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People v. Gallardo

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 31, 2012
G045180 (Cal. Ct. App. Jan. 31, 2012)

Opinion

G045180 Super. Ct. No. 08CF3606

01-31-2012

THE PEOPLE, Plaintiff and Respondent, v. SALVADOR MORALES GALLARDO, Defendant and Appellant.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Melissa Mandel and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Melissa Mandel and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

Salvador Morales Gallardo appeals from a judgment convicting him of attempted murder, aggravated assault and street terrorism. He was found to have inflicted great bodily injury on his victim, and to have committed the attempted murder and aggravated assault for the benefit of, at the direction of, and in association with a criminal street gang.

Gallardo argues the court erred by giving the jury an instruction which improperly explained the law pertaining to imperfect self-defense. Specifically, the jury was instructed that imperfect self-defense could apply when the defendant "received a threat from someone else that he reasonably associated with [the victim]," when the law, according to Gallardo, would allow the defense even in cases where the defendant had unreasonably associated the third party threat with the victim.

Even assuming, for purposes of this appeal, that the instruction as given was incorrect – and to be clear, we need not and do not reach that issue – we conclude the error could not have affected the outcome of this case. First, the justification of self-defense, imperfect or otherwise, requires the perceived threat be of imminent harm. There was no evidence Gallardo believed he was at risk of imminent harm. And second, the person who conveyed the alleged "third-party" threat to Gallardo in this case was the victim himself, and thus there can be no question that Gallardo's association of that threat with the victim was reasonable. Thus, it is inconceivable that the jury would have found the imperfect self-defense justification any more appealing if instructed that Gallardo's association of the threat with the victim could have been unreasonable.

As the complained-of instruction – even if erroneous – could not have impacted the outcome of this case, it provides no basis for overturning the judgment.

FACTS

Although there are minor disputes of fact in this case, none of them is material to the issue presented on appeal, so we will recite only a brief version of the facts which gave rise to this case.

Jesus Vasquez was at a park with two friends on the evening of December 16, 2008. They were waiting for the park's lights to come on so they could play soccer. While they were waiting, someone drove by in an Astrovan, and an exchange of perceived insults followed. As Vasquez and his friends began to walk home, the van returned, and after a further verbal exchange – including the throwing of gang signs – two men jumped out of the van and came toward Vasquez and his friends. One of the two men, defendant Gallardo, was holding what appeared to be a shiny stick or baseball bat.

Not surprisingly, Vasquez and his friends ran. Unfortunately for Vasquez, he tripped and fell to the ground, allowing Gallardo to catch up with him. According to Gallardo, his initial thought was simply to kick Vasquez while he was down, and scream at him. But then Vasquez told Gallardo "you're on green light," which meant that Vasquez's gang – the "Criminals" – would be looking for Gallardo with the intention to "fuck [him] up." Upon hearing that, Gallardo hit Vasquez in the head with the stick, and caused a life threatening depressed skull fracture which required emergency surgery.

Gallardo admitted he did not think Vasquez posed any threat to him when he was on the ground, and there was no evidence that any other members of the Criminals street gang remained in the immediate area. After Gallardo hit Vasquez, he returned to the van with his friend, and they departed the area. Once the van was gone, one of Vasquez's two friends returned and found Vasquez lying unconscious on the ground.

At trial, the court's instructions to the jury included a version of CALCRIM No. 604, as follows:

"An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill a person because he acted in imperfect self-defense or defense of another.

"If you conclude the defendant acted in complete self-defense or defense of another, his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense or defense of another and imperfect self-defense or defense of another depends on whether the defendant's belief in the need to use deadly force was reasonable.

"The defendant acted in imperfect self-defense or defense of another if:

"1. The defendant took at least one direct but ineffective step toward killing a person.

"2. The defendant intended to kill when he acted.

"3. The defendant believed that he or someone else was in imminent danger of being killed or suffering great bodily injury. [¶] AND

"4. The defendant believed that the immediate use of deadly force was necessary to defend against the danger. [¶] BUT

"5. At least one of the defendant's beliefs was unreasonable.

"[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]

"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have actually believed there was imminent danger of violence to himself or someone else.

"In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant.

"If you find that the defendant received a threat from someone else that he reasonably associated with Jesus Vasquez, you may consider that threat in evaluating the defendant's beliefs.

"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 attempted murder." (Italics added; some punctuation omitted.)

The jury returned a verdict of guilty on all counts, but determined Gallardo did not premeditate the attempted murder. The court sentenced Gallardo to the low term of five years for attempted murder and imposed a consecutive term of ten years for the gang allegation, plus a consecutive three years for the great bodily injury enhancement. The court imposed a concurrent two-year term for the street terrorism count, and stayed the sentence on the assault count. Thus, Gallardo was sentenced to a total term of 18 years.

DISCUSSION

Gallardo's sole contention on appeal is that the court erred by instructing the jury that a claim of imperfect self-defense, based upon defendant's belief that a third-party threat demonstrated a risk of imminent harm, required that defendant reasonably associate that third party with the victim.

In order to justify reversal of a criminal judgment based on an erroneous jury instruction, the defendant must establish not only the error, but also that absent the error, "there is a reasonable probability that the result would have been more favorable to [defendant.]" (People v. Sherow (2011) 196 Cal.App.4th 1296, 1311, citing People v. Watson (1956) 46 Cal.2d 818, 836-837.) In other words, defendant must establish that the instructional error was prejudicial.

Because the issue of prejudice so clearly disposes of the claim, we address that point first. According to Gallardo, the third-party threat which he believed, and which formed the basis of his imperfect self-defense claim, was the victim's – Vasquez's claim that his gang had placed a green light on Gallardo. As Gallardo explains it, he "correctly understood the term to mean he was a target of Mr. Vasquez's gang and in grievous danger, given that the prosecutor's gang expert testified that to be put on Green Light is very similar to being put on a hit list, targeted by rival gang members – anything from an assault to a murder at any time and at any place."

However, even assuming Gallardo was convinced by the green light claim, and suddenly believed he was under threat of serious harm by members of Vasquez's gang, the undisputed evidence establishes that the only member of that gang who was present when Gallardo struck Vasquez with the baseball bat was Vasquez himself, and Gallardo expressly conceded he did not view Vasquez – who was at that time on the ground - as a threat. Gallardo had no idea where Vasquez's friends had "run off" to. That scenario is insufficient, as a matter of law, to support a claim of self-defense.

In order justify a claim of self-defense, imperfect or otherwise, the threat perceived by the defendant must be of imminent harm. That requirement was properly included in the jury instructions given in this case. The fear of future harm, no matter how credible – which is all Gallardo claims here, does not suffice. "„[T]he doctrine is narrow. It requires without exception that the defendant must have had an actual belief in the need for self-defense. We also emphasize what should be obvious. Fear of future harm – no matter how great the fear and no matter how great the likelihood of the harm – will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury. "„[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.' . . ." (People v. Aris [ (1989)] 215 Cal.App.3d [1178,] 1192, italics added.)' (In re Christian S. (1994) 7 Cal.4th 768, 783; see also People v. Wright (2005) 35 Cal.4th 964, 974.)" (People v. Manriquez (2005) 37 Cal.4th 547, 581.)

Because Gallardo offered no evidence that the green light threat conveyed to him by Vasquez constituted a threat of immediate harm, which had to be "instantly dealt with," it did not qualify as the sort of peril which would support a claim of imperfect self-defense. No alteration of the jury instruction, to inform the jury that Gallardo need not have reasonably associated that threat with Vasquez, was going to fix that more fundamental flaw in Gallardo's "imperfect self-defense" claim.

But even if we ignore the broader conclusion that a claim of self-defense was simply not warranted on the facts of this case – and thus that no monkeying with the details of a jury instruction describing how to apply it would have made a difference – and instead focus more precisely on the particular detail complained about by Gallardo, we conclude the change he advocates for would have made no difference.

What Gallardo claims is that the jury should have been instructed that his association of the "green light" threat with Vasquez could be considered as support for his imperfect self-defense claim, even if the jury believed that association was unreasonable. But the association is not only reasonable, it's indisputable. It is Vasquez who personally conveyed the "green light" threat to Gallardo. There is simply no way Gallardo could avoid associating it with him. Whatever reservations the jury may have had about Gallardo's claim of self-defense (and we have detailed an obvious one already), we are confident they would not have hesitated for a moment before concluding that Gallardo's association of the "green light" threat with Vasquez was a reasonable one. There is simply no basis to conclude otherwise.

Because we conclude Gallardo failed to establish that the alleged error he identified in the jury instructions given in this case was prejudicial, we affirm the judgment.

BEDSWORTH, ACTING P. J.

WE CONCUR:

O'LEARY, J.

MOORE, J.


Summaries of

People v. Gallardo

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 31, 2012
G045180 (Cal. Ct. App. Jan. 31, 2012)
Case details for

People v. Gallardo

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SALVADOR MORALES GALLARDO…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Jan 31, 2012

Citations

G045180 (Cal. Ct. App. Jan. 31, 2012)