Opinion
2d Crim. No. B210277
11-4-2009
THE PEOPLE, Plaintiff and Respondent, v. GERARDO GONZALEZ, Defendant and Appellant.
Joanna McKim, Attorney, 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, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Gerardo Gonzalez appeals from the judgment after his conviction by jury of first degree murder. The jury also found true allegations that he used and discharged a firearm in a felony, personally discharged a firearm, and personally discharged a firearm and killed another person. (Pen. Code, §§ 187, subd, (a); 12022.53, subds. (b)-(d).) The court sentenced him to 50 years to life in state prison, including 25 years to life for murder, and a consecutive 25 year-to-life enhancement for personally discharging a firearm and killing another person. The court stayed the other firearm enhancements. Appellant contends that the court erred by denying his motion to suppress evidence recovered from his residence; by restricting his questions of officers relating to that evidence; and by failing to give jury instructions concerning heat of passion, imperfect self-defense, and provocation. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
In 2006, Romero Batista Molina (Romero) lived with Francisca Rios, their children, Kathy, Leslie, Romero, Jr., Romeros 16-year-old brother, Diego Molina, and other relatives at 5957 McKinley Avenue in South Gate. Arturo Hernandez lived across the street at 5960 McKinley Avenue. His daughter, Vivian, and appellant lived in a converted garage behind his house. Appellants and Romeros families knew each other.
In November 2006, Diego was in front of Romeros home. Appellant approached Diego, displayed a bag of white rocks, and asked if he used drugs. Romero went outside, told Diego to get inside, and argued loudly with appellant.
On December 1, 2006, while walking their daughter to school in the morning, Francisca and Romero saw appellant and exchanged greetings with him. That evening, between 6:30 and 7:30 p.m., Francisca and Romero were relaxing on their front porch.
Meanwhile, appellant, Vivian, and Arturo were socializing with guests outside the house and converted garage at 5960 McKinley Avenue. Appellant was wearing a black-hooded sweater, black pants and a white shirt. He told one guest, Bunthouse Dum, that someone had tried to break into the converted garage, where he lived with Vivian, and that he would "get them first" before they got him.
At approximately 7:20 p.m., Francisca and Romero were talking on the porch, when appellant walked up their driveway, wearing a black-hooded sweater and dark pants. He asked if could speak with Romero. Francisca went inside while Romero and appellant walked toward the street. She soon heard gunshots, looked outside, and saw Romero running, with appellant following him. Romero slipped on their porch and fell. While he lay face down, appellant shot him repeatedly in the back, from a distance of about three feet.
Diego was home that night. As soon as he heard a shot, he looked outside, and saw appellant shoot Romero after he fell. Diego helped bring Romero into the house. Francisca called 911 and told them that "Jerry," who "live[d] across the street," had shot Romero.
Bunthouse went inside Arturos house after hearing gunshots. He soon heard someone, who sounded like appellant, say, "Give me a ride." Arturo responded, "Dude, thats not my problem. You are on your own." Bunthouse looked outside and saw a person in a hooded-sweater and dark clothes running away.
Police officers responded to the 911 call and found .380 caliber casings and expended bullets at the scene. They found a partially empty box of .380 caliber ammunition in the converted garage, where appellant lived with Vivian. The ammunition in the box, as well as the casings and expended bullets, were manufactured by "CCI."
Romero died from three fatal gunshot wounds. He had one fatal wound in his chest, two fatal wounds in his back, and a nonfatal wound in his buttocks.
On December 28, 2008, two sheriffs deputies stopped appellant in a car in Pico Rivera. He had no identification and was "very tense, very nervous." When asked for his name, he gave several answers: Jesse Chris Lopez, Jeffrey Loy Lopez, Gerardo Lopez, and finally, Gerardo Gonzalez. After giving his true name, appellant became "enraged," banged his head against the window, and said that he would kill himself.
DISCUSSION
Motion to Suppress
Appellant contends that the court erred by denying his motion to suppress evidence recovered during searches of his home. There was no error.
Judge Beverly OConnell presided over the section 1538.5 hearing.
In deciding a motion to suppress evidence, the trial court is empowered to determine the credibility of witnesses, resolve conflicts in the evidence, weigh the evidence, and draw reasonable factual inferences. (People v. Woods (1999) 21 Cal.4th 668, 673.) As a reviewing court, we consider the evidence most favorable to the trial courts ruling. Although we defer to the express and implied findings of the trial court, we exercise our independent judgment to determine the constitutionality of the search. (People v. Maury (2003) 30 Cal.4th 342, 384; People v. Medina (2003) 110 Cal.App.4th 171, 175.)
Prosecution Evidence Regarding Searches
Officers Hugh Homsher and Carlos Corella, of the Southgate Police Department, arrived at Romeros home shortly after 7:30 p.m. There were expended bullet casings on the ground in front of the home. Romero was bleeding. Francisca was "screaming hysterically" and said that the shooter was Jerry or Gary (appellant), who lived across the street. She said that he ran across the street, and pointed toward the house at 5960 McKinley Avenue.
Corella and Homsher walked across the street and saw several people, including Arturo, in the driveway at 5960 McKinley Avenue. The officers asked whether any of them were Gary or Jerry; none of them were. Arturo initially acted evasive and argumentative. He stared blankly when asked if he knew Jerry or Gary. He eventually said that they might be looking for his daughters boyfriend, appellant. When the officers asked whether appellant was there, the people in the driveway "looked at each other" and said they did not know. Arturo later said that appellant ran away. He also said that appellant lived in the converted garage with his daughter, Vivian.
The officers were concerned about the danger to bystanders, officers, and emergency personnel, posed by the possibility that appellant might be armed and hiding on Arturos property. With Arturos consent, Corella and several other officers searched the front house but found no suspect.
Having found no one in the front house, the officers used a tool to open the door and enter the converted garage. They searched it for two or three minutes but found no suspect. Corella noticed a box of ammunition on a shelf in the closet.
Vivian was staying with a neighbor because officers had blocked access to her residence. She told Corella that appellant was her boyfriend, that he had physically abused her, and that he belonged to a gang. She initially denied that she knew his last name, but later said it was Gonzalez.
Several hours later, at about 1:00 a.m., during a briefing, Corella told Sergeant Patrick Tapia, of the Los Angeles County Sheriffs Department, that he saw a box of ammunition in the converted garage. He also told him that he spoke with Vivian earlier. At Tapias direction, Corella sought Vivians consent to search the converted garage. He did not threaten her or say that if she gave her consent to the search, she could enter the front house or the converted garage. Vivian signed a consent form.
Corella and Tapia entered and searched the converted garage. Corella pointed out the ammunition box. It was on a high shelf in the closet "in plain view." They also found a .380 caliber magazine and a backpack.
Defense Evidence Regarding Searches
Vivian testified that at about 8:00 p.m., on December 1, she spoke with a "Latino" officer, who said, "I broke your fucking door. What are you going to . . . do about it?" He "threatened" to arrest her because they found a gun in her "house" (the converted garage). After she explained that it was actually a "BB gun," the officer allowed her to go to a neighbors house.
At approximately 1:00 a.m., another officer told Vivian that "[her] house was going to be frozen until [she] sign[ed] the paper [consent form]." They would let her back in the house if she signed the paper. The officer did not threaten to arrest her. She signed the consent form without reading it. She never noticed ammunition in the converted garage closet.
Appellant called Detective Robert Pellerin of the Los Angeles Sheriffs Department to testify. Pellerin participated in the first search of the converted garage. He did not see the ammunition but later heard Corella tell Tapia about it.
Appellant moved to suppress the ammunition box and magazine that officers found and recovered during two searches of the converted garage. The court heard evidence for several days and denied the motion because the first search was a lawful protective sweep and the second search was conducted lawfully with Vivians voluntary consent.
Warrantless entries into a home are presumptively unreasonable and forbidden by the Fourth Amendment. The Fourth Amendment does permit a limited warrantless entry as a protective sweep if the searching officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrants the officer in believing that the area swept may harbor an individual who poses a danger to the officer or others. (Maryland v. Buie (1990) 494 U.S. 325, 327; People v. Celis (2004) 33 Cal.4th 667, 676-677.) A protective sweep may include only a "cursory inspection of those spaces where a person may be found, [and] . . .last[] no longer than is necessary to dispel the reasonable suspicion of danger . . . ." (Maryland, supra, at p. 335.)
The trial court correctly concluded that the first search of the converted garage was a protective sweep. There were specific, articulable facts that warranted the officers belief that the area swept might harbor a dangerous person. Shortly before the sweep, appellant shot Romero and ran in the direction of his home. Because they had not found the gun, officers believed that appellant could still be armed.
We disagree with appellants claim that the "only solid information" was Arturos statement that the suspect had run down the street. Arturo had acted evasively and with hostility toward the officers and he may have been sympathetic to appellant, his daughters boyfriend. We reject appellants related claim that the first search exceeded the scope of a protective sweep. The search lasted two or three minutes, was cursory, and stopped when officers determined that no suspects were inside the converted garage.
Appellant further argues that the trial court erred by finding that the second search was conducted with Vivians voluntary consent. A warrantless search is valid if conducted pursuant to the voluntary consent of a person with common or superior authority over the area to be searched. (People v. Woods (1999) 21 Cal.4th 668, 674, 675.) Whether a consent is voluntary is a factual question to be decided in light of all the circumstances. (People v. Aguilar (1996) 48 Cal.App.4th 632, 639.)
Here, the circumstances support the courts finding that Vivian voluntarily consented to the search. In making a contrary argument, appellant emphasizes the following evidence: Officers sought Vivians consent at approximately 1:00 am., after she had been sleeping; she testified that the officers threatened that if she did not consent to a search, her house would be "frozen"; and she did not read the consent form but signed it because she was tired and wanted to get her father out of jail. The court heard contrary evidence, including Corellas testimony denying that he threatened Vivian. The court was not required to accept Vivians version of events. (See People v. Ratliff (1986) 41 Cal.3d 685, 687.)
Limitation on Examination of Witnesses
Appellant argues that the trial court infringed on his constitutional right to present a defense and receive a fair trial by limiting his examination of the officers regarding their search of his residence. We disagree.
During trial, the court sustained a prosecution objection when appellants counsel tried to ask Corella why he entered the converted garage. Counsel argued that Corellas silence for hours regarding ammunition he saw there and his failure to mention the ammunition in his report were relevant to his credibility. The prosecution countered that counsel was trying to relitigate the motion to suppress. The court agreed with the prosecutor and further noted that appellant had presented evidence regarding third party allegations of misconduct against Corella. The court later denied counsels request to question Tapia about the failure to document that Corella discovered the ammunition during the first search. Still later, counsel renewed his request to inquire about Corellas delay in telling his peers about the ammunition he saw during the first search and the officers failure to note that in the report. During the suppression hearing, Corella had explained that his report did not note his discovery of ammunition during the first search because the purpose of that search was to locate suspects. The court again ruled that counsel could not question Corella about this subject during trial.
Appellant argues that the evidence regarding Corellas discovery of the ammunition and the related report was relevant to the issue of the officers credibility, and necessary to support his mistaken identity defense and his claim that the officers were not diligent or thorough in gathering evidence and arresting a suspect. He claims that by prohibiting questions about these topics, the court violated his right to due process and a fair trial.
The federal Constitution guarantees a state criminal defendant a meaningful opportunity to present a complete defense. (Crane v. Kentucky (1986) 476 U.S. 683, 690-691.) But "`[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds right to present a defense. [Citation.]" (People v. Phillips (2000) 22 Cal.4th 226, 238.) "Although the complete exclusion of evidence intended to establish an accuseds defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right. [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 999.)
Trial courts have broad discretion in determining the relevance of evidence. (People v. Garceau (1993) 6 Cal.4th 140, 177, overruled on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) Courts also have discretion to limit the admission of relevant evidence where "its probative value is substantially outweighed by the probability that its admission will . . . necessitate undue consumption of time or . . . create substantial danger of . . . confusing the issues, or of misleading the jury." (Evid. Code, § 352.) In this case, the court acted within its discretion in limiting counsels questions regarding the searches, the ammunition, and officers reports concerning such matters.
Appellant contends that the Chapman v. California (1967) 386 U.S. 18, standard applies to the claimed error in limiting examination of the officer regarding the searches, while respondent claims that the People v. Watson (1956) 46 Cal.2d 818, standard applies. Any such alleged error is harmless under either standard of review.
Appellant argues that the courts erroneous limitation on his examination of the officers was harmful because it excluded evidence to support his mistaken identity defense. The excluded evidence would not have diminished the strength of the identifications. Appellant stresses that one witness, Romero, Jr., did not select his photograph when asked to point to the shooter; that Diego gave inconsistent versions of the events; and that Francisca withheld information about drugs she found in Romero, Sr.s pocket from the police for several months. However, Francisca and Diego lived across the street from appellant and knew him before the shooting. They each observed the shooting from close range. Their descriptions of the clothing that appellant wore that night, the timing, and other significant details were corroborated by other evidence, including Bunthouses testimony. In addition, appellant displayed his consciousness of guilt when officers detained him on an unrelated matter weeks after the shooting. He initially provided several false names. After providing his true name, he became enraged, banged his head against the window, and said he would kill himself.
Furthermore, it is unlikely that the excluded evidence would have changed the jurors impression of Corellas credibility. The first search occurred while officers knew that a shooting suspect was at large and that he might still be armed. The suspect remained at large after that search. Under the circumstances, Corellas delay in telling his peers about the ammunition box and the officers failure to note its initial discovery time in the reports are insignificant. Moreover, the exclusion of that evidence did not amount to a complete exclusion of defense evidence relating to the officers credibility where appellant presented evidence concerning third party allegations of misconduct against Corella. (See People v. Maury (2003) 30 Cal.4th 342, 414.) We conclude beyond a reasonable doubt that the overwhelming evidence of guilt would not have resulted in a different verdict, even had the excluded evidence been presented to the jury. (Chapman, supra, 386 U.S. at p. 24.)
Instructional Issues
Appellant argues that the trial court erred because it did not instruct the jury on the heat of passion and imperfect self-defense theories of manslaughter. We disagree. The trial court has a duty to instruct on lesser included offenses, even in the absence of a request, where substantial evidence would permit a reasonable jury to find that the defendant had committed only the lesser offense, and not the offense charged. (People v. Cunningham, supra, 25 Cal. 4th at p. 1008; People v. Breverman (1998) 19 Cal.4th 142, 154.) "Voluntary manslaughter is a lesser included offense of murder when the requisite mental element of malice is negated by a sudden quarrel or heat of passion, or by an unreasonable but good faith belief in the necessity of self-defense." (People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.) "The defendant must actually, subjectively kill under the heat of passion. [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1252.) In addition, the killing must occur while the defendant is "subjectively under the actual influence of `a strong passion 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 from judgment."`" (People v. Moye (2009) 47 Cal.4th 537, 541; see also People v. Cole (2004) 33 Cal.4th 1158, 1217-1218; People v. Lujan (2001) 92 Cal.App.4th 1389, 1411-1412.)
Appellant requested instructions on voluntary manslaughter based on heat of passion. This case, however, lacks substantial evidence that Romero did anything sufficient to provoke an ordinary reasonable person to such violence or that appellant acted under the influence of the requisite passion. (People v. Moye, supra, 47 Cal.4th at p. 541.) In claiming there was provocation, appellant stresses that a month before the shooting, Romero argued loudly with him when he tried to sell drugs to Diego. However, there was no evidence as to what Romero or appellant then said, or evidence suggesting that they had any ongoing conflict. On the morning of the shooting, appellant and Romero had exchanged greetings. Appellant also cites Bunthouses testimony that shortly before the shooting, appellant said that someone had tried to break into his home and said, "I will get them first before they get me." Appellant did not, however, identify Romero as the person who tried to break into his home. The court properly denied appellants request for voluntary manslaughter instructions based on a heat of passion theory.
Appellant also argues that the court should have instructed the jury sua sponte on voluntary manslaughter based on an imperfect self-defense theory. We disagree. Imperfect self-defense instructions must be given where there is evidence that the defendant believed he had to kill in order to protect himself from an imminent threat of death or great bodily injury. (See, e.g., People v. Sinclair (1998) 64 Cal.App.4th 1012, 1016.) There is no substantial evidence that appellant believed he had to shoot Romero to protect himself from an imminent threat. To the contrary, on the evening of the shooting, Romero was relaxing with Francisca on their porch, while appellant was at his own home, across the street, socializing with other people. It was appellant who sought Romero out and induced him to leave his home by asking to speak with him. While Romero accompanied him towards the street, appellant shot him. When Romero tried to run away, appellant pursued him. Romero slipped and appellant shot him in the back, from close range. That evidence does not support an imperfect self-defense instruction.
Appellant makes a related contention that the court had a sua sponte duty to instruct the jury to consider whether provocation had some bearing on his ability to premeditate the killing. The lack of substantial evidence of provocation defeats that contention. It also defeats the claim that trial counsel was ineffective for failing to request instructions on provocation. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836 [counsel has no obligation to request instructions that are not supported by the evidence].)
DISPOSITION
The judgment is affirmed.
We concur:
YEGAN, Acting P.J.
PERREN, J.