P. v. Vasquez

Filed 11/1/07 P. v. Vasquez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Jose Dominguez Vasquez appeals from the judgment after a jury convicted him of first degree murder (Pen. Code,  187, subd. (a), 189) (count 1),[1]assault with a semiautomatic firearm ( 245, subd. (b)) (count 2), second degree robbery ( 211) (count 3), possession of a firearm by a felon ( 12025, subd. (b)) (count 4), and carrying a loaded firearm by a member of a criminal street gang ( 12031, subd. (a)(1), (2)(C)) (count 7). The jury made true findings with respect to the firearm and gang allegations as to all counts. The court sentenced appellant to a term of 50 years to life, plus 29 years 4 months in state prison.

The court imposed a $200 restitution fine ( 1202.4, subd. (b)) and imposed and suspended a parole revocation fine ( 1202.45) in the same amount. Appellant also was ordered to pay $8,733 in direct victim restitution ( 1202.4, subd. (f)), a $10 fine ( 1202.5), and a $20 court security fee ( 1465.8, subd. (a)(1)). He was given credit for 911 days of presentence custody.

Appellant's claims of error all relate to the murder count. He alleges the trial court erred in failing to instruct the jury sua sponte with CALCRIM No. 522 (evidence of provocation may be considered in determining degree of murder) and in instructing the jury with CALCRIM No. 226 (factors to consider when determining credibility of witnesses). In the alternative, appellant alleges his trial counsel was ineffective for failing to request CALCRIM No. 552 and failing to object to CALCRIM No. 226.

Respondent asserts the trial court erroneously imposed a $20 court security fee, rather than four $20 fees, pursuant to section 1465.8.

We will order the trial court to amend the abstract of judgment to reflect four $20 fines pursuant to section 1465.8 and will affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL HISTORY

Appellant was convicted of crimes occurring on two different dates. The first occurred on April 28, 2004, and involved possession of a firearm. The second incident, on May 2, 2004, involved the shooting and killing of Aristide Sanchez.

The April 28, 2004, Arrest

Officer Jones testified that on April 28, 2004, he made a traffic stop after he saw a car make an improper left turn at the intersection of Maple Street and San Gabriel Boulevard in Pasadena. Appellant was driving the car. Appellant and his passenger, Mario Madera, stepped out of the car at the officer's request. Appellant did not have a driver's license with him.

Because the car was to be impounded, Officer Jones searched it to inventory the contents. During the search, Officer Jones saw a gun under the front driver's seat. The gun was a loaded, stainless steel revolver, with wooden grips. Appellant denied the gun was his or that he had knowledge that the gun was in the car. Both appellant and Madera were arrested.

The May 2, 2004, Shooting

1. Prosecution Case-in-Chief

Early in the morning on May 2, 2004, Aristide Sanchez, Raul Tineo and Bryant Mangum stopped at the corner of Orange Grove Boulevard and Los Robles Avenue to use a pay telephone. Shortly after the men got out of the car, Magnum saw three or four vehicles stop at the intersection for a stoplight. The vehicles proceeded down Orange Grove Boulevard for a few blocks, then made U-turns and returned to the intersection. Two of the vehicles stopped at the curb nearest the telephone. The other vehicles stopped on Los Robles Avenue, near the telephone and entrance to the parking lot. Approximately 9 to 12 Hispanic men got out of the vehicles.

Appellant approached Mangum, two others approached Tineo, and the rest approached Sanchez. Appellant demanded that Mangum empty his pockets. Appellant had a gun. Appellant went through Mangum's pockets, taking everything out, including an envelope with money in it.

One of the men who approached Tineo asked, "Where are you from?"[2] The same was asked of Sanchez.

Sanchez resisted when the men tried to go through his pockets. He "started swinging at them," and they swung back at him. Appellant walked up to Sanchez and pointed the gun at him. Sanchez jumped back and, "begging for forgiveness," said "Please, you don't have to shoot. You don't have to use guns. It doesn't have to be done that way." Appellant, who was standing about a foot away from Sanchez, fired the gun once into Sanchez's chest. Sanchez died from the gunshot wound.

Mangum and Tineo were taken to the police station where they met individually with Detective Finney, who showed them 49 photographs. Each of them identified appellant, who had a shaved head and a thick mustache, as the shooter.

Sergeant Rojas was the Gang Unit Supervisor for the City of Pasadena. She testified that she was familiar with the Villa Boys gang. She testified that the primary activities of the Villa Boys gang were to commit crimes, including murders, attempted murders, assaults with deadly weapons, carjackings, vehicle thefts, felony vandalism, robberies, possession of firearms, and drug-related crimes. In 1995, appellant had admitted to Sergeant Rojas that he was a member of the Villa Boys gang.

Sergeant Rojas participated in the investigation of the April 28, 2004, firearm possession crime. Mario Madera, who was arrested with appellant that day, was a known member of the Villa Boys gang. Based on Rojas's training and experience, she believed the possession of the firearm was for the benefit of the gang.

Sergeant Rojas assisted Detective Finney with the investigation of the May 2 homicide. The homicide was committed in Villa Boys gang territory and she believed the homicide was for the benefit of the gang.

Sergeant Rojas testified to numerous past crimes committed by Villa Boys gang members.

2. Defense Evidence

Appellant testified on his own behalf. He was 34 years old and had been a Villa Boys gang member since he was 20. He had been convicted of taking a radio out of a car in 1996 and of taking a car without permission in 2003. He had never been in prison or charged with a crime of violence. He said he was married, had a family, and had been spending less time with the gang. His defense was alibi.

On April 28, 2004, he gave a ride to Mario Madera, and Madera was with him when they were arrested. He did not see Madera with a weapon. However, Madera was in the car alone for two or three minutes after they were stopped. He said that the gun had not been in the car before he gave Madera a ride. He said he never carried a weapon and the gun found in the car was not his gun.

Appellant testified he was not with the men who shot Sanchez. He said he was in Thousand Oaks visiting his cousin and uncle. His cousin picked him up him at about 6:00 or 7:00 p.m. on May 1. After they arrived in Thousand Oaks, he drove his uncle to work at approximately 1:45 a.m. After returning to his uncle's home, he fell asleep. The next morning, he and his cousin picked up appellant's uncle from work. Appellant and his cousin drove back to Pasadena from Thousand Oaks, and appellant arrived home between 9:00 and 11:00 p.m. that night.

Appellant introduced records from his cousin's cellular phone, showing that his cousin called appellant's home three times between 6:53 p.m. and 9:44 p.m. on May 1. The records also showed several calls were made from the phone to appellant's home the following day.

Appellant's cousin testified that appellant was with him in Thousand Oaks at the time of the murder.

Appellant's employer testified that he gave appellant rides to work before appellant's arrest. He said he never saw appellant with a weapon or with gang members.

On the night of April 25, 2004, Elias Bayardo was robbed at gunpoint by two men on El Molino Street in Pasadena. He identified Mario Madera as the man with the gun, a stainless steel revolver with wooden grips. On April 29, Bayardo identified the weapon seized from appellant's car as the weapon used by Madera. A second man was with Madera at the time of the robbery, but it was not appellant.

Appellant presented expert testimony by an experimental psychologist on the accuracy of eyewitness memory. The witness admitted that she was making no representation as to the accuracy of any of the identifications made in the case.

3. Rebuttal

Sergeant Rojas and Detective Finney interviewed appellant's cousin. He testified that appellant was with him in Thousand Oaks at the home of his father on the night of May 1, 2004. After the interview, the cousin called Detective Finney and told her not to contact his father because he was ill and had moved to Mexico. The detective confirmed that appellant's uncle had been at work at 2:00 a.m. on May 2, 2004, at the Ralphs store in Thousand Oaks.

DISCUSSION

The Court Did Not Err in Failing to Give CALCRIM No. 522

Appellant's theory at trial was that he was misidentified as the shooter. Appellant abandons that argument on appeal and asserts, for the first time, that he was prejudiced when the trial court failed to instruct the jury sua sponte with CALCRIM No. 522, on provocation.[3] He contends there was evidence that Sanchez threw punches before he was shot and that the jury could have concluded appellant was provoked before shooting Sanchez and convicted him of the lesser offense of second degree murder. (People v. Thomas (1945) 25 Cal.2d 880, 903.)

Respondent argues that appellant did not request the instruction at the time of trial and the issue is waived on appeal. Respondent is correct. In People v. Rogers (2006) 39 Cal.4th 826, 880, our Supreme Court held that the analog to CALCRIM No. 522, CALJIC No. 8.73, "is a pinpoint instruction that need not be given on the court's own motion."

Moreover, the evidence at trial was insufficient to support a defense of provocation. The evidence shows that Sanchez, while being robbed, fought with two other men while appellant was searching Mangum's pocket. When appellant approached Sanchez and pointed a gun at him, Sanchez backed away and begged for his life. Appellant shot and killed him.

The Court Did Not Err in Giving CALCRIM No. 226

Appellant asserts his constitutional rights to due process and a fair trial were violated because language in CALCRIM No. 226, instructing jurors to evaluate the evidence using their common sense and experience, invited jurors to consider evidence outside the record in finding appellant guilty.

In relevant part, the jury was instructed without objection before the parties made their opening statements as follows:

"You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness's gender, race, religion or national origin. You may believe all, part or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe."

The jury was then instructed with the remainder of CALCRIM No. 226 regarding the factors jurors should consider when judging the credibility of witness testimony. The jury was again instructed with CALCRIM No. 226 at the conclusion of the evidence.

"'Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.'" (People v. Guiuan (1998) 18 Cal.4th 558, 570.) In any event, the instruction given was an accurate statement of law. Jurors are permitted to draw on their life experience in evaluating evidence. (People v. Steele (2002) 27 Cal.4th 1230, 1265; In re Carpenter (1995) 9 Cal.4th 634, 650-655.)

If appellant believed that modification to CALCRIM No. 226 was necessary, he was required to request it. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1142.) He did not do so. Thus, he waived the objection.

Trial Counsel Provided Effective Representation

Appellant asserts that his trial attorney was ineffective for failing to request CALCRIM No. 522 and for not objecting to CALCRIM No. 226.

"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Strickland v. Washington (1984) 466 U.S. 668, 687.) "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694; People v. Wright (1990) 52 Cal.3d 367, 404.)

For the reasons stated above, appellant was not entitled to a CALCRIM No. 522 instruction even if counsel had requested it, and his argument that CALCRIM No. 226 is defective is without merit. Therefore, his claim that trial counsel provided ineffective assistance is without merit.

The trial court is ordered to amend the abstract of judgment to reflect four $20 fines pursuant to section 1465.8. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

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Michelle R. Rosenblatt, Judge

Superior Court County of Los Angeles

______________________________

Landra E. Rosenthal, 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, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Ana R. Duarte, Deputy Attorney General, for Plaintiff and Respondent.

[1] All statutory references are to the Penal Code.

[2] The question "Where are you from?" is commonly used by gang members to inquire about another's gang affiliation.

[3] CALCRIM No. 522 states: "Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. 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. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.]"