P. v. Manco

Filed 2/26/08 P. v. Manco CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Dewey Lawes Falcone, Judge. Affirmed.

Cynthia L. Barnes, 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, Mary Sanchez and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Walter Juarez Manco appeals from a judgment entered after a jury convicted him of one count of attempted murder (Pen. Code, 664, 187)^[1]and one count of possession of a firearm by a felon ( 12021, subd. (a)(1)). The jury also found true the allegations that during the course of the attempted murder appellant personally discharged a firearm which caused great bodily injury within the meaning of section 12022.53, subdivision (d); personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c); personally used a firearm within the meaning of section 12022.53, subdivision (b); and personally inflicted great bodily injury within the meaning of section 12022.7 subdivision (c). We affirm.

CONTENTIONS

Appellant contends that the evidence was insufficient to support a conviction for attempted murder and that the trial court erred by denying appellants motion for new trial.

FACTS AND PROCEDURAL HISTORY

Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 11381139), the evidence established the following.

On October 20, 2004, appellant shot at Lydia Rivera (Rivera) and Jose Varo Garcia (Garcia). Appellant lived in the neighborhood with his parents. Rivera had a friendly relationship with appellants mother and had known appellant for eight years. On that rainy afternoon, Rivera returned from a trip to the grocery store and parked her car. Garcia was in the passenger seat. Rivera had a clear view of appellant standing 30 feet away. While in the car, Rivera heard six shots. She saw appellant shooting at her and Garcia. She saw blood spouting from Garcias head and exited the car. Rivera pulled Garcia out of the car. She heard two more shots and saw some white flashes of light. Garcia sustained bullet wounds to his ear and hand. Garcia, who was 71 years old, also testified that he saw appellant shoot him.

Cynthia Ramirez, a neighbor, had known appellant for a few years. On that day, she heard shots being fired and ran to her window where she saw appellant shoot at a car, run to the back of an apartment building, get into a black car, and leave. She heard a total of eight shots. Erika Granero, another neighbor, was also acquainted with appellant. She testified that she heard four or five gunshots, appellants voice, and the sound of him running. She saw appellant drive off in a black car with three other people. Maria Robles, appellants aunt who also lived in the neighborhood, saw appellant shoot Garcia.

Bell Gardens Police Department Detective Michael Cox arrived at the scene and found Garcia bleeding from a head wound. He found nine casings from the same gun, a bullet hole in the passengers headrest, two holes in the drivers headrest, and a hole in the rear window.

The jury found appellant guilty as noted above on July 21, 2006. The trial court denied appellants motion for a new trial.

DISCUSSION

I. Whether the evidence was sufficient to support appellants conviction for attempted murder

Appellant contends that the evidence did not support the finding that he specifically intended to kill Garcia, because there was no evidence to demonstrate any motive or reason for the shooting or the choice of Garcia, an elderly neighbor, as a target. We disagree.

The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] []  . . . But it is the jury, not the appellate court, which must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury. (People v. Ceja, supra, 4 Cal.4th at pp. 11381139.) We do not reweigh the evidence; even if the circumstances might reasonably be reconciled with a contrary finding[, this] would not warrant reversal of the judgment. (People v.Proctor (1992) 4 Cal.4th 499, 529.)

A judgment will not be reversed for insufficiency unless upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Murder is the unlawful killing of a human being with malice aforethought. ( 187.) Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 623.) There is rarely direct evidence of a defendants intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendants actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . . [Citation.] (People v. Smith (2005) 37 Cal.4th 733, 741 [a reasonable jury could infer that a defendant firing a single bullet at a woman who was driving away from a curb intended to kill both the woman and her baby who was seated in the backseat directly behind her].) [T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive, although again, where motive is shown, such evidence will usually be probative of proof of intent to kill. (Id. at p. 742.)

Here, appellant fired not just one, but at least six shots directly at Rivera and Garcia, while they were sitting in a car. Most of the shots were directed at the head area of the victims. Bullet holes were found in the front windows, between the door and the hood on the passenger side, in the headrests, and in the rear window. Had the bullets hit him squarely in the head or in a vital organ, Garcia would likely have been killed. As it was, Garcia was severely wounded. And, appellant continued to shoot at Garcia after he exited the car. From this evidence, the jury could well infer that Garcia was appellants intended target and that appellant had the intent to kill. While appellant contends that the day was dark and cloudy, and it was raining very hard, there was no evidence that appellant could not see Garcia in the car. To the contrary, other neighbors unequivocally identified appellant as the shooter and Garcia as the victim. Thus, the evidence showed that each participant was clearly visible. Finally, as stated in People v. Smith, supra, 37 Cal.4th at page 742, the lack of a motive is not dispositive, and appellants reference to Garcias testimony that he had never met appellant or had any problems with him, does not persuade us that the evidence did not support an inference of intent to kill.

We conclude that sufficient evidence supports appellants conviction for attempted murder.

II. The trial court did not abuse its discretion in denying appellants motion for a new trial

Appellant contends that the trial court erred in denying his motion for a new trial because a different result would have been probable on retrial. We disagree.

Pursuant to section 1181, subdivision 8, when new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial, the trial court may grant a new trial.

The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. [Citations.] (People v. Delgado (1993) 5 Cal.4th 312, 328.) In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: 1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits. [Citations.] (Ibid.)

At the hearing on the motion for new trial, Shaun Field (Field), a Third-Striker serving 85 years to life, testified that he shot Garcia on October 20, 2004. He claimed that he drove to appellants garage to purchase methamphetamine from him. He stated that when he pulled up into a driveway, Rivera and Garcia began screaming obscenities at him. After he purchased the methamphetamine from appellant, who had a cast on his leg, he returned to his car. Field heard Garcia talking crazy, and saw Garcia reaching for his waistband. Field saw a metallic object and believed that Garcia was reaching for a gun, so he began shooting at him. After he shot Garcia, Field ran back to the garage and told appellant to keep his lips sealed. Appellants gang friends were with him in the garage at the time.

We conclude that the trial court did not abuse its discretion in denying the motion for new trial. We first find that Fields testimony cannot be characterized as newly discovered evidence. According to Fields version of the events, he told appellant in the presence of his friends that he had shot Garcia. He also told appellant to keep his lips sealed. Therefore, according to Fields version, appellant would have had knowledge prior to and during the trial that Field was the shooter, or should have, with reasonable diligence have discovered this evidence and produced it at trial. Appellant simply cannot now claim that the evidence was newly discovered. Moreover, we conclude that the trial court did not abuse its discretion in determining that Fields testimony was not credible. (People v. Serrato (1973) 9 Cal.3d 753, 761 [in ruling on a motion for a new trial, the trial court is required to independently weigh the evidence], overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 582.) Rivera, Garcia, appellants aunt, and two neighbors identified appellant as the shooter. Although Field testified that he was the shooter, he lacked credibility because he was serving a sentence of 85 years to life, and therefore had nothing to lose through his testimony. And, Fields testimony was inconsistent with portions of appellants defense. That is, appellants mother testified that appellant had driven off with a friend prior to the shooting, which contradicted Fields claim that he spoke to appellant in his garage after the shooting. And, of the other witnesses called by appellant, none but Field testified that appellant had a cast on his leg. The trial court could well infer that the newly discovered evidence was fabricated with the cooperation of Field. We disagree with appellant that the result would have been different on retrial.

We conclude that the trial court did not abuse its discretion in denying appellants motion for a new trial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_________________, J.

DOI TODD

We concur:

____________________, P. J.

BOREN

____________________, J.

ASHMANN-GERST

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