Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA091564, Robert J. Higa, Judge. Affirmed.
Eric R. Larsen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Juan Miguel Flores, also known as Carlos Flores, appeals from a judgment entered upon his conviction by jury of second degree murder (Pen. Code, § 187, subd. (a)). The jury also found to be true the firearm use allegations within the meaning of sections 12022.53, subdivision (d) and 12022, subdivision (a)(1). The trial court sentenced defendant to an aggregate prison term of 40 years to life. Defendant contends that there was insufficient evidence (1) that the shooting amounted to second degree murder, and (2) to support the section 12022.53, subdivision (d) firearm enhancement.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
FACTUAL BACKGROUND
The Shooting
We review the evidence in accordance with the usual rules on appeal. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) On July 11, 1998, Lynne Roybal (Roybal), her husband, Martin Moreno (Moreno), and their daughters, Jenette and Nicole, were hosting a barbecue at their home on Funston Avenue in Hawaiian Gardens. Defendant attended. Shortly after his arrival, he went into Jenette’s bedroom and took a nap. An hour or two later, Gilbert Melendrez (Melendrez), a high school friend of defendant, arrived at the house. He was “pumped up” and asked Jenette to call defendant. When told that defendant was sleeping, Melendrez asked her to wake him because it was important. She did, and brought Melendrez to her bedroom.
The evidence suggested that defendant was a gang member. His moniker was “Monkey.” He had daily contact with Roybal, as he supplied her with methamphetamine that she sold out of her house.
Melendrez was not a gang member, although he had been pressured to join the Hawaiian Gardens gang. Defendant also supplied methamphetamine to him.
Defendant seemed happy to see Melendrez and shook his hand. Melendrez showed defendant a gun and suggested that they “go shoot some Rats.” Jenette left the bedroom to get the two men beers. When she returned, Melendrez was pointing the gun at a window. Defendant took the gun from him, unloaded it, and placed it, and the bullets he had removed, in a drawer. At one point, as Jenette went in and out of the bedroom, she heard Melendrez refer to “the guys from Artesia.”
Jenette testified at the preliminary hearing that defendant took the gun from Melendrez and loaded it, but claimed at trial that that was not what she said.
When Jenette reentered the bedroom, Melendrez and defendant were “talking like friends.” Defendant was sitting on the bed, and Melendrez sitting on a chair five or six feet away. Jenette noticed that they had finished their beers and asked if they wanted another. As she was leaving the room to get more, she turned and looked at defendant. He was picking up the gun from the side of the bed and looking at her, not at Melendrez, when the gun discharged as defendant held it at shoulder level. It appeared to Jenette that he was pointing it at the wall, not at Melendrez. Jenette saw the flash of the gun and defendant act surprised.
Jenette demonstrated at trial how defendant held the gun. Counsel described her demonstration of the gun’s position by stating: “Your arm drops from your shoulder, then is bent at the elbow, and your hand is about shoulder high.”
Roybal told Detective Kaono that Jenette told her that when defendant took the gun from Melendrez, he pointed it at him.
Thinking that defendant had only shot the wall, Jenette left the room to get the beers. When Roybal asked her what happened, she said defendant was playing with the gun. According to Jenette, Roybal then went into the bedroom, and Jenette heard her yell, “Oh, my God.” Jenette then went outside and told her father, “Dad, Monkey shot Gilbert.” Jenette ran down the street. When she returned, she saw defendant in the bathroom crying, rubbing his face and repeating, “Oh, my God.” At defendant’s request, Jenette tried to call Melendrez’s mother to tell her what happened. Melendrez’s mother testified that Jenette told her that Melendrez had been shot in a drive-by shooting by members of the Artesia gang and had been taken to the hospital.
According to Roybal, she was in the kitchen when she heard the gunshot. She went to Jeanette’s room and saw that Melendrez had been shot. She and Jenette ran out of the house screaming. When Roybal reentered the house, she saw defendant, who appeared to her to be in shock, walking around the living room saying, “My God. My God.”
When the sheriffs arrived, Roybal initially told them that nothing happened at her house. Jenette told them that she learned Melendrez had been shot from a telephone call. They lied to police because Roybal was under house arrest for a drug sale conviction, and they feared getting into trouble.
The Trip to the Hospital
Moreno testified that defendant asked him to help carry Melendrez to the van to take him to the hospital. Defendant was hysterical, cried all the way to the hospital and kept repeating, “[i]t was an accident.” While Moreno recalled at trial telling investigators that defendant said that Melendrez was loading and unloading the gun when it discharged, he could not recall at trial if that was what defendant actually said.
At another point in his testimony, Moreno denied that was what defendant told him and denied telling that to investigators.
Alex Carley (Carley), lived nearby. After the shooting, he saw two men who “looked like Mexicans” carrying Melendrez out of a van and attempting to drop him in the middle of the street. They told him that Melendrez was the victim of a drive-by shooting. Carley asked why they were not taking him to the hospital and began performing CPR on Melendrez. Carley rode along as the men drove Melendrez to the hospital. At trial, Carley did not recognize defendant as one of the men who went to the hospital in the van.
At the hospital, when a nurse told Moreno, Carley and defendant that the police wanted to talk to them, they immediately left. Defendant was not apprehended until October 11, 2004, in Las Vegas.
Sanitizing the Crime Scene
The day after the shooting, Moreno painted the chair and dresser in Jenette’s room because he did not want his children to get into trouble. Defendant’s brother, Arturo Flores, and some of his friends cleaned the bedroom in which the shooting occurred, replaced the carpet and painted the walls. Roybal denied knowing who cleaned the room or telling the police they were Hawaiian Gardens gang members.
Forensic Evidence
An autopsy revealed that Melendrez died from a single, small-caliber bullet wound to the right side of his head. The trajectory of the bullet was predominantly level, with a slight downward angle. The bullet was relatively intact when it entered his head, suggesting that it had not ricocheted. The lack of gunpowder residue, soot or stippling in the wound indicated that the shot was not from very close range.
Detective Tommy L. Harris testified that the only way a gun could fire when it is in someone’s hand is by pulling the trigger.
The Investigative Interviews
On July 14, 1998, Detective Kele Kaono, who investigated the shooting, interviewed Roybal, Moreno and Jenette at their home. When he arrived, Roybal and Moreno were arguing. Moreno told him the argument pertained to a cover-up of the shooting. Roybal had told Moreno that local gang members threatened to kill her and Jenette if they discussed the incident. Moreno also said that gang members had cleaned walls, replaced carpet, and rearranged furniture in Jenette’s room after the shooting.
When Detective Kaono spoke with Roybal, she initially denied knowledge of the shooting. She later admitted hearing a gunshot and said that Jenette had told her that defendant and Melendrez were planning a drive-by shooting against some Artesia gang members. Jenette also told her that Melendrez produced a gun, which defendant took from him. Jenette said she saw sparks from the gun and could not believe defendant had shot Melendrez. Roybal said that after the shooting, Jenette came out of the bedroom screaming, “Juan just shot Gilbert.” Roybal said that she lied to investigators earlier because she had been threatened by defendant, the “top dog” in charge of the Hawaiian Gardens gang, who “runs this town and . . . she was told to keep her fuckin’ mouth shut, or he would kill she and her family.” Some “homeboys” had come to her house after the shooting, cleaned and painted the bedroom and changed the carpeting.
Roybal also told the detective that defendant had been dating Jenette, and Melendrez liked Jenette. Defendant told Melendrez “not to mess with her.” Jenette’s brother told Detective Kaono that the shooting was the result of an argument over drugs.
On September 9, 2005, defense investigator, Alan Rush, interviewed Moreno. Moreno reported that when he and defendant took Melendrez to the hospital, defendant said that he was in the bathroom when Melendrez was loading and unloading the gun. When he came out of the bathroom, Melendrez had shot himself in the head.
DISCUSSION
I. Sufficiency of Evidence of Second Degree Murder
Defendant contends that the evidence does not support a conviction of second degree murder, but of involuntary manslaughter. He argues that there was insufficient evidence of implied malice, the element that distinguishes those crimes. Defendant and Melendrez were friends, were getting along amicably at the time of the shooting, and Melendrez brought the gun to the barbecue and was “messing around” with it. After the shooting, defendant was distraught and claimed it was an accident. In short, the evidence was only that defendant had a gun in his hand, and Melendrez was shot. There was no evidence of motive, of a confrontation, or that defendant knew his conduct was dangerous, but acted without concern. This contention is without merit.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry, supra, 37 Cal.App.4th at p. 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.) This standard of review is the same in cases involving circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Catlin (2001) 26 Cal.4th 81, 139.) Given this court’s limited role on appeal, defendant bears a heavy burden in claiming there was insufficient evidence to sustain the finding. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional element that it be willful, deliberate and premeditated, which is required for first degree murder. (§§ 187, subd. (a), 189; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) Malice may be express or implied. (§ 188; People v. Nieto Benitez, at p. 102.) Express malice is manifested when there is a “deliberate intention unlawfully to take away the life of a fellow creature.” (§ 188.) Implied malice exists when an intentional act naturally dangerous to human life is committed “‘by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’” (People v. Lasko (2000) 23 Cal.4th 101, 107; People v. Martinez (2003) 31 Cal.4th 673, 684; § 188.) Implied malice is determined by examining the defendant’s subjective mental state and exists when the defendant actually appreciates the risk of his actions. (People v. Dellinger (1989) 49 Cal.3d 1212, 1217; People v. Watson (1981) 30 Cal.3d 290, 296-297.) “[S]tated in more everyday language . . . the state of mind for implied malice is ‘“I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed.”’” (People v. David (1991) 230 Cal.App.3d 1109, 1114.) Implied malice may be proven by circumstantial evidence. (People v. James (1998) 62 Cal.App.4th 244, 277.)
Involuntary manslaughter is the unlawful killing of a human being without malice in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. (§ 192; People v. Cook (2006) 39 Cal.4th 566, 596; People v. Malfavon (2002) 102 Cal.App.4th 727, 744.)
There was no direct evidence that defendant intentionally discharged his firearm at Melendrez. Rarely will the intent of a wrongdoer be proven by direct evidence. “One who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he shoots.” (People v. Lashley (1991) 1 Cal.App.4th 938, 945.) Rather, the intent must be gleaned from all of the circumstances. (Id. at p. 946.)
We conclude that there is sufficient evidence to support the jury’s guilty verdict. While there was no evidence defendant had the specific intention to take Melendrez’s life, and hence no express malice, there was evidence of implied malice. Defendant performed several intentional acts that were dangerous to human life. Specifically, while just a few feet from Melendrez, inside the bedroom, defendant intentionally picked up a loaded gun and pointed it in Melendrez’s direction. There is no question that pointing a loaded firearm in the direction of a person who is just a few feet away, inside of a residence, can present a danger to human life. As indicated in People v. Nieto Benitez, supra, 4 Cal.4th at pages 111-112, a jury must determine if drawing a loaded gun while facing the victim at point blank range is an intentional act. Here the jury so found.
There was also evidence that defendant intentionally pulled the trigger. Detective Harris testified that the gun would not have gone off without pulling the trigger. There was no evidence that this gun had a “hair trigger,” or any other condition that might have made it go off unintentionally. Although Jenette testified that defendant was lifting the gun when it went off, suggesting it was accidentally discharged, her description of the gun’s position when fired, along with the coroner’s findings suggest otherwise. Jenette described that when the gun fired, defendant held it at shoulder level with his elbow bent. This position of the gun, combined with the autopsy surgeon’s testimony that the bullet’s trajectory was basically level, with a slight downward angle, refutes the suggestion by Jenette that it was accidentally discharged as it was being lifted. If the gun had been fired while being lifted it is more likely the trajectory would have been upward. The position of the gun at shoulder level with the elbow bent also suggests that defendant had a measure of control over it, negating an inference of accidental discharge.
There was also substantial evidence that defendant was fully aware of the risk involved in pointing a loaded gun at someone or firing it inside a small room. Apart from the general knowledge possessed by everyone that pointing a loaded weapon in the direction of someone is dangerous, when Melendrez entered Jenette’s bedroom where defendant had been napping and began pointing his weapon at the window, defendant took it from him, removed the bullets and placed the gun and bullets in a drawer. This reflected his awareness of the danger in playing with a loaded gun in a closed area when people are present.
Finally, there was the additional evidence that defendant participated in a cover-up of the shooting, threatened to kill Roybal and her family if they talked to the police, and he fled the area and was not located for more than five years and then in Nevada. While defendant is correct that these actions could also have resulted from defendant’s having committed manslaughter, the jury concluded otherwise.
II. Sufficiency of Evidence of Section 12022.53, Subdivision (d) Enhancement
Defendant also contends that there was insufficient evidence to support the jury’s finding that he intentionally discharged a firearm within the meaning of section 12022.53, subdivision (d). He argues that there was no evidence that he intended to shoot and kill Melendrez. Respondent claims this contention has been waived.
Section 12022.53, subdivision (d) provides in part: “[A]ny person who, in the commission of a felony specified in subdivision (a) [which includes murder] . . . personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice.”
While the People use the term “waiver” in reference to defendant’s failure to preserve this claim for appeal by not raising it in the court below, the correct term which we use is “forfeiture.” “Waiver” is the express relinquishment of a known right whereas “forfeiture” is the failure to object or to invoke a right. (In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1.)
For the same reasons set forth in the part I, ante, we conclude there was sufficient evidence for the jury to find that defendant intentionally discharged the firearm. Having so concluded, we need not decide the forfeiture question.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.