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People v. Pellegrin

California Court of Appeals, Second District, Third Division
Apr 16, 2009
No. B201488 (Cal. Ct. App. Apr. 16, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. VA048533, Robert J. Higa, Judge.

William D. Farber, 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, Assistant Attorney General, David Cook and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.


KLEIN, P. J.

Defendant and appellant, Gonzalo Ibarra Pellegrin, appeals from the judgment entered following his conviction, by jury trial, for attempted murder, shooting at an occupied motor vehicle, and brandishing a firearm at a person in a motor vehicle, with firearm use enhancements (Pen. Code, §§ 664/187, 246, 417.3, 12022.53). Pellegrin was sentenced to state prison for a term of 27 years.

The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), we find the evidence established the following.

1. Prosecution evidence.

On the night of April 10, 1998, Edward Stefun was driving on the 605 freeway. He was traveling about 65 miles an hour in the fast lane when the car in front of him slowed down. As Stefun slowed down in response, he saw defendant Pellegrin’s car coming up fast behind him. Pellegrin did not slow down. Instead, he passed Stefun on the right and then swerved back into the fast lane directly in front of Stefun’s car, forcing Stefun to jam on his brakes to avoid a collision.

Stefun got mad. After moving over one lane and pulling up even with Pellegrin, Stefun rolled his window down, swore at Pellegrin and flipped him off. Pellegrin raised his right arm and pointed a black, semiautomatic handgun at Stefun. Stefun thought Pellegrin was just trying to scare him. He slowed down so he could see Pellegrin’s license number and write it down.

Pellegrin moved all the way over to the slow lane. He looked back at Stefun over his left shoulder and pointed the gun at him. Then Pellegrin fired. The bullet hit Stefun’s car “just in between the windshield where he was lined up with me and the corner of the car.” Then Pellegrin fired another shot. Stefun drove over to the slow lane and then onto the shoulder of the freeway, trying to get out of Pellegrin’s line of fire. Pellegrin took an off-ramp to the 105 freeway. This ramp went up and over the 605 freeway. Leaning out the window of his car, Pellegrin pointed the gun down toward the 605 freeway and Stefun heard more shots.

Sergeant Sid Belk of the CHP examined Stefun’s car. He found a bullet that had gone through the right front fender behind the right wheel. The bullet came from a small caliber handgun. Stefun subsequently picked Pellegrin out of a photo array. Belk obtained a search warrant for the address listed on Pellegrin’s car registration, but could not find him. Eight years later, Pellegrin was apprehended by the United States Border Patrol trying to enter illegally the country.

2. Defense evidence.

It was stipulated that a police officer would testify Stefun told him that Pellegrin had gotten out of his car to do the shooting.

CONTENTION

The trial court should have instructed the jury, sua sponte, on attempted voluntary manslaughter as a lesser included offense.

DISCUSSION

No attempted voluntary manslaughter instruction was required.

Pellegrin contends the trial court erred by not instructing the jury, sua sponte, on attempted voluntary manslaughter as a lesser included offense of attempted murder. This claim is meritless.

1. Legal principles.

“When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense, and must allow the jury to return the lesser conviction, even if not requested to do so.” (People v. Webster (1991) 54 Cal.3d 411, 443.) In this context, “substantial evidence” is evidence from which reasonable jurors could conclude the lesser offense, but not the greater, had been committed. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Attempted voluntary manslaughter is a lesser included offense of attempted murder. (See People v. Fields (1996) 13 Cal.4th 289, 304.)

Heat-of-passion voluntary manslaughter has both objective and subjective elements. “ ‘ “[T]he fundamental... inquiry is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion – not necessarily fear and never, of course, the passion for revenge – to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” ’ ” (People v. Wickersham (1982) 32 Cal.3d 307, 326, disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186, 201.) “[T]he provocation which incites the killer to act in the heat of passion case must be caused by the victim or reasonably believed by the accused to have been engaged in by the decedent.... [T]he provocation must be such as to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]” (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411-1412.)

“[O]n appeal we employ a de novo standard of review and independently determine whether an instruction on the lesser included offense of voluntary manslaughter should have been given.” (People v. Manriquez (2005) 37 Cal.4th 547, 584.)

2. Discussion.

The Attorney General contends a lesser included offense instruction was unwarranted because both the subjective and the objective elements of heat-of-passion attempted voluntary manslaughter were missing. That is, the Attorney General argues there was insufficient evidence either that Pellegrin actually had been acting in the heat of passion, or that a reasonable person would have acted in the heat of passion in these circumstances. Because we find there was insufficient evidence of the objective element, we affirm Pellegrin’s conviction.

The Attorney General initially argues: “There is no evidence in the record... to show that appellant subjectively acted under the heat of passion. No witness was asked about, nor described, appellant’s demeanor. [Fn. omitted.] Mr. Stefun’s description of the crime was consistent with appellant being calm and collected.” At the same time, however, the Attorney General acknowledges both that Stefun testified Pellegrin had been swearing at him, and that the following exchange occurred: “Q. When you initially spoke to the first officer, what description did you give of the person [who shot at you]? [¶] A. Olive skin.... Dark hair. I specifically remember his look was just angry, and that stuck with me.” Although this evidence of Pellegrin’s subjective heat of passion might be characterized as thin, it was probably sufficient. (See People v. Oropeza (2007) 151 Cal.App.4th 73, 83 [in road rage shooting, evidence that defendant yelled abusive words and made obscene gestures showed he was acting in heat of passion].)

The same, however, cannot be said for the objective reasonableness of Pellegrin’s act of shooting at Stefun. It is well-established that some purported heat-of-passion provocations would not, as a matter of law, have caused a reasonable person to act out of passion rather than reasoned judgment. (See, e.g., People v. Pride (1992) 3 Cal.4th 195, 250 [criticism of work performance received three days earlier was “insufficient as a matter of law to arouse feelings of homicidal rage or passion in an ordinarily reasonable person”]; People v. Breverman, supra, 19 Cal.4th at p. 164, fn. 11 [mere vandalism to automobile is never sufficient provocation to warrant lesser included offense instruction on voluntary manslaughter].) “Although the provocative conduct may be verbal,... such provocation ‘must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment.’ ” (People v. Manriquez, supra, 37 Cal.4th at pp. 585-586.) Manriquez held this standard had not been met where the evidence showed the victim “called defendant a ‘mother fucker’ and... also taunted defendant, repeatedly asserting that if defendant had a weapon, he should take it out and use it. Such declarations... plainly were insufficient to cause an average person to become so inflamed as to lose reason and judgment.” (Id. at p. 586.)

In People v. Najera (2006) 138 Cal.App.4th 212, the victim called the defendant a “ ‘jota’ (translated as ‘faggot’)” and pushed him to the ground. (Id. at p. 216.) Citing Manriquez, the Court of Appeal concluded the “taunt would not drive any ordinary person to act rashly or without due deliberation and reflection,” (id. at p. 226) and that the physical attack did not make any difference: “Calling Najera a ‘jota’ and pushing him are not sufficiently provocative under an objective standard to cause an ordinary person of average disposition to act rashly or without due deliberation.” (Id. at p. 226, fn. 2.)

People v. Oropeza, supra, (2007) 151 Cal.App.4th 73, was a case very much like the case at bar. While driving on a highway, the occupants of a Ford truck thought they had been cut off by the victims’ vehicle. After some mutual “yelling and an exchange of offensive hand gestures,” a passenger in the Ford shot at the victims’ vehicle, wounding the driver and killing a passenger. (Id. at p. 76.) The Court of Appeal held this did not constitute adequate provocation. Even if the victims’ vehicle intentionally had cut off the Ford, and even if a reasonable person might have reacted angrily to that, a reasonable person would not have ended up shooting at the occupants of the offending car. (See also People v. Lucas (1997) 55 Cal.App.4th 721, 739-740 [in road rage shooting case, evidence that victim had been smirking at defendant, giving him hard looks and yelling out names did not establish adequate provocation].)

Pellegrin tries to distinguish the result in this case by asserting: “Absent sufficient provocation personally directed at the shooter, the Oropeza court thus ruled that the trial court acted properly in not instructing the jury concerning voluntary manslaughter based on heat of passion.” (Italics added.) This is simply a misreading of the Court of Appeal’s opinion, which does not suggest the result would have been different had the gunman been the Ford’s driver, rather than Oropeza. As the Court of Appeal said: “While an ordinarily reasonable person might be angered by the act, such a person would not pursue or encourage the driver of a vehicle in which he or she was a passenger to follow the offending vehicle at a high rate of speed and engage in highly aggressive driving and abusive personal behavior.” (People v. Oropeza, supra, 151 Cal.App.4th at p. 83, italics added.)

The evidence plainly establishes that a reasonable person in Pellegrin’s position would not have reacted to Stefun’s angry display by shooting at him. Despite his assertions, Pellegrin points to no evidence showing Stefun’s driving posed a physical threat to him. Whether justified or not, Stefun got enraged at Pellegrin’s driving, but Stefun did no more than use obscene words and gestures. The trial court did not err by failing to instruct the jury on attempted voluntary manslaughter.

DISPOSITION

The judgment is affirmed.

We concur: KITCHING, J., ALDRICH, J.


Summaries of

People v. Pellegrin

California Court of Appeals, Second District, Third Division
Apr 16, 2009
No. B201488 (Cal. Ct. App. Apr. 16, 2009)
Case details for

People v. Pellegrin

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GONZALO IBARRA PELLEGRIN…

Court:California Court of Appeals, Second District, Third Division

Date published: Apr 16, 2009

Citations

No. B201488 (Cal. Ct. App. Apr. 16, 2009)