P. v. Tafoya

 

 

 

 

 

 

 

 

 

 

 

Filed 11/14/13  P. v. Tafoya CA3

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Sacramento)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   ALFREDO DANIEL TAFOYA,                           Defendant and Appellant.

C070739   (Super. Ct. No. 09F08863)

 

            A jury
rejected defendant Alfredo Daniel Tafoya’s imperfect self-defense or defense of
another and convicted him of the second degree
murder of two young men at a quinceañera populated by both Norteño and Sureño
gang members.  On appeal, he contends the
trial court committed prejudicial error by failing to give a defense
instruction on antecedent threats made by Norteños.  We disagree that the modified instruction
accepted by defense counsel
constituted ineffective assistance of counsel or reversible error.  Because we conclude there was no prejudice,
we affirm the judgment.

FACTS

            Most of the
facts recited by the parties are not relevant to the solitary issue on
appeal.  There is no dispute that
defendant shot Carlos Montes and Efrain Zambrano at a quinceañera in the
Estrellita Ballroom in Galt on November
28, 2009.  The alleged
instructional error relates to imperfect self-defense/defense of another and
therefore defendant’s unreasonable belief that his friend, Aztek, was at risk
of death or great bodily injury.  We will
describe the relevant facts in response to the Attorney General’s contentions
that there was no evidence defendant’s “attacks on the victims were prompted by
his knowledge of the Norte[ñ]o and Sure[ñ]o history,” no evidence that “ â€˜historical
knowledge of another gang’s prior violence or threats’ was ‘relevant to its
determination of his beliefs at the time he acted,’ â€ and no substantial
evidence “that antecedent threats by Norte[ñ]o gang members precipitated or
factored into [defendant’s] actual yet unreasonable beliefs.”

            In fact,
with members of both Norteño and Sureño gangs in attendance at the quinceañera,
the record is replete with evidence of gang rivalries, threats, and
reactions.  The gang expert explained
that Sureño gang members are outnumbered four or five to one in the Sacramento
area.  Defendant kept a crude Sureño
manifesto in his composition book that was admitted as evidence at trial.  The expert translated many of the entries for
the benefit of the jury, which otherwise would have been unable to understand
the gang vernacular.  Suffice it to say,
defendant was well-steeped in the gang culture, hateful toward Norteños, and
resolute in his desire to gain respect and to protect his territory.

            Uninvited,
defendant and Aztek, both sporting blue, showed up at the quinceañera and were
admitted.  Defendant hid a firearm under
his peacoat.  He danced with several
girls, drank, and appeared tipsy.  He
talked to another Sureño, Jose Pimentel, and introduced him to a friend in a
blue hat.  Video cameras at the ballroom
captured a lot, but not all, of what happened.  A 12-year-old girl also filmed some of the
fight that precipitated the shooting.

            Defendant
danced with Vanessa Garcia, Candy Porras, and Llesenia Calderon.  They reported that Aztek was wearing a blue
hat, but so were others.  Porras
testified that someone wearing a red hat approached Aztek saying, “Norte.”  She saw others approach him, and a fight
ensued.  Calderon knew that Norteños and
Sureños were involved in the fight.

            Maribel
Aldaco witnessed the fight by the front door. 
She saw a man in a blue hat throw a gang sign, which appeared to upset
others in attendance.  She saw gang signs
being thrown and believed the argument was gang related.

            Carlos
Montes reacted to a series of text messages he received from his cousin, who
was a Norteño gang member.  Montes walked
toward the front door as Criss Guerrero followed.  They got into an argument with someone, and
Montes threw the first punch.  Most of
the eyewitness testimony suggests that Aztek was the victim.  Guerrero grabbed him and put him in a
headlock.

            Meanwhile,
defendant had been sitting across the ballroom. 
Many of the partygoers gravitated to the fight, as did defendant.  He walked across the room and shot Montes and
Zambrano.  There was evidence to suggest
there may have been a second shooter, but defense counsel conceded that
defendant shot both victims.  Then he
ran, discarded the gun, and hid from the police.  He was found several days later hiding in a
closet.

            Defendant’s
girlfriend, Rocio Ramirez, testified that she drove defendant and Aztek to Galt
to try to recover the gun around 2:00 a.m. on November 29, but when they saw a
number of police officers they left. 
Aztek’s face was swollen.  He told
Ramirez he had been jumped and that defendant had shot the two people who
jumped him, one in the head and one in the stomach.  Both Ramirez and Aztek tried to hide
defendant.

            A gang
expert testified to the culture of gangs in Sacramento and the ongoing rivalry
between Norteños and Sureños.  He
explained that a gang member would be expected to come to the defense of a
fellow gang member who was being beaten.

DISCUSSION

            “ ‘Under
the doctrine of imperfect self-defense, when the trier of fact finds that a
defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of
death or great bodily injury, the defendant is deemed to have acted without
malice and thus can be convicted of no crime greater than voluntary
manslaughter.’  [Citation.]  ‘Imperfect
self-defense obviates malice because that most culpable of mental states
“cannot coexist” with an actual belief that the lethal act was necessary to
avoid one’s own death or serious injury at the victim’s hand.  [Citation.]’  [Citation.]”  (People
v. Randle (2005) 35 Cal.4th 987, 995 (Randle),
overruled on another point by People v.
Chun (2009) 45 Cal.4th 1172, 1201.)

            In
Randle, the Supreme Court applied the
same rationale to imperfect defense of others. 
In other words, “if a killing is committed by someone who actually but
unreasonably believes he is acting under the necessity of defending another
person from imminent danger of death or great bodily injury, then the killing
is voluntary manslaughter, not murder, because the killer is not acting with
malice.”  (Randle, supra, 35 Cal.4th
at p. 995.)

            Defendant
requested the following pinpoint instruction: 
“If you find that the defendant believed that members of the Norte[ñ]o criminal street gang had threatened or harmed others in
the past, you may consider that information in evaluating the defendant’s
beliefs.”  (Italics omitted.)  The court explained on the record that
defense counsel had participated in a discussion of the jury instructions, he
was satisfied with the changes that were made, and he stipulated to the
instructions, including a modified CALCRIM No. 571.  According to the stipulation, the jury was
instructed:

            “A killing
that would otherwise be murder is reduced to voluntary manslaughter if the
defendant killed a person because he acted in imperfect self-defense or imperfect
defense of another.

            “If you
conclude the defendant acted in complete self-defense or defense of another,
his action was lawful and you must find him not guilty of any crime.  The difference between complete self-defense
or defense of another and imperfect self-defense or imperfect defense of
another depends on whether the defendant’s belief in the need to use deadly
force was reasonable.

            “The
defendant acted in imperfect self-defense or imperfect defense of another if:

            “1.  The defendant actually believed that he or
someone else was in imminent danger of being killed or suffering great bodily
injury;

            “and

            “2.  The defendant actually believed that the
immediate use of deadly force was necessary to defend against the danger;

            “but

            “3.  At least one of those beliefs was
unreasonable.

            “Belief in
future harm is not sufficient, no matter how great or how likely the harm is
believed to be.

            “In
evaluating the defendant’s beliefs, consider all the circumstances as they were
known and appeared to the defendant.

            “If you
find that the defendant received a threat from someone else that he reasonably
associated with Carlos Alonso Montes and Efrain Zambrano, you may consider that
threat in evaluating the defendant’s beliefs.

            “The People
have the burden of proving beyond a reasonable doubt that the defendant was not
acting in imperfect self-defense or imperfect defense of another.  If the People have not met this burden, you
must find the defendant not guilty of murder.”

            On appeal,
defendant is no longer satisfied with the modification.  Thus, the case boils down to whether the
language “If you find that the defendant received a threat from someone else
that he reasonably associated with Carlos Alonso Montes and Efrain Zambrano,
you may consider that threat in evaluating the defendant’s beliefs” was a
sufficient replacement for the language he initially suggested, “If you find
that the defendant believed that members of the Norte[ñ]o criminal street gang
had threatened or harmed others in the past, you may consider that information
in evaluating the defendant’s beliefs.”

            Defendant
correctly points out that threats by a group with whom a victim is affiliated
are relevant to a defendant’s state of mind. 
As the Supreme Court held in People
v. Minifie (1996) 13 Cal.4th 1055 (Minifie):  “ ‘A person claiming self-defense [or defense
of another] is required to “prove his own frame of mind,” and in so doing is “entitled
to corroborate his testimony that he was in fear for his life by proving the
reasonableness of such fear.”  [Citation.]  The defendant’s perceptions are at issue, and
threats from a family and its friends may color a person’s perceptions of that
group no less than threats from an individual may color a person’s perceptions
of that individual.  A defendant who
testifies that he acted from fear of a clan united against him is entitled to
corroborate that testimony with evidence “tend[ing] in reason to prove” that
the fear was reasonable.  [Citation.]  Threats from the group on the defendant’s
life would certainly tend in reason to make the defendant fearful.  This is especially true where the group has a
reputation for violence, and that reputation is known to the defendant.  Such threats are relevant to the defendant’s
state of mind—a matter “of consequence to the determination of the action” (>ibid.)—and the trier of fact is entitled
to consider those threats along with other relevant circumstances in deciding
whether the defendant’s actions were justified.”  (Minifie,
at pp. 1065-1066.)

            We also
agree with defendant that the record belies the Attorney General’s statements
that there is no evidence defendant’s knowledge of Norteño members’ resorting
to violence in the past was relevant to the jury’s determination of his belief
at the time of the shooting.  The
Attorney General unduly minimizes the role of the Norteño/Sureño rivalry and
the gang behavior that permeated the quinceañera.  If, in fact, members of a Norteño gang had
made threats against defendant or his friend Aztek, the threats would be
relevant to a determination of defendant’s belief that he or Aztek was in grave
or mortal danger.  And the record
certainly supports defendant’s argument that gang taunts, signs, and customary
gang behavior preceded the fight, all of which might have factored into defendant’s
actual, although unreasonable, belief.

            Yet the
evidence is not exactly what defendant would have us believe and certainly not
of the caliber presented in Minifie.  In Minifie,
a member of the “ ‘ “Knight crowd” ’ ” had killed defendant’s friend and
defendant had received a threat that he “ â€˜ â€œwas next.” ’ ”  (Minifie,
supra, 13 Cal.4th at p. 1067.)  While the “Knight crowd” may be analogous to
the Norteños, defendant does not offer any specific threat he received.  The question as to whether his generalized
knowledge and understanding of Norteño behavior or even his observations of the
gang’s taunting at the quinceañera constitute the type of antecedent threat
recognized in Minifie is
debatable.  But it is a debate we need
not resolve in this case.

            Here the
antecedent threat issue was telegraphed for the jury, albeit without naming the
Norteños but by alerting the jurors that if defendant had received “a threat
from someone else that he reasonably associated with Carlos Alonso Montes and
Efrain Zambrano, [they could] consider that threat in evaluating the
defendant’s beliefs.”  This admonition
was in the context of a comprehensive explanation of imperfect self-defense and
defense of others.  We reject defendant’s
contention, therefore, that the court committed reversible error by delivering
a modified instruction that thereby failed to explain to the jury the essence
of his defense.

            Moreover,
defense counsel argued the “threatening behavior by guys in red,” based on
defendant’s knowledge of “Norte[ñ]o intimidation and threats,” meant that “a threat
to one gang member is a threat to all.” 
He conceded his “young,” “tipsy” client made a “stupid, stupid decision,”
but he put that decision squarely in the context of “this long history of
violence between people that are perceived as gang members.”  While argument by counsel cannot substitute
for omitted instructions, we can consider argument in our assessment of
prejudice.  Here the testimony by many of
the witnesses to the shooting attested to the gang behavior that permeated the
quinceañera throughout the evening, including gang taunts, gang signs, and gang
colors.

            Thus,
defendant was not denied his right to present his defense to a properly
informed jury, and his lawyer was not constitutionally deficient for acceding
to the modified instruction, because we conclude beyond a reasonable doubt that
in the absence of the modification of the pinpoint instruction there would not
have been a different outcome for defendant. 
In this case, there is no prejudice even if we assume that the more
rigorous evaluation of prejudice under Chapman
v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] applies.

            The jury
was properly instructed on voluntary manslaughter, including both perfect and
imperfect self-defense and defense of another. 
In addition, they were instructed that they could consider any threats
defendant might have received that were associated with the victims.  His lawyer put those threats in the context
of the long history of gang violence and defendant’s knowledge of Norteño
threats.  As a result, we reject the
notion that either the court committed reversible error per se by failing to
instruct on an element of the crime or that defendant might have achieved a
more favorable outcome if the court had specifically identified threats by
Norteños in its instruction on imperfect defense of another.  In the absence of prejudice, we affirm the
judgment.

DISPOSITION

            The
judgment is affirmed.

 

                                                                                                    RAYE                     ,
P. J.

We concur:

 

 

                HULL                     ,
J.

 

 

                HOCH                    ,
J.