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People v. Peralez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Feb 16, 2012
E053297 (Cal. Ct. App. Feb. 16, 2012)

Opinion

E053297

02-16-2012

THE PEOPLE, Plaintiff and Respondent, v. ROBERT PERALEZ, Defendant and Appellant.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. RIF147366)


OPINION

APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge. Affirmed as modified.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

A jury found defendant and appellant Robert Peralez guilty of one count of attempted premeditated murder (Pen. Code, §§ 664, 187, subd. (a), count 1); one count of assault with a firearm (§ 245, subd. (a)(2), count 3); and one count of felon in possession of a firearm (§ 12021, subd. (a)(1), count 5). The jury also found true that in the commission of count 1, defendant personally and intentionally discharged a firearm proximately causing great bodily injury to another person, not an accomplice (§ 12022.53, subd. (d)) and that defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). Additionally, the jury found true that in the commission of count 3, defendant personally used a shotgun. (§ 12022.5, subd. (a).)

All further statutory references are to the Penal Code unless otherwise indicated.

The jury found defendant not guilty of a second count of attempted premeditated murder (count 2) and a second count of assault with a firearm (count 4).

In a bifurcated proceeding, the trial court found true that defendant had sustained three prior prison terms (§ 667.5, subd. (b)), two prior serious felony convictions (§ 667, subd. (a)), and two prior serious and violent felony convictions (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)). As a result, defendant was sentenced to a total term of 67 years to life with credit for time served. Defendant appeals from the judgment. As explained below, we find that the trial court's minute order of its sentencing hearing and the abstract of judgment must be corrected. In all other respects, we find no error and affirm the judgment.

FACTUAL BACKGROUND

On December 7, 2008, Nancy Lopez hosted a birthday party at her home for a coworker. About 30 coworkers and friends attended the invite-only party; Lopez's neighbors had not been invited.

Prior to midnight, several uninvited teenagers attempted to get into the party twice and were asked to leave each time. Some of the uninvited group returned a third time with a taller, older male. Lopez noticed that that male had a mustache, a tattoo around his neck and facial area, and was wearing a hat and long, dark-colored shorts and a dark shirt or sweatshirt.

When the uninvited group was again asked to leave, an argument ensued between Lopez's friends and the uninvited guests, including the taller, older male. At some point, the argument escalated to physical fighting in the front yard and a gun being fired. Before the physical altercation, Lopez saw the taller, older male with his hands behind his back, believing he had a gun.

One of Lopez's guests, Daniel Hetman, had gotten into a physical fight with one of the uninvited males. Hetman was wrestling with this individual when the initial gunshot went off. Hetman briefly fainted and later discovered that he had been shot in the shoulder. Hetman testified that the man he had been wrestling with wore a black and white Hurley hat.

After the first shot was fired, the group of uninvited guests ran off toward a brick wall while some of the party guests chased after them. One of Lopez's guests, Juan Palomina Villa, chased a tall man wearing dark clothing. Once the uninvited guests were over the brick wall, one of them came up from behind the wall and fired a shotgun. Villa recalled that as he was about to turn around to go back to Lopez's house, he heard the sound of a shotgun being pumped, and he saw a person over the wall pointing something at him. Villa then heard a blast and realized he had been shot. Villa was shot in his midsection, resulting in a puncture of his internal organs and hospitalization for four days. Villa could not identify the shooter at the time of the incident or at the time of trial.

When police responded, one of Lopez's neighbors showed the police where the uninvited guests had run off to. After the police obtained consent to search the house, they found several young adult or teenaged males sleeping in an upstairs bedroom and defendant in the master bedroom clothed only in boxer shorts. The police brought six males out of the home for an in-field lineup. Lopez's friend, Jennifer Jordan, informed the police that after the subjects jumped the wall, she saw a Hispanic male in a dark sweatshirt, dark pants, with a black and white Hurley hat, lean back over the wall with a shotgun and fire one shot. Jordan identified defendant as the shooter. Lopez also recognized defendant as the older male with a mustache, tattoo, and wearing the long shorts and dark hat.

In the backyard of the home, police found dark clothing on a table and a Hurley hat. The parties stipulated that DNA from the Hurley hat matched defendant's DNA profile. The following day, the police found three rifle cases, several shotguns, and a rifle in the attic space above the master bedroom area.

At trial, defendant acknowledged that the Hurley hat belonged to him and that he was wearing it at the time of the incident.

Defendant's stepson's friend, Julio Botello, told an officer that he, along with defendant's stepson and several other young males, decided to crash the party at Lopez's home. Once there, they were told to leave. They returned and an argument ensued. After the argument, they ran back and jumped a wall into defendant's backyard as they were being chased by the partygoers. Botello also stated that he had seen defendant in the backyard with a gun case, but he did not see a gun, and that he saw defendant wearing a Hurley hat. Botello further told the officer that he had heard two gunshots after returning to defendant's house.

At trial, Botello did not recall telling the police that he had seen defendant standing by the wall holding a gun case and claimed the police report was inaccurate.

Defendant's stepson, Benny Garcia, testified that defendant did not live at the house but had been over to watch a boxing event with family and friends. He acknowledged that he and his friends tried to get into Lopez's party but denied defendant came with them. Garcia further stated that a fight ensued between his group and some of the party guests with one of the partygoers throwing a bottle or can at them. He and his friends ran off when the first gunshot was heard. Garcia denied being armed with a firearm before going to the party the second time, and claimed that the guns were brought to his house by his cousins so they could go hunting the next day.

Defendant testified on his own behalf. He admitted that he had fired a shotgun from the wall but claimed to do so when he saw Villa pointing a gun at him after the young men had been chased away from the party. He explained that he and his cousin had gone to the party to get Garcia and his friends to come back home, not fight, when he saw a group forming around the young men and someone throwing a bottle at them. He tried to protect Garcia when he heard a gunshot fired. He also noted that he saw a muzzle flash from a gun and someone pointing a gun at them as they ran.

Defendant also explained that after he jumped over the fence, he ran back into the house, grabbed a shotgun from the downstairs closet, and came back out. He fired the shotgun once when he saw Villa pointing a gun at him. He claimed that he was scared for his life and did not intend to kill anyone; he merely wanted to scare them away. Defendant believed that Villa gave his gun to a friend as the partygoers dispersed after the shooting. He also explained that he was scared to call the police and hid the guns in the attic.

Defendant told the police that on the night of the incident he watched a boxing event, drank heavily, could not remember much, and was unaware of the shooting.

Defendant further claimed that he did not live at the house, since he and his wife were separated, but that he had been invited over to watch a boxing event. He also acknowledged that he was not supposed to possess guns and claimed the guns were at the house so Garcia could go hunting with his cousins.

Defendant's cousin testified that he had planned on going hunting the following day with his son and Garcia, and that he had brought the guns and ammunition to the house and placed them in the hall closet. He acknowledged that he went with defendant to the party to get their boys; that an argument ensued; and that he heard a gunshot. After hearing the gunshot, they took off running as they were being chased by the partygoers. He was fearful for his life and believed that someone was shooting at him. He, however, conceded that he did not see someone shooting at him.

DISCUSSION

After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, which this court has reviewed. In his five-page handwritten supplemental brief, defendant appears to make numerous general arguments: (1) insufficient evidence to support his conviction for attempted premeditated murder and the enhancements attached to that count; (2) ineffective assistance of counsel for failing to file a motion to strike his prior strike convictions, for declining an instruction on the lesser included offense of attempted voluntary manslaughter, for failing to raise the intoxication and diminished capacity defenses, and for allowing him to testify; (3) the trial court's failure to instruct that defendant is presumed to be innocent until proven guilty; (4) the trial court's failure to instruct on all theories of a lesser included offense; and (5) sentencing him to 25 years to life for the attempted premeditated murder.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.

A. Insufficient Evidence

As to defendant's first contention, we note that when determining whether the evidence was sufficient to sustain a conviction, "our role on appeal is a limited one." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We must examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which the jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence meaning, evidence that is reasonable, credible, and of solid value must support each essential element of an offense. (Id. at pp. 577-578.) If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 326.)

In determining whether substantial evidence exists, "we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses." (People v. Cortes (1999) 71 Cal.App.4th 62, 71.) "Although it is the duty of the [trier of fact] 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 [trier of fact], not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment."' [Citations.]" (People v. Bean (1988) 46 Cal.3d 919, 932-933.) The standard of review applies even "when the conviction rests primarily on circumstantial evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

Attempted murder requires express malice and, on appeal, we do not distinguish between attempted murder and completed first degree murder to determine whether there is sufficient evidence to support the finding of premeditation and deliberation. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8.) Malice is express when "there is manifested a deliberate intention unlawfully" to kill a person. (§ 188.) Murder perpetrated by a "willful, deliberate, and premeditated killing" is murder in the first degree. (§ 189; see also People v. Cole (2004) 33 Cal.4th 1158, 1224.) "'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ." [Citations.]' [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) There are three basic, but not exhaustive, categories of evidence that will sustain a finding of premeditation and deliberation: (1) planning activity; (2) motive; and (3) manner of the killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) All of these factors need not be present to sustain a finding of premeditation and deliberation. (People v. Pride (1992) 3 Cal.4th 195, 247.)

Here, defendant's planning activity, motive, and the manner in which Villa was shot provide sufficient evidence of premeditation and deliberation. Defendant shot Villa with a shotgun as Villa was about to head back to Lopez's house. Defendant admitted to having retrieved a shotgun from a hall closet after jumping the wall and shooting at Villa with it once. Although defendant claimed to have shot Villa in self-defense or defense of others, the jury necessarily rejected that defense. As previously noted, we may not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Cortes, supra, 71 Cal.App.4th at p. 71.)

Ample evidence also supports a finding that in the commission of the attempted premeditated murder, defendant personally and intentionally discharged a firearm that proximately caused great bodily injury (§ 12022.53, subd. (d)) and that defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). A proximate cause of great bodily injury "'is an act . . . that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act . . . the great bodily injury . . . and without which the great bodily injury . . . would not have occurred.'" (People v. Bland (2002) 28 Cal.4th 313, 335.) Here, defendant's intentional shooting proximately caused Villa's great bodily injury. Villa was shot in his midsection, resulting in a puncture of his internal organs and hospitalization for four days.

B. Ineffective Assistance of Counsel

Defendant also argues that he received ineffective assistance of counsel for numerous reasons: (1) failing to file a motion to strike his prior strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero); (2) failing to be responsive to a call from the probation officer; (3) failing to allow an instruction on the lesser included offense of attempted voluntary manslaughter; (4) failing to raise intoxication and diminished capacity as defenses; (5) for allowing defendant to testify at trial; and (6) failing to impeach the witnesses' credibility with their inconsistent statements.

In order to establish a claim of ineffective assistance of counsel, defendant must demonstrate "(1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.] A 'reasonable probability' is one that is enough to undermine confidence in the outcome. [Citations.]" (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing among other cases Strickland v. Washington (1984) 466 U.S. 668, 694.) Hence, an ineffective assistance of counsel claim has two components: deficient performance and prejudice. (Strickland v. Washington, at pp. 687-688, 693-694; People v. Williams (1997) 16 Cal.4th 153, 214-215.) If defendant fails to establish either component, his claim fails.

When a claim of ineffective assistance is made on direct appeal and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 426, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)

Defendant's purported claims of ineffective assistance of counsel are unmeritorious. First, the record plainly shows that counsel thoroughly cross-examined the People's witnesses with their prior statements in an attempt to impeach them. Second, the record is clear that counsel made a tactical decision in not allowing an instruction on the lesser included offense of attempted voluntary manslaughter, for failing to raise intoxication and diminished capacity as defenses, and for allowing defendant to testify at trial. In fact, defendant agreed with counsel's tactical decisions and was aware his defense was one of self-defense or defense of others. Therefore, counsel's decision in not allowing the attempted voluntary manslaughter instruction, failing to raise defendant's noted defenses, and allowing defendant to testify did not fall below an objective standard of reasonableness under prevailing professional norms.

Additionally, defendant himself filed a Romero motion to strike his prior conviction allegations, and a hearing was held on that motion. Furthermore, counsel explained that he was planning on making an oral Romero motion. The trial court denied that motion, finding defendant was within the scope of the three strikes law. Accordingly, even if counsel was deficient in failing to file a Romero motion, there is no reasonable probability that, but for counsel's purported failings, defendant would have received a more favorable result. (People v. Dennis, supra, 17 Cal.4th at pp. 540-541.) Finally, as to defendant's claim that counsel was deficient for failing to respond to a call from the probation officer, the record does not show the reason for counsel's challenged actions or omissions. The conviction must therefore be affirmed unless there could be no satisfactory explanation. (People v. Pope, supra, 23 Cal.3d at p. 426.) We cannot say that "there simply could be no satisfactory explanation" for counsel's failure to respond to a call from the probation officer. (Ibid.)

The probation report notes that "[a] voicemail message seeking his comments was left for [defense counsel]. There was no response."

Accordingly, we reject defendant's ineffective assistance of counsel claims.

C. Instructional Error and Sentencing Error

Defendant also alleges the trial court erred in failing to instruct that defendant is presumed to be innocent until proven guilty and failing to instruct on all theories of a lesser included offense. We reject these contentions. The record clearly shows that the trial court instructed the jury that "[a] defendant in a criminal case is presumed to be innocent." The record also shows that the trial court properly instructed the jury on all theories of defendant's defense.

Finally, defendant generally notes that the sentencing on count 1 for attempted premeditated murder was "illegal," without any argument in support of his claim. We find that defendant was properly sentenced pursuant to the three strikes law and section 12022.53, subdivision (d). As the trial court pointed out, defendant was sentenced under the three strikes law, "which has an entirely different sentencing scheme." Accordingly, under that sentencing scheme, defendant was properly sentenced to 32 years to life for the attempted murder, "plus an additional 25 years to life for the enhancement" under section 12022.53, subdivision (d).

We note that the trial court erroneously referred to section 12022.53, subdivision (c), when imposing the "additional 25 years to life for the enhancement." That subdivision provides, "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years." (Italics added.) Subdivision (d), provides for "an additional and consecutive term of imprisonment in the state prison for 25 years to life." (Italics added.)
Section 12022.53, subdivision (c), mandates a consecutive 20year enhancement for a qualifying felony conviction if the defendant "personally and intentionally discharges a firearm" and, thus, cannot serve as the authority for imposition of a 25yeartolife enhancement. The abstract of judgment correctly notes the 25yeartolife enhancement was pursuant to section 12022.53, subdivision (d).

However, we find that the trial court's minute order of the sentencing hearing and the abstract of judgment must be corrected. At sentencing, the trial court sentenced defendant to a total term of 67 years to life as follows: 32 years to life for the attempted murder (count 1), plus an additional 25 years to life for the use of a firearm causing great bodily injury (§ 12022.53, subd. (d)) enhancement, plus additional five-year terms for each of the two prior serious felony (§ 667, subd. (a)) enhancements; and a concurrent term of 25 years to life for felon in possession of a firearm (count 5). The trial court struck the three one-year prior prison term (§ 667.5, subd. (b)) enhancements pursuant to section 1385. As to count 3, assault with a firearm (§ 245, subd. (a)(2)), the trial court imposed a sentence of 25 years to life, but stayed it pursuant to section 654. The trial court did not orally pronounce a sentence on the personal use of a firearm (§ 12022.5, subd. (a)) enhancement attached to count 3. Nonetheless, the minute order of the sentencing hearing erroneously states twice, "Court orders Enhancement(s) B1 in Count 03 Stricken." The sentencing minute order also incorrectly notes, "Court orders Enhancement(s) B1 B3 in Count 01 Stricken."

Although the trial court did not orally pronounce a sentence on the firearm use enhancement attached to count 3, a remand is unnecessary under the circumstances of this case. Staying sentence on the count 3 substantive offense requires that sentence on the accompanying enhancement also be stayed. (People v. Cole (1985) 165 Cal.App.3d 41, 53; People v. Bracamonte (2003) 106 Cal.App.4th 704, 709 ["[w]here the base term of a sentenced is stayed under section 654, the attendant enhancements must also be stayed"], disapproved on another point in People v. Gonzalez (2008) 43 Cal.4th 1118, 1129-1130, fn. 8 [§ 12022.5, subd. (a), enhancement must be imposed and then stayed, rather than stricken].) We will modify the judgment accordingly.

DISPOSITION

The judgment is modified, as follows: The firearm use enhancement (§ 12022.5, subd. (a)) attached to count 3 is hereby stayed pursuant to section 654. The superior court clerk is directed to prepare an amended abstract of judgment and minute order of the sentencing hearing, as noted above, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

RICHLI

J.

MILLER

J.


Summaries of

People v. Peralez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Feb 16, 2012
E053297 (Cal. Ct. App. Feb. 16, 2012)
Case details for

People v. Peralez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT PERALEZ, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Feb 16, 2012

Citations

E053297 (Cal. Ct. App. Feb. 16, 2012)

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