a jury convicted defendant of
one count of second degree murder and acquitted him of three counts of
attempted murder.  The jury found true
the allegations that defendant had personally used a firearm, personally
discharged a firearm, and personally discharged a firearm causing death during
the commission of a murder offense but that the murder had not been committed for the benefit of a street gang.  The court sentenced defendant to a term of 40
years to life.

            On
appeal defendant contends the trial court committed instructional error when it
told the jurors they could not consider the lesser offense of voluntary
manslaughter if they found the presence of implied malice.  We hold there was no instructional error and
affirm the judgment.

II

FACTUAL BACKGROUND

            Defendant
and the People generally agree about the operative facts while disagreeing
about the reason defendant shot Sanchez.

A.  Prosecution Evidence

            On July 26, 2004, defendant lived at home with his parents and older
brother, who was a member of the Inland Empire Fontana (IEF) gang.  The jury did not find defendant guilty of a
gang-related crime. 

            Sanchez,
a West Side NHL gang member, was with a group of people planning to swim at a
pool near Susan Gochez’s apartment. 
Defendant hopped over the wall of the apartment complex and confronted
Sanchez, “mad-dogging” him as defendant passed by.  Defendant returned a few minutes later, again
looking closely at Sanchez.  At the wall,
defendant made a challenging gesture by throwing up his hands and asking
“what’s up” before jumping back over the wall.

            Sanchez
and his friends followed defendant over the wall where defendant was waiting
with his friends.  Defendant and Sanchez
argued and each made reference to gang affiliations.  One of defendant’s friends displayed a gun
and Sanchez and his friends retreated back over the wall.

            A few
minutes later, while Sanchez spoke with Gochez’s mother, the driver of a
vehicle, defendant and his friends pulled up in another car.  Defendant got out of his car and approached
Sanchez, repeating “what’s up now” and firing three shots at Sanchez.  A bullet hit Sanchez in the left shoulder,
puncturing his left lung, and striking two major blood vessels.  He died in the hospital.

            When
defendant returned home about 11:30 p.m. that evening, officers were
waiting for him.  Defendant fled,
dropping his gun.  An officer apprehended
defendant and arrested him.

B.  Defense Evidence

            Defendant
testified that, three weeks before the shooting, he had been beaten by three
NHL gang members, one of whom he recognized as Sanchez.  Defendant had his brother’s gun, which he had
given to a friend when they arrived at the apartment complex to visit
defendant’s girlfriend.  When defendant
saw Sanchez again, he was afraid and he shrugged his hands and shoulders and
jumped over the wall.  Sanchez and his
friends confronted defendant. 
Defendant’s friend handed defendant the gun.  Sanchez and his friends backed off, nodding
their heads to signal they would come after defendant later.  Defendant and his friends then drove their
car to where Sanchez was speaking with Gochez’s mother.  Defendant fired three shots at Sanchez and
his friends, intending only to scare them.

III

INSTRUCTIONAL ERROR IS
ABSENT

When reviewing a trial
court’s decision to issue a minor clarification to a deliberating jury
requesting elucidation, the correct standard of review is abuse of
discretion:  “Where, as here, ‘the
original instructions are themselves full and complete, the court has
discretion under [Penal Code] section 1138 to determine what additional
explanations are sufficient to satisfy the jury’s request for
information.’  [Citation.]”  (People
v. Davis (1995) 10 Cal.4th 463, 522.)

            In
closing argument, the prosecutor argued defendant could be found guilty of
second degree murder based on express malice aforethought (shooting with intent
to kill) or implied malice aforethought (shooting with a conscious disregard
for human life).  Based on CALCRIM No.
570, the court instructed the jury that a killing may be “reduced to voluntary
manslaughter if the defendant killed someone because of a sudden quarrel or in
the heat of passion.”  During
deliberations, the jury submitted a written question:  “Is manslaughter a type of murder or a
separate category from murder?  If
implied malice aforethought is present, can manslaughter be considered?”

            The
trial court reasoned that Penal Code section 192 states that manslaughter is
the unlawful killing of a human being without malice.  Therefore, the trial court additionally
instructed the jury:  “Both murder and
manslaughter are types of homicide. 
Manslaughter is a lesser offense to murder.  See CALCRIM 500.  As to the second part of your question, the
answer is no because voluntary manslaughter is the unlawful killing of a human
being without malice, express or implied.”

            On
appeal, defendant argues the court erred because, even if implied malice
aforethought is present, a defendant may be guilty of manslaughter if he acts
with conscious disregard for human life (implied malice) but unintentionally
and unlawfully kills in a sudden quarrel or heat of passion.  (People
v. Blacksher (2011) 52 Cal.4th 769, 832-833, citing People v. Lasko (2000) 23 Cal.4th 101.)

>Blacksher, addressing this principle, was decided after defendant’s
trial here.  More fully, >People v. Blacksher, supra, 52 Cal.4th
at pages 832 and 833, said:

“Murder involves the
unlawful killing of a human being with malice aforethought, but a defendant who
intentionally commits an unlawful killing without malice is guilty only of
voluntary manslaughter.   (>People v. Breverman (1998) 19 Cal.4th
142, 153.)  For purposes of voluntary
manslaughter, an intentional unlawful killing can lack malice when the
defendant acted under a ‘“‘sudden quarrel or heat of passion’”’ or when the
defendant acted under ‘“[an] unreasonable but good faith belief in having to
act in self-defense.”’  (>Id. at p. 154.)  Two years after the trial here, in >People v. Lasko (2000) 23 Cal.4th 101,
we clarified that voluntary manslaughter may also apply where a defendant
‘acting with conscious disregard for life and knowing that the conduct
endangers the life of another, unintentionally
but unlawfully kills in a sudden quarrel or heat of passion.’  (Id.
at p. 104.)”

            Respondent
agrees with the general proposition that a person acting with conscious
disregard for life, who unintentionally but unlawfully kills in a sudden
quarrel or heat of passion, can be found guilty of voluntary manslaughter.  Here, however, the jury did not inquire about
the effect of a sudden quarrel or heat of passion on implied malice.  Instead the jury asked only about implied
malice and manslaughter.  Implied malice
can be lacking when a person acts from a sudden quarrel or heat of
passion.  (People v. Blacksher, supra, 52 Cal.4th at p. 832.)  The trial court correctly told the jury that
voluntary manslaughter does not involve implied malice aforethought.  (Ibid.)  Nothing prevented the jury from finding that
defendant lacked malice and committed manslaughter, not second degree murder,
because he acted from a sudden quarrel or heat of passion.  The court properly instructed the jury on
these principles, based on CALCRIM Nos. 500, 520, 522, and 570.

            Because
there was no error, we do not need to address defendant’s additional arguments
regarding the applicable federal or state standards of review for evaluating
prejudice.

 

IV

DISPOSITION

            The
trial court did not commit instructional error. 
We affirm the judgment.

            NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON                     

                                                J.

 

We concur:

 

 

McKINSTER                         

                               Acting P. J.

 

 

RICHLI                                  

                                              J.