Opinion
B224356
08-11-2011
THE PEOPLE, Plaintiff and Respondent, v. EDWARD MORENO, Defendant and Appellant.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Carl N. Henry, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA106612)
APPEAL from a judgment of the Superior Court of Los Angeles County, Ricardo R. Ocampo, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Edward Moreno appeals the judgment entered following his conviction by jury of first degree murder committed for the benefit of a criminal street gang in which he personally discharged a firearm causing death. (Pen. Code, §§ 187, subd. (a), 186.22, subd. (b)(1)(C), 12022.53, subd. (d).)
Moreno contends the trial court committed instructional error, and imposition of the firearm enhancement violated the "multiple conviction rule" and principles of double jeopardy. We reject these contentions and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. Trial evidence.
On April 1, 2009, at approximately 3 p.m., Deanna Henderson was walking to the Chapala Market on El Segundo Boulevard with Darnell Tedford and a friend of his whose name Henderson did not know. Shortly before arriving at the market, they "got into . . . a gang-banging altercation" in front of a church with three or four Hispanic males, including appellant Moreno. During the altercation, Moreno "kept on grabbing his waistband . . . , representing he was holding a gun." Henderson did not remember the words spoken but recalled telling a detective she heard one of the males saying "Vario Largo." Tedford's friend was "trying to keep the peace basically . . . ." Henderson left the altercation and walked by herself into the market.
The trial court found Henderson unavailable as a witness and permitted her preliminary hearing testimony to be read to the jury.
Mario Gutierrez testified he was standing outside the Chapala Market when he saw three African-Americans get into a "discussion" with three Hispanic males. The African-Americans then walked to the store and the Hispanics went toward the church. Gutierrez testified they were not arguing and he could not hear what was being said. However, a week after the incident, Gutierrez told Los Angeles County Sheriff's Sergeant Luis Nunez it "looked like they were going to fight" and the Hispanics "repeatedly" yelled "Largo."
Stephen Brown was directly across the street from the church when he saw five Hispanic males approach three African Americans, two males and a female. The Hispanics came down a church driveway and confronted one of the African Americans males. The Hispanics "were pretty riled up, . . . like they wanted to fight." Their fists were "balled up." The African American male turned and "was talking . . . right along with them. . . . he was just standing his ground." After a short time, the Hispanic males went up the church driveway, the African Americans went to a store and Brown walked toward Willowbrook Avenue.
Henderson testified that after Tedford and his friend entered the market, she looked outside and saw Moreno and his friends near the church taking their shirts off and putting them around their necks. Tedford made a statement to her. When they left the store, Henderson started to cross El Segundo Boulevard and Tedford and his friend walked toward the church. When Henderson was in the middle of the street, she heard seven gunshots. She looked in the direction of the church and saw Tedford come from behind a truck and fall to the ground.
A videotape of Tedford and his companions inside the Chapala Market purchasing soda and juice was played for the jury.
Brown heard gunshots and returned to the scene of the argument where he saw the same five Hispanics arguing with a fallen African American male, who was lying near the yellow line in the middle of the street.
Sheriff's deputies found five expended .22 caliber shell casings at or near the entrance of the driveway to the church.
Tedford was taken to a hospital but died three or four hours later after surgical efforts to treat his gunshot wounds proved unsuccessful.
Sheriff's deputies set up a containment of the area around the church. Los Angeles County Sheriff's Detective Aaron Gutierrez found Moreno and two other male Hispanics sitting in the living room of a nearby home. All three admitted they were members of the Compton Vario Largo gang. Moreno said his name was "Little One."
Los Angeles County Sheriff's Sergeant Luis Nunez interviewed 17-year-old Moreno twice on the day of the shooting, once at the Century Regional Detention Center and once in the parking lot of the church. In the first interview, Moreno initially admitted he had been involved in the incident but denied he was the shooter. Moreno said he and his friends left school and went to the area of the Chapala Market and one of his friends shot the man. Moreno said he and two companions "were together and that they were in the driveway of the church waiting for the Black guys" because he thought they were going to fight. Moreno said one of the Black males was from Grape Street and the other was from Swan. Moreno eventually admitted he pulled out his weapon and fired because the victim reached into his pocket. Moreno demonstrated to Nunez that the victim reached with his left hand across his body to his right side. Moreno admitted he did not see the victim with a gun. Moreno said he left school, met a friend, went home and got a gun for protection, and then went to the area of the Chapala Market. Moreno indicated he discarded the gun as he fled. Moreno agreed to show Nunez where he discarded the weapon and the second interview took place in the parking lot of the church. Audio tape recordings of both interviews were played for the jury.
A deputy medical examiner testified Tedford sustained four gunshot wounds. The first entered the back of his left upper arm. The second and third wounds were both to the left lower back area. The bullet that caused one of the wounds traveled from back to front and upwards, causing injury to the small intestine. It appeared this bullet struck Tedford as he fell or bent forward. The fourth gunshot wound was to his right forearm, entering at the inner back and exiting the outer part of the forearm. Tedford had metabolites of cocaine and marijuana in his system. Tedford died of severe hemorrhaging caused by multiple gunshot wounds.
Los Angeles County Sheriff's Detective Eric Arias testified as a gang expert. Compton Vario Largo is a criminal street gang with approximately 200 members. The shooting in this case occurred in territory claimed by this gang. Grape Street is an African-American gang whose territory is approximately one and one-half miles north of where the incident occurred. Vario Largo does not get along with any African-American gangs except two that border its territory, Mona Park Crips and Carver Park.
In response to a hypothetical question based on the facts of this case, Arias opined the shooting was committed in association with, and for the benefit, of Vario Largo. Arias indicated Moreno was protecting his turf after he had been disrespected by Tedford who told him he was from Grape Street. Moreno "was waiting for a confrontation. He was going to deal with these individuals." The shooting benefited the gang by increasing its reputation for violence and thereby making members of the community reluctant to testify against members of the gang. Arias opined Mendoza possessed a gun in order to "police the neighborhood" to make sure no rival gang members entered the gang's territory or wrote graffiti in it. If a gang member catches a rival in the neighborhood, referred to as "slipping," it is the gang member's job to ask where the individual is from and to make that person pay for getting caught in the gang's neighborhood. Arias indicated gang members walking in rival gang territory often carry weapons for protection.
2. Instructions and verdict.
The trial court instructed the jury on murder, manslaughter and self-defense. The instructions given included CALCRIM No. 500 ["Homicide: General Principles"], CALCRIM No. 505 ["Justifiable Homicide: Self-defense . . . ."], CALCRIM No. 520 ["First or Second Degree Murder With Malice Aforethought . . . ."], CALCRIM No. 521 ["First Degree Murder . . . ."], CALCRIM 522 ["Provocation: Effect on Degree of Murder"], CALCRIM 570 ["Voluntary Manslaughter: Heat of Passion . . . ."], and CALCRIM No. 571 ["Voluntary Manslaughter: Imperfect Self-defense . . . ."].
The jury convicted Moreno as charged.
CONTENTIONS
Moreno contends CALCRIM 522 [Provocation: Effect on Degree of Murder], combined with CALCRIM 570 [Voluntary Manslaughter: Heat of Passion], incorrectly told the jury to apply an "objective" rather than a "subjective" standard of reasonableness in determining whether there was adequate provocation to reduce the homicide from first to second degree murder. He also contends imposition of the firearm enhancement violated the "multiple conviction rule" and principles of double jeopardy.
DISCUSSION
1. CALCRIM No. 522, considered in the context of the other instructions given by the trial court, correctly states the law regarding provocation as it applies to the degree of murder.
Moreno's argument is based on the proposition that mitigation of murder to voluntary manslaughter requires a showing of objectively reasonable provocation or heat of passion. (People v. Steele (2002) 27 Cal.4th 1230, 1254.) However, the test for whether provocation or heat of passion is sufficient to negate deliberation and premeditation so as to reduce first degree murder to second degree murder is subjective. (People v. Valentine (1946) 28 Cal.2d 121, 131-135; People v. Padilla (2002) 103 Cal.App.4th 675, 678; People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295.)
Moreno notes the only standard for provocation stated in the instructions was that of the ordinary reasonable person, i.e., a "person of average disposition," found in CALCRIM No. 570, which addresses reduction of murder to voluntary manslaughter. Moreno claims the jury should have been instructed to apply a subjective test in determining whether Moreno's provocation was sufficient to negate premeditation and deliberation so as to reduce a murder from first degree to second degree. Moreno argues CALCRIM No. 522 failed to make this distinction and the combined effect of this instruction and CALCRIM No. 570 was to advise the jury to apply an objectively reasonable standard in determining whether to reduce the homicide from first to second degree murder. Moreno concludes the inadequate instructions effectively removed the issue of Moreno's subjective mental state from the jury's consideration, undermined his due process right to a reliable jury determination of his culpability and requires reversal of his conviction. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 ; Mullaney v. Wilbur (1975) 421 U.S. 684, 684-687, 696-698, 703 .)
Moreno's argument is unavailing.
Initially, it appears this claim has been forfeited for failure to suggest modification of CALCRIM No. 522 in the trial court. (People v. Parson (2008) 44 Cal.4th 332, 352; People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 [" '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. Hart (1999) 20 Cal.4th 546, 622.) However, even if we view the claimed error as violative of Moreno's substantial rights and thus not requiring an objection in the trial court (see Pen. Code, § 1259; People v. Kelly (2007) 42 Cal.4th 763, 791; People v. Salcido (2008) 44 Cal.4th 93, 155), Moreno's claim fails on the merits.
When we review a challenge to jury instructions as being incorrect or incomplete, we evaluate the instructions given as a whole, not in isolation, to determine whether there is a reasonable likelihood they confused or misled the jury and thereby denied the defendant a fair trial. (People v. Letner (2010) 50 Cal.4th 99, 182; People v. Richardson (2008) 43 Cal.4th 959, 1028; People v. Huggins (2006) 38 Cal.4th 175, 192.) We also presume jurors are intelligent and capable of understanding and correlating jury instructions. (People v. Richardson, supra, 43 Cal.4th at p. 1028; People v. Carey (2007) 41 Cal.4th 109, 130.)
Applying these principles here, and considering the challenged instructions in context, we conclude CALCRIM No. 522 correctly conveyed the relevant law to the jury.
CALCRIM No. 520 instructed the jury that, in order to convict Moreno of murder, the People were required to prove malice aforethought, which may be either express or implied.
Next, the jury was instructed first degree murder requires a finding the defendant acted willfully, deliberately and with premeditation, and "[a]ll other murders are of the second degree." (CALCRIM No. 521.) Further, in order to determine the defendant premeditated and deliberated, the jury must find the defendant "carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill." (Ibid.) The instruction further explains: "A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated." (Ibid.)
CALCRIM No. 522, as given, provided: "Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter."
These instructions informed the jury of the necessary mental state for first and second degree murder, and explained that provocation can mitigate first degree murder to second degree murder. Thus, there was no instructional error. Further, there is no reasonable likelihood the jury misunderstood or misapplied this instruction.
Contrary to Moreno's argument, CALCRIM No. 570, which instructed the jury on the distinction between murder and voluntary manslaughter, did not improperly suggest to the jury that it would have to find objective provocation to reduce first degree murder to second degree murder. The objective test contained in CALCRIM No. 570 concerned only voluntary manslaughter. Thus, CALCRIM Nos. 522 and 570, taken together, told the jury provocation could negate the subjective mental state of premeditation and deliberation, but in order to reduce murder to manslaughter, the provocation must be reasonable. The clear implication is that unreasonable provocation may reduce the degree of murder.
We presume the jurors were able to correlate these instructions and reach the same conclusion. (People v. Carey, supra, 41 Cal.4th at p. 130.)
Moreover, nothing in the argument of either the prosecutor or defense counsel suggested a different conclusion to the jury. Defense counsel focused on self-defense and imperfect self-defense and the prosecutor focused on first degree murder, noting Moreno had time after the first confrontation to consider his actions and decide to shoot Tedford. The prosecutor emphasized that Moreno admitted he never saw a weapon in Tedford's possession and shot Tedford in the back, thereby precluding any finding of imminent danger required for self-defense. Thus, the distinction between subjective and objective provocation was not explored by either party at trial. (See People v. Young (2005) 34 Cal.4th 1149, 1202.)
In sum, on the record presented, there was no reasonable likelihood the jury erroneously believed only reasonable provocation could reduce first degree murder to second degree murder. Because we find no instructional error, we need not address Moreno's claim defense counsel rendered ineffective assistance of counsel in failing to request modification of CALCRIM No. 522.
2. Imposition of the firearm enhancement under Penal Code section 12022.53, subdivision (d) did not violate the multiple conviction rule or federal double jeopardy principles.
The trial court sentenced Moreno to 25 years to life for first degree murder and imposed a consecutive enhancement of 25 years to life for personally and intentionally discharging a firearm resulting in death. (Pen. Code, § 12022.53, subd. (d).) Moreno argues the firearm enhancement is necessarily included in the offense of first degree murder. He concludes imposition of the firearm enhancement violates the prohibition against multiple convictions set forth in People v. Ortega (1998) 19 Cal.4th 686, 692-694, overruled on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229, and People v. Pearson (1986) 42 Cal.3d 351, 355, 359-360, overruled on other grounds in People v. Fields (1996) 13 Cal.4th 289, 308, fn. 6, as well as the federal prohibition against double jeopardy.
Moreno concedes this claim has been rejected by the California Supreme Court. (People v. Izaguirre (2007) 42 Cal.4th 126, 130-131; People v. Sloan (2007) 42 Cal.4th 110, 115-123.) We are bound by those decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Moreno additionally contends the murder conviction and the true finding on the firearm enhancement under Penal Code section 12022.53, subdivision (d), violates constitutional double jeopardy principles which Moreno asserts should be applied where multiple punishment arises from a single prosecution. Moreno concedes United States Supreme Court precedent requires a contrary result. (Hudson v. United States (1997) 522 U.S. 93, 99 ; Missouri v. Hunter (1983) 459 U.S. 359, 368 .) However, Moreno contends the decisions of the United States Supreme Court in Sattazahn v. Pennsylvania (2003) 537 U.S. 101 and Apprendi v. New Jersey (2000) 530 U.S. 466 compel a reassessment of Hudson v. United States and Missouri v. Hunter.
We are bound by the pronouncements of the United States Supreme Court (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455), and therefore reject Moreno's contention.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P.J. We concur:
CROSKEY, J.
KITCHING, J.