Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County Super. Ct. No. RIF89625, James L. Quaschnick, Judge. (Retired judge of the Fresno Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Wilson Carlos Rodriguez appeals from a judgment after a jury convicted him of first degree murder and willful, deliberate, and premeditated attempted murder and found true various firearm enhancements. Rodriguez argues insufficient evidence supports his convictions, this court should reduce his convictions to voluntary manslaughter and attempted voluntary manslaughter, and the prosecutor committed misconduct during rebuttal argument. None of his contentions have merit, and we affirm the judgment.
FACTS
One afternoon in December 1999, Hector Chavez (Hector) and his wife, Anahi Chavez (Anahi), were at Bertha Prado’s residence. Rodriguez and his friend, Edgar Pena, stormed in. Anahi asked Pena his name, and he replied, “‘It’s none of your business, bitch.’” Hector challenged Pena to fight. When they went outside, Rodriguez and Prado watched from the kitchen window.
Hector and Pena fought and ended up on the ground in the mud. As his wife cheered him on to victory, Hector got the better of Pena. Pena screamed for help, pulled up his shirt, and pulled a gun from his waistband. Anahi yelled, “‘Hey, he has a gun. Pay attention.’” Prado prevented Rodriguez from going outside, but he told her he was going to separate the men and ran outside. While still on the ground, Hector and Pena wrestled for control of the gun. As they fought over the gun, Hector grabbed a weightlifting plate and hit Pena on the head, and the gun discharged into the ground. Pena yelled to Rodriguez to kill Hector, and Rodriguez ran to Pena’s car and retrieved a gun from the driver’s side door. As he calmly walked back towards the men, he pulled back the gun’s slide. Rodriguez shot Hector in the shoulder. Pena tried to wrestle the gun from Hector. As Hector and Pena continued to fight over the gun, Hector used Pena as a shield, and when Rodriguez fired his gun a second time, the bullet hit Pena in the side. Rodriguez’s third shot missed both men.
Anahi yelled, “‘Go ahead,’ you know ‘I don’t know this cowboy[,]’” and “‘F[uck] him up. Go ahead. Do it.’”
Rodriguez got into Pena’s car and drove to where Pena and Hector were still fighting over the gun. Pena got into the car, and Rodriguez drove to his sister’s house. Pena was later found dead in his car. Rodriguez eventually fled to Mexico.
After a jury found Rodriguez mentally competent to stand trial, an information charged Rodriguez with murder (Pen. Code, § 187, subd. (a)) (count 1), and attempted murder (§§ 664, 187, subd. (a)) (count 2). As to both counts, the information alleged Rodriguez personally discharged a firearm and caused great bodily injury or death (§ 12022.53, subd. (d)), and with respect to count 2, he personally discharged a firearm (§ 12022.53, subd. (c)).
All further statutory references are to the Penal Code.
After the trial court concluded Rodriguez was mentally competent to stand trial, the prosecutor offered Hector’s testimony. Hector testified that after Pena told Rodriguez to kill him and he hit Pena on the head with the weight, he obtained control of the gun. Hector explained that when he saw Rodriguez walking towards him with the gun, he pointed Pena’s gun at Rodriguez and pulled the trigger three times, but the gun did not fire. On cross-examination, redirect examination, and recross-examination, Hector insisted he pointed the gun at Rodriguez after Pena told Rodriguez to kill him and Rodriguez walked towards him with the gun pointed at him.
The prosecutor offered Anahi’s testimony. She explained that when Hector and Pena struggled for the gun, Pena told Rodriguez to kill Hector. Anahi said she did not see Hector with a gun, but she saw Rodriguez point a gun at Hector and shoot him. She saw Hector with a gun when Pena got into the car to leave. On cross-examination, Anahi admitted she told an officer Hector tried to shoot Rodriguez. On redirect examination, Anahi clarified she told the officer that because that was what Hector told her happened, and she did not see Hector fire a gun.
The prosecutor also offered Patrice Johnson’s testimony. She testified two men were on the ground fighting for a gun and another man walked to a car and got a gun. The man walked back towards the men and fired, but she could not tell who he was shooting at because the men were “entwined.” She did not see Hector with a gun or point a gun at anyone. On cross-examination, after having her recollection refreshed with a police report, Johnson stated she did not remember telling an officer that when the men on the ground struggled for the gun, that the gun fired a couple times.
Rosemary Ureta also testified for the prosecution. She had difficulty remembering the incident, but when the prosecutor asked her if she remembered testifying at the preliminary hearing about her interview with police after the shooting, she said she did. She recalled the men fighting over a gun, but she said Hector did not have a gun. Dr. Joseph Cohen testified Pena may have lived if he had been taken to a trauma center within 10 to 15 minutes of being shot.
The jury convicted Rodriguez of first degree murder and willful, deliberate, and premeditated attempted murder and found the allegations true. The trial court sentenced him to a total prison term of 75 years to life.
DISCUSSION
I. Sufficiency of the Evidence
Rodriguez argues insufficient evidence supports his convictions for first degree murder and attempted murder because the evidence demonstrated he acted in self-defense and defense of others. We disagree.
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one. ‘“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”’ [Citations.] [¶] “‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” [Citation.]’ [Citation.]” (People v. Smith (2005) 37 Cal.4th 733, 738-739 (Smith).)
“Murder is the unlawful killing of a human being,... with malice aforethought.” (§ 187, subd. (a).) “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188.) Murder in the first degree is murder that is willful, deliberate, and premeditated. (§ 189.) “‘Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citations.]” (Smith, supra, 37 Cal.4th at p. 739.)
“For... self-defense, one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. [Citation.] A killing committed in... self-defense is neither murder nor manslaughter; it is justifiable homicide. [Citations.] [¶] ‘One acting in imperfect self-defense also actually believes he must defend himself from imminent danger of death or great bodily injury; however, his belief is unreasonable. [Citations.]’” (People v. Randle (2005) 35 Cal.4th 987, 994 (Randle), overruled on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1201.) “One who kills in imperfect self-defense... is guilty of manslaughter, not murder, because he lacks the malice required for murder. [Citations.] For the same reason, one who kills in imperfect defense of others—in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury—is guilty only of manslaughter.” (Randle, supra, 35 Cal.4th at pp. 996-997.)
Rodriguez claims he acted in self-defense and defense of others because “[t]he uncontradicted [sic] prosecution evidence clearly establishe[d] that [he] knew the following had occurred before he fired his gun[.]” He then recites that evidence, beginning with Pena’s and Hector’s agreement to fight. As relevant here, Rodriguez asserts he did not shoot Hector until after Hector gained control of the gun from Pena, Pena told Rodriguez to shoot him, and Rodriguez tried to shoot him. Rodriguez’s interpretation of the facts belies the record.
Here, there was sufficient evidence supporting Rodriguez’s convictions for first degree murder and attempted murder. The evidence established that as Hector beat Pena, Pena yelled for Rodriguez to kill Hector, and Rodriguez walked to Pena’s car and retrieved a gun. As Rodriguez walked towards the men, he cocked the pistol and aimed it at Hector. Rodriguez shot Hector in the shoulder, and after hesitating a moment, shot Pena in the side, a wound from which he ultimately died. This was overwhelming evidence of malice as Rodriguez’s actions of shooting Hector and Pena at close range while they laid on the ground evidences a deliberate intention to take the life of another.
Contrary to Rodriguez’s claim, there was little evidence Hector aimed Pena’s gun at Rodriguez first or aimed it at Pena. In fact, the majority of witnesses testified they never saw Hector with control of the gun or that he obtained control of the gun when Pena got into the car. The only evidence establishing Hector obtained control of the gun was his own testimony and Anahi’s statement to the police concerning what Hector told her. Hector testified that after he heard Pena yell to Rodriguez to kill him and he saw Rodriguez walking towards him with a gun, did he point the gun at Rodriguez. Rodriguez ignores this evidence, and undertakes a tortured interpretation of the record to support his position. There was sufficient evidence supporting Rodriguez’s convictions.
II. Voluntary Manslaughter and Attempted Voluntary Manslaughter
In conjunction with his sufficiency of the evidence claim, Rodriguez suggests that if we conclude sufficient evidence supports his convictions, we should reduce his convictions to voluntary manslaughter and attempted voluntary manslaughter because Rodriguez acted in an honest but unreasonable belief he had to defend himself and Pena. Nonsense.
As we explain above, there was sufficient evidence Rodriguez acted with the required intent. As Pena and Hector fought on the ground, Pena yelled for Rodriguez to kill Hector. Rodriguez walked to Pena’s car and retrieved a gun, and as Rodriguez walked towards the men, he readied the gun and aimed it at Hector. Rodriguez shot Hector in the shoulder, and after hesitating a moment, he fatally shot Pena. Again, the evidence does not support the conclusion Hector was the first to aim his gun. And, there was no evidence Hector aimed the gun at Pena. We reject Rodriguez’s invitation to reduce his convictions where overwhelming evidence supports the jury’s verdict.
III. Prosecutorial Misconduct
Rodriguez contends the prosecutor committed misconduct during closing argument when she argued that when Rodriguez obtained the gun from the car he became the aggressor and, therefore, he was not entitled to claim self-defense. The Attorney General responds Rodriguez forfeited appellate review of this issue because he did not object and request an admonishment. We agree with the Attorney General that Rodriguez forfeited appellate review of this issue but conclude he was not prejudiced by the prosecutor’s comments.
After defense counsel’s closing argument, the trial court refused the prosecutor’s request to instruct the jury with Judicial Council of California Criminal Jury Instructions (2008) CALCRIM Nos. 3471, “Right to Self-Defense: Mutual Combat or Initial Aggressor,” and 3472, “Right to Self-Defense: May Not be Contrived” because they were inapplicable.
During rebuttal argument, as relevant here, the prosecutor argued: “Reasonable self-defense. Initial aggressor cannot claim self-defense. When this defendant went to the car -- see, you’ve got to understand. First he says it was defense of others. I went to the car to get a gun in order to defend [Pena], and my getting the gun from the car, that was my intent. This is my argument, by the way. So you now created a -- you’ve escalated the situation. You now have become an aggressor. You too are an aggressor now.” Defense counsel objected on the grounds the prosecutor misstated the law. The trial court overruled the objection and stated it “assume[d] [the prosecutor was] going to expand a little bit on when the aggressor does have [sic][.]”
The prosecutor continued: “When the defendant goes and gets the gun from the car, he has become an aggressor too. That’s common sense. You have now escalated the situation by getting a second gun; right? So you have become an aggressor. You are now not entitled to self-defense unless certain criteria is [sic] met. We don’t have it here.”
A little later, the prosecutor continued on the same theme: “In this situation, [Rodriguez] created his own self-defense when he is -- when the defense is arguing that he’s entitled to self-defense. You created the situation. You can’t then claim it. Could you imagine what our law would be like if you could? Could you imagine the chaos on our streets? Could you imagine the street justice[?]” The trial court sustained defense counsel’s objection.
A. Forfeiture
“‘A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.’ [Citation.]” (People v. Salcido (2008) 44 Cal.4th 93, 152.)
Here, Rodriguez objected, but he did not object on the ground the prosecutor committed misconduct—counsel objected the prosecutor misstated the law and jury nullification. And, when the trial court did finally sustain defense counsel’s objection, counsel did not request an admonishment. We disagree with Rodriguez such a request would have been futile and would not have cured any harm. Had counsel requested an admonishment, the trial court could have admonished the jury that what counsel argues is not the law and that the court would instruct the jury on the applicable law. In fact, the trial court later instructed the jury on that very principle, and Rodriguez recognizes that in failing to request an admonishment, “there was no instruction he could have requested that the jury was not about to hear anyway.” Although we conclude Rodriguez waived appellate review of this issue, below we explain why any error was harmless beyond a reasonable doubt.
B. Prejudice
Here, the trial court instructed the jury to determine the facts from the evidence presented, that nothing the attorneys say is evidence, to determine if the prosecution had proved each element of the charged crime beyond a reasonable doubt, and on the required elements of the offenses and the defenses. We presume the jury properly followed the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Additionally, the prosecutor informed the jury what the attorneys say during argument is not evidence. And as we explain above, there was overwhelming evidence of Rodriguez’s guilt. We conclude beyond a reasonable doubt that any error during the prosecutor’s rebuttal argument did not contribute to the verdicts.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.