Opinion
B162328.
10-24-2003
THE PEOPLE, Plaintiff and Respondent, v. ANGELO BASULTO et al., Defendants and Appellants.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant Angelo Basulto; Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant Ernesto Munoz, Jr. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Angelo Basulto and Ernesto Munoz, Jr., (collectively, appellants) appeal from their respective judgments entered following a jury trial that resulted in their convictions of second degree murder (Pen. Code, § 187, subd. (a)); count 1) and conspiracy to commit assault with a deadly weapon (ADW) (§§ 182, subd. (a)(1), 245, subd. (a)(2); count 2) and findings that, as to both crimes, a principal was armed with a firearm (§ 12022, subd. (a)(1)); as to count 1, Munoz personally used a firearm causing great bodily injury (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b),(c), (d)); and, as to count 2, Munoz personally used a firearm (& sect; 12022.5, subd. (a)(1)). Munoz was sentenced to prison on count 1 to 15 years to life, plus 25 years to life for a use enhancement (§ 12022.53, subd. (d)). Basulto was sentenced to prison on count 1 to 15 years to life, plus one year for the armed enhancement (§ 12022, subd. (a)(1)).
All further section references are to the Penal Code.
Appellants contend the evidence was insufficient to support their convictions for conspiracy to commit ADW. They contend the trial court erred in failing sua sponte to instruct on simple assault based on the evidence that appellants simply went to the victims house to engage in a fistfight. With respect to their murder convictions, they specifically contend the trial court erred by failing to instruct on the following: (1) involuntary manslaughter; (2) head of passion; (3) self-defense; (4) imperfect self-defense and absence of heat of passion are elements of malice; and (5) proximate causation. They further contend the court improperly instructed the jury on the definition of the natural and probable consequences doctrine. They urge the cumulative effect of such errors was prejudicial. Munoz also contends his sentence is cruel or unusual (or both) punishment under the federal Constitution. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)
Based on our review of the record and applicable law, we affirm the judgments.
FACTUAL SUMMARY
We view the evidence in the light most favorable to the People and presume the existence of every fact the trier could reasonably deduce from the evidence that supports the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The following summary is based on this appellate standard of review.
On November 13, 2001, sometime in the evening, Steve Sartain was in front of Kevin "Red" Donelans house in Los Angeles County when he saw Basulto walking alongside a slow-moving car with its headlights off. Basulto asked Sartain about Donelan, a mechanic who had worked at various times on Basultos truck. At Donelans request, Sartain asked Basulto to leave. Basulto told Sartain to inform Donelan "I brought him a message" and repeated himself when Sartain asked what he meant.
Later, after exiting their car, appellants approached Lisa Stirrat and Johnny Leyba in the Gingers Bar parking lot. Basulto was adamant in demanding Stirrat tell him where Donelan was. He said that Donelan owed him $700 and he needed to talk to him. He added, "That motherf—-r is going to give me my money tonight one way or the other." Meanwhile, Munoz, who was in a black trench coat, paced back and forth, peering into the car checking to see if anyone other than Stirrat and Leyba was inside. Stirrat was concerned Donelan was in danger. Leyba subsequently called Donelan.
Later that night, an angry Basulto showed up again outside Donelans home. He told Pamela Finkenhagen that he was looking for Donelan and knew he was inside. When she denied knowing whether he was home, Basulto insisted he was. Joe Pinion, Donelans friend, went inside and told Donelan that Basulto would not leave without speaking to him. He also warned him that Basulto might have a gun.
Donelan went out and told Basulto to leave. The two then yelled at each other but there was no physical altercation. Basulto insisted that Donelan fix his truck. The latter denied owing him any additional work.
Finkenhagen, next to Donelan, noticed Munoz nearby and observed him lift his trench coat, displaying a sawed-off shotgun. Donelan ignored her warning and continued to argue with Basulto. Munoz, who did not appear afraid, "very calmly" and repeatedly told Finkenhagen to move out of the way.
After saying "youre not going to fix my truck, huh?" Basulto threatened Donelan, "Well fix you." Noticing Munoz pointing a gun at him, Donelan moved until Basulto was between him and Munoz. Munoz fired. A bullet struck Pinions head, killing him. Pinion, who had nothing in his hands, had been peering over the gate. Both his hands were on the fence, and only his head from the nose up was visible. Donelan ran into the house.
A toy gun was found about six feet from Pinions body.
The next morning, Munoz went to the house of his friend Jennifer Hoshizaki and asked her to hold onto his gun, which he placed in a closet. On the way to his mothers house, he told her to lie and tell the people there that she had been his girlfriend for a year and that he had spent the night at her house. Subsequently, she led police to the gun, which she had removed to a friends garage.
On July 12, 2002, while Donelan was in jail on a charge of possession of methamphetamine, he was confronted by Munoz, who said he "was fighting for his life." Donelan responded, "You came on to my premises where my fiancée and my children are." Munoz then pointed to him and said, "Thats the guy." Seven men then beat Donelan.
Munoz relied on the theory of imperfect self-defense. He testified that about 6:30 or 7:00 p.m., he picked up Basulto, his uncle, at work. The latter was angry, because his truck did not work properly. After Basulto consumed an entire six-pack of beer, the two tried to find Donelan. Donelan was not at Gingers Bar. When they went to his house, they were told Donelan was not home. They then left.
Munoz did not want to look further for Donelan, because he knew his house was "a violent place." Although he was not intimidated, he felt unable to tell his desire to Basulto, who appeared very intoxicated.
Appellants then picked up "Marcos," who owned the car Munoz was driving. Munoz considered Basulto a "dangerous person," who could "take care of himself in a fight" with Donelan. However, Munoz wanted to get his gun from home "just in case." On three prior occasions, Munoz had observed Donelan with weapons. He saw a pistol in Donelans waistband, and he saw a shotgun and rifles in his house. Upon his return to the car, Munoz told Basulto and Marcos, "I got my gun." Munoz had modified a .22 rifle, to make it easier to conceal. He had donned a trench coat to conceal the rifle. Marcos then drove appellants to Donelans house.
In the past, Munoz had sold Donelan an "AR-15" firearm and bought methamphetamine from him.
When they arrived at Donelans house, Basulto exited and instructed Munoz to stay there. Munoz, however, followed, because he was worried for Basultos "life" and wanted to provide "back up." Basulto asked Pinion, who was in front of the house, whether Donelan was home. Pinion, whom Munoz did not know, went inside. When he returned, he calmly said Donelan was sick. As Basulto began to leave, Donelan exited and yelled out that he had said he was sick and demanded to know what he wanted. Donelan refused Basultos demand that he fix his truck.
Meanwhile, Munoz noticed Pinion moving at a "fast pace" from the garage towards the gate. He could see his head and one hand, which was not holding a weapon. Afraid that he or Basulto were about to be shot, Munoz told Basulto to watch out and fired once. His gun then jammed. When he went to check to see if Basulto or Donelan had been shot, Donelan ran into his house. Appellants and Marcos then left.
Munoz denied contacting Donelan in jail.
Basulto relied on the defense of intoxication and no prior knowledge that Munoz was armed. He testified that after drinking a six-pack of beer, he did not become very drunk; however, he did not "remember everything" he did afterwards, and the alcohol made his decision process "kind of foggy."
He was looking for Donelan, because his truck continued to break down after Donelan had worked on it and he wanted Donelan to fix it. Although Stirrat was with Leyba outside Gingers Bar, Basulto just discussed Donelans whereabouts with Leyba.
Before returning to Donelans house the second time, appellants were joined by Marcos, and Munoz went home and returned to the car wearing a trench coat. Basulto denied knowing Munoz had a gun. He also denied that he was mad at Donelan, told Munoz or Marcos he was upset with him, or indicated that he would harm Donelan.
After Donelan came out and refused to fix the truck, the two of them argued. Basulto, however, denied threatening Donelan. Donelan then grabbed Basulto and began "swinging [him] back and forth." Upon hearing a gunshot, Basulto ran back to the car. Munoz and Marcos did not respond when he asked "What did you guys do?" He denied seeing Munozs gun until after the shooting. He then admitted seeing Munoz with the rifle while in Donelans driveway.
When contacted by police the next day, Basulto initially lied by saying that he simply left after arguing with Donelan. He did not mention the shooting. He subsequently told police that Munoz had fired a gun.
DISCUSSION
1. Convictions to Commit ADW Supported by Ample Evidence
Appellants contend the evidence was insufficient to support their convictions for conspiracy to commit ADW. We find the evidence ample.
Pointing a loaded gun in the direction of the victims, even if not directly at them, constitutes ADW, because the gun was "in a position to be used instantly." (People v. Thompson (1949) 93 Cal.App.2d 780, 781-783; see also, People v. Raviart (2001) 93 Cal.App.4th 258, 266 [ADW where defendant drew and brought gun into position where he could use it].)
"`The existence of a conspiracy may be [proven with circumstantial evidence, such as] the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. . . ." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135, citations omitted.) "Evidence is sufficient to prove a conspiracy to commit a crime `if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. . . ." (Ibid., citation omitted.)
"It is the prosecutions burden in a criminal case to prove every element of a crime beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358 . . . .) To determine whether the prosecution has introduced sufficient evidence to meet this burden, courts apply the `substantial evidence test. Under this standard, the court `must review the whole 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—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d [557,] 578, italics added; see also Jackson v. Virginia (1979) 443 U.S. 307, 315-319 . . . .) The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on `"isolated bits of evidence." (People v. Johnson, supra, at p. 577.) The substantial evidence test applies both when an appellate court is reviewing on appeal the sufficiency of the evidence to support a conviction and when a trial court is deciding the same issue in the context of a motion for acquittal under Penal Code section 1118.1 at the close of evidence." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
The record contains sufficient evidence to sustain the conspiracy to commit ADW verdict. The first time appellants showed up at Donelans house, Basulto had Sartain relay to Donelan that he had "brought him a message[,]" the content of which he refused to explain to Sartain. When appellants went to Gingers Bar to look for Donelan, Munoz was wearing the black trench coat which concealed his rifle. He checked for Donelan by peering into Stirrats car. Meanwhile, after stating that Donelan owed him money, Basulto made the threat that he was "`going to give me my money tonight one way or the other." When Munoz and Basulto showed up at Donelans house the second time, Basulto appeared angry and refused to leave without seeing Donelan. While Donelan and Basulto were arguing, Munoz lifted his trench coat, displaying the rifle, and repeatedly "very calmly" told Finkenhagen to move out of the way. After Basulto was convinced Donelan was not going to fix his truck, he threatened, "Well fix you." Almost immediately, Munoz fired the shot which struck and killed Pinion.
Based on the above evidence, the jury was entitled to infer that Basulto, who was determined to exact revenge if Donelan refused to fix his truck, conspired with Munoz to assault Donelan with Munozs rifle.
2. Sua Sponte Instruction on Simple Assault Unwarranted
Appellants contend the trial court erred in failing sua sponte to instruct on simple assault, a lesser included offense of ADW, based on the evidence that appellants simply went to the victims house to engage in a fistfight. The record reveals such an instruction was unwarranted.
"An instruction on a lesser included offense must be given only when the evidence warrants such an instruction. . . ." (People v. Mendoza (2000) 24 Cal.4th 130, 174, citation omitted.) However, "a lesser included instruction need not be given when there is no evidence that the offense is less than that charged. . . ." (Ibid., citation omitted.)
This is the case here. There is no evidence from which the trier of fact could infer that Basulto or Munoz (or both) went to Donelans house the second time with the intent simply to engage in a fistfight. No words were uttered or other indications reflecting a desire to engage in such behavior are reflected in the record. (Cf. People v. Baker (1999) 74 Cal.App.4th 243, 252-253 [evidence that plan was to "`kick ass and `jump em" and gun not displayed until victim swung baseball bat].) Rather, the evidence establishes that appellants intended to commit ADW. Munoz not only armed himself with a modified rifle but donned a trench coat to conceal it before they went there.
Additionally, after their arrival, neither of the appellants displayed any inclination of engaging in a fistfight with Donelan. Finkenhagen testified that Basulto and Donelan yelled at each other but did not engage in any physical altercation. Basulto testified that he and Donelan engaged in a heated verbal argument. He did not testify that he took any physical action against Donelan even after the latter grabbed him and began "swinging [him] back and forth."
3. Involuntary Manslaughter Instruction Unsupported by Evidence
Appellants contend the trial court erred by failing to instruct on involuntary manslaughter.
Involuntary manslaughter is a lesser included offense of murder. A defendant is guilty of involuntary manslaughter, for instance, when he commits an unlawful act, such as a simple assault, in a manner which might produce death, or without caution and circumspection, and such act results in an unintended killing. (See, e.g., People v. Prettyman (1996) 14 Cal.4th 248, 274.)
Contrary to appellants claim, the record does not contain evidence sufficient to warrant such an instruction. As we demonstrated above, appellant did not just commit a simple assault. Accordingly, we conclude the trial court correctly refused to instruct the jury on involuntary manslaughter.
4. Failure to Instruct on Sudden Quarrel or Heat of Passion Not Error
Appellants contend the trial court erred in failing to instruct on sudden quarrel or heat of passion as theory for reducing murder charge to voluntary manslaughter. There was no error.
An unintentional, unlawful killing amounts to voluntary manslaughter where the killers reason was actually obscured by a passion strongly "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 judgment." . . ." (People v. Breverman (1998) 19 Cal.4th 142, 163, citations omitted; accord, People v. Lasko (2000) 23 Cal.4th 101, 108.) Revenge, however, does not qualify for instruction on voluntary manslaughter based on a heat of passion theory. (See, e.g., People v. Pride (1992) 3 Cal.4th 195, 250; People v. Daniels (1991) 52 Cal.3d 815, 837-838, 868.)
Clearly, revenge was Basultos motive, which Munoz adopted by admitting he acted as Basultos backup. Additionally, bad car repairs, as a matter of law, do not qualify as adequate, reasonable provocation. As the trial court properly noted at sentencing, "[y]ou dont go over to somebodys house at night with a sawed-off .22 [rifle] slung under your trench coat to settle a small claims case. And thats what this was. It was a simple-minded dispute over some car repairs. It should have been handled in our courtroom next door, not out in the street. But [appellants] decided to get . . . justice out there that night." Moreover, nothing Pinion said, did, or not done could be characterized a proper provocation. He was simply at the wrong place at the wrong time.
We further find unpersuasive Basultos additional argument that a voluntary manslaughter instruction was justified on the theory that Munoz fired the rifle in conjunction with Basultos sudden quarrel and heat of passion arising from Donelans refusal to fix the bad repairs to Basultos truck.
The fatal flaw in his position lies in his faulty premise that Munoz was firing at Donelan but, through bad aim, struck Pinion instead. The uncontroverted evidence, however, is otherwise. Munoz expressly testified that he shot at Pinion, because he believed Pinion, who was at the gate, posed a threat to him and Basulto. There was no nexus between Pinion and Basultos car repair dispute with Donelan. Accordingly, no factual basis existed for instructing the jury based on a sudden quarrel or heat of passion theory arising from Basultos grip with Donelan.
5. No Perfect Self-Defense Instruction Warranted
Appellants contend the trial court erred in refusing to instruct sua sponte on perfect self-defense. We conclude that instruction was unwarranted and was properly refused by the trial court.
Instruction on perfect self-defense is warranted where the defendant actually and reasonably believes that an attack which may result in bodily injury is imminent, in which case, he may resist with such force as is reasonable. (See, e.g., People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.) Deadly force is justified only to repeal an attack which is likely to cause great bodily injury or death. (People v. Clark (1982) 130 Cal.App.3d 371, 380, disapproved on another point in People v. Blakeley (2000) 23 Cal.4th 82, 92.)
The trial court is required to instruct on all legal theories supported by the evidence. The corollary, however, is that the court errs by instructing on a theory unsupported by the evidence. (See, e.g., People v. Guiton (1993) 4 Cal.4th 1116, 1129; People v. Roberts (1992) 2 Cal.4th 271, 313.)
Pinion posed no threat to appellants. Munoz himself admitted that he did not see a weapon in Pinions hand. Also, he had not, at any time, verbally or through conduct, threatened either of the appellants. Moreover, as the court pointed out, Munoz testified that night, he never saw Donelan with a gun; Donelan did not try to shoot anyone; and Munoz was not shooting at Donelan.
6. Instruction on Elements of Malice Proper
Appellants contend the trial court erred by failing to instruct that imperfect self-defense and absence of heat of passion are elements of malice. There was no error.
The thrust of appellants position is that because the absence of heat of passion and imperfect self-defense are elements of malice, the trial court thus committed reversible error by instructing the jury on malice without addressing these elements. We conclude their position is untenable.
In People v. Rios (2000) 23 Cal.4th 450, our Supreme Court explained that the jury is only required to "hear that provocation or imperfect self-defense negates the malice necessary for murder" when warranted by the evidence. (Id . at p. 463, fn. 10.) The Court further stated that the CALJIC No. 8.50 adequately states the Peoples burden of proof regarding the absence of provocation or imperfect self-defense where both murder and voluntary manslaughter instructions are given. (Id. at p. 462.)
As discussed above, we pointed out there was insufficient evidence to warrant instruction on voluntary manslaughter based on a heat of passion (provocation) theory. Such theory thus is inconsequential in determining whether the trial court here properly instructed the jury on malice. With respect to imperfect self-defense, the trial court gave CALJIC 8.50, which sufficiently addressed the Peoples burden of proof by instructing the jury, in pertinent part, that where the killing arose from imperfect self-defense, "the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent. [¶] To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder[, which includes malice,] and that the act which cause the death was not done [based on imperfect self-defense]." Nothing more was necessary.
7. Instruction on Natural and Probable Consequences Doctrine
Appropriate
Appellants contend the court improperly instructed the jury on the definition of the natural and probable consequences doctrine. We disagree.
The court instructed the jury pursuant to CALJIC No. 6.11. Such instruction is a proper statement of the law. (See, e.g., People v. Hardy (1992) 2 Cal.4th 86, 188.)
8. No Instruction on Proximate Causation Warranted
Basulto contends the trial court committed reversible error by failing sua sponte to instruct on proximate causation (see CALJIC Nos. 3.40, 3.41, and 8.55). We find no error.
In sum, Basulto argues that had the jury been instructed on proximate causation, the jury "could have reasonably concluded Basultos action did not constitute a substantial factor contributing to Pinions death because Munoz armed himself unbeknownst to Basulto and spontaneously shot Pinion while Basulto was arguing with Donelan."
We conclude Basulto misapprehends the factual underpinnings for instruction on proximate cause. Instruction on proximate cause is warranted only when concurrent causes of death exist. (See, e.g., People v. Sanchez (2001) 26 Cal.4th 834, 844-846; People v. Catlin (2001) 26 Cal.4th 81, 154-155.) These are not the facts here.
9. Cumulative Effect of Assigned Errors Nil
Appellants contend the cumulative effect of the above assigned errors was prejudicial. We conclude that the appellants have failed to show any error. (See, e.g., People v. Loewen (1983) 35 Cal.3d 117, 129.)
10. Munozs Sentence Not Cruel or Unusual (or both) Punishment
Munoz contends his sentence is cruel or unusual (or both) punishment under the federal and state Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) We find no constitutional infirmity.
Munoz essentially argues that, as applied, a life sentence is cruel or unusual (or both) punishment in light of the facts that, at the time of the murder, he was only 22 years old and had no prior criminal record. We conclude these mitigating circumstances do not satisfy his burden to demonstrate constitutional infirmity.
We find persuasive the trial courts reasoning in rejecting Munozs constitutional challenge at the sentencing hearing. The court pointed out that Munoz did not testify that "he fired because he saw this replica [toy gun,]" rather, he admitted that "he shot an unarmed man . . . who was not involved in this [dispute.]" The court further pointed out that there was no reason for Munoz to "go to somebodys house at night with a sawed-off .22 [rifle] slung under [his] trench coat to settle a small claims case." The court then pointed out that Munoz, albeit not someone who has "been through the system too often[,]" was "sophisticated[.]" He knew "enough about how to deal with weapons to modify them." Munozs counsel agreed with the courts statements that in the past, Munoz had bought narcotics at Donelans and in fact had sold an illegal assault rifle to Donelan. (Cf. People v. Dillon (1983) 34 Cal.3d 441,451-452, 479, 482-483, 488-489; see also Harmelin v. Michigan (1991) 501 U.S. 957, 993-994.)
DISPOSITION
The judgments are affirmed.
We concur: VOGEL (C.S.), P.J., and EPSTEIN, J.