P. v. Canela

Filed 8/10/06 P. v. Canela CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

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

Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

__________________

Jose Manuel Canela appeals from the judgment entered following his convictions by jury of two counts of murder (Pen. Code, § 187, subd. (a); counts 1 and 2), each with special circumstance allegations that appellant was committing robbery (Pen. Code, § 190.2, subd. (a)(17)(i)) and burglary (Pen. Code, § 190.2, subd. (a)(17)(vii)), and had been convicted of multiple murders in this proceeding (Pen. Code, § 190.2, subd. (a)(3)), two counts of first degree robbery (Pen. Code, § 211; counts 3 and 4), and count 5 – first degree burglary (Pen. Code, § 459) with, as to each offense, firearm use (Pen. Code, § 12022.5, subd. (a)). The court sentenced appellant to prison for a total unstayed term of two consecutive terms of life without the possibility of parole plus four years.

In this case, in which one of the murder victims before his death made a statement to a police officer in an ambulance concerning the circumstances in which the victim recently had been shot, we conclude the statement was hearsay admissible under the spontaneous statement hearsay exception, admission of the statement in evidence did not violate appellant's right to confrontation because the statement was made under the stress of excitement, and there was overwhelming evidence; therefore, any error in the admission in evidence of the statement was not prejudicial.

We also conclude the trial court did not err by refusing to instruct on imperfect self-defense and self-defense. The People prosecuted the murders based solely on the felony murder rule; therefore, the doctrines of imperfect self-defense and self-defense were irrelevant and unavailable to appellant. Moreover, neither doctrine was available where, as here, appellant through his own wrongful conduct of committing robberies created the circumstances under which his victims' attacks were justified.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that about 12:45 a.m. on October 9, 1996, Maywood-Cudahy Police Officer Angel Villegas responded to a call that shots had been fired with two persons down at 4517 East 52nd Place, apartment 18, in Maywood. Villegas arrived and saw Juan Mendoza sitting on steps of the apartment complex at the above address. Mendoza had been shot twice, once in the stomach and once in the back. Josafat Terraza was lying face down in the living room of apartment 18. Terraza had been shot in the back and also had a head wound. Terraza had a cream-like substance on his face. Villegas did not see firearms near Mendoza or Terraza.

Villegas rode with Mendoza in an ambulance to the hospital. Villegas asked Mendoza what had happened, and Mendoza replied that he and Terraza were sitting inside their apartment when two â€