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People v. Mejia

Court of Appeals of California, Second District, Division Five.
Nov 6, 2003
B165686 (Cal. Ct. App. Nov. 6, 2003)

Opinion

B165686.

11-6-2003

THE PEOPLE, Plaintiff and Respondent, v. RICARDO ERNESTO MEJIA, Defendant and Appellant.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.


Defendant and appellant Richard Ernesto Mejia appeals from a judgment following a jury trial in which he was convicted of second degree murder and assault with a semiautomatic firearm. He contends the evidence was insufficient to support his convictions and the trial court erred by failing to instruct the jury, sua sponte, as to the lesser included offense of voluntary manslaughter on a theory of heat of passion. We affirm.

PROCEDURAL BACKGROUND

Defendant was charged by information with the murder of Harry Hines in violation of Penal Code section 187, subdivision (a) and assault with a semiautomatic firearm on Lakeia Smith in violation of Penal Code section 245, subdivision (b). It was further alleged defendant used a firearm in the commission of the crimes within the meaning of Penal Code sections 12022.53, subdivision (b) and 12022.5. The jury was instructed as to first and second degree murder and the lesser included offense of voluntary manslaughter on the theory of imperfect self-defense. The jury found defendant guilty of second degree murder and assault with a semiautomatic firearm, and found the firearm use allegations to be true. The trial court sentenced defendant to 50 years to life. Defendant appealed.

FACTS

The crimes in this case took place in the evening hours of November 24, 2001, and the early morning hours of November 25, 2001, at an intersection in Los Angeles. Hines was a 12-year-old boy, who lived with his family in an apartment building on the southwest corner of the intersection. Defendant lived with his family in a house on the southeast corner of the intersection. Defendant claimed to have been shot in the hand in September 2001 by members of the Schoolyard Crips gang. Defendant also claimed that members of the Schoolyard Crips frequently congregated at the intersection and had been taunting and intimidating him for months. Defendant asserted he was angry with and frightened of the Schoolyard Crips. Earlier on the day in question, defendant had obtained a semiautomatic rifle.

That evening, Smith was standing in the street with her back toward defendants house. Her head was covered by the hood of her jacket. Apparently believing Smith to be a gang member, defendant approached her from behind holding the semiautomatic rifle. Defendant asked Smith what she was doing and aimed the rifle at her. As Smith turned to face defendant, defendant pulled the trigger back (i.e., racked the rifle). However, when defendant saw Smiths face, he did not shoot her. Instead, he went to sit with the rifle in his car, which was parked in front of his house. Defendant waited. Smith left the intersection.

Several hours later, several men congregated on the southwest corner of the intersection, in front of the apartment building in which Hines resided. Defendant believed they were members of the Schoolyard Crips. Defendant got out of his car, walked towards the corner, and confronted the men. A loud argument ensued. Defendant shot his rifle four times. Two of the bullets struck Hines as he lay sleeping in his apartment, one in the neck and one in his arm. Hines died from the gunshot wound to his neck. Defendant fled. The rifle was not recovered.

The shooting incident had been observed by Smith, who had returned to the intersection. She did not report her observations to the police until they contacted her sometime later. Smith identified defendant from a photographic display. Defendant was apprehended and confessed to the shooting death of Hines. He made no statement concerning the assault on Smith. Defendant claimed that on the night in question, gang members had challenged him and displayed a firearm to him. Defendant had been scared and had started shooting.

DISCUSSION

I. Sufficiency of the Evidence

A. Standard of Review

"In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, 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. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) `"Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendants guilt beyond a reasonable doubt. `"If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." [Citations.]" [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

"`It was the function of the [trier of fact], not this court, to resolve inconsistencies and contradictions, if any, in the testimony of [the witness]. The trier of fact may believe and accept a portion of the testimony of a witness and disbelieve the remainder. On appeal that portion which supports the judgment must be accepted, not that portion which would defeat, or tend to defeat, the judgment. [Citations.] A judgment cannot be set aside on appeal unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to sustain it. [Citation.] . . . Testimony is not inherently improbable unless it appears that what was related or described could not have occurred. . . ." (People v. Sanders (1962) 206 Cal.App.2d 479, 482.)

"`It is blackletter law that any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses. It is well settled in California that one witness, if believed by the [trial court or] by the jury, is sufficient to sustain a verdict. To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear. [Citations.]" (People v. Breault (1990) 223 Cal.App.3d 125, 140-141.)

B. Assault on Smith

Defendant contends the evidence is insufficient to support his conviction of assault on Smith. He argues that his conviction is based entirely on the testimony of Smith and her testimony is "palpably false." He does not argue her testimony, if believed, is insufficient to support his conviction of assault. Defendant asserts Smith was heavily impeached, her testimony was inconsistent, inaccurate, and based on faulty recollection, and she was only marginally competent, incoherent, lacking comprehension, ignorant, mentally impaired and actively deceitful. Defendant points to inconsistencies within Smiths testimony and the inconsistency of her testimony with other evidence. We are not persuaded by this contention.

We view defendants contention as simply a request that we reweigh the evidence. This is not the role of an appellate court. We have reviewed the entire record on appeal. To the extent the evidence is in conflict and contains inconsistencies, the conflicts and inconsistencies did not render Smiths testimony inherently improbable or physically impossible. Any conflicts or inconsistencies were for the jury to resolve. The jury impliedly found Smiths testimony concerning the assault credible. Defendant admitted to the police that he had been at the intersection that evening with an assault weapon. We conclude substantial evidence supports the conviction of assault.

C. Murder of Hines

Defendant contends the evidence is insufficient to support his conviction of second degree murder. He argues the evidence is insufficient to support a finding that Hines was struck by a bullet fired by defendant from the rifle. He repeats his concerns with the testimony of Smith. He argues the physical evidence is inconclusive. And he asserts he confessed to voluntary manslaughter, not murder. We are again not persuaded by this contention.

We need not repeat that evaluation of the testimony of Smith is in the province of the jury, not the appellate court. We address the remaining two contentions. Defendant admitted that he fired four shots at the men on the southwest corner of the intersection. Gunshots were fired through Hiness bedroom window. Four bullet casings were discovered near the place defendant was standing when the shots were fired. The casings were 7.62 by 39 caliber. Two casings were fired from the same weapon, and the other two casings were fired from the same weapon. The markings on all four casings were consistent with having been fired from the same weapon. One bullet was recovered from plants outside Hiness building. One bullet fragment was recovered from Hiness arm. The bullet and bullet fragment were consistent with a 7.62 by 39 caliber bullet. This caliber ammunition is made for use in long rifles. There was no evidence a firearm other than defendants rifle had been fired in the direction of Hiness apartment building. We conclude the evidence is sufficient to support a finding that a bullet fired by defendant struck and killed Hines.

To the extent defendant argues that the jury was required to convict him of voluntary manslaughter, we disagree. There is evidence that: previously, defendant had been shot and harassed by members of the Schoolyard Crips; defendant armed himself with a loaded semiautomatic rifle and lay in wait for members of the Schoolyard Crips to appear at the intersection; and defendant initiated the confrontation that resulted in the killing of Hines. Based on this evidence, the jury could reasonably conclude that defendant did not fire four shots at the men on the corner in the unreasonable but good faith belief in the necessity of defending himself. We conclude the evidence is sufficient to support a verdict of second degree murder.

II. Voluntary Manslaughter—Heat of Passion

As noted earlier, the trial court instructed the jury as to the lesser included offense of voluntary manslaughter on the theory of imperfect self-defense. Defendant contends the trial court erred when it failed to also instruct, sua sponte, on the theory of heat of passion. Defendant argues that the legal provocation of the Schoolyard Crips occurred over a considerable period of time and included their shooting of him in the hand and their threatening behavior over a period of time. We conclude that any error in failing to instruct on the heat of passion theory of voluntary manslaughter was harmless.

"[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162.) "[T]he existence of `any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration by the jury. [Citations.] `Substantial evidence in this context is `"evidence from which a jury composed of reasonable [persons] could . . . conclude[]" that the lesser offense, but not the greater, was committed." (Ibid.)

"An intentional, unlawful homicide is `upon a sudden quarrel or heat of passion (§ 192(a)), and is thus voluntary manslaughter [citation], if the killers reason was actually obscured as the result 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." [Citations.] `"[N]o specific type of provocation [is] required . . . ." [Citations.] Moreover, the passion aroused need not be anger or rage, but can be any `"`[v]iolent, intense, high-wrought or enthusiastic emotion" [citations] other than revenge [citation]." (People v. Breverman, supra, 19 Cal.4th at p. 163.) Intimidating conduct may cause "fear and panic," permitting a reasonable jury to infer that a "defendant was aroused to passion, and his reason was thus obscured, by a provocation sufficient to produce such effects in a person of average disposition." (Id. at pp. 163-164.)

A trial courts failure to instruct on all theories of a lesser included offense that find substantial support in the evidence is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. (People v. Breverman, supra, 19 Cal.4th at p. 165.) "Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (Id. at p. 177.)

In this case, we need not decide whether there was substantial evidence to support an instruction on heat of passion voluntary manslaughter. We will assume that there was. We conclude that under the circumstances of this case, the trial courts failure to instruct on this theory of voluntary manslaughter was harmless. The jury was instructed on the lesser included offense of imperfect self-defense voluntary manslaughter and found defendant guilty of second degree murder. Thus, the jury was not presented with a single choice of guilty of murder or acquittal. In addition, the factual bases of both the imperfect self-defense and the heat of passion voluntary manslaughter were the same. The prior acts of gang members in shooting, threatening and intimidating defendant together with the hostile, aggressive and threatening actions of the gang members on the night in question caused defendant to (1) believe in the necessity of defending himself, and (2) panic and be in fear such that his reason was obscured. The jury that rejected these facts as establishing imperfect self-defense was not reasonably likely to accept the same facts as establishing heat of passion.

Moreover, the evidence of heat of passion was comparatively weak and the evidence of second degree murder was relatively strong. The evidence of heat of passion was based almost entirely on defendants statement to the police. This statement was internally inconsistent and contradictory. In addition, by his own statement defendant admitted obtaining the semiautomatic assault weapon the day of the shooting. He sat in his car waiting for several hours for the gang members to arrive. When several men arrived at the intersection, defendant got out of his car, armed with the rifle, and initiated the confrontation with them. He shot the rifle four times. This planning activity and aggression constitute strong evidence that the shooting did not occur in a heat of passion.

DISPOSITION

The judgment is affirmed.

We concur: TURNER, P. J. and MOSK, J.


Summaries of

People v. Mejia

Court of Appeals of California, Second District, Division Five.
Nov 6, 2003
B165686 (Cal. Ct. App. Nov. 6, 2003)
Case details for

People v. Mejia

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICARDO ERNESTO MEJIA, Defendant…

Court:Court of Appeals of California, Second District, Division Five.

Date published: Nov 6, 2003

Citations

B165686 (Cal. Ct. App. Nov. 6, 2003)