Opinion
B159677.
7-23-2003
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ESCALANTE, Defendant and Appellant.
Emry J. Allen, 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, William T. Harter and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant attempted to murder the victim over a perceived $ 30 debt. We reject his claims that the evidence failed to support the attempted murder, the trial court failed to exercise its independent judgment in denying his new trial motion, and the court should have instructed on attempted voluntary manslaughter.
BACKGROUND
The shooting took place on January 1, 2002. About three weeks before, the victim and defendant entered into a deal under which defendant would buy the victims car for $ 300. Defendant gave the victim $ 150 worth of amphetamine as a down payment. Defendant was buying the car for someone else.
Defendant later determined the person no longer wanted the car. The victim gave the dope back to defendant, claiming he had not used or disposed of any of it. Apparently defendant came to believe otherwise, because he called the victim on January 1, angrily demanding $ 30. Defendant went to the victims house, accompanied by a confederate. As the confederate stood 20 feet back or so, the victim and defendant engaged in an argument and struggle in the front doorway. The argument ended with the victim inside the house shot in the abdomen.
The jury convicted defendant of attempted premeditated murder, firearm assault, possession of a firearm by a felon, and shooting at an inhabited dwelling. The panel sustained firearm and great bodily injury enhancements. The trial court imposed a life sentence, plus a 25-years-to-life enhancement.
DISCUSSION
I
Defendant says the verdict was inconsistent with the prosecutions own evidence. He says this rendered the evidence against him "inherently unreliable, improbable and physically impossible[.]" (All caps. omitted.) He concludes that the evidence shows the shots were fired by the confederate.
The victim and his female friend Garcia had the struggle taking place in the doorway, with both combatants inside the open screen door, which opened to the outside. Defendant held the screen door open with his left hand and slugged the victim in the face with his right.
The victim said he did not see a gun. Defendant was inside the open screen door close to the victim when the shots were fired. Although having once said defendant was the shooter, the victim acknowledged that it could have been the confederate. The victim lied at the preliminary hearing when he claimed the car deal was all cash and no drugs.
Garcia said that when defendant slugged the victim, the latter tried to close the door while Garcia tried to pull him into the house. Shots rang out. Garcia identified defendant as the shooter. She insisted the gun was a revolver.
The physical evidence showed several shots had to have been fired back from the doorway. Several casings were found on the front lawn. A revolver does not eject casings. The casings would have been ejected by a semi-automatic firearm, to the right and rear of the shooter. There were outside/in bullet holes in the screen door and a window to the left of the door. A spent bullet was recovered on the right side of the porch. These shots could not have been fired by someone standing inside the screen door and had to have been fired by someone located farther back.
Accordingly, argues defendant, the evidence shows he could not have been the shooter. Instead, he says, the evidence points convincingly to the confederate, who was standing some 20 feet back.
The prosecutor argued to the jury that the shots could not have been fired from farther back because they could not have hit the victim without going around or through defendant. ("We know hes standing right in front of the victim because he just punched him and the victims coming back to that same side of the door to close the door. But he didnt get hit and thats because he is the shooter.")
The evidence is susceptible of the prosecutors argument that defendant shot the victim, then backed away from the scene and continued shooting. ("Hes pulling the door open. He punches [the victim] in the face, and it seems to be from the left like hes backing up. [P] . . . The door is only open a little bit. He fired and hes backing up. Thats why the casing is going back. Thats why theres a shot in the door. Thats why theres another random shot.")
Garcias testimony that defendant "was actually outside when [she] heard these shots" supports the prosecutors theory.
The physical evidence did not render the prosecutors theory impossible. While the evidence may have suggested other scenarios, the jury was entitled to choose defendant as the shooter. Indeed, that defendant was in or near the doorway and the victim was inside the house when wounded suggests that the shots were not fired from behind defendant.
In sum, we do not see the evidence of defendants guilt as "fantastic," or "doing violence to reason, [or] challenging credulity . . . ." (People v. Carvalho (1952) 112 Cal. App. 2d 482, 489, 246 P.2d 950.)
II
The trial court denied defendants new trial motion. In doing so, claims defendant, it failed to exercise its independent judgment. Defendant quotes the courts language and says it demonstrates that the court did nothing more than acquiesce in the jurys verdict.
We view the trial courts comments differently. The court pointed out that there were conflicts in the testimony, "as is often the case . . . ." The judge saw nothing improbable in the version accepted by the jury and observed that he would have voted for guilt. This adequately demonstrates that the trial court fulfilled its duty. We see nothing in the record to indicate that the court "failed to give defendant the benefit of its independent conclusion as to the sufficiency of credible evidence to support the verdict. [Citations.]" (People v. Robarge (1953) 41 Cal.2d 628, 634, 262 P.2d 14.)
III
Defendant says the trial court should have instructed on the lesser offense of attempted manslaughter. He says the evidence was sufficient to justify a finding that the shooting took place upon a sudden quarrel or heat of passion. We disagree. Aside from the fact that defendant presented an alibi defense, we find the evidence inadequate to even hint that defendants "reason was actually obscured as the result of a strong passion aroused by a provocation sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, and from this passion rather than from judgment. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 163, 960 P.2d 1094, internal quotation marks, brackets, and ellipses omitted.)
We are not prepared to say that shooting someone in the stomach over an argument about $ 30 worth of dope is how the average reasonable person would handle the situation.
DISPOSITION
The judgment is affirmed.
We concur: VOGEL (Miriam A.), J., MALLANO, J.