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People v. Mancilla

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 19, 2012
F061065 (Cal. Ct. App. Jan. 19, 2012)

Opinion

F061065 Super. Ct. No. F08906244

01-19-2012

THE PEOPLE, Plaintiff and Respondent, v. MANUEL GEORGE MANCILLA, Defendant and Appellant.

Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Michael A. Canzoneri, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.

Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.

Manuel George Mancilla shot and killed Victor Reyna Cedano, his former girlfriend's boyfriend. A jury found him guilty of first degree murder and found three firearm allegations true. The court imposed an aggregate 50-to-life sentence. On appeal, he argues one evidentiary issue and four instructional issues. We affirm.

BACKGROUND

On December 16, 2008, the district attorney filed an information charging Mancilla with murder (Pen. Code, § 187, subd. (a)) and alleging personal firearm use (§ 12022.5, subd. (a)), personal and intentional discharge of a firearm (§ 12022.53, subd. (c)), and personal and intentional discharge of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). On March 12, 2010, a jury found him guilty of first degree murder and found all three firearm allegations true.

Later statutory references are to the Penal Code.

On September 22, 2010, the court sentenced Mancilla to an indeterminate term of 25 years to life for first degree murder (§ 190, subd. (a)) and a consecutive indeterminate term of 25 years to life for personal and intentional discharge of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)).

The court correctly imposed consecutive terms, but the abstract of judgment incorrectly shows an aggregate term of 25 years to life. We remand for correction of the abstract of judgment. (See post, Disposition.)

DISCUSSION

1. Evidence of Ammunition

Mancilla argues that the admission in evidence of his possession of ammunition that was inconsistent with the .22 caliber weapon used in the shooting prejudiced him. The Attorney General argues the contrary.

Shortly before opening statements, the court and counsel conferred about the admissibility of evidence of the weapon used in the shooting and of a bullet from the autopsy (as to neither of which the defense objected) and of live ammunition, as to which Mancilla's attorney commented, "So I don't know how to go into the ammunition issue because there is not just one set of ammunition in one location." The court asked, "Okay. So what's the [Evidence Code section] 352 objection?" His attorney replied, "Really, the 352 objection to ammunition is ammunition that was recovered in a different location that wasn't his location." His objection, he elaborated, was to ammunition from "somebody else's room." The court inquired, "Are you introducing evidence of ammunition in some other location than the car or the gun or in the defendant's bedroom?" The prosecutor replied in the affirmative, noting that ammunition was recovered from both bedrooms at the house. "It's miscellaneous caliber," he added. The court asked if ammunition from the car was a different caliber than from the shooting. "Some yes. Some no," he replied. The court asked if "some ammunition" from Mancilla's bedroom was the same caliber as in the shooting. "I believe so," he answered. To the court's query if ammunition from another bedroom was "just cumulative," the prosecutor replied, "Submit," at which point the court sustained the objection to evidence of ammunition from the other bedroom.

A crime scene technician identified evidence in Mancilla's car, among which were live .22 caliber cartridges in the center console pocket and sunglass holder and larger live cartridges in boxes from the rear cargo area. She photographed and collected "the same kind of ammo that was used in the shooting" and photographed, but did not collect, the other ammunition. The defense did not object to her testimony.

Another crime scene technician identified evidence at the crime scene and in Mancilla's bedroom. The crime scene evidence included a live .22 long rifle cartridge with a super X head stamp. The evidence in his bedroom included an expended .22 long rifle casing with a super X head stamp. Among the other evidence in his bedroom were a cartridge belt, ammunition boxes, four copper-jacketed bullets, and a shoe box with a live .22 long rifle cartridge, an expended .22 cartridge, an expended .38 special cartridge, and six expended .44 magnum cartridges. The defense did not object to his testimony.

On cross-examination, Mancilla admitted owning the .22 caliber weapon used in the shooting and admitted having the weapon inside the center console in his car on that day but denied owning any other firearms. Someone else probably left the ammunition in the center console pocket, he testified, but he thought he probably left the ammunition in the sunglass holder. Asked why he had different calibers of ammunition in his bedroom, he testified, "I don't know. I just came across it." Asked if he could tell the caliber of some of the ammunition in photographs of his bedroom, he replied, "No." Asked why he kept spent casings in his bedroom, he answered, "And sometimes you find a trash can. Sometimes you don't." Asked if he had not yet had time to throw away those casings, the defense objected on the ground of relevance. The court sustained the objection.

In argument to the jury, the prosecutor referred to ammunition Mancilla had "readily available. Some ammunition up in the sunglass holder of his SUV. Another ammunition [sic] in the pocket, in the side of the center console." In both of those places, as the record shows, the ammunition was .22 caliber. On that foundation, the prosecutor argued, "He had lots of ammunition ready to go so that he could cause the death of Victor Cedeno."

The crux of Mancilla's argument is that he "was prejudiced as a result of the improper introduction of the ammunition" that was not "for the weapon which was a candidate for the weapon used in the offenses" or "part of the mosaic of the crime scene." That evidence, he argues, tended "to show, not that he committed the crime, but only that he," quoting our Supreme Court, was "'the sort of person who carries deadly weapons.'" (People v. Barnwell (2007) 41 Cal.4th 1038, 1056.) The prosecutor's argument to the jury, however, which refers exclusively to .22 caliber ammunition in the center console pocket and sunglass holder, refutes Mancilla's argument. So does the evidence that he brought in his car .22 caliber ammunition and the .22 caliber weapon used in the shooting and that he had identical .22 caliber ammunition in his room. Here, as in Barnwell, the admission of the evidence at issue, even if erroneous, "was clearly harmless beyond a reasonable doubt." (Id. at p. 1057.)

2. CALCRIM No. 3471

Mancilla characterizes the record as devoid of evidence of a prior agreement to fight and argues that the mutual combat instruction (CALCRIM No. 3471) shifted the burden of proof in violation of due process by impairing his defenses of self-defense and imperfect self-defense. The Attorney General argues that Mancilla forfeited his right to appellate review and that there was no error.

The court instructed the jury as follows: "A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if one, he actually and in good faith tries to stop fighting; and two, he indicates by word or by conduct to his opponent in a way that a reasonable person would understand that he wants to stop fighting and that he has stopped fighting; and three, he gives his opponent a chance to stop fighting. If a person meets these requirements he then has a right to self-defense if the opponent continues to fight. [¶] A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim of self-defense arose. If you decide that the defendant started the fight using non deadly force and the opponent responded with such sudden deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting." (CALCRIM No. 3471, italics added.)

On the issue of forfeiture, the Attorney General argues that Mancilla's counsel, "when asked specifically by the trial court, stated he had no objection to the proposed jury instructions," he "offered no jury instructions that were refused by the court," and he "affirmatively requested" the instruction he now challenges. "'Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.'" (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 (Hudson), quoting People v. Andrews (1989) 49 Cal.3d 200, 218.) "But that rule does not apply" if "the trial court gives an instruction that is an incorrect statement of the law" (Hudson, supra, at p. 1012) or "if the substantial rights of the defendant were affected thereby" (§ 1259). "'Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim - at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.'" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087 (Ramos), quoting People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)

So, at least to that extent, we turn to the merits of Mancilla's argument. In his opening brief, he argues that the prosecutor has the "burden of proof to show an absence of self-defense" and that shifting to the defense "the burden of proving that a homicide was committed in self-defense" violates due process. He contends that "CALCRIM [No.] 3471 is authorized for cases of true mutual combat, that is a duel or other mutually arranged combat, not for a case involving a spontaneous street fight, such as presented by the evidence in this case." In response, the Attorney General argues that the instruction had "no applicability to his claim of self-defense" since on the record here "a jury could easily find an implied agreement to continue a fight." In reply, Mancilla insists that the definition of mutual combat in CALCRIM No. 3471 "cannot save the erroneous instruction unless there was evidence to base an inference that there was an agreement to fight."

The record resolves the issue in the Attorney General's favor. On the morning of the day of the shooting, Mancilla stopped by the home of his former girlfriend, Johanna Lopez, where he picked up their two children and agreed to drop them off there at 5 p.m. Shortly after 3 p.m., she met Cedano at a nearby shopping center, hugged him, and got into his car. Just as Cedano started to drive, Mancilla, who had the children inside his car, blocked Cedano's car by backing his car out of a nearby parking stall. Mancilla told Lopez, "Let's go home," but she refused, and both men got out and started yelling about fighting each other. Lopez got out and told Cedano to get back into his car. He did, and so did she. He started to move his car, but Mancilla moved his car, too. Both men got out and started yelling again. Lopez took the children out of Mancilla's car and told both men, "Not in front of the kids." Mancilla walked away from his car, racked a round into his handgun, and got back into his car. From outside Mancilla's car, Cedano swung at him a couple of times. After Mancilla stuck his arm outside his car, witnesses heard a shot and saw smoke. Cedano grabbed his side and fell to the ground. Mancilla drove away.

With reference to the mutual combat doctrine, "The mutuality triggering the doctrine inheres not in the combat but in the preexisting intent to engage in it." (People v. Ross (2007) 155 Cal.App.4th 1033, 1045, italics in original.) The term "'mutual combat' means not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities." (Ibid., italics added.) As our Supreme Court observes in the "lead case" on mutual combat, ""It has long been established that one who voluntarily engages in mutual combat with another must have endeavored to withdraw therefrom before he can be justified in killing his adversary to save his own life." (Ibid., quoting People v. Fowler (1918) 178 Cal. 657, 671, disapproved on another ground by People v. Thomas (1945) 25 Cal.2d 880, 901, italics in original.)

On the record here, we conclude that the mutual combat instruction is a correct statement of the law responsive to the evidence, that the claimed error would not result in prejudice, that the instruction does not affect Mancilla's substantial rights, and that he did not request different language, so he forfeited his claim that the instruction should have been modified. (People v. Castaneda (2011) 51 Cal.4th 1292, 1348 (Castaneda).) "And because the instruction does not otherwise violate his constitutional rights, his claim also fails on the merits." (Ibid.) As the United States Supreme Court notes, "'No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.'" (Nguyen v. U.S. (2003) 539 U.S. 69, 88-89 (Nguyen).)

3. CALCRIM No. 3472

Mancilla argues that the provocation instruction (CALCRIM No. 3472) shifted the burden of proof in violation of due process by virtually eliminating his defenses of self-defense and imperfect self-defense since both instructions referred solely to provocation by him but not to provocation by the victim. The Attorney General argues that Mancilla forfeited his right to appellate review and that there was no error.

The court instructed the jury as follows: "A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force." (CALCRIM No. 3472.)

On the issue of forfeiture, the Attorney General argues that Mancilla not only "failed to object to the giving of CALCRIM No. 3472" but "actually requested that the instruction be given." Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language (Hudson, supra, 38 Cal.4th at pp. 1011-1012), but that rule does not apply if the trial court gives an instruction that is an incorrect statement of the law (id. at p. 1012) or "if the substantial rights of the defendant were affected thereby" (§ 1259). Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim - at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was. (Ramos, supra, 163 Cal.App.4th at p. 1087.)

So, at least to that extent, we turn to the merits of Mancilla's argument. In his opening brief, he argues that "the reasons for this deadly confrontation lie in the history between the parties, not in a minor bit of traffic impropriety." Arguing that CALCRIM No. 3472 denied him "the fair consideration of a viable defense to key elements of the crime," he reiterates his previous contention that since the prosecutor has the "burden of proof to show an absence of self-defense" shifting "the burden of proving that a homicide was committed in self-defense" to him violates due process. In response, the Attorney General argues that Mancilla "drove his vehicle recklessly directly at Cedano," which was "not some minor traffic difficulty," and that "if the jury perceived [Mancilla] as the 'victim,' rather than the aggressor, then the instruction would have no applicability to him, and the jury would necessarily apply the standard self-defense instructions." In reply, Mancilla insists that "there is very strong evidence that Cedano was the initial aggressor" and claims that he "inadvertently blocked Cedano's car as he was backing out of his space" even though he acknowledges that later, when he "was still not satisfied that [Lopez] would be around when he dropped off the kids," he "backed his car further into the path of [Cedano's car]."

The record resolves the issue in the Attorney General's favor. With substantial evidence of provocation by Mancilla in the record, the instruction would be relevant if the jury were to find credible the evidence that he was the initial aggressor, irrelevant if the jury were to find credible the evidence that he was the victim, and harmless either way. The record disproves his argument that "there is very strong evidence that Cedano was the initial aggressor." Although he claims the "reading of CALCRIM [No.] 3472 in these circumstances was cumulative error to the reading of CALCRIM [No.] 3471," his substantial rights were affected by neither.

See ante, part 2.

On the record here, we conclude that the provocation instruction is a correct statement of the law responsive to the evidence, that the claimed error would not result in prejudice, that the instruction does not affect Mancilla's substantial rights, and that he did not request different language, so he forfeited his claim that the instruction should have been modified. (Castaneda, supra, 51 Cal.4th at p. 1348.) "And because the instruction does not otherwise violate his constitutional rights, his claim also fails on the merits." (Ibid.; see Nguyen, supra, 539 U.S. at pp. 88-89.)

4. CALCRIM Nos. 505 & 571

Mancilla argues that omission of the defense of others from the self-defense instruction (CALCRIM No. 505) and the imperfect self-defense instruction (CALCRIM No. 571) foreclosed both of those defenses in violation of due process since the evidence showed he had every reason to protect his children from attack. The Attorney General argues that Mancilla forfeited his right to appellate review and that there was no error.

On the issue of forfeiture, the Attorney General argues that Mancilla failed "to object on the record to proposed jury instructions given by the court," "offered no jury instructions that were refused by the court," and "agreed to the instructions proposed by the court." "More importantly," she emphasizes, his counsel "expressly disavowed any intention of arguing self defense of others and, in essence, reaffirmed his endorsement of the proposed instructions." Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language (Hudson, supra, 38 Cal.4th at pp. 1011-1012), but that rule does not apply if the trial court gives an instruction that is an incorrect statement of the law (id. at p. 1012) or "if the substantial rights of the defendant were affected thereby" (§ 1259). Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim - at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was. (Ramos, supra, 163 Cal.App.4th at p. 1087.)

So we turn, at least to that extent, to the merits of Mancilla's argument. In his opening brief, he argues that his children "were in the back seat of [his] car, or in the process of being removed, when Cedano tried to get into [his car] to carry out a physical attack." In response, the Attorney General emphasizes that the witnesses, even Mancilla himself, testified "unanimous[ly] that at the time Cedano threw any punches at [him], the children were safely out of the [car]." In reply, Mancilla concedes that the children were "either in their safety seats or just outside" his car when Cedano charged him but insists that, either way, he was a caregiver with a legal duty to prevent harm to them. (Italics added.)

The record resolves the issue in the Attorney General's favor. The testimony of Lopez, a bystander, a police officer, and Mancilla himself establish without contradiction that after Lopez took the children out of Mancilla's car Mancilla then walked away from his car, and he then racked a round into his handgun, and he then got back into his car, and Cedano then swung at Mancilla, who was sitting by himself inside his car, and Mancilla then shot Cedano. "I [shot] to protect myself," he testified. "If he wouldn't have attacked me I wouldn't have shot." (Italics added.)

On the record here, we conclude that the self-defense and imperfect self-defense instructions are correct statements of the law responsive to the evidence, that the claimed errors would not result in prejudice, that the instructions do not affect Mancilla's substantial rights, and that he did not request different language, so he forfeited his claim that the instruction should have been modified. (Castaneda, supra, 51 Cal.4th at p. 1348.) "And because the instruction does not otherwise violate his constitutional rights, his claim also fails on the merits." (Ibid.; see Nguyen, supra, 539 U.S. at pp. 88-89.)

5. CALCRIM No. 372

Mancilla argues that on a record of insufficient evidence of flight "to avoid apprehension" the consciousness of guilt instruction (CALCRIM No. 372) prejudiced him. The Attorney General argues that Mancilla forfeited his right to appellate review and that there was no error.

The court instructed the jury: "If the defendant fled immediately after a crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled then it's up to you to decide the meaning and importance of that evidence and that conduct. However, evidence that the defendant fled cannot prove guilt by itself." (CALCRIM No. 372.)

On the issue of forfeiture, the Attorney General argues that Mancilla "agreed to the giving of this instruction without objection" so he "may not argue on appeal that an instruction correct in law and supported by the evidence was erroneously given" unless the instruction affected his substantial rights. Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language (Hudson, supra, 38 Cal.4th at pp. 1011-1012), but that rule does not apply if the trial court gives an instruction that is an incorrect statement of the law (id. at p. 1012) or "if the substantial rights of the defendant were affected thereby" (§ 1259). Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim - at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was. (Ramos, supra, 163 Cal.App.4th at p. 1087.)

So we turn, at least to that extent, to the merits of Mancilla's argument. In his opening brief, he argues that after he shot Cedano he thought he was in danger from a person "who seemed to be acting in concert with Cedano" so he "drove away in fear, not to avoid apprehension," "called his parents," and "turned himself in three hours later." He contends that it was "more reasonable under the circumstances to distance himself from the scene of a violent confrontation," especially since a possible accomplice and a "clearly hysterical and confrontational" Lopez were "still present." In response, the Attorney General emphasizes that immediately after the shooting Mancilla "hurriedly fled the scene and was not heard from again for nearly three hours." She observes, "No other witness described anyone posing a threat to [him] other than Cedano, who had been shot," and adds that "there is no question that a reasonable fact finder could conclude that [he] fled from the scene." In reply, Mancilla insists that a possible accomplice "was a threat to him" and argues that the error "was cumulative to other errors which affected the jury's assessment of the right to self defense."

The record resolves the issue in the Attorney General's favor. One witness even testified that the person to whom Mancilla refers as a possible accomplice offered him a beer bottle held upside down by the neck as a weapon. He claims that the reading of the consciousness of flight instruction was cumulative error on the self-defense issue, but his substantial rights were affected by none of the instructions.

See ante, parts 2-4.
--------

On the record here, we conclude that the consciousness of guilt instruction is a correct statement of the law responsive to the evidence, that the claimed error would not result in prejudice, that the instruction does not affect Mancilla's substantial rights, and that he did not request different language, so he forfeited his claim that the instruction should have been modified. (Castaneda, supra, 51 Cal.4th at p. 1348.) "And because the instruction does not otherwise violate his constitutional rights, his claim also fails on the merits." (Ibid.; see Nguyen, supra, 539 U.S. at pp. 88-89.)

DISPOSITION

The matter is remanded for the court, first, to amend the abstract of judgment to show the imposition of an indeterminate term of 25 years to life for first degree murder (§ 190, subd. (a)) and a consecutive indeterminate term of 25 years to life for personal and intentional discharge of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) and, second, to send a certified copy of the abstract of judgment so amended to the Department of Corrections and Rehabilitation. Mancilla has no right to be present at those proceedings. (See People v. Virgil (2011) 51 Cal.4th 1210, 1234-1235.) In all other respects, the judgment is affirmed.

_________________________

Gomes, Acting P.J.

WE CONCUR:

_________________________

Dawson, J.

_________________________

Kane, J.


Summaries of

People v. Mancilla

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 19, 2012
F061065 (Cal. Ct. App. Jan. 19, 2012)
Case details for

People v. Mancilla

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MANUEL GEORGE MANCILLA, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 19, 2012

Citations

F061065 (Cal. Ct. App. Jan. 19, 2012)

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