Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge, Super.Ct.No. RIF130512
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI, J.
A jury found defendant guilty of attempted murder (Pen. Code, §§ 664/187, subd. (a)), with a special finding that the attempted murder was willful, deliberate, and premeditated. The jury also found that defendant personally discharged a firearm causing great bodily injury. (§ 12022.53, subd. (d).) Defendant was also convicted of assault with a firearm (§ 245, subd. (a)(2)), with additional findings that he personally used a firearm during the commission of the crime (§ 12022.5, subd. (a)) and inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced defendant to state prison for the indeterminate sentence of 7 years to life for the attempted premeditated and deliberate first degree murder, plus 25 years to life for the gun enhancement, for a total term of 32 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends the evidence was insufficient to sustain his conviction for attempted premeditated and deliberate murder because he acted in self-defense or in defense of others.
The People contend that the trial court erred by sentencing defendant to seven years to life for the attempted premeditated and deliberate murder rather than the mandatory sentence of life with the possibility of parole.
We agree that defendant was improperly sentenced and remand for resentencing; otherwise, we affirm the judgment.
I
FACTUAL BACKGROUND
A. Prosecution
Manuel Juarez arrived alone at the El Castillo nightclub located on Chicago and University Streets in Riverside around 11:30 p.m. on March 6, 2006. Inside the nightclub, he recognized Yesenia Barrientos, whom he had met three or four years prior through her sister, sitting at a table with three men, including defendant. The two men with defendant were later identified as Jose Alfredo and “Martin.”
On cross-examination, Juarez indicated that when he met Yesenia, she had had a boyfriend. After Yesenia broke up with her boyfriend, Juarez and Yesenia spent time together. Juarez denied that he ever asked Yesenia to marry him.
Juarez asked Yesenia to dance. She agreed, and they danced for about 30 minutes. Juarez stayed at the nightclub until approximately 1:30 a.m., when the nightclub closed. Juarez walked to his truck, which was parked in the parking lot across the street from the nightclub. He placed his cellular telephone inside the truck. As Juarez was preparing to get in his truck on the driver’s side, Martin and Alfredo approached him. One of them held onto the driver’s side door; he had a bottle in his hand. The other stood in front of Juarez at the open driver’s side door. The one holding the bottle threatened Juarez that if Juarez moved, he was going to break a bottle over Juarez’s head.
Martin and Alfredo asked Juarez why he had been bothering Yesenia and told him to leave her alone. Juarez denied that he had been bothering her and told them she was his friend. Defendant was standing approximately 10 to 12 feet away from Juarez, Martin, and Alfredo, holding a gun. At this point, Juarez told all three of them he was going to call the police and reached into his truck to retrieve his cellular telephone.
As Juarez reached for his phone, he was shot in the back of his left leg near his hip. Juarez was able to grab his phone and turn around. He told the three men again that he was going to call the police. Defendant then told Martin and Alfredo to move out of the way because he was going to kill Juarez. Juarez started to back away around the open front door. Defendant walked toward him and shot him in the neck.
Juarez did not recall testifying at the preliminary hearing that he had the cellular telephone in his hand at the time of the first shot.
At this point, Yesenia was walking to her car parked near Juarez’s truck. Juarez either handed or threw his cellular telephone to her. Juarez told her that she was responsible for what had happened to him and to call the police or an ambulance. He then fell to the ground and passed out. He was not sure if he moved after he fell to the ground. He estimated the time period between the first and second shots was “[t]hree minutes. A little bit less.”
Ricardo Barrientos,Yesenia’s cousin, was at the El Castillo nightclub that night. Ricardo walked Yesenia to her car after the nightclub closed. He observed three men all arguing by a truck. One of the men swung at another. Ricardo then heard two gunshots. The time between the first and second shots was about three to four seconds. Ricardo and his brother tried to help Juarez. Ricardo held up Juarez’s head so he would not choke on blood, and his brother put pressure on the wound on Juarez’s neck.
Riverside Police Department Detective Rick Cobb arrived after Juarez had been transported to the hospital. Detective Cobb found an expended bullet lodged in Juarez’s truck. Expended .25-caliber shell casings were found near the truck.
Juarez woke up in the hospital. He had been shot in the neck, and the bullet had moved into his chest, lodging in his lung. He lost four liters of blood after the shooting; the average human body contains about five liters. Paramedics who treated Juarez at the scene were unable to obtain a blood pressure reading. Juarez’s lung eventually collapsed. He was close to death that day. At the time of the trial, in August 2007, Juarez was still having a difficult time working as a gardener and landscaper.
Approximately three months after the shooting, on May 29, 2006, Juarez saw defendant at another nightclub. He immediately called the police, and defendant was arrested. No weapon was ever located.
B. Defense
Yesenia indicated that Juarez had been interested in her sister when they first met him. When Yesenia broke up with her boyfriend, Juarez started asking her out on dates. Sometimes she would go out dancing with him, but she did not want to date him because she had a newborn child and because he had first been interested in her sister. Defendant had asked Yesenia to marry him several times, and she had refused him. Yesenia thought Juarez was stalking her and her sister because he would follow them when they went out and oftentimes went into Yesenia’s place of employment.
On the night of March 6, 2006, Yesenia drove herself to El Castillo nightclub and met up with Martin, who worked at a restaurant with her. Martin was with defendant and Alfredo. She also saw several of her cousins at the nightclub, including Ricardo. She had not planned to meet Juarez at the club.
Juarez approached her and asked her to dance. She first refused his request to dance but gave in to get rid of him. After Juarez and Yesenia danced, they had no further interaction in the nightclub.
When the club closed, Yesenia walked back to her car. As she walked into the parking lot, she saw Martin, Alfredo, and Juarez standing by Juarez’s truck arguing. Defendant was standing nearby. Juarez was looking in Yesenia’s direction. Yesenia observed Martin punch Juarez. Juarez did not punch back. Yesenia was not watching the entire time, but she heard one gunshot. Approximately two seconds later, she heard a second gunshot.
Yesenia ran toward her car. As she was searching for her keys, Juarez walked toward her. He was bleeding. Juarez got close to her and told her, “This is all your fault and you’re going to pay for it.” Juarez appeared angry. Juarez handed Yesenia his phone and told her to call an ambulance because he was dying.
Yesenia had seen Juarez four times since the shooting. Juarez asked Yesenia why she told defendant and the others to kill him; she denied that she told them to hurt Juarez. Yesenia claimed that Juarez asked her to lie and say that she saw the shooting and knew everything that was going to happen that night. Yesenia told the police on the night of the shooting that she did not know Juarez, because she did not want to get involved.
Defendant testified on his own behalf. He had gone to the El Castillo with Martin and Alfredo. Defendant was aware that Alfredo had a loaded gun his truck.
Yesenia sat with Martin, Alfredo and defendant at the nightclub; defendant “didn’t really know her.” He did not know Juarez, either.
Martin, Alfredo, and defendant left the nightclub when it closed. Defendant walked toward Alfredo’s truck, but Martin and Alfredo walked to Juarez’s truck. Martin and Alfredo started arguing with Juarez. Defendant went to Alfredo’s truck and grabbed the gun because he “just want[ed] to see if anything would happen.” He put the gun in his pocket.
Defendant walked to Juarez’s truck and could hear them all arguing. He saw Martin hit Juarez twice in the face. Juarez never punched Martin back. Juarez then said that they could beat him up, but either that he was going to send someone to kill them or kill them himself. Juarez then reached toward the inside of his truck. Defendant saw something shiny in Juarez’s hand. Defendant shot Juarez in the leg because he was scared and wanted to injure, not kill, Juarez in case Juarez “had something with him . . . .” Defendant was afraid for himself and his friends.
On cross-examination, defendant indicated that Juarez was already out of the truck with something in his hand when defendant shot him the first time. Juarez never made a movement toward defendant and did not move his hand.
Juarez made another threat that he was going to get someone to kill all three of them after he was shot the first time. Defendant claimed that the second shot, which occurred three to four seconds after the first, “was an accident.” Defendant, Alfredo, and Martin jumped into Alfredo’s truck and drove off, with defendant driving. He put the gun back in Alfredo’s truck.
Defendant left because he was scared and did not know what to do. He was traumatized by the events but did not go to the police. He did not know what happened to the gun.
When defendant was apprehended three months later, he initially lied to the police, claiming that he was not at the El Castillo nightclub on the night of the shooting. Not until the police told defendant that someone had identified him as being present did he admit he had been present during the shooting.
A portion of the tape of defendant’s interview was played for the jury, and a transcript of the interview was given to the jury.
When defendant was asked on cross-examination how shooting Juarez in the leg would prevent Juarez from calling someone, defendant responded he shot him so that “[m]aybe he’ll probably think about it.” Defendant showed Juarez that defendant was serious and would not let anyone hurt him and his friends.
III
INSUFFICIENCY OF EVIDENCE TO SUPPORT ATTEMPTED PREMEDITATED AND DELIBERATE FIRST DEGREE MURDER
Defendant contends the evidence was insufficient to show beyond a reasonable doubt that he had the intent to kill Juarez, as the evidence supported that he committed the shooting in self-defense or defense of others.
A. Standard of Review for Sufficiency Claims
“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1141, quoting People v. Maury (2003) 30 Cal.4th 342, 403.)
B. Substantial Evidence Supported the Jury’s Findings of Intent to Kill and Premeditation and Deliberation
A conviction for attempted murder “requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]” (People v. Lee (2003) 31 Cal.4th 613, 623.) “Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’” (People v. Smith (2005) 37 Cal.4th 733, 739, quoting People v. Saille (1991) 54 Cal.3d 1103, 1114.) “Malice is express when the killer harbors a deliberate intent to unlawfully take away a human life.” (People v. Lasko (2000) 23 Cal.4th 101, 104.) “Express malice requires a showing that the assailant ‘“‘either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.’ [Citation.]”’ [Citation.]” (Smith, at p. 739.) “Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.” (People v. Pre (2004) 117 Cal.App.4th 413, 420.) A defendant’s use of a lethal weapon and targeting of a vital area of the victim’s body is often probative of intent to kill. (People v. Bolden (2002) 29 Cal.4th 515, 561.)
Here, Juarez’s testimony supported that defendant had the intent to kill him. “[T]he testimony of a single witness is sufficient evidence to support the verdict.” (People v. Zavala (2005) 130 Cal.App.4th 758, 766.) Martin and Alfredo confronted Juarez about bothering Yesenia while defendant stood by holding a gun. When Juarez reached into to his truck to retrieve his cellular telephone, defendant shot him in the leg. Juarez then tried to back away and told them he was going to call the police. Defendant told Martin and Alfredo to get out of the way so that he could kill Juarez. Defendant then shot Juarez in the neck.
The fact that defendant expressly stated that he was going to kill Juarez certainly evidences his intent to kill. If the jury believed Juarez’s testimony, defendant clearly intended to kill Juarez.
Defendant asks this court to disregard Juarez’s testimony because the physical evidence found at the scene did not match his testimony, and he was emotionally unstable. A witness’s testimony must be physically impossible or inherently improbable in order for it to be disregarded. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Juarez’s testimony regarding the events surrounding the shooting were neither physically impossible nor inherently improbable. As for the placement of the casings after the shooting, there is no indication that the scene of the attempted murder was untouched. In fact, Ricardo and his brother were working on Juarez right after the shooting and prior to paramedics arriving. The casings could have been moved or kicked to a different location while Juarez was being attended to by Ricardo and his brother and even the paramedics.
Moreover, even Juarez’s estimation of time between the first and second shots does not render his testimony improbable. Juarez had just been shot in the leg and was clearly in pain. The fact that he was unable to estimate the time between the two shots was understandable based on the extreme stress that he was clearly under.
Finally, the fact that Juarez’s testimony contradicted other witness testimony does not render his testimony regarding the shooting improbable. Although Juarez may have disagreed with Yesenia as to the extent of their relationship or that he allegedly told her to lie, it did not render his description of the events on the night of the shooting improbable. The shooting was described essentially the same by all witnesses, with only minor variances on some of the details. The jury here was required to assess each witness’s credibility and choose between the different versions of what occurred that night. The jury could reasonably conclude that Juarez was more credible.
Even if we were to conclude that Juarez’s testimony was not credible (and we decline to make such a finding), other evidence supported that defendant possessed the intent to kill. There was no dispute that defendant was present when the shooting occurred and that defendant and his friends were engaged in some sort of conflict with Juarez. According to defendant’s own testimony, Juarez threatened that he was going to call the police or call someone else to kill them. When defendant saw Juarez with a shiny object in his hand, he shot him in the leg. Defendant admitted that he shot Juarez so he would think before calling someone. When Juarez threatened to call again, defendant shot him in the neck. This evidence supports that defendant intended to kill Juarez either to stop him from calling someone or because he was angry that Juarez was disrespecting them.
Defendant claimed in his testimony that the second shot was “accidental.” This testimony was not believable. Although defendant claimed such shot was accidental, he never explained how it was accidental or how such an “accidental” shot hit Juarez squarely in the neck. Further, such testimony contradicted his testimony that he was afraid for his life and was trying to protect himself and his friends. Finally, defendant immediately fled the scene and was not apprehended for several months, which weighed against his testimony that this was an accidental shooting.
Defendant also claims that the People never reconciled the fact that defendant’s first shot was nonlethal, during which he did not possess the intent to kill, but that he possessed the intent to kill when he fired the second shot. We disagree. The People argued in closing that “if he wasn’t thinking about killing him when he shot him in the leg, he was certainly thinking about killing him when he shot him in the neck.” The People contended that defendant shot Juarez because he kept threatening defendant, Martin, and Alfredo, and he wanted Juarez to learn his lesson.
We think such argument was supported by the evidence. Defendant did not come from Alfredo’s truck and immediately shoot at Juarez. Rather, he hung back to see what would happen in the fight between Martin, Alfredo, and Juarez. When Juarez started to disrespect the three, defendant apparently got angry or feared that he was going to call the police. He admitted he shot him in the leg to make him think about the threats. It is reasonably inferred from the evidence when Juarez kept threatening defendant and the others, defendant became angry and shot him in the neck. The evidence supported that defendant had the intent to kill Juarez.
In his reply brief, defendant claims that the evidence of premeditation and deliberation was insufficient. In his opening brief, defendant only claimed the intent to kill was lacking and that he acted in self-defense or defense of others. He never contended that the factors supporting the premeditation and deliberation finding were not shown by the evidence. Generally, claims raised for the first time in the reply brief are waived for failing to raise them in the opening brief. (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.) However, in an apparent misinterpretation of defendant’s opening brief, the People argued in their brief that the evidence supported the finding of premeditation and deliberation. Since the People have addressed the issue, we will review the claim.
An unlawful “willful, deliberate, and premeditated [attempted] killing” is attempted murder in the first degree. (§ 189.) “‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
In determining whether evidence is sufficient to support a finding that a killing or attempted killing was willful, deliberate, and premeditated, reviewing courts may consider evidence of prior planning, motive, and whether the manner of killing shows a preconceived design to take the victim’s life. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) Such evidence need not be present in some special combination or be accorded a particular weight, nor is the list exhaustive. (People v. Pride (1992) 3 Cal.4th 195, 247; People v. Perez (1992) 2 Cal.4th 1117, 1125; People v. Garcia (2000) 78 Cal.App.4th 1422, 1427.) Rather, they serve as an aid to assess whether the killing or attempted killing was the result of preexisting reflection. (Perez, at p. 1125.)
Here, defendant armed himself prior to joining Martin and Alfredo in their confrontation with Juarez. Although this alone does not establish deliberation due to the first shot being nonlethal, it certainly can be considered in assessing the evidence.
Moreover, after shooting Juarez the first time, if defendant is to be believed, Juarez made a threat to call the police or call someone to kill them. Defendant had time to deliberate whether to inflict a fatal wound on Juarez after his warning shot in the leg and then the potentially lethal second shot. If Juarez is to be believed, defendant told Martin and Alfredo to get out of the way so that he could kill Juarez. Defendant clearly thought about the shooting prior to firing the second shot. Either way, there was strong evidence supporting that the shooting of Juarez was committed with premeditation and deliberation.
Defendant argues that he had no motive to kill Juarez because he did not know him. However, defendant had a motive to kill Juarez to stop him from calling the police or calling someone to kill defendant and his friends.
C. Insufficient Evidence of Self-Defense or Defense of Others
In contrast, there was no substantial evidence that this was a justifiable homicide or committed in unreasonable self-defense of himself or defense of his friends.
Reasonable self-defense, which is a complete defense, requires an actual and reasonable belief in the need to defend against an imminent danger of death or great bodily injury. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) Imperfect self-defense occurs when one kills another person because he actually, but unreasonably, believed in the need to defend himself from imminent death or great bodily injury. (People v. McCoy (2001) 25 Cal.4th 1111, 1116; In re Christian S. (1994) 7 Cal.4th 768, 783.) Under such an “unreasonable self-defense” theory, the crime committed is manslaughter, not murder. (McCoy, at p. 1116.)
The California Supreme Court has explained both reasonable and unreasonable self-defense as follows: “For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is ‘imperfect self-defense,’ i.e., ‘the defendant is deemed to have acted without malice and cannot be convicted of murder,’ but can be convicted of manslaughter. [Citation.] To constitute ‘perfect self-defense,’ i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citations.] As the Legislature has stated: ‘[T]he circumstances must be sufficient to excite the fears of a reasonable person . . . .’ [Citations.] Moreover, for either perfect or imperfect self-defense, the fear must be of imminent harm. ‘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.’ [Citation.]” (People v. Humphrey, supra, 13 Cal.4th at p. 1082, fn. omitted; see also People v. Hardin (2000) 85 Cal.App.4th 625, 629-630.) This equally applies to the defense of others believed by the defendant to be in imminent peril. (People v. Randle (2005) 35 Cal.4th 987, 994-997.)
The jury here was fully instructed on the issue of perfect self-defense of self and others (Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 505) and imperfect self-defense of self and others as a lesser included offense (CALCRIM No. 604).
There was no substantial evidence that defendant was in imminent danger from Juarez to support either perfect or imperfect self-defense of himself, or that Martin or Alfredo were in imminent peril. Although defendant generally testified that he was scared for his life and that of his friends, he did not state that, at the time he shot Juarez in the neck, he was facing imminent fear of danger from Juarez. In fact, defendant indicated that Juarez had been holding the shiny object in his hand at the time that he first shot Juarez. After the first shot, Juarez did not make a move with that hand.
It was unreasonable at that point to think that Juarez was holding a gun or other lethal weapon. A natural reaction to being shot would be to shoot back if one were holding a gun. Juarez did not do that; rather, even if defendant’s testimony is to be believed, Juarez merely stood and threatened defendant and the others. If Juarez really intended to kill or hurt them, he would have used the object in his hand to do so. Instead, Juarez made no move toward defendant. Although he may have threatened to call someone to injure or kill them, that does not support self-defense, as the harm threatened was not imminent. We believe the evidence supports the absence of both perfect and imperfect self-defense and defense of others beyond a reasonable doubt. (See People v. Banks (1976) 67 Cal.App.3d 379, 384 [prosecution bears burden of proving beyond a reasonable doubt the absence of self defense of self or others].)
Further, defendant’s own testimony contradicted a self-defense claim. Defendant’s testimony that the second shooting was an accident was not consistent with self-defense. If defendant truly felt that he and his friends were in danger, he would have intentionally shot Juarez, not accidentally.
Based on the foregoing, the evidence supported that defendant had the intent to kill Juarez and that such attempted murder was committed with premeditation and deliberation. Further, we believe the People proved beyond a reasonable doubt the absence of imperfect and perfect self-defense or defense of others.
IV
SENTENCING ERROR
The People contend for the first time in their brief that the trial court erred by sentencing defendant to seven years to life on the attempted murder with a special finding of premeditation and deliberation because section 664, subdivision (a) requires a life with the possibility of parole sentence. Since this constitutes a legally unauthorized sentence, the People can raise the issue for the first time on appeal. (See People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
Defendant did not reference the argument in the reply brief.
Section 664, subdivision (a) provides in pertinent part, “[I]f the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. . . . The additional term provided in this section . . . shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.” (§ 664, subd. (a); see also People v. Seel (2004) 34 Cal.4th 535, 540-541.)
Here, the jury found true the special allegation that defendant committed the attempted murder of Juarez with premeditation and deliberation. Pursuant to section 664, subdivision (a), the trial court was required to sentence defendant to life with the possibility of parole. Instead, the trial court sentenced him to 7 years to life. Hence, defendant must be resentenced on the attempted premeditated and deliberate murder of Juarez to life with a possibility of parole, plus a consecutive 25-years-to-life sentence for personally using a firearm causing great bodily injury (§ 12022.53, subdivision (d)) for that count.
V
DISPOSITION
We reverse defendant’s sentence and remand for the limited purpose of resentencing defendant on the attempted premeditated and deliberate murder of Juarez to life with a possibility of parole, plus a consecutive 25-years-to-life sentence for personally using a firearm causing great bodily injury (§ 12022.53, subdivision (d)). The judgment is otherwise affirmed.
We concur: RAMIREZ, P.J., MILLER, J.