Opinion
F060821 Super. Ct. No. VCF220619
09-01-2011
THE PEOPLE, Plaintiff and Respondent, v. RAMIRO JUNIOR CHAVEZ, Defendant and Appellant.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
In the commission of three felonies for the benefit of, at the direction of, or in association with a criminal street gang, Ramiro Junior Chavez fired a gun at a rival gang member, but a bullet struck a bystander and inflicted great bodily injury. On appeal, he challenges the judgment on evidentiary and instructional grounds. We affirm.
FACTUAL BACKGROUND
On July 21, 2008, Rebecca Malone walked out of her house to hand a grocery list to her fiancé Benjamin Padilla, who was inside the garage. Witnesses characterized him as a Norteño or as a former Norteño who still hung around with Norteños. A car carrying four males throwing gang signs at him stopped in front of the house. Chavez, a Sureño, stepped out of the car with a blue handkerchief around his hand and fired a gun at Padilla. He missed Padilla but hit Malone. A bullet lodged in her arm, causing partial immobility of the arm, numbness in three fingers, and permanent pain.
PROCEDURAL BACKGROUND
On January 21, 2010, an information charged Chavez with attempted willful, deliberate, and premeditated murder (count 1; Pen. Code, §§ 187, subd. (a), 664, subd. (a)), shooting at an inhabited dwelling (count 2; § 246), and assault with a firearm (count 3; § 245, subd. (a)(2)). In all three counts, the information alleged commission of the crime for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b).) In counts 1 and 2, the information alleged personal and intentional discharge of a firearm causing great bodily injury or death. (§ 12022.53, subd. (d).) In counts 1 and 3, the information alleged personal use of a firearm (§ 12022.5, subd. (a)) and personal infliction of great bodily injury (§ 12022.7, subd. (a)).
Later statutory references are to the Penal Code.
On June 10, 2010, a jury found Chavez not guilty of attempted willful, deliberate, and premeditated murder but guilty of the lesser included offense of attempted voluntary manslaughter (§§ 192, subd. (a), 664, subd. (a)) and otherwise guilty as charged. In all three counts, the jury found true the allegations of the commission of the crime for the benefit of, at the direction of, or in association with a criminal street gang. In count 2, the jury found true the allegation of personal and intentional discharge of a firearm causing great bodily injury or death. In counts 1 and 3, the jury found true the allegations of personal use of a firearm and personal infliction of great bodily injury.
On August 10, 2010, the court sentenced Chavez to an indeterminate term of 40 years to life consecutive to a determinate term of seven years. In count 1, his determinate sentence was a term of three years (§§ 193, subd. (a), 664, subd. (a)) consecutive to a stayed term of 10 years (§§ 186.22, subd. (b)(1)(C), 654, subd. (a)), consecutive to a term of four years (§ 12022.5, subd. (a)), and consecutive to a stayed term of three years (§ 654, subd. (a), 12022.7, subd. (a)). In count 2, his indeterminate sentence was a term of 15 years to life consecutive to a term of 25 years to life. (§§ 186.22, subd. (b)(4)(B), 246, 12022.53, subd. (d).) In count 3, his determinate sentence was a stayed middle term of three years (§§ 245, subd. (a)(2), 654, subd. (a)) consecutive to a stayed term of 10 years (§§ 186.22, subd. (b)(1)(C), 654, subd. (a), 667.5, subd. (c)(8)), consecutive to a term of four years (§ 12022.5, subd. (a)), and consecutive to a stayed term of three years (§ 654, subd. (a), 12022.7, subd. (a)).
DISCUSSION
1. Criminal-Street-Gang Evidence
Chavez argues that an insufficiency of the evidence of his specific intent to promote other criminal street gang conduct requires reversal of the true findings on the criminal street gang allegations. The Attorney General argues the contrary. !
The crux of Chavez's argument, which relies on a pair of Ninth Circuit cases, is that "the jury had to find beyond a reasonable doubt that [he] intended to assist gang members in the commission of crimes other than a crime that was the subject of the instant prosecution." (Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, 1078-1083; Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103, italics added.) Last year, our Supreme Court, expressly disapproving both of those cases, held, "in accordance with the plain language of [the criminal street gang statute], that the scienter element of the enhancement requires only 'the specific intent to promote, further, or assist in any criminal conduct by gang members.'" (People v. Albillar (2010) 51 Cal.4th 47, 51 (Albillar),quoting § 186.22, subd. (b)(1), italics in original.) His argument is meritless.
Our Supreme Court filed the opinion in Albillar the day before Chavez's appellate attorney mailed the appellant's opening brief for filing and service. The appellant's reply brief noted the filing of Albillar and submitted the issue. Later, the Ninth Circuit, acknowledging "that the California Supreme Court has overruled Briceno and Garcia's interpretation of section 186.22(b)(1)," adopted "the California Supreme Court's authoritative interpretation" instead. (Emery v. Clark (9th Cir. 2011) 643 F.3d 1210, 1216.)
2. Criminal-Street-Gang Instruction
Chavez argues that the court's failure to instruct sua sponte on the requirement of proof of his specific intent to promote other criminal street gang conduct requires reversal of the true findings on the criminal street gang allegations. The Attorney General argues the contrary.
The crux of Chavez's argument is that the court failed to instruct his jury that "[he] had to commit the charged crimes for the purpose of promoting other criminal conduct by gang members in order for the gang enhancements to be found true." (Italics added.) Expressly adopting the rationale of his criminal-street-gang-evidence argument (ante, part 1), he argues that the court incorrectly instructed with CALCRIM No. 1401, which "allowed the jury to find that the element, 'The crimes were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members' was satisfied by the felony committed by [him], rather than requiring the jury to find [he] committed the robbery to promote other criminal conduct by gang members." (Italics added.) As his criminal-street-gang-evidence argument is meritless, so is his criminal-street-gang-instruction argument. (Albillar, supra, 51 Cal.4th at p. 51.)
See ante, fn. 2.
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3. Assault-with-a-Firearm Instruction
Chavez argues that the court's failure to instruct sua sponte on assault with a firearm as a lesser included offense of attempted murder requires reversal of his attempted voluntary manslaughter conviction. The Attorney General argues the contrary.
"'Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.'" (People v. Parks (2004) 118 Cal.App.4th 1, 6, quoting People v. Birks (1998) 19 Cal.4th 108, 117.) By the statutory elements test, assault with a firearm is not a lesser included offense of attempted murder. (Parks, supra, at p. 6; People v. Cook (2001) 91 Cal.App.4th 910, 918-919.) Likewise, by the accusatory pleading test, assault with a firearm is not a lesser included offense of attempted murder since firearm use allegations "may not be considered when determining whether an offense is necessarily included under this test." (Parks, supra, at p. 6, citing People v. Wolcott (1983) 34 Cal.3d 92, 101 (Wolcott).)
Our Supreme Court continues to apply the "longstanding rule that enhancements may not be considered as part of an accusatory pleading for purposes of identifying lesser included offenses." (People v. Sloan (2007) 42 Cal.4th 110, 114, citing Wolcott, supra, 34 Cal.3d at pp. 100-101.) With commendable candor, Chavez acknowledges our duty to follow Wolcott under the doctrine of stare decisis (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and, solely to preserve the issue for federal review, relies on a trilogy of United States Supreme Court cases (Apprendi v. New Jersey (2000) 530 U.S. 466; Blakeley v. Washington (2004) 542 U.S. 296; United States v. Booker (2005) 543 U.S. 220) to challenge the longstanding rule. Duly noted.
4. Self-Defense
Chavez argues that his firing the gun in self-defense as a matter of law requires reversal of all three convictions. The Attorney General argues the contrary.
The crux of Chavez's argument is that the guilty verdict of attempted voluntary manslaughter "means the jury concluded that [he] fired his gun in response to adequate provocation from Padilla." He argues that the police found a shell casing on the garage floor near Padilla, that Chavez's gun does not eject shell casings, and that Chavez and Padilla were members of rival gangs, so the shell casing must have come from a firearm Padilla fired. He infers the "only reasonable basis" for the jury's verdict is that Padilla fired at Chavez, who "acted in response to provocation" by firing at Padilla.
Chavez's argument is entirely speculative. No one testified to seeing Padilla with a gun. No one testified to seeing Chavez fire at Padilla in self-defense. No one testified to the requisite mental state that "the defendant must actually and reasonably believe in the need to defend." (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) No one testified to how or when the shell casing got on the garage floor. Although the court instructed the jury on self-defense, the guilty verdict, which might reflect a compromise verdict, certainly shows the jury's rejection of the theory of self-defense.
DISPOSITION
The judgment is affirmed.
Gomes, Acting P.J.
WE CONCUR:
Kane, J.
Franson, J.