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P. v. Yau

P. v. Yau
03:30:2008



P. v. Yau



Filed 3/26/08 P. v. Yau CA2/8



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT



THE PEOPLE,



Plaintiff and Respondent,



v.



JULIO CESAR GUZMAN YAU,



Defendant and Appellant.



B194025



(Los Angeles County



Super. Ct. No. PA053160)



APPEAL from a judgment of the Superior Court of Los Angeles County. Burt Pines, Judge. Affirmed.



Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant.



Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.



__________________________



Julio Cesar Guzman Yau appeals from the judgment following his convictions for murder, attempted murder, and assault with a deadly weapon. We affirm.



FACTS AND PROCEEDINGS



Victim Pedro Arias and appellant Julio Cesar Guzman Yau worked together on a construction site. After arguing several times about how to do their jobs, they agreed one day in October 2005 to settle their dispute with fisticuffs after work. At the end of work that day, Arias got a ride home from victim Alonso Lara. While Arias and Lara were waiting at a red light to get onto the freeway, appellant pulled up in his car and asked Arias why he was leaving instead of fighting as promised. Arias said he wanted no trouble. When the light turned green, both cars drove onto the freeway, but appellant maneuvered menacingly around Laras car as if trying to push Lara and Arias off the freeway. Laras car exited the freeway with appellant tailing him onto side streets. Lara eventually pulled over and appellant stopped behind him.



The three men got out of the cars. As Lara stood to the side, Arias and appellant started punching each other. Arias hit appellant in the face, knocking (or possibly falling with) him to the ground. They fought for maybe a minute, after which they got up and Arias told appellant to leave because the fight was over.



Arias and Lara returned to Laras car. Arias had almost stepped inside when he saw that appellant had opened the trunk to his car and retrieved a gun. Yelling at Lara to flee, Arias ran away as appellant began shooting. A witness working in a nearby backyard saw appellant pull out a gun and say, Im going to fucking kill you before shooting Lara in the stomach and then fatally in the head as Lara sat wounded on the ground. Chasing after Arias, appellant fired four more times. When appellant stopped firing, Arias charged toward appellant but resumed retreating and disappeared around a corner when it appeared appellant had stopped shooting solely to reload. Appellant then returned to his car and drove away.



Police arrested appellant the next morning at the home of his girlfriend and former roommate, Nersi Flores. Searching the residence, they found the gun appellant had used against Lara and Arias. A jury convicted appellant of the second degree murder of Lara and for attempted murder and assault with a deadly weapon against Arias. The court sentenced appellant to state prison for 40 years to life. This appeal followed.



DISCUSSION



1. Insufficient Evidence Supported the Giving of a Diminished Capacity Instruction



Appellant testified in his defense. He told the jury that after he, Lara, and Arias exchanged words standing outside their parked cars, Everything happened really fast. [Arias] started throwing blows at me, and then he grabbed me and he knocked me to the ground. He testified his head struck the ground when he fell and I felt dizzy when I hit my head. Nersi Flores, at whose home police found appellant the day after the shooting, testified that appellants forehead was swollen when police arrested him, and a police detective confirmed he, too, noticed a bump.



Appellant asserts for the first time on appeal that the head trauma he suffered in hitting the ground affected his ability to form the mental state required to commit murder and attempted murder. He contends the trial court thus erred by not sua sponte instructing the jury that jurors could consider the effect of his injury on his state of mind during the shootings. (Pen. Code,  28, subd. (a); People v. Alvarez (1970) 4 Cal.App.3d 913, 918 [ It has long been settled that evidence of diminished mental capacity . . . caused by . . . trauma . . . can be used to show that a defendant did not have a specific mental state essential to an offense ].) He alternatively argues that if the court did not have a sua sponte duty to give such an instruction, his defense lawyer provided ineffective assistance of counsel by not requesting the instruction.



The legal principles dictating a courts duty to instruct a jury on diminished capacity are not entirely the same as those governing a defense attorneys professional obligation to request such an instruction.[1] But they overlap in at least one respect: the instruction requires substantial evidence. (People v. Barton, supra, 12 Cal.4th at p. 195; People v. Moringlane (1982) 127 Cal.App.3d 811, 820-821, disapproved on another point in People v. Jones (1991) 53 Cal.3d 1115, 1144-1145.) Here, appellant points to the swelling on his forehead and his feeling dizzy after striking the ground as evidence supporting a diminished capacity instruction. But such evidence contradicts his unambiguous claim at trial that he fired at Arias and Lara in self-defense, and is a shadow of his detailed testimony describing the steps he methodically took ostensibly to protect himself. He testified that after he managed to get away from Ariass grasp, he heard Lara say,  We better kill him.  When defense counsel asked him what he was thinking as he pulled away from the fight, he testified, I was afraid. I thought my life was in danger. Testifying he intended to scare off Arias and Lara so that he could escape, he went to his car to get his gun.[2] He described taking the keys from his pocket to unlock the trunk. He stated, I tried to hurry up and get the gun . . . it was underneath the spare tire; and then load the magazine, because it was in a separate place. Looking toward Lara and Arias, he saw Arias put his hand in his pocket before he lost sight of Arias. He then watched Lara reach underneath the drivers seat and heard something metallic-sounding fall. He testified, I thought my life was in danger. I thought it was a weapon, although I didnt see a weapon. But I thought he had a weapon at that time, and I fired. After shooting Lara, appellant advanced toward him. At that moment, Arias popped out of the car holding something in his hand. Believing Arias had a gun, appellant fired at Ariass feet. Arias ran away, but appellant chased him. He stopped pursuing Arias only after Arias rounded a corner and no longer appeared to pose a threat.



Nothing in appellants description of the shootings suggests diminished capacity. His testimony narrates a story of self-defense that to appellants misfortune the jury did not believe. In his recounting, he identified the threats from Lara and Arias and he acted to extinguish them. The detailed testimony tending to support self-defense undermined any claim that appellant was unable to form the requisite specific intent.



Appellants reliance on decisions where the diminished capacity instruction applied reveals the paucity of his diminished capacity evidence here. For example, in People v. Alvarez (1970) 4 Cal.App.3d 913, the victim stabbed the defendants arm, inflicting a wound at least three-fourths of an inch wide and one and a half to two inches long. The defendant testified that after being knifed, the next thing he remembered was finding himself at a kitchen drawer with a gun in his hand. (Id. at p. 917.) Feeling dizzy as if he were going to faint, he fell down stairs and injured his shoulder. (Ibid.) Witnesses noticed his wound bleeding heavily and described him as appearing to be in shock or ill. One witness said,  he was drained out . . . completely white. . . . His forehead had perspiration on it . . . he looked pale.  Another witness described him as being  in sort of like a daze, he didnt seem to be conscious of too much of what was going on around, awfully white, swayed from side to side a little bit, he wasnt really aware of what was going on as far as sound was [concerned], he heard me, but it was like he wasnt really conscious of it.  And a third witness testified,  he was walking around like a zombie, you know, just like he didnt knowlike he didnt know what was going on or anything, just walking around in a daze.  (Id. at p. 918.) Appellants injury does not come close to the trauma observed in Alvarez, and his reliance on the decision is inapt.



Indeed, appellants injury was not even as severe as the defendants injuries in People v. Free (1982) 131 Cal.App.3d 155, 166-167, which rejected a diminished capacity instruction. In Free, a large, muscular victim hit the defendant hard enough to knock him off his feet and fly him into a pool rack. (Id. at p. 167.) Bleeding profusely and dizzy from the victims punch that had knocked him stupid, the defendants knees were shaking and he couldnt see straight. But despite the defendants not having his bearings together after the victim hit him, the court held a diminished capacity instruction was unwarranted because the defendant was able to testify in detail about the events surrounding the shooting, including the positions of the combatants, their posture, their movements, the firing of the gun, how the victim fell and how appellant effected his escape. Likewise here. The blow to appellants head when he hit the ground made him dizzy, but his description of his acts and thoughts after breaking free from Arias show self-proclaimed self-defense, not mental impairment. (See also People v. Roy (1971) 18 Cal.App.3d 537, 545 disapproved on another point in People v. Ray (1975) 14 Cal.3d 20, 31 [rejecting diminished capacity instruction where defendant testified that while he was fighting his assailant he was hit on the head, [but] there is no evidence the blow caused a traumatic injury. Defendant testified he immediately got up and continued to fight. At trial, he was able to recount in detail the events which followed].)



The record did not contain substantial evidence that appellant suffered from any mental impairment during the shootings. Accordingly, the court had no duty to give, and trial counsel had no duty to request, a jury instruction on diminished capacity. (People v. Cunningham (2001) 25 Cal.4th 926, 1037-1038 [counsel not ineffective for failing to request instruction court not obligated to give].)



2. Possible Statements to Others in Shootings Aftermath



After the shootings, appellant spent the night at the home of his close acquaintance, Flores. Under direct examination by his defense counsel, appellant testified he did not tell Flores about the incident because he did not want to give her any anguish. Defense counsel then asked appellant whether he had told anyone about the shootings before police arrested him. The trial court sustained the prosecutors objection to defense counsels latter question.[3]



Appellant contends the court erred because whether he told someone he had been involved in a shooting in contrast to what he said about the events, which he concedes is inadmissible hearsay was relevant to his state of mind when he fired at Arias and Lara. He reasons he was more likely to have told others about the incident if he truly believed himself to have acted in self-defense; by similar reasoning, he argues he was less likely to have told others if he believed himself guilty of any crime. He concludes that evidence he talked about the incident, regardless of what he said, thus suggested a lack of guilty conscious. (People v. Frye (1985) 166 Cal.App.3d 941, 950 [Evidence of a declarants statement is not hearsay if it relates facts other than declarants state of mind and is offered to circumstantially prove the declarants state of mind. [Citation.] However, a statement is hearsay if it directly asserts the declarants state of mind and is offered to prove the declarants state of mind].)



The trial court applied Evidence Code section 352 to bar appellants testimony that any such conversations took place. The court reasoned that the risk of confusing issues or misleading the jury outweighed the probative value of such evidence.



We review the courts ruling for abuse of discretion, and find none. (People v. Avila (2006) 38 Cal.4th 491, 578.) Evidence that appellant may have told others about the shootings does not by itself reveal much about appellants mental state when he fired at Lara and Arias. He may have told others the truth, or he may have lied. He may have professed his innocence, or he may have confessed his guilt. One possibility is he may have told of a harrowing escape from death; another possibility is he may have falsely claimed innocence trying to construct an alibi. But whatever appellant told others, informing the jury that he talked to someone about the shootings without telling the jury what he said invited jurors to speculate improperly about the substance of hearsay conversations. Without knowing the content of those conversations, however, their mere existence helped the jury little in sorting out the truth about the incident. We therefore hold the court did not abuse its discretion when it found the probative value of evidence that appellant may have told someone about the shootings was outweighed by the risk of confusing the issues or misleading the jury.



In any event, even if the court erred in barring such evidence, the error was harmless beyond a reasonable doubt. Appellant testified at length in his defense. He told the jury he fired in self-defense, but the jury disbelieved him against the weight of Ariass testimony, the forensic evidence, and third-party eyewitnesses. We see no reasonable chance that jurors would have been more likely to find he acted in self-defense based on knowing the possible additional fact that he may have spoken to someone about the shootings before he was arrested.



DISPOSITION



The judgment is affirmed.



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



RUBIN, J.



WE CONCUR:



COOPER, P. J.



EGERTON, J.*



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[1] Strictly speaking, California does not recognize a defense of diminished capacity (People v. Reyes (1997) 52 Cal.App.4th 975, 982), but it does permit evidence to show a defendant did not form the particular mental state required to commit a particular crime. (People v. Steele (2002) 27 Cal.4th 1230, 1253; Penal Code  28, subd. (a).) Because diminished capacity is not a defense, a court has no sua sponte duty to give a diminished capacity instruction, particularly if the instruction conflicts with the defenses theory at trial. (People v. Dominguez (2006) 39 Cal.4th 1141, 1148; People v. Ervin (2000) 22 Cal.4th 48, 91; People v. Barton (1995) 12 Cal.4th 186, 195; People v. Saille (1991) 54 Cal.3d 1103, 1117-1120; People v. Sedeno (1974) 10 Cal.3d 703, 716, overruled on another point by People v. Breverman (1998) 19 Cal.4th 142, 157.)



[2] As appellants opening brief puts it, after hearing Laras murderous exhortation . . . [appellant] went straight to his trunk and got his gun.



[3] The questions, answers, objection, and ruling were as follows: Q:  Did you tell [Flores] what happened? [] A. No. [] Q. Why? [] A: I didnt want to give her any anguish. [] . . . [] Q. Did you tell anybody? [] [Prosecutor]: Objection, hearsay. [] [Court]: Sustained.



* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.





Description Julio Cesar Guzman Yau appeals from the judgment following his convictions for murder, attempted murder, and assault with a deadly weapon. Court affirm.
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