Opinion
B224493
08-25-2011
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO CUEVAS, Defendant and Appellant.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA339827)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael M. Johnson, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Alejandro Cuevas was convicted of second degree murder, with firearm and gang allegations found true. He was sentenced to state prison for a term of 40 years to life. He appeals, claiming instructional and sentencing error. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Virginia Tolentino met Jose Palomino in October 2007. They began dating and later moved in together. Palomino had tattoos but was not involved in gang activity and was in the process of having his tattoos removed. He worked at Homeboy Industries when they met and worked for Jesus Delgadillo as a roofing contractor after that. Delgadillo would drive Palomino to job sites from Delgadillo's house on Lorena Street. Tolentino would then pick up Palomino from Delgadillo's house.
In February 2008, Palomino told Tolentino to pick him up at Lorena and Whittier because he had an "incident" with someone. After Tolentino arrived, Palomino wanted to get a coffee from a nearby donut shop so she parked and got her baby out of the car. When they came back out to leave, Tolentino went to the driver's side door, and Palomino was securing the baby's seatbelt. Tolentino heard Palomino say, "Here he comes." When she asked who, he said, "That fool. He's going to start something."
Walking fast, the man (Cuevas) came straight at Palomino. Tolentino tried to pull Palomino into the car. Cuevas said, "I told you that I don't want to see you here." Palomino told him, "You know what, you're going to have to deal with it because I come here to work. I'm not even getting close to your place or to your house, because I don't want problems." Cuevas responded, "I already told you, next time I'm going to shoot you, and I don't give a fuck if she's here or the baby's here. I'm going to do what I have to do." Palomino got in the car and Tolentino drove away. Palomino told her not to worry—"he's not going to do anything."
Tolentino later identified the man as Cuevas in a six-pack photographic lineup and at trial.
On April 7, 2008, Tolentino drove Palomino to a job site in Santa Monica. At the end of the day, Delgadillo drove Palomino and others to his home on Lorena Street.Delgadillo offered the men beers. A neighbor (David Molina) also came by to socialize. After about 30 minutes, at about 7:00 p.m., Palomino crossed the street and called Tolentino from a pay phone, asking her to pick him up. The others could see Palomino from the front porch.
Palomino had told Delgadillo he had concerns for his own safety in Delgadillo's neighborhood but when Delgadillo offered to pick him up someplace else, Palomino said he didn't want to bother Delgadillo any further; it was enough that Delgadillo had given him a job.
Cuevas walked by and stared at Delgadillo, then turned to stare at Palomino "with an intent look." Delgadillo recognized Cuevas as someone he had "seen around there before doing graffiti and bothering people." Molina had also seen Cuevas marking signs and buildings in the area with graffiti. Palomino had his back turned and could not see Cuevas who hid between two parked cars, still staring at Palomino.
Delgadillo was suspicious and tried to get Palomino's attention to get him back to the house. He called Palomino over to get money to buy more beer, but Palomino said he would pay and walked directly to the liquor store. Cuevas ran in after Palomino. Delgadillo asked Molina to stand in front of the store to watch and call over if anything happened. As Palomino exited the store with bags, Cuevas was already fighting him and Palomino dropped the bags. Delgadillo called out for the others to call the police and come with him to separate Cuevas and Palomino. Cuevas had Palomino by the shirt and was pushing on his face as Palomino was swinging his arms, trying to defend himself. Then Cuevas pulled a gun out of his pants and started shooting. The first shot was "from a distance," but the second shot was on Palomino's stomach. Delgadillo heard two more shots, and Cuevas pointed the gun at Delgadillo as he approached. When Cuevas saw Palomino was falling to the ground, he ran with the gun.
Palomino died from multiple gunshot wounds. During the altercation, Cuevas's blue baseball cap fell off his head and Molina gave it to the police. Cuevas's DNA matched the DNA on twelve places on the cap.
Cuevas was charged with murder (Pen. Code, § 187, subd. (a) [all undesignated statutory references are to the Penal Code].) It was further alleged Cuevas had personally discharged a handgun (§§ 12022.5, subd. (a); 12022.53, subds. (b), (c) & (d)) and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).
At trial, the People presented evidence of the facts summarized above. Both Delgadillo and Molina identified Cuevas in six-pack lineups and at trial. Molina who also gave an account of the night's events to police said he was afraid because he heard someone say he was talking too much to police and what happened to Palomino would happen to him.
Tolentino identified Palomino's body on the night of the shooting but was distraught and did not speak with police at the time. She took Palomino's body to his family in Mexico and, while there, remembered the earlier incident between Cuevas and Palomino in February. When she got back to the United States after a month, she told police about the incident.
Officer Mario Morales testified regarding the White Fence criminal street gang occupying the area of Boyle Heights, including the intersection of Lorena and Whittier, and its control of the area through fear and intimidation. He also noted that a person trying to end his gang affiliation would move out of the area and seek to remove his tattoos. Officer Morales reviewed photographs of Cuevas throwing gang signs with other White Fence members. He opined Cuevas was a White Fence gang member and that he perceived Palomino to be a rival gang member and had warned Palomino to stay out of his gang's territory. He opined the crime was committed for the benefit of Cuevas's gang.
Cuevas testified in his own defense. He said he had never seen Palomino prior to the day of the crime. That day, Cuevas testified, he was walking across the street when he noticed Palomino in a phone booth, staring at him and he (Cuevas) was also looking at Palomino. Cuevas said he went into the liquor store, and Palomino came in after him. Cuevas got a beer and some gum and instead of waiting in line to pay for these items, left money on the counter and walked out with the beer. As he stepped outside the store, Cuevas testified, Palomino "hugged [him] from the back and like started saying like [']fucking bitch['] or something like that . . . ." Cuevas said, "Let me go, let me go."
According to Cuevas, he tried to run but fell to one knee and Palomino fell on top of him. Cuevas heard something fall and slide and then saw a gun about seven or eight feet in front of him. Palomino lunged over Cuevas and both grabbed the gun. Cuevas, who is right-handed, said he held the gun in his left hand and Palomino's hand was "next to [Cuevas's] pinky." Thinking Palomino was going to shoot him, Cuevas said he held the gun up "kind of high," pointing back and to the side and shot to see if Palomino would let go. When Palomino did not let go, Cuevas shot again and again. Palomino let go and Cuevas ran, scared. He denied pointing the gun as another man approached. He threw the gun in a yard a few houses away and said he did not call the police because he did not know the law. He denied having a gun that night. He said he just wanted to get Palomino off of him. He admitted he was a White Fence gang member, he had written gang graffiti in the area and he had grown up in the neighborhood. He had convictions in another state for destroying evidence, resisting an officer and larceny.
In addition, Dr. John Treuting, a toxicologist, reviewed Palomino's forensic laboratory reports. Palomino had a .18 percent chest blood alcohol level and a .23 vitreous blood alcohol level as well as a .08 methamphetamine level. According to Treuting, Palomino was intoxicated at the time.
Leticia Ayala and her husband Arturo Lopez Macairo who managed an apartment building testified Palomino had threatened and assaulted them two-and-a-half years before he was killed. They said Palomino had failed to pay rent and was evicted. He said he was a gang member and threatened to bring friends to hurt Ayala and Macairo. Palomino had been drunk and abusive to his wife several times, robbed someone once and pulled out a gun to threaten Ayala and Macairo.
The jury could not reach agreement as to first degree murder, and that charge was dismissed. However, the jury found Cuevas guilty of second degree murder and found true the firearm and gang allegations.
The trial court sentenced Cuevas to state prison for a term of 40 years to life, comprised of 15 years to life for the second degree murder count plus 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivision (d).
Cuevas appeals.
DISCUSSION
According to Cuevas, the trial court had a sua sponte duty to instruct the jury regarding voluntary manslaughter on the basis of either an intentional or unintentional killing committed with conscious disregard for human life upon a sudden quarrel or heat of passion. He says his counsel's request of the trial court not to instruct the jury in this manner was not invited error or, in the alternative, constituted ineffective assistance of counsel. Cuevas has failed to demonstrate prejudicial error in the trial court's instruction of the jury.
After the presentation of evidence, when the trial court and counsel discussed jury instructions, the court noted defense counsel was "seeking a lesser of voluntary manslaughter." When the court inquired as to the "theory or theories," defense counsel responded, "Imperfect self-defense. I would be asking the court for CALCRIM [No.] 571.
"The court: So imperfect self-defense alone?
"[Defense counsel]: Yes.
"The court: Not sudden quarrel or heat of passion?
"[Defense counsel]: Correct.
"The Court: What is the People's position?
"[The prosecutor]: Based on the state of the record, we would submit."
"The court: All right. Well, I will give it. And I think the rest we can just discuss, in terms of the particular instructions, in chambers unless there is any other big issue in regards to instructions or theories.
"[Defense counsel]: I don't have anything."
The next morning, noting the informal discussion of jury instructions the prior evening, the trial court advised, "I've prepared a slightly revised set that I've given to counsel. I want to make a couple of comments." First, the trial court indicated the addition of a special instruction (CALCRIM No. 521.1) defining second degree murder based on CALJIC Nos. 8.30 and 8.31.
As read to the jury, this instruction advised: "Second degree murder is the unlawful killing of a human being with malice aforethought, when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation.
"Second degree murder is also the unlawful killing of a human being when:
"1. The killing resulted from an intentional act;
"2. The natural consequences of the act are dangerous to human life; and
"3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.
"When the killing is the direct result of such an intentional act, it is not necessary to prove that the defendant intended that the act would result in the death of a human being.
"The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than second degree murder. If the People have not met this burden, you must find the defendant not guilty of first degree murder."
"In addition, I eliminated—I was prepared to give, but eliminated instructions 5.70 and 5.22, which deal with manslaughter based on heat of passion. [¶] [Defense counsel] said that the defense does not want those instructions. No one plans to argue it. I considered whether there was a sua sponte duty, but in light of the fact that no one's going to argue it, and looking at the defendant's testimony and other evidence, I think it really is a matter of self-defense rather than any kind of passionate or other similar reaction to what occurred. [¶] With that, I've presented the instructions to counsel, and you can add any objections or requests for additional instructions or other comments. Anything by the People?
"[The prosecutor]: No, Your Honor.
"The court: Anything by the defense?
"[Defense counsel]: No, Your Honor."
The jury was instructed with CALCRIM No. 571 (voluntary manslaughter: imperfect self-defense—lesser included offense (§ 192)):
"A killing that would otherwise be murder is reduced to voluntary manslaughter, a violation of Penal Code [section] 192[, subdivision] (a), if the defendant killed a person because he acted in imperfect self-defense.
"If you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable.
"The defendant acted in 'imperfect self-defense' if:
"1. The defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; and
"2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; but
"3. At least one of those beliefs was unreasonable.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be.
"In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant.
"'Great bodily injury' means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of murder."
First, the instructions Cuevas now urges are not supported by the evidence. If Cuevas's version was believed, he acted in self-defense. If he believed his life was in danger but was unreasonable in this belief, the evidence would negate malice, and the jury was so instructed. However, the jury's verdict demonstrates the jury rejected Cuevas's claim of self-defense. Accordingly, on this record, we find no error.
Moreover, the court invited discussion on which of the "lesser" instructions should be given and indicated its original intention to instruct on manslaughter based on heat of passion. However, defense counsel made clear her request that no instructions other than those requested be given. "As our Supreme Court explained in People v. Cooper [(1991)] 53 Cal. 3d [771,] 831, to establish invited error, 'the record must show only that counsel made a conscious, deliberate tactical choice between having the instruction and not having it. If counsel was ignorant of the choice, or mistakenly believed the court was not giving it to counsel, invited error will not be found. If, however, the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice. Error is invited if counsel made a conscious tactical choice. A claim that the tactical choice was uninformed or otherwise incompetent must, like any such claim, be treated as one of ineffective assistance of counsel.' (Italics added.)" (People v. Lara (1994) 30 Cal.App.4th 658, 673-674.) For the reasons discussed in People v. Lara, supra, 30 Cal.App.4th at pp. 673-674, any error in this regard was invited.
In any event, to the extent Cuevas asserts a claim of ineffective counsel for his counsel's conduct, he cannot demonstrate prejudicial error as he cannot establish the absence of any rational tactical purpose for the decision. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; and see People v. Lara, supra, 30 Cal.App.4th at p. 674.)
In Cuevas's view, notwithstanding California Supreme Court authority to the contrary, (1) the imposition of a weapons use enhancement pursuant to section 12022.53, subdivision (d), for a defendant convicted of murder violates the "multiple conviction rule" under California law as well as federal jeopardy principles and (2) federal double jeopardy should apply to his "multiple punishment within a unitary trial." Cuevas says he acknowledges our obligation to follow our Supreme Court's holdings in People v. Izaguirre (2007) 42 Cal.4th 126 and People v. Sloan (2007) 42 Cal.4th 110 to the contrary but asserts these arguments to preserve his claims for subsequent review.
DISPOSITION
The judgment is affirmed.
WOODS , J.
We concur:
PERLUSS, P. J.
ZELON, J.