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People v. Abella

California Court of Appeals, First District, Third Division
Apr 24, 2009
No. A121826 (Cal. Ct. App. Apr. 24, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MARK FACUN ABELLA, Defendant and Appellant. A121826 California Court of Appeal, First District, Third Division April 24, 2009

NOT TO BE PUBLISHED

Contra Costa County Super. Ct. No. 05-060100-5.

Pollak, J.

Defendant Mark Facun Abella appeals from his conviction for first degree murder of Eric Lewis and for possessing a firearm with a prior juvenile adjudication. He contends that the trial court erred in admitting evidence of two prior juvenile incidents of assault with a deadly weapon and that there was insufficient evidence of premeditation and deliberation to support a finding of first degree murder. We find no merit in these contentions and therefore shall affirm.

Background

David Catalan testified that in the very early morning on September 25, 2004, he and Lewis were driving with another friend, Gilberto Cruz, in a black BMW. They went to a Jack-in-the-Box restaurant in Pittsburg. Cruz was driving, Lewis was in the passenger seat, and Catalan was seated behind Lewis. When they were at the drive-thru window, someone approached the car on foot. The man “approached casually, just came up and talked to Eric.” He asked the three men in the car for their names and then walked away. Catalan asked Lewis if he knew the man and Lewis said he did not. After the man left, “they were handing us our food when somebody else, a different person came up to the window and struck Eric—punched him like once or twice....” This second person then walked away. Catalan said, “We should leave,” but Lewis opened his car door and got out. The first man returned to the BMW, and he and Lewis “got into a fist fight.” Another person appeared and also hit Lewis. The man who had punched Lewis initially was standing behind the second and took “something out of a bag,” which “seemed [to be] a long type of weapon,” maybe three feet long. One of the responding officers testified that Catalan told him after the incident that the first man who punched Lewis went to the van, then returned to Lewis carrying a backpack “and retrieved what he described as a pistol grip style shotgun.” The man walked up to Lewis, who had been knocked to the ground by one of the other men, and shot him.

Cruz testified that while he, Lewis, and Catalan were in Cruz’s BMW at the Jack-in-the-Box awaiting their food, a man approached the passenger side window and spoke to Lewis. Then “he left and then I think he came back and started hitting on Lewis.” Cruz was unsure whether it was the same man who first approached or another man from the van. Cruz began to pull away but Lewis told him to stop the car. Cruz complied, and Lewis “got out of the car and asked him why he got hit.” Cruz saw the three men from the other car “going around” Lewis. He did not recall what the men were doing, only that “[t]here was argument first and then I don’t know where I hear[d] the shot.”

Before Lewis was shot, Cruz saw one of the men run to the van and get a black bag. The man opened the bag and pulled “a gun or something big” out of it. Cruz testified that he did not see Lewis shot, nor did he remember describing the shooting to the police. He testified, however, that Lewis was standing when he was shot. He was not able to identify any of the attackers.

Sergeant Steve Albanese of the Pittsburg Police Department testified that he interviewed Cruz on the morning of September 25, 2004. Cruz told him that he saw “the Filipino male go back to the vehicle that the three subjects came from and retrieve a black backpack. [¶]... [¶] He said that he came back up to the area where Lewis was lying on the ground, held the backpack in his left hand, removed an item from the backpack with his right hand and discarded the backpack on the ground. [¶]... [¶] He described [the item removed from the backpack] as a short barrel shotgun... with a pistol grip [¶]... [¶]... and he believed it was a pump action.” Cruz told Albanese that when he was shot, Lewis was “[l]ying on his back,” and that he was not moving.

Amy Miller testified that in September 2004, she worked at the Jack-in-the-Box restaurant in Pittsburgh. Around 3:00 a.m. on the day of the incident, two men in a black BMW came through the drive-thru. She heard “loud talking” through the speaker. While the men were waiting for their food at the window, defendant came up to the car and shouted at the two men. He then “hit the guy in the passenger seat” with his fist. The BMW pulled away and a gold mini van came up to the drive-thru window. Defendant ran in the direction that the BMW had gone. The driver of the mini-van paid for his food then ran after the BMW. Someone, Miller was unsure whether it was the original driver or another man, returned to the van and drove it away. Miller then “heard a pop and the lady [in the next car] said that there was someone laying on the floor.” Miller then called 911.

Vickie Johnson testified that she was in the drive-thru at the Jack-in-the-Box at 2:30 or 3:00 in the morning on September 25, 2004. She was in line and there were several cars in front of her. Two men got out of a van and began arguing with a man who had gotten out of a car. She testified that one of the men from the van shot the man from the car with a sawed-off shotgun. The man who was shot did not have a gun. She did not see anyone else involved in the fight. When Johnson was interviewed by the police after the incident, she told them that the man from the car was being assaulted by the other two men, that it appeared as if he tripped or fell to the ground, and that he was trying to get away as the other two men where hitting him. She also told the police that he was on the ground when he was shot.

A forensic pathologist testified that in addition to the shotgun wound in his abdomen, Lewis had scrapes on his right hand, wrist, forearm, knee, lower leg, cheek, and left knee, thigh, elbow, forearm, shoulder, and fourth finger, and on his chin. He was bruised on his left groin, scrotum, right forehead, lips and the right side of the neck. He had lacerations from blunt force on his right lower lip and chin. These wounds were ‘inflicted at slightly before or at the time of death.” He opined that Lewis was shot from “probably less than two feet” away in an upward trajectory from the front of Lewis’ body to the back and that the gunshot wound was the cause of death.

Defendant testified that on September 25, 2004, he was with Jose Lopez and Nehemia Matakaionga at a Jack-in-the-Box in Pittsburgh. Matakaionga was driving, Lopez was in the passenger seat, and defendant was in the back of the vehicle. When they got to the restaurant he noticed a black car in front of their own that was “gas/breaking.” He explained that the person driving “[s]tep[s] on the gas and you break and gives you a jerky motion.” The black car did not hit the car defendant was in. Defendant said that because the car “was so close, I told Jose to go talk to them, see if they could be cool. [¶]... [¶] Jose went to go talk to ‘em.” Lopez returned quickly and told the others “They’re not trying to hear us.” This made defendant “upset, frustrated,” so he “decided to go over there and see if I could talk to them myself.” He approached the passenger side window, which was down, and tried to speak to the driver. “I noticed that they was all looking hostile, like annoyed.” “I said, ‘What’s up with them?’ And I told them ‘Y’all be cool to the car behind you.’ [¶]... [¶] Nobody said nothing to me. [¶]... [¶] They look, but they just annoyed. [¶]... [¶] I was talking, I noticed that the passenger had moved his body, his whole body towards me, as if he was gonna hurt me. [¶]... [¶] I hit him ‘cause I felt like he was gonna come out and hit me.” Defendant hit the passenger once. Then, he testified, “I didn’t want anymore problems. I tried to walk away. [¶]... [¶] As I was walking away, I noticed Jose passing me by,” heading towards the black car. “After that, Nehemia followed right behind him.” Matakaionga and Lopez then “ran toward” defendant who “looked over my shoulder and I see ‘em fighting.” He saw “[t]wo on two people fighting from the people from the car.” When he saw this, “I fully turned around. I turned my whole body around. I noticed that it looked like the person I was talking to, the driver, had a gun in his hand.” “He was pointing the gun at me and my friends.” When defendant saw this, “I wanted to go get my gun.... It was underneath the back seat of my van.” Defendant retrieved his gun, “[a]nd as I turned to point at the person with the gun, I shot. [¶]... [¶] I know I didn’t hit the person with the gun.” He testified that he did not mean to shoot Lewis, but meant to shoot the man he believed had a gun because “I was afraid that he was going to shoot me and my friends.” He also testified that he did not mean to hurt anyone. After he shot Lewis, he “panicked and left.”

Defendant denied that the gun was in a bag before he shot Lewis. He testified that the weapon was a shotgun with a pistol grip, but denied that it was sawed-off. Defendant denied that Lewis was on the ground when defendant shot him. He testified that one of the other men was pointing a gun at him and that Lewis “was fighting one of my friends.” Defendant testified that he threw the gun away “in the garbage” at the apartment complex where he lives. Defendant testified that he ran from the scene of the shooting “[j]ust all in a panic,” but when asked, “the truth is you didn’t panic, you started to destroy evidence to connect you with the murder... [i]sn’t that right?” he answered, “Yes.”

Defendant was charged by information with one count of murder (Pen. Code, § 187) with an allegation that he discharged a sawed-off shotgun within the meaning of Penal Code section 12022.53, subdivisions (b), (c), and (d), and one count of possessing a firearm with a prior juvenile adjudication. This second count alleged that “on or about March 31, 1995, in the Juvenile Court of the State of California, in and for the County of Contra Costa, the defendant was adjudged a ward of the juvenile court, because the defendant committed Assault with a Deadly Weapon,” citing section 12021, subdivision (c)(1). The jury found defendant guilty on both counts and found the firearm enhancement allegation true. Defendant was sentenced to 25 years to life for the murder, plus a consecutive 25 years to life for the enhancement pursuant to Penal Code section 12022.53, subdivision (d). A midterm sentence of two years for the second count was stayed pursuant to Penal Code section 654.

Defendant timely appealed.

Discussion

Juvenile priors

Defendant asserts that the trial court erred by admitting evidence that as a juvenile he had suffered two prior adjudications for assault with a deadly weapon.

Before defendant testified, the prosecutor sought permission to impeach his testimony with evidence of three prior incidents, including two that are at issue on appeal: assaults with a deadly weapon, one in 1995 and one in 1997. Defendant argued that because he was only nine years old in 1995 and eleven years old in 1997, if the trial court allowed evidence of those incidents to impeach him, they should “be sanitized.” The prosecutor argued that the incidents were not stale because “defendant was still on CYA parole at the time of this offense. It’s not like he had a long period of time that he was crime free. In fact, the reports indicate that he had enough parole violations... [that] he served actually his maximum time.”

The prosecutor also sought and was granted leave to impeach defendant with evidence of a strong-arm robbery in 1998. On appeal, defendant does not object to the admission of this incident.

The court observed, “Under other circumstances, the first incident, when he was nine that involved his mother as the victim, I would say—stale is the wrong word, but occurred when he was quite young. The serious nature of it in reading the report it certainly belies his age. The behavior described in the police report and described by his mother and the father are the actions of—well, the actions we more often see with somebody older and quite serious in my estimation and troubling. So I think that mitigates against an argument that they’re stale. And in light of the fact, I also note that there is a series of incidents without a great deal of break in between. And there—there are some other violations that are not, in particular, in between these events, other violations that aren’t necessarily of moral turpitude, but shows a continuing pattern. So I think that the three are admissible to impeach. ”The court then went on to rule that the assaults with a deadly weapon could be referred to as “assault-related incidents involving a weapon, no other detail.”

The probation report describes the first incident, when defendant was nine years old: he “was arrested after chasing his mother with a kitchen knife. He threatened her stating, ‘If you get close to me, I’ll kill you.’ After Mrs. Abella approached him and told her son to give her the knife, the defendant lunged towards her and attempted to stab her in the chest. He then chased her through the house which prompted the mother to pick up a chair to keep her son from stabbing her. [¶] After being arrested and booked at the juvenile hall, the minor stated to his mother, ‘When I get back, I’m going to kill you.’ ” The second incident apparently “occurred at the age of 12, after the defendant used a small handgun to pistol whip another individual.”

Defendant requested that the reference to a weapon be omitted, but the trial court declined to do so. “To sanitize it to assault could mean a fist fight, and it was substantially more than a fist fight, particularly the one involving his mother. And I don’t think that we should mislead the jury. At the same time, we’re balancing it with information that is so prejudicial that it becomes the focus, as opposed to the purpose of this is for impeachment. I don’t know how else to sanitize it without making it meaningless, based on the behavior here.” Defendant testified that in both 1995 and 1997 he was “involved in an assault involving a weapon.” The jury was instructed that “The fact that a witness has been convicted of a felony, if this is a fact, may be considered by you only for the purpose of determining the believability of that witness. The fact of a conviction does not necessarily destroy or impair a witness’ believability. It is one of the circumstances that you may consider in weighing the testimony of that witness.”

We review the trial court’s decision for an abuse of discretion. (People v. Wheeler (1992) 4 Cal.4th 284, 296.) The Attorney General is correct that defendant did not object to admission of the earlier adjudications but asked only that they be sanitized. Therefore defendant has waived any objection to their admission. “It is, of course, ‘the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.’ ” (People v. Poggi (1988) 45 Cal.3d 306, 331.)

Nevertheless, the trial court did not abuse its discretion in admitting this evidence for impeachment purposes. “[T]he court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing....” (Evid. Code, § 780.) Evidence of prior juvenile adjudications evincing moral turpitude is admissible for this purpose, subject to the restrictions of Evidence Code section 352. (People v. Lee (1994) 28 Cal.App.4th 1724, 1740.) In considering whether to admit evidence of prior juvenile adjudications, the trial court must consider “(1) Whether the prior conviction reflects adversely on an individual’s honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions. [Citation.] However, these factors need not be rigidly followed.” (People v. Muldrow (1988) 202 Cal.App.3d 636, 644.)

As to the first factor, assault with a deadly weapon is a crime of moral turpitude. “[A]lthough simple assault is not a crime of moral turpitude, assault with a deadly weapon is. As the court explained in [People v.] Cavazos [(1985) 172 Cal.App.3d 589, 595], ‘The average person walking down the street would believe that anyone who unlawfully attempts to injure another with a deadly weapon is guilty of some degree of moral laxity.’ ” (People v. Rivera (2003) 107 Cal.App.4th 1374, 1381.) The assaults reflect on defendant’s credibility in describing the murder as a panicked reaction rather than a calculated assault. (See, e.g., People v. Johnson (1991) 233 Cal.App.3d 425, 459.)

The two juvenile adjudications were approximately seven and nine years prior to Lewis’ killing. As the court noted, the juvenile adjudications also were for violent, assaultive conduct using a weapon, and there was no meaningful lapse of violent conduct on defendant’s part between the earliest incident and his arrest for Lewis’ murder. The fourth factor is not relevant since defendant testified in this case. Thus, although the two incidents were somewhat remote in time, the court was justified in considering them to reflect on defendant’s credibility. Moreover, the trial court appropriately limited the evidence in such a manner that the jury was apprised of their nature but not unduly prejudiced by the details. The trial court eliminated the potentially inflammatory specifics of the prior offenses while approving inclusion of enough information to permit the jury to evaluate the significance of the offenses on defendant’s credibility.

Nor did defendant’s counsel provide ineffective assistance by failing to object to the admission of the juvenile adjudications. In order to prevail on a claim of ineffective assistance of counsel, defendant must “must demonstrate both deficient performance under an objective standard of professional reasonableness and prejudice under a similarly objective standard of reasonable probability of an adverse effect on the outcome.” (People v. Waidla (2000) 22 Cal.4th 690, 718.) Even if counsel had objected to the admission of the juvenile adjudications, in view of the court’s remarks with respect to the objection that counsel did make, it is not likely that the objection would have been sustained, and if it had been sustained it is not reasonably probable that exclusion of the two adjudications would have resulted in a more favorable verdict. (See id. at p. 719.) Although the prior offenses affected the credibility of defendant’s claim of self defense (as did the third and most recent incident, the admissibility of which seems clear and is unchallenged), many inconsistencies between defendant’s testimony and the testimony of other witnesses and the forensic evidence undermined his credibility far more forcefully. None of the witnesses, including the bystander witnesses, observed anyone other than defendant to have a gun, as defendant testified. Catalan, Johnson, and Cruz all told the police immediately after the incident that Lewis was lying on the ground when defendant shot him at close range. The forensic evidence indicated that Lewis was shot from less than two feet away at an upward angle, contrary to defendant’s testimony that he shot Lewis from a distance.

Substantial evidence of first degree murder

Defendant also argues that the evidence at trial was insufficient to support a finding of premeditation and deliberation and thus the conviction for first degree murder.

“In this context, ‘premeditated’ means ‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.’ (CALJIC No. 8.20 (5th ed. 1988), quoted with approval in People v. Perez (1992) 2 Cal.4th 1117, 1123.) The process of premeditation and deliberation does not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.” (People v. Mayfield (1997) 14 Cal.4th 668, 767.)

The jury was instructed that “ ‘deliberate’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word ‘premeditated’ means considered beforehand. [¶] If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree. [¶] The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. [¶] The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder of the first degree. [¶] To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill.”

In People v. Anderson (1968) 70 Cal.2d 15, the Supreme Court described three types of evidence that indicate premeditation and deliberation. “(1) [F]acts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing-what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’' rather than ‘mere unconsidered or rash impulse hastily executed’ [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2).” (Id. at pp. 26-27.) “The Anderson factors are not the exclusive means for establishing premeditation and deliberation. [Citation.]... [F]or example, an execution-style killing may be committed with such calculation that the manner of killing will support a jury finding of premeditation and deliberation, despite little or no evidence of planning and motive.” (People v. Lenart (2004) 32 Cal.4th 1107, 1127.)

“Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation that was previously set forth. Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.] The standard of review is the same in cases such as this where the People rely primarily on circumstantial evidence. [Citation.] ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” (People v. Perez (1992) 2 Cal.4th 1117, 1124.)

Here, there was ample evidence of premeditation and deliberation. Catalan, Cruz and Johnson all reported that after Lewis had been knocked to the ground, defendant returned to his van, retrieved his shotgun, removed it from a bag, stood over Lewis and shot him while he was unmoving on the ground. Whether defendant intended to kill Lewis when he started the fight with him under the flimsy pretext of being annoyed with the driving of the BMW, or whether that intention was formed after the fight had begun, the evidence that defendant retrieved his shotgun while Lewis was on the ground and shot him at close range is sufficient to support the jury’s finding of deliberation. While the Supreme Court has “defined ‘deliberate’ as ‘ “formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action,” ’ ” and “ ‘premeditated’ as ‘ “considered beforehand,” ’ ” “[p]remeditation and deliberation can occur in a brief interval. ‘The test is not time, but reflection. “Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.” ’ ” (People v. Memro (1995) 11 Cal.4th 786, 862-863; People v. Perez, supra, 2 Cal.4th at p. 1127 [“premeditation can occur in a brief period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly’ ”].) Although defendant’s version of events differed, the jury was entitled to disbelieve defendant and give credence to the testimony of the other witnesses. We must defer to the jury’s finding when it is supported by credible evidence.

Disposition

The judgment is affirmed.

We concur: McGuiness, P. J., Siggins, J.


Summaries of

People v. Abella

California Court of Appeals, First District, Third Division
Apr 24, 2009
No. A121826 (Cal. Ct. App. Apr. 24, 2009)
Case details for

People v. Abella

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARK FACUN ABELLA, Defendant and…

Court:California Court of Appeals, First District, Third Division

Date published: Apr 24, 2009

Citations

No. A121826 (Cal. Ct. App. Apr. 24, 2009)