Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA085701, Brian F. Gasdia, Judge.
Carlo Andreani, 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, Senior Assistant Attorney General, Margaret E. Maxwell and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Gerardo Perez appeals from the judgment entered following his conviction by a jury on one count of attempted willful, deliberate and premeditated murder and one count of first degree robbery with special findings he had personally and intentionally discharged a firearm causing great bodily injury in the commission of both offenses. (Pen. Code, § 12022.53, subd. (d)). Perez contends the trial court committed prejudicial error in instructing the jury pursuant to a modified version of CALJIC No. 2.15 that his possession of recently stolen property permitted an inference he was guilty of attempted murder and pursuant to CALJIC No. 2.50 that evidence of uncharged crimes may be considered for the purpose of determining if he possessed the intent necessary to be guilty of attempted murder. We affirm.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Perez was charged in a second amended information with the attempted willful, deliberate and premeditated murder of Anthony Rojas (also known as Anthony Cedeño). (§§ 664, subd. (a), 187, subd. (a), 189.) The information also charged Perez with first degree robbery of an inhabited dwelling place (§§ 211, 212.5, subd. (a)) and specially alleged firearm use enhancements as to both offenses, including the allegation Perez had personally and intentionally discharged a firearm causing Rojas great bodily injury. (§§ 12022, subd. (a)(1), 12022.53, subds. (b), (c) & (d).)
On appeal, as in the trial court, Perez concedes that, together with Luis Renteria, he robbed Rojas in his home, pointed a gun at Rojas’s head and pulled the trigger and, following a misfire, shot Rojas twice in the face causing him to suffer great bodily injury. Perez’s defense at trial was, although he had robbed and shot Rojas, he did not intend to kill him. In closing argument Perez’s counsel explained the defense theory, “The intent to shoot someone is not always an intent to murder. It may be a desire to inflict pain, to inflict punishment, to inflict hurt, and sometimes, of course, it’s a reaction against what one may perceive is about to be an attack on you.”
In closing argument Perez’s counsel told the jury, “I’m throwing away the robbery. That’s a given. That man was robbed. He was robbed. Don’t even spend time on it. Vote guilty, guilty, guilty.”
According to Perez’s counsel, “There was a lot of threats. There was a lot of yelling. There was pushing this gun up to his head, but there was no killing. There was a lot of anger being expressed. A lot of passion being expressed. Anger, hopped up, increased by the drugs.”
As Perez suggests, the evidence of his intent to kill Rojas, an element of the crime of attempted willful, deliberate and premeditated murder, was to some extent circumstantial. In the summer of 2004 Rojas, who had previously been convicted for transporting or selling narcotics, began to engage in identity theft using illegally obtained personal and financial information of various individuals (referred to as “profiles”). On at least one occasion Perez provided profiles to Rojas.
On October 19, 2004 Perez, who had been smoking methamphetamine for the entire day, and Renteria left a hotel room in Azusa with Rebecca Garcia and drove to Rojas’s Whittier apartment. Garcia was told Perez and Renteria intended to “handle business” with Rojas, which Garcia understood to refer to Rojas’s use of profiles in an illegal money-making scheme. Garcia had accompanied Perez and Renteria to Rojas’s apartment on a prior occasion when they had business to conduct with Rojas relating to the profiles; on a different occasion Garcia heard Perez tell Renteria he was going to shoot Rojas if Rojas did not return to Perez the profiles Perez had provided.
When they arrived at Rojas’s building, Renteria parked the car, but left the keys in the ignition. Perez instructed Garcia to remain in the car and told her she would be driving when they left. Garcia noticed Perez had a gun in his waistband as he walked toward the stairs leading to Rojas’s apartment.
According to Rojas’s testimony at trial, he and Perez talked for approximately one-half hour near Rojas’s desk in the living room when Perez complained about the profiles he had sold to Rojas and demanded their return. The men apparently argued about the quality of the information Perez had provided. Perez then joined Renteria in the kitchen, where the two men spoke to each other for approximately 10 minutes. When Perez returned, he asked Rojas if he had any dope. Rojas said he did, and he and Perez smoked a small amount of methamphetamine. After they finished, Perez once again went to the kitchen to speak to Renteria.
Upon reentering the living room, Perez again insisted Rojas return the profiles he had provided; and there was a continuation of the earlier heated discussion about the quality of the information. Perez then repeatedly demanded money from Rojas, who said he had none. Perez pulled the gun from his waistband and pointed it at Rojas’s face. When Rojas told Perez to stop playing, Perez responded, “Man, I’m going to shoot your ass. I’m not playing. I’m going to shoot you.” Perez told Rojas to get on the floor; Rojas complied and lay face down on the floor. Perez then spewed ethnic slurs at Rojas, jammed the gun into Rojas’s temple and twisted it, saying, “I want to kill you, you fucking Puerto Rican piece of shit.” Perez told Renteria to pull cords from Rojas’s computer to tie him up. Shortly thereafter, Perez gave Renteria the gun and tied up Rojas himself. Renteria gagged Rojas with socks he found on the floor.
At this point Perez and Renteria began to search Rojas’s apartment for valuables, cutting open his sofa and otherwise tearing up his living space. For approximately the next hour Perez sat with the gun pointed at Rojas’s head, occasionally jabbing the barrel at his head and saying he was going to “blow [Rojas’s] brains out” while Renteria filled a duffel bag and pillow cases with Rojas’s personal belongings, including jewelry, several leather jackets, a large radio, a gun and Rojas’s wallet. At one point, Perez stabbed Rojas in the leg with a knife.
After gathering Rojas’s valuables, Perez and Renteria went into the kitchen. Rojas heard Renteria tell Perez, “[Y]ou know [Rojas is] going to kill our asses if he makes it out of this, and we have to -- you know we have to kill him.” Shortly thereafter, Perez and Renteria started taking Rojas’s belongings to Renteria’s car. Perez told Rojas he would be back. After their second trip, Renteria remained at the car while Perez, after tying a bandana around his face, went back to Rojas, pulled out the gun, pointed it at Rojas and pulled the trigger. The gun misfired. By the time Perez cleared the misfired bullet, Rojas had partially freed himself and leaped toward the sofa to give himself cover. As he did so, Perez fired again, hitting Rojas twice in the face. Perez then fled down the stairs. At the sound of the gunshots, Renteria got into the front passenger seat; Perez returned to the car and told Garcia to go. Perez said he had just shot Rojas in the neck and repeatedly apologized to Garcia.
One bullet struck Rojas’s nose, broke two teeth and exited his cheek. The second entered his nose, broke the cartilage and remained lodged in his face between his gum and his lip. Part of Rojas’s face had to be reconstructed using a titanium plate.
Rojas eventually reached his cordless telephone and called the police emergency number. Whittier police officers stopped Renteria’s car several days later. Perez and Garcia were in the car with Renteria. The police found in the trunk a canvas bag containing the clothing Perez had worn the night of the shooting and a gun. Ballistics analysis matched the weapon recovered from the bag in the trunk with a live (misfired) cartridge and a cartridge casing found in Rojas’s apartment.
Perez did not testify. The only evidence offered in his defense was the testimony from the arresting officer that at the time of his arrest Perez was shaky, cold and had watery eyes. Perez told the detective he had used methamphetamine for three days straight and his physical symptoms were caused by coming off a high.
The jury found Perez guilty of both attempted willful, deliberate and premeditated murder and first degree robbery and found true the special allegations Perez had personally and intentionally discharged a firearm causing great bodily injury in the commission of both offenses. The trial court sentenced Perez to an indeterminate term of life in prison for attempted murder plus a consecutive 25-years-to-life sentence for personally using a firearm causing great bodily injury. An upper term sentence of six years for first degree robbery, plus a consecutive 25-years-to-life sentence for the related firearm-use enhancement, was imposed and stayed pursuant to section 654.
The jury also returned true findings on the special allegations a principal was armed with a firearm in the commission of each offense, Perez personally used a firearm in the commission of the offenses and Perez personally and intentionally discharged a firearm in the commission of the offenses.
DISCUSSION
As framed by Perez’s trial counsel, the only disputed issue for the jury to resolve was whether, when Perez intentionally shot Rojas during the robbery, he had a specific intent to kill, rather than merely to frighten or hurt, Rojas. On appeal Perez argues two of the trial court’s instructions, CALJIC Nos. 2.15 and 2.50, as modified, regarding attempted murder were prejudicially erroneous.
1. The Trial Court’s General Instructions Regarding Attempted Murder, Specific Intent and Premeditation
The trial court properly instructed the jury that, to prove Perez had committed attempted murder, the People had to prove both, “1. A direct but ineffectual act was done by one person towards killing another human being; and [¶] 2. The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.” (CALJIC No. 8.66.) The court further instructed, if the jury found Perez guilty of attempted murder, it must also determine whether the crime attempted was willful, deliberate and premeditated murder. “‘Willful’ means intentional. ‘Deliberate’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. ‘Premeditated’ means considered beforehand. [¶] If you find that the attempted murder was preceded and accompanied by a clear, deliberate intent to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is attempt to commit willful, deliberate, and premeditated murder. [¶] . . . [¶] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.” (CALJIC No. 8.67.)
The court also instructed, pursuant to CALJIC No. 4.21, “[I]f the evidence shows that the defendant was intoxicated [including from voluntary ingestion of drugs] at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required specific intent.”
2. The Trial Court’s Erroneous Instruction Regarding The Inference That May Be Drawn from Possession of Recently Stolen Property Did Not Prejudice Perez
When instructing the jury with CALJIC No. 2.15 regarding the permissible inference that may be drawn from the possession of recently stolen property, the trial court failed to limit any inference to the theft-related charge: “If you find that a defendant was in conscious possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant Gerardo Perez is guilty of the crime of attempted murder or robbery. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant’s guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant in inference of guilt. [¶] As corroboration, you may consider the attributes of possession -- time, place and manner, that the defendant had an opportunity to commit the crime charged and any other evidence which tends to connect the defendant with the crime charged.”
Including the crime of attempted murder in this instruction was error. (People v. Prieto (2003) 30 Cal.4th 226, 248 [“the trial court’s application of CALJIC No. 2.15 to nontheft offenses like rape or murder was improper”]; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 101 [same]; People v. Barker (2001) 91 Cal.App.4th 1166, 1177 [use of instruction properly limited to theft and theft-related crimes]; see Comment Note to CALJIC No. 2.15 (Spring 2007 ed.) p. 46.) Proof that Perez was in conscious possession of recently stolen property does not lead naturally and logically to the conclusion he had committed attempted murder in connection with the robbery. (Prieto, at p. 249; Barker, at pp. 1175-1176.) However, as was true in Prieto, this error was not prejudicial because there is no reasonable likelihood the jury would have reached a different result if the court had limited the permissive inference described in CALJIC No. 2.15 to the robbery charged in count 2 of the information. (Prieto, at p. 249 [applying People v. Watson (1956) 46 Cal.2d 818, 836, standard to evaluate prejudice resulting from instructional error involving CALJIC No. 2.15]; accord, Coffman and Marlow, at p. 101.)
Although Perez’s trial counsel did not object to the giving of CALJIC No. 2.15 as modified by the court, this issue is properly considered on appeal. (People v. Barker, supra, 91 Cal.App.4th at p. 1173; see § 1259 [appellate court may review any instruction given, refused or modified, even though no objection was made, if it affects the defendant’s substantial rights].)
The evidence of Perez’s guilt was overwhelming. (See People v. Coffman and Marlow, supra, 34 Cal.4th at p. 101.) The manner in which Perez committed the offense is itself powerful evidence of his intent to kill Rojas: After two trips downstairs to put Rojas’s property in Renteria’s car, Perez returned to the apartment; put a bandana over his face, apparently to hide his identity from neighbors who might witness the new attack; and then attempted to shoot Rojas, who was still bound and lying on the floor. After the gun misfired and while Rojas was attempting to escape to cover, Perez shot him twice in the face. “[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant’s acts and the circumstances of the crime. . . . ‘The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . .”’” (People v. Smith (2005) 37 Cal.4th 733, 741.) Moreover, Rojas testified that Perez had said while pointing the gun at him, “I want to kill you” and later that he was going to “blow [his] brains out.” In addition, Rojas heard Renteria tell Perez they needed to kill Rojas to protect themselves. Finally, Garcia testified several weeks prior to the incident she had heard Perez tell Renteria he was going to shoot Rojas if Rojas did not return the profiles Perez had provided.
Considering this evidence, the jury not only found Perez guilty of attempted murder but also determined, after being properly instructed regarding premeditation, he had committed attempted willful, deliberate and premeditated murder. Quite apart from the overwhelming evidence of Perez’s guilt, that special finding precludes the possibility he was convicted of attempted murder simply because he was in conscious possession of recently stolen property.
3. The Trial Court Did Not Err in Instructing the Jury Concerning the Permissible Limited Use of Evidence of Uncharged Crimes
Evidence of Perez’s ongoing use of methamphetamine and his involvement in identify theft by providing profiles to Rojas was introduced at trial without objection and without any request by Perez’s counsel for a limiting instruction. Nonetheless, the trial court sua sponte instructed the jury, pursuant to CALJIC No. 2.50, the evidence of Perez’s uncharged criminal conduct could not be used to prove he is a person of bad character or had a disposition to commit crimes and could only be considered for specified limited purposes to the extent the evidence tended to show one of those limited purposes.
In general, the trial court is under no duty to instruct sua sponte on the limited admissibility and use of evidence of past criminal conduct. (People v. Milner (1988) 45 Cal.3d 227, 251-252; People v. Hawkins (1995) 10 Cal.4th 920, 942, disapproved on another ground in People v. Blakely (2000) 23 Cal.4th 82, 89.)
As given by the trial court, CALJIC No. 2.50 provides, “Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial. [¶] This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show: [¶] A characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show the existence of the intent which is a necessary element of the crime charged or the identity of the person who committed the crime, if any, of which the defendant is accused or a clear connection between the other offense and the one of which the defendant is accused so that it may be inferred that if defendant committed the other offenses defendant also committed the crimes charged in this case; [¶] The existence of the intent which is a necessary element of the crime charged; [¶] The identity of the person who committed the crime, if any, of which the defendant is accused; [¶] A motive for the commission of the crime charged; [¶] The defendant had knowledge of the nature of things found in his possession; [¶] The defendant had knowledge or possessed the means that might have been useful or necessary for the commission of the crime charged. [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. [¶] You are not permitted to consider such evidence for any other purpose.”
Perez contends this instruction failed to limit the jury’s consideration of the evidence of uncharged crimes to the precise issues to which it related (knowledge and motive to rob Rojas) and improperly authorized the jury to infer he intended to kill Rojas, a necessary element of attempted murder, from the evidence of his other criminal acts. Relying on language in People v. Nottingham (1985) 172 Cal.App.3d 484, 497, and People v. Key (1984) 153 Cal.App.3d 888, 899, Perez argues, even if a sua sponte limiting instruction is not required, “when a trial court does undertake to give a limiting instruction specifically calling attention to the significance of the substantially prejudicial evidence of prior bad acts, it should do so accurately.” (Nottingham, at p. 497.) However, in Nottingham, as in Key, the evidence of the defendant’s other crimes had been expressly admitted only for limited purposes -- intent and identity in Nottingham (Nottingham, at p. 496) and the victim’s credibility on the rape counts in Key (Key, at p. 898). Yet the trial court’s instructions in each case permitted the jury to consider the evidence for additional, unauthorized purposes. Expanding the scope of the permissible use of the evidence constituted the instructional error. (See Nottingham, at p. 497; Key, at p. 899.)
In the case at bar, in contrast, no objection of any sort was made to the testimony regarding Perez’s other criminal activity; and its admission into evidence was entirely unrestricted until the court instructed the jury it could only be considered for certain limited purposes and could not be considered to prove Perez was a person of bad character or had a disposition to commit crimes. Accordingly, the argument the trial court failed to accurately call attention to the purported limited significance of the other crimes evidence simply misses the mark.
The suggestion the evidence was properly considered only to prove Perez’s knowledge and motive with respect to the robbery charge is made by Perez for the first time on appeal.
In addition, we do not agree there is a “reasonable likelihood” the jury understood the court’s limiting instruction, viewed in context with the other instructions, as permitting an inference Perez harbored an intent to kill Rojas simply because he was a methamphetamine user and had engaged in acts related to identify theft. (See People v. Harrison (2005) 35 Cal.4th 208, 252 [defendant’s argument that jury was confused by court’s instruction rejected when there was “no reasonable likelihood the jury was confused and misconstrued or misapplied the instruction”]; People v. Osband (1996) 13 Cal.4th 622, 679 [appellate court reviews claim of ambiguity in instruction by determining whether, in light of all the instructions given, “‘there is a reasonable likelihood that the jury construed or applied the challenged instruction[s] in an objectionable fashion’”]; People v. Cain (1995) 10 Cal.4th 1, 36 [jury instructions reviewed as whole to determine if there is reasonable likelihood jury understood the instructions to permit conviction on improper basis].)
As relevant to Perez’s claim on appeal, the instruction advised the jury evidence of Perez’s past criminal conduct “may be considered by you only for the limited purpose of determining if it tends to show . . . the existence of the intent which is a necessary element of the crime charged.” The jury was also instructed, “The purpose of the court’s instructions is to provide you with the applicable law so that you may arrive at just and lawful verdicts. Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given I am expressing an opinion as to the facts.” (CALJIC No. 17.31.) As Perez himself asserts, his continuing methamphetamine use and participation with Rojas in an identify theft scheme were entirely dissimilar crimes from the armed robbery and attempted murder charged in the information; and neither was in any way relevant to the contested issue of intent to commit murder. We, of course, must presume the jury understood and followed not only the scope of the limiting instruction (which cautioned against improper use of the evidence of prior criminal conduct) but also the court’s direction not to make permissive inferences if the factual foundation for those inferences was lacking. (People v. Yeoman (2003) 31 Cal.4th 93, 139 [“we and others have described the presumption that jurors understand and follow instructions as ‘[t]he crucial assumption underlying our constitutional system of trial by jury’”].)
In any event, any error in the instruction regarding the limited use of evidence of Perez’s uncharged crimes on the issue of intent was harmless. As discussed, the evidence of Perez’s guilt was great; and the jury convicted him not simply of attempted murder but attempted willful, deliberate and premeditated murder. On this record it is not reasonably probable a more favorable result would have been obtained by Perez had the instruction not included the challenged language. (See People v. Mower (2002) 28 Cal.4th 457, 484 [if trial court’s instructional error violates California law, appellate court applies harmless error standard stated in People v. Watson, supra, 46 Cal.2d 818, 836]; People v. Wilson (2005) 36 Cal.4th 309, 329 [no reasonable likelihood jury considered defendant’s prior grand theft conviction or marijuana use for improper purpose].)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.