Opinion
A129389
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. ISIDRO GODINEZ-FLORES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR554422)
Isidro Godinez-Flores appeals from a judgment entered after a jury convicted him of voluntary manslaughter, (Pen. Code, § 192, § (a)) and attempted voluntary manslaughter. (§§ 192, subd. (a), 664.) He contends his conviction must be reversed because (1) the trial court instructed the jury incorrectly, and (2) the court erred when it declined to admit certain evidence. We conclude the court did not commit any prejudicial errors and will affirm the judgment.
Unless otherwise indicated, all further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 24, 2009, shortly before 10:00 p.m., Santa Rosa Police Officer Ryan Corcoran was dispatched to 939 Aston Avenue in order to investigate a report that someone had been shot. When Corcoran arrived, he found about 30 people gathered toward the end of a driveway near a man, later identified as Jose Chavez, who was lying nearly motionless on the ground. A woman was cradling Jose in her arms and crying hysterically. Officer Corcoran called an ambulance, and as he was doing so, he noticed that another man, later identified as Jose's brother Julio Chavez, had been shot in the arm. Authorities investigating the crime scene found cartridge casings and a small sword in the area where Jose had been shot. A second similar sword was found in a different area away from the main scene.
The victims and many of the witnesses share the same last names. For clarity, we will sometimes identify them by their first names.
Police quickly identified appellant as the shooter and determined that he might have fled the area. They notified authorities in the Southern California community of El Monte to watch for appellant and his vehicle. Appellant was arrested by police in El Monte the following day. A loaded handgun with appellant's fingerprints on it was found inside appellant's truck.
Jose Chavez died on January 27, 2009. He had been shot three times in the chest and once in the back of the head. Any one of the shots could have caused his death.
Julio Chavez suffered a gunshot wound that shattered one of the bones in his right arm. He experienced nerve damage and needed surgery to repair his arm.
Based on these facts, an information was filed charging appellant with murder (§ 187, subd. (a)), and attempted murder. (§§ 187, subd. (a), 664.) As is relevant here, the information also included several enhancement allegations. As to both counts it alleged appellant personally used a firearm. (§ 12022.5, subd. (a).) With respect to the attempted murder count, it alleged appellant had inflicted great bodily injury. (§ 12022.7, subd. (a).)
The case proceeded to trial where the prosecution relied primarily on testimony from Julio Chavez. He stated the shooting was the product of a family dispute.
Appellant, Jose, and Julio are cousins who all grew up in the same small rural community in Mexico. At the time of the crime, Jose and Julio lived in the same apartment complex on Aston Avenue in Santa Rosa while appellant lived nearby with his common-law wife and their children.
In January 2009, appellant spoke with Julio on the phone. Appellant asked if Julio knew Julio's father was sick and whether he needed any money. Julio said he did know and that they did not need anything, but appellant kept inquiring in a way that made Julio think appellant was mocking his family. Julio asked appellant not to get involved in his family matters. The two men began to argue. Appellant insulted Julio using a word that translates as an "asshole" and threatened to come to his house and "beat" him. Julio hung up.
About two weeks later on January 24, 2009, Julio was leaving his apartment when he saw appellant standing with Enrique Chavez and Miguel Angel near appellant's truck. Miguel called Julio over. He gave Julio a beer and asked why he and appellant were angry with each other. Julio denied being angry, but he and appellant began to argue again. As the argument escalated, appellant threw a beer can into Julio's face. Julio struck appellant back and the two began to fight. Miguel and Enrique separated them but appellant and Julio continued to yell at each other. Appellant threatened to kill Julio saying he was going to bring a gun and "turn [him] into pieces with bullet shots." Appellant and Miguel got into appellant's truck and left. Julio called his brother Jose.
Jose arrived about 10 minutes later and Julio told him that appellant had threatened to shoot and kill him. Jose was upset.
Appellant returned to the apartment complex about 15 minutes later. He parked his truck so that it faced the complex's exit but remained inside. Jose walked over to speak with appellant. Julio, Miguel and Enrique gathered near the rear of appellant's truck. Jose and appellant began to argue. After a few minutes appellant produced a gun and started shooting. Jose fell to the ground. Appellant then got out of his truck, put his foot on Jose's shoulder, and shot Jose in the head.
Appellant turned toward Julio and pointed his gun at him. Julio ran but appellant chased him. He fired three shots one of which hit Julio in the arm.
The prosecution also presented testimony from Miguel Angel and Enrique Chavez who confirmed Julio's testimony in some respects, but contradicted it in others. For example, Miguel testified that during the initial altercation on January 24, 2009, Julio was the aggressor and that he threw a beer can at appellant. Miguel also stated that when Jose went up to appellant's truck after appellant returned, it appeared that Jose had something shiny in his hand. Enrique by contrast said he never saw Jose with any sort of weapon.
Importantly, Miguel testified that the bad feelings between appellant and the Chavez brothers were more serious than they might otherwise have appeared. Miguel said Jose told him he was upset with appellant. Jose asked Miguel to take appellant to a park, to let Jose know, and then leave appellant there. Miguel did not know if Jose meant this as a threat, but he was concerned enough that he called appellant and told him about it.
The prosecutor also presented testimony from two witnesses who were not directly involved in the incident. Ernesto Garcia lived in the Aston Avenue apartment complex and he knew Jose and Julio. On the evening in question, Garcia was on his porch with a friend when he heard Jose arguing with someone in a truck. Garcia heard Jose tell the person in the truck not to point his gun at him followed about a second later by gunshots. The man got out of his truck and fired a shot at Jose's head while he was on the ground. He then turned and filed several shots at Julio.
Gustavo Rodriguez, who was visiting Garcia that evening, testified similarly. He saw a man in a truck talking with a man outside. The man outside did not do anything aggressive and he did not have a weapon. The man inside fired shots at the man outside. The man outside fell to the ground. The man inside got out, ran toward the back of the truck, and fired at three people who had gathered there.
Appellant testified in his own defense. He put his relationship with the Chavez brothers, and Jose, in particular, into further context.
Appellant described several incidents that made him wary of Jose. The first occurred when they were both still growing up in Mexico. Jose shot and killed his own younger brother while playing with a gun. Another incident occurred just after appellant came to the United States in 1997. One day while appellant and Jose were working at the same farm, appellant saw Jose threaten another worker with a knife. A third incident happened in 2002. While Jose and appellant were driving someplace, appellant noticed Jose was armed with a knife. Jose said he planned to kill the former spouse of his live-in companion.
Appellant also described the disputed phone call differently. According to appellant, he simply called to ask how his uncle was doing. Julio got upset and told him: "We don't like you. Don't go and cross our path, because whenever we see you, we are going to thoroughly bust you up."
Two days later, appellant spoke with Miguel Angel who told him things "aren't as calm as you might think . . . ." Miguel said Jose had asked him to take appellant to a park, leave him there, and then call Jose and Julio. They would then do "what needed to be done." Appellant concluded something was going to happen to him and that there was no way he could avoid it.
Appellant's version of the events on the day of the shooting also differed significantly from that presented by Julio. Appellant said he was in the parking lot of the apartment complex talking with Miguel and Enrique when Julio came up, called him a fucker, and pushed him. Appellant punched Julio back and knocked him down. Miguel and Enrique broke up the fight. Julio went inside and came back out talking on his cell phone. Enrique said Julio was calling his brother and that things were "going to get ugly . . . ." Appellant could hear Julio yelling into his phone saying " 'you need to come home right away.' " Appellant decided to leave and as he did, he could hear Julio say, " 'It doesn't matter if you leave, we'll meet again in a minute.' " Appellant interpreted this to mean that they would come after him and kill him.
Appellant went home. He retrieved a gun, kissed his daughters, and then returned to Aston Avenue thinking he would rather face Julio and Jose there than at his own home.
When appellant arrived, Jose walked toward him. Jose invited appellant to get out of his truck so he could " 'beat the shit out of [him].' " Appellant declined. He asked Jose why he had asked Miguel to take him to a place where he could be killed. Jose acknowledged doing that and said, " 'But you know that I can kill you whenever I feel like it.' " At that point, Jose hit appellant on the left side of his head. Appellant felt blood. He reached for his gun and fired four times. It was dark and he did not know if he hit Jose. Jose fell.
Appellant remembered that he had seen Julio behind his truck. He got out and fired two shots at him. When Julio turned and ran, appellant might have fired a third shot.
Appellant turned to Miguel and Enrique and told them, "you guys didn't see anything." He then returned home, gathered his wife and children, dropped them off at a relative's house, and fled to Southern California.
Appellant also called several character witnesses to testify on his behalf.
Stephen Hill, the general manager of a vineyard where appellant worked, said appellant was a skilled and conscientious worker. Hill never saw any evidence that appellant was violent.
Hill's son Ned agreed that appellant was a good worker and that there was no evidence that he was a violent person.
Javier Flores, who worked with appellant said he had a good reputation for peacefulness. Flores also said that in December 2008, he was present when appellant received a phone call about two young men who wanted to hurt him.
Martin Ocegueda stated he worked with Jose Chavez in the past. Ocegueda described an incident where Jose threatened him with a box cutter. Ocegueda believed it was dangerous to get involved with Jose.
Maria Verduzco worked with appellant for one year. She said appellant had a reputation as a good and honest person. Verduzco also knew Jose Chavez and said he had a reputation for being a violent man.
Appellant's brother Jose Godinez-Flores agreed Jose was a violent person. He described an incident where Jose had used a sword to knock two beer cans out of his hand at a party.
The jurors considering this evidence rejected the murder charges but found appellant guilty of voluntary manslaughter and attempted voluntary manslaughter. The jurors also found the firearm and great bodily injury allegations to be true.
Subsequently, the court sentenced appellant to 13 years, 4 months in prison. This appeal followed.
II. DISCUSSION
A. Jury Instructions
1. Character Evidence
Appellant asked the court to instruct the jurors on character evidence using the following language taken from People v. Bell (1875) 49 Cal. 485, 489: "'If the defendant be proved of good character as a man of peace, such good character may be sufficient to create or generate a reasonable doubt of his guilt, although no such doubt would have existed but for such good character.'" (Italics added.)
The trial court declined to give the instruction stating it preferred to rely on standard CALCRIM instructions instead. Accordingly, the court instructed on character evidence using CALCRIM No. 350 as follows:
"You have heard character testimony that the defendant has a good reputation for peacefulness and honesty in the community where he works.
"You may take that testimony into consideration along with all the other evidence in deciding whether the People have proved that the defendant is guilty beyond a reasonable doubt.
"Evidence of the defendant's character for peacefulness and honesty can by itself create a reasonable doubt. However, evidence of the defendant's good character may be countered by evidence of his bad character for the same trait. You must decide the meaning and importance of the character evidence."
Appellant now challenges the court's ruling on two grounds. First, he argues the court erred because it failed to instruct the jurors with the language from his proposed instruction that we italicized above.
A trial court is required to instruct on the general principles of law that are relevant to the issues raised by the evidence. (People v. Blair (2005) 36 Cal.4th 686, 744.) But a court may decline to give a proposed instruction that simply duplicates other instructions that are properly given. (People v. Hovarter (2008) 44 Cal.4th 983, 1021.)
Here, appellant asked the court to instruct the jurors on character evidence using language taken from a Supreme Court case that was more than a century old. The first portion of appellant's proposed instruction, (i.e., "[i]f the defendant be proved of good character as a man of peace, such good character may be sufficient to create or generate a reasonable doubt of his guilt . . .") simply means that character evidence can create a reasonable doubt. CALCRIM No. 350 conveyed this principle precisely. Appellant does not contend otherwise.
The second portion of appellant's proposed instruction, (i.e., "although no such doubt would have existed but for such good character") is simply a highly-stylized 19th Century way of saying that character evidence, by itself, is sufficient to create a reasonable doubt. Again, CALCRIM No. 350 conveyed this principle precisely. It told the jurors that "[e]vidence of the defendant's character for peacefulness and honesty can by itself create a reasonable doubt." (Italics added.)
Because appellant's proposed instruction simply duplicated the instruction the court did provide, the court was not required to give it. (People v. Hovarter, supra, 44 Cal.4th at p. 1021.) We find no error on this ground.
Appellant's second argument on this point is a challenge to a portion of the instruction the court did provide. Specifically, appellant contends it was error for the court to tell the jurors, "However, evidence of the defendant's good character may be countered by evidence of his bad character for the same trait." Appellant characterizes this aspect of CALCRIM No. 350 as a "water[ed] down" version of CALJIC No. 2.40. He contends the court should not have instructed on that principle because the prosecutor did not present any evidence that he was a person of bad character and therefore there was no bad evidence to balance.
We reject this argument for several reasons. First, CALCRIM No. 350 is not a "watered down" version of CALJIC No. 2.40. Indeed, the CALJIC instruction includes virtually identical language. Second, while the prosecutor may not have presented any evidence of appellant's bad character, one of appellant's witnesses did. Appellant's wife admitted appellant had gotten into a fight with his uncle about four years before the charged crime. Third, appellant has not cited any case that holds it is improper to tell jurors they may weigh evidence of good character against evidence of bad character. Indeed, weighing conflicting evidence is a basic aspect of our criminal justice system, is inherent in Evidence Code section 1102, and has been articulated by the courts of this state in several contexts. (See, e.g., People v. Noguera (1992) 4 Cal.4th 599, 645; People v. Fierro (1991) 1 Cal.4th 173, 237, disapproved on other grounds in People v. Letner and Tobin (2010) 50 Cal.4th 99, 204-207.) Fourth, the court specifically told the jurors that depending upon what they found to be the facts, all the instructions might not apply, and that they should only follow the instructions that apply based on their factual findings. If, as appellant contends, the prosecution failed to present evidence of appellant's bad character, jurors applying this instruction would simply find the portion of CALCRIM No. 350 that appellant challenges to be not applicable. In sum, we find no error on this ground.
As is relevant here, CALJIC No. 2.40 states: "However, evidence of good character for certain traits may be refuted or rebutted by evidence of bad character for those same traits."
Evidence Code section 1102 states: "In a criminal action, evidence of the defendant's character . . . in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. (b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a)."
As is relevant here, the court instructed with CALCRIM No. 200 as follows: "Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them."
2. Self-Defense
The trial court instructed the jury on principles of self-defense using CALCRIM No. 505. As is relevant here, the court instructed the jurors as follows:
"The defendant is not guilty of murder or voluntary manslaughter or attempted murder or attempted voluntary manslaughter if he was justified in killing or attempting to kill someone in self-defense or defense of another. The defendant acted in lawful self-defense or defense of another if:
"(1) The defendant reasonably believed that he or his family was in imminent danger of being killed or suffering great bodily injury.
"(2) The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger.
"AND
"(3) The defendant used no more force than was reasonably necessary to defend against that danger.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of great bodily injury to himself or his family. Defendant's belief must have been reasonable and he must have acted only because of that belief."
Appellant concedes the first two elements set forth in CALCRIM No. 505 correctly state the applicable law. But he contends the court should not have instructed on the third element because "[t]here is no reason to suggest to the jury that self-defense becomes unavailable if the defendant used more force than was in fact 'reasonably necessary' . . . ." Appellant bases his argument primarily on a comment made in Forecite which states that the third element of CALCRIM No. 505 "is a misstatement of the law of self defense." (1 Forecite (2006) Homicide, § F 505.5, p. 5-19.)
Appellant's (and Forecite's) argument on this point is simply incorrect. The courts of this state have long held that the right of self-defense is limited to the use of such force as is reasonable under the circumstances. (See, e.g., People v. Minifie (1996) 13 Cal.4th 1055, 1065; People v. Pinholster (1992) 1 Cal.4th 865, 966, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Hardin (2000) 85 Cal.App.4th 625, 629-630; People v. Welch (1982) 137 Cal.App.3d 834, 840, fn. 1, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 90-91; People v. Clark (1982) 130 Cal.App.3d 371, 380, disapproved on other grounds in People v. Blakeley, supra, 23 Cal.4th at pp. 90-91; People v. Whitfield (1968) 259 Cal.App.2d 605, 609; People v. Young (1963) 214 Cal.App.2d 641, 646; People v. Moody (1943) 62 Cal.App.2d 18, 23.) As Division Four of this court explained recently, " 'The principles of self-defense are founded in the doctrine of necessity. This foundation gives rise to two closely related rules . . . . First, only that force which is necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified. [Citation.] Second, deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury . . . . Under these two principles a person may be found guilty of unlawful homicide even where the evidence establishes the right of self-defense if the jury finds that the nature of the attack did not justify the resort to deadly force or that the force used exceeded that which was reasonably necessary to repel the attack. [Citations.]' " (People v. Hardin, supra, 85 Cal.App.4th 629-630, citing People v. Clark, supra, 130 Cal.App.3d 371, 380, italics added.)
As for Forecite, it appears the comment in question is based primarily on the fact that when our Supreme Court discussed principles of self-defense in People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083, it did not mention the principle that a defendant may use no more force than is reasonably necessary. (Forecite, supra, § F 505.5, pp. 5-19-20.) While it is true that this principle was not discussed in Humphrey, it is axiomatic that cases are not authority for propositions that are not considered. (People v. Jennings (2010) 50 Cal.4th 616, 684.) Indeed, the same day our Supreme Court issued the Humphrey decision, it issued a different decision in which it reaffirmed the principle that a defendant may use no more force than is reasonably necessary. (See People v. Minifie, supra, 13 Cal.4th at p. 1065.) We reject appellant's (and Forecite's) argument that it is improper to instruct jurors on that principle.
As a back-up argument, appellant argues that if the principle articulated in the third element of CALCRIM No. 350 is correct, it applies "only to the right to use force to defend against a non-deadly crime." Appellant has not cited any case that articulates the rule he describes and the law in fact supports the opposite conclusion. Several cases have applied the rule that a defendant may only use as much force as is reasonable under the circumstances where the defendant was forced to defend against what he believed to be a deadly attack. (See, e.g., People v. Minifie, supra, 13 Cal.4th at pp. 1061-1062, 1065; [principle applied where the defendant was afraid he would be killed by the persons against whom he was defending]; People v. Welch, supra, 137 Cal.App.3d at pp. 838, 840 [principle applied where the defendant thought his attacker might kill him].) We reject appellant's argument on this point.
As yet another back-up argument, appellant contends that "[i]f some instruction on reasonable necessity was permissible, that instruction was required to remind the jury that it is not whether the force used was in fact reasonably necessary, but whether it would reasonably have appeared to the defendant to be necessary." We reject this argument because that principle was conveyed to the jurors. CALCRIM No. 505 instructed the jurors that for self-defense to apply, the "defendant must have believed there was imminent danger of great bodily injury to himself or his family" and that "[d]efendant's belief must have been reasonable . . . ." (Italics added.) There was no error on this ground.
We conclude the trial court correctly instructed the jurors on self-defense.
Having reached this conclusion, we need not decide (1) whether appellant forfeited the right to challenge CALCRIM No. 505 because his trial attorney asked the court to provide it, (2) whether any error the court may have committed by instructing with CALCRIM No. 505 was prejudicial, or (3) whether the court violated appellant's due process rights by failing to instruct the jurors on self-defense correctly.
2. Exclusion of Evidence
Shortly after the trial began, the court conducted an in limine hearing to determine whether defense counsel should be allowed to impeach Julio Chavez with certain evidence. Specifically, defense counsel stated that when the police took Julio to the hospital after he had been shot, they found he had two social security cards in his possession. Both were issued to "Julio Chavez Sanchez" and they had different numbers on them. Defense counsel argued Julio's possession of the cards was a crime that showed moral turpitude and that he should be allowed to impeach Julio with them.
The prosecutor replied that the evidence indicated Julio simply possessed the cards, not that he had used them. She argued it was not clear whether Julio's possession of the cards alone showed moral turpitude.
The trial court observed that both cards "appear to be bogus" but it also expressed concern about injecting a collateral issue into the trial. The court noted several jurors had commented about illegal immigration in their questionnaires and that there was a nationwide controversy about immigration reform. The court also noted that appellant himself was an illegal immigrant and that "all parties, witnesses, victims, [and] alleged victims [were] of the same status."
After weighing the arguments presented, the court ruled it would exclude the evidence in question under Evidence Code section 352. The court explained its decision as follows:
"[T]here is not a conviction here, we don't know why [the cards] were possessed, and if there is something more to lend some probative value that it was some moral turpitude based reason, I would then weigh that against any prejudice that may [inure] to the trial. And I think there is a possibility that it would [inure] to your client as well to infuse this - I mean, it really throws in the face of the jurors that at least we have one undocumented person here. By the way, they are all related, they all come from the same place. It really could bleed over as an issue against your client. Certainly I wouldn't think that our jurors in this county in today's date would hold it against somebody, but you never know. Clearly that was in some of the questionnaires. I don't find it to be probative. There is no conviction. We don't have any conduct to base other than mere possession. I don't think it is probative enough for the jury for it to be helpful to the jury in gauging his veracity. So I'm going to grant the People's motion in limine and prevent any questioning about these documents that were in the hands of the testifying witness."
The court's ruling on this point proved to be prescient. Shortly after the court ruled, one of the jurors sent a note to the court asking, "'If you are in the country illegally, are you allowed to use our legal system[?]'" The court replied by telling the juror that immigration status is irrelevant and that all persons are entitled to the protection of the law regardless of their legal status.
Appellant now contends the trial court erred when it excluded the evidence that Julio had two false social security cards in his possession.
Although a criminal defendant is entitled to present all relevant evidence of significant probative value in his favor, this does not mean a court must allow unlimited inquiry into collateral matters. (People v. Marshall (1996) 13 Cal.4th 799, 836.) A court has the discretion to exclude evidence if its probative value is substantially outweighed by its potential to confuse the issues. (Evid. Code, § 352. See also People v. Panah (2005) 35 Cal.4th 395, 479.) The trial court has broad discretion to determine whether evidence should be excluded under Evidence Code section 352 and its ruling will be reversed on appeal only where the court abused its discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
Here, the evidence indicated Julio possessed what the trial court described as two "bogus" social security cards. There was no evidence that Julio had used either card and no evidence that Julio had been charged with any crime. Given the ambiguous nature of the conduct in question, the probative value of the evidence was relatively weak. On the other hand, admitting the evidence would have injected the highly controversial and irrelevant issue of illegal immigration into the trial. Indeed, shortly after the court ruled, one of the jurors raised that precise issue. Under these circumstances, the trial court reasonably could conclude that the probative value of the proposed evidence was substantially outweighed by its potential to confuse the issues. The court did not abuse its discretion.
Having reached this conclusion, we need not decide whether any possible error was prejudicial.
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III. DISPOSITION
The judgment is affirmed.
JONES, P. J. We concur: SIMONS, J. NEEDHAM, J.