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People v. Pinedo

California Court of Appeals, Second District, Seventh Division
Apr 22, 2009
No. B205678 (Cal. Ct. App. Apr. 22, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. MA033799 c/w MA036227, Charles A. Chung, Judge.

Jennifer Peabody, 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, Victoria B. Wilson and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.


JACKSON, J.

INTRODUCTION

Defendant James Edward Pinedo appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of attempted willful, deliberate, premeditated murder (Pen. Code, §§ 187, subd. (a), 664) in counts 1 and 4; and possession of a firearm by a felon (§ 12021, subd. (a)(1)) in counts 3 and 5. The jury also found true the allegations in counts 1 and 4 that defendant personally used a firearm and personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b)-(d)) and that he committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Defendant admitted that he suffered a prior serious or violent felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12) and prior convictions for which he served sentences in state prison (§ 667.5, subd. (b)). Following his conviction, the trial court sentenced defendant to 110 years to life in state prison.

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

Count 2, alleging first degree residential burglary, was stricken pursuant to section 1385.

On appeal, defendant challenges (1) the sufficiency of the evidence to sustain the convictions of attempted murder, (2) the failure of the trial court to instruct on the offense of attempted voluntary manslaughter, and (3) the trial court’s taking judicial notice of victim Lee Garay’s failure to appear. We find no error and affirm.

FACTS

A. Burkhart Shooting (Counts 4 and 5)

On October 28, 2005, at approximately 10:45 p.m., Mitchell Burkhart (Burkhart), his brother, and his friend Kevin were at a party at a residence in Lancaster. Prior to arriving at the party, Burkhart had been drinking tequila. While at the party, he had more tequila, a couple of beers, and smoked marijuana. He was “pretty drunk.” Burkhart and Kevin were outside the residence. Burkhart was talking on his cell phone to his ex-girlfriend. When he got off the phone, he and Kevin were approached by six men, three from the V.N.E. gang and three from the San Fernando gang. Burkhart recognized the men, one of whom was defendant, from a previous encounter with San Fernando. Burkhart saw defendant had a tattoo on the side and the back of his head. Burkhart knew defendant by the moniker “Lil’ One.”

Defendant asked Burkhart where he was from. Burkhart said, “C.F.K., Crazy Kings Familial.” Burkhart was not really a member and only said he was because he was drunk and was “trying to represent” his family’s neighborhood. Defendant said, “I never heard of them.” Defendant then said he was from V.N.E. He “snatched” Burkhart’s chain and called him a “bitch.”

Burkhart went to get his brother. When he returned, he saw defendant with a chrome gun and turned to run. He was shot from behind in his shoulder and lower right jaw. A bullet was still lodged in Burkhart’s mouth at the time of trial.

Burkhart was interviewed by Detective David Gunner on December 7, 2005. Burkhart told the detective he did not remember what happened and was not willing to testify. On August 29, 2006, Burkhart was in custody at Sylmar Juvenile Hall. Detective Gunner went to talk to Burkhart at that location and Burkhart agreed to cooperate with the investigation.

Burkhart was shown a photo six-pack and ultimately selected defendant’s photograph. He also identified defendant as the man who shot him.

B. Garay Shooting (Counts 1 and 3)

On November 20, 2005, at about 2:30 p.m., Jessica Larter (Larter) and defendant’s cousin, Steve Fernandez (Fernandez), were driving from a tattoo parlor in the vicinity of 13th Street and Avenue I. Fernandez saw defendant briefly. Defendant was wearing a black hooded sweatshirt, black pants and a backpack. Fernandez believed that defendant was a member of the V.N.E. gang and was known as “Little One.”

Defendant walked toward the back of Larter’s car. A man whom Larter and Fernandez did not recognize, Lee Garay (Garay), came up to defendant. Defendant and Garay talked in what appeared to be a friendly manner. Defendant returned to Larter’s car but continued to look at Garay. Garay again approached the car. Larter thought the man and defendant were friends, until she saw defendant pull out a gun. Larter heard gunshots. Fernandez saw defendant shoot Garay, who did not have any weapons in his hands and had made no threatening gestures prior to being shot. Defendant fired seven or eight shots then ran away.

Larter drove home, which took about three minutes. When the police brought her back to the scene of the shooting, she identified someone as the shooter, but she could not recall saying, “He is the one who shot the guy.” Larter did not want to come to court to testify.

Fernandez testified that prior to the shooting, he was trying to talk to defendant, but defendant was not paying attention. Defendant said, “I’m tripping on this cat.” Before defendant started shooting, Fernandez heard defendant say, “What are you going to do about it?”

Yvonne Pomales (Pomales) was with her sister and Garay when the shooting occurred. Prior to the shooting, they were driving down the street on their way to a liquor store. There was a man at the corner, staring hard at and “mad dogging” them. Pomales asked Garay if he knew the man, and Garay indicated he did not. Garay got out of the car to see what the man wanted. Pomales remained in the car and did not see the shooting, but she saw afterward that Garay had been wounded. Garay said the man who shot him was from “V.N.E.”

Pomales did not identify Garay’s shooter in court. She testified that she was in the back seat of the car, approximately 39 feet away, during the incident, and by the time she got out, the shooter was gone. Later, when the police showed Pomales an individual who had been apprehended, she said it was possible the man was the shooter. Pomales was afraid of getting shot or killed because she had come to court.

Detective Liz Sheppard showed Pomales and her sister a photo six-pack when they went to visit Garay in the hospital. Pomales pointed to a photo on the bottom and said it looked like the shooter from a distance. She did not want to cooperate. However, she was on probation and was told that if she did not come to court, a warrant would issue for her.

Deputy Ramon Murgatroyd was in the area at the time of the shooting and heard five to seven shots in succession. He and his partner, Sergeant Perez, saw a gunshot victim down in the street. Deputy Murgatroyd saw a man with a shaved head walking away from the deputies on 13th Street toward Avenue H-14. The man was wearing a dark hooded sweatshirt and dark pants, with a small backpack on his back. Later, Deputy Murgatroyd was shown a handgun found by other deputies near where the man was last seen. He was also later shown a backpack and hooded sweatshirt, found in a trash can. They looked like the sweatshirt and backpack Deputy Murgatroyd had seen on the man walking on 13th Street.

Gregory Garzon (Garzon) was at home on West Avenue H-15, at around 2:15 p.m., on November 20, 2005, when he heard six or seven pops that sounded like gunshots or fireworks. About 10 minutes later, defendant knocked on his back door. Defendant had a shaved head and was wearing dark jeans. Even though defendant looked like a gangster, Garzon let him in because he was afraid. Garzon had seen defendant around the neighborhood and thought he might have a gun. Defendant asked to use the shower but did not threaten Garzon. When defendant went to use the shower, Garzon told his brother to go outside and tell the Sheriff’s Department defendant was there. Defendant’s black pants and identification were found in Garzon’s bedroom.

C. Forensic Evidence

Criminalist Robert Keil (Keil) examined the recovered firearm and magazine from the Garay shooting. No fingerprints were found on the gun. Keil determined that the firearm was a Glock Model 22,.40 caliber Smith and Wesson semi-automatic pistol. Keil recovered eight spent shell casings and 11 bullet fragments from the Garay shooting. Seven of the spent casings were.40 caliber Smith and Wesson and one was a Speer.40 Smith and Wesson. Keil determined that the eight spent casings recovered at the Garay shooting were fired from the Glock Model 22 pistol recovered.

Keil submitted a test fire from the weapon in the Garay shooting to the National Integrated Ballistic Information Network (NIBIN) and got a possible match from the Burkhart case. Keil reviewed the evidence in the Burkart case and determined that two spent cartridge casings from the Burkhart case were fired from the Glock recovered in the Garay shooting. Keil examined one fired bullet in the Burkhart shooting and opined that it could have been fired from the Glock pistol.

D. Gang Evidence

Detective Gunner testified as a gang expert. Detective Gunner is familiar with the V.N.E. gang, which stands for Varrio Nuevo Estrada. There are over 1000 past and current members, with about 60 living in the Antelope Valley. Detective Gunner discussed the hand signs and tattoos used by V.N.E. gang members. He was shown a photograph of defendant and his tattoos. Defendant had “Eastside” and “V.N.E.” tattooed on his front and “Pinedo” tattooed on his back. He had “E.S.” for Eastside and V.N.E. tattooed on his left hand.

Detective Gunner opined that defendant was a member of the V.N.E. gang, based on his tattoos, his admission to other officers that he is a V.N.E. member and the facts of the instant crimes. The primary activities of the V.N.E. gang are assaults with firearms, murders, narcotics sales, and robberies. V.N.E. members had convictions for assault with a deadly weapon and attempted murder.

Detective Gunner was given a hypothetical based on facts of the instant case. He opined that both shootings were done for the benefit of the V.N.E. gang.

DISCUSSION

A. Sufficiency of the Evidence as to Counts of Willful, Deliberate and Premeditated Attempted Murder

Defendant contends his convictions of the attempted murders of Garay (count 1) and Burkhart (count 4) should be reversed because the evidence was insufficient to sustain the premeditation and deliberation findings. We disagree.

In reviewing the sufficiency of the evidence, the question on appeal is whether there is evidence from which a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) “In making this determination, we ‘“must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’” (People v. Rayford (1994) 9 Cal.4th 1, 23; accord, People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) We also must examine the entire record, not merely “‘“isolated bits of evidence.”’” (Cuevas, supra, at p. 261.)

Substantial evidence is that which is reasonable, credible and of solid value. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) Matters of credibility of witnesses and weight of the evidence are “‘the exclusive province’” of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) A reviewing court cannot substitute its evaluation of a witness’s credibility for that of the trier of fact. (Ibid.)

Attempted murder requires the intent to kill plus a direct, but ineffectual, act towards its commission. (People v. Lee (2003) 31 Cal.4th 613, 623; People v. Bland (2002) 28 Cal.4th 313, 327-328.) The question of a defendant’s intent is a factual one. (People v. Mincey (1992) 2 Cal.4th 408, 433.)

In reviewing the sufficiency of the evidence of premeditation and deliberation, courts assess “whether the evidence supports an inference that the killing occurred as the result of preexisting reflection, as opposed to an unconsidered or rash impulse.” (People v. Garcia (2000) 78 Cal.App.4th 1422, 1427, citing People v. Pride (1992) 3 Cal.4th 195, 247.) The three categories of evidence to consider with respect to premeditation and deliberation are: “(1) prior planning activity; (2) motive; and (3) the manner of killing. ‘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.]’” (People v. Villegas (2001) 92 Cal.App.4th 1217, 1223-1224, fns. omitted.)

First, as to the attempted murder of Garay, defendant was carrying a loaded and concealed firearm when he was speaking with his cousin, Fernandez. Defendant was “tripping” on Garay. Fernandez heard defendant say, “What are you going to do about it?” Pomales testified that prior to the shooting, defendant was “mad dogging” her and Garay. Defendant fired seven or eight shots at Garay, hitting him in the arm, chest, and thighs. Defendant was a member of the V.N.E. gang, and the shooting of Garay benefitted the gang.

Based on the facts, it was reasonable for a jury to have found that defendant willfully, deliberately and with premeditation shot Garay. In the gang context, premeditation can be established even though the time between the sighting of the victim and the actual attack “is very brief.” (People v. Sanchez (2001) 26 Cal.4th 834, 849.) Additionally, the number of shots fired and location of the wounds also support a finding of premeditation and deliberation. (People v. Villegas, supra, 92 Cal.App.4th at pp. 1224-1225.)

It was also reasonable for a jury to have found that defendant willfully, deliberately and with premeditation shot Burkhart. The evidence established that defendant and other members of the V.N.E. gang approached Burkhart at a party. Defendant asked Burkhart where he was from and Burkhart replied, “C.F.K.” Defendant then grabbed the chain around Burkhart’s neck and uttered a profanity. Burkhart ran to get his brother and when he returned to fight, he saw defendant had drawn a gun. As Burkhart was turning around to run, defendant shot him in the shoulder and jaw. That defendant accosted and challenged his victim with no prior confrontation, then drew his gun before the victim returned to fight him, supports a finding of deliberation and premeditation. (See People v. Hughes (2002) 27 Cal.4th 287, 370-371; People v. Davis (1995) 10 Cal.4th 463, 510-511.)

B. Trial Court’s Refusal to Instruct the Jury on Attempted Voluntary Manslaughter

Defendant contends that his constitutional rights were violated when the trial court refused to instruct the jury on the lesser included offense of attempted voluntary manslaughter. We disagree.

The trial court has the duty to instruct the jury sua sponte as to the principles of law relevant to the issues raised by the evidence. (People v. Wims (1995) 10 Cal.4th 293, 303; People v. Saddler (1979) 24 Cal.3d 671, 681.) This duty extends to instructions on lesser included offenses when the evidence raises a question as to whether all elements of the charged offense have been established, but instructions on lesser included offenses are not required if there is no evidence that the offense is less than that charged. (People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Barton (1995) 12 Cal.4th 186, 200-201.) Instructions on lesser included offenses must be given whenever there is “‘“evidence from which a jury composed of reasonable [persons] could have concluded”’ that the particular facts underlying the instruction did exist.” (People v. Wickersham (1982) 32 Cal.3d 307, 324, disapproved on another ground in Barton, supra, at p. 201; People v. Flannel (1979) 25 Cal.3d 668, 684-685.) In absence of such evidence, no instruction on the lesser included offense need be given. (Wickersham, supra, at pp. 324-325; Flannel, supra, at p. 684.)

Voluntary manslaughter is the “unlawful killing of a human being without malice.... [¶] (a)... upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).) A killing “upon a sudden quarrel or heat of passion” (ibid.) occurs “if the killer’s 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.]” (People v. Breverman, supra, 19 Cal.4th at p. 163.) There is no specific type of provocation required, and the passion aroused may be “any ‘“‘[v]iolent, intense, high-wrought or enthusiastic emotion.’”’” (Ibid.) In order to support an instruction on voluntary manslaughter based on heat of passion, there also must be evidence of provocation sufficient “to arouse feelings of homicidal rage or passion in an ordinarily reasonable person.” (People v. Pride, supra, 3 Cal.4th at p. 250; People v. Dixon (1995) 32 Cal.App.4th 1547, 1556.)

An instruction on the lesser included offense of voluntary manslaughter based on the unreasonable self-defense theory is appropriate when there is evidence which would support a finding defendant honestly but unreasonably believed danger was imminent and lethal force was necessary to prevent death or great bodily injury. (People v. Uriarte (1990) 223 Cal.App.3d 192, 197.)

The trial court has a sua sponte duty to instruct on attempted voluntary manslaughter if there is evidence to support it. (People v. Wickersham, supra, 32 Cal.3d at p. 324.). Here, however, there was no evidence that defendant acted out of an unreasonable but good faith belief in the need to defend himself or that he acted out of a heat of passion.

Defendant approached Burkhart and provoked a confrontation with him by asking him where he was from. He then proceeded to commit a battery on Burkhart and call him a “bitch.” While it is true that Burkhart returned to get his brother and possibly fight, he did not get near enough to defendant to do so. When he returned, he saw defendant with a gun and started to run. Defendant shot him from behind while he was running away.

Defendant shot Garay following what appeared to be a friendly conversation. Defendant’s argument that Garay was the aggressor is not persuasive. While it is true that Garay got out of his car and approached defendant, the record is devoid of evidence that Garay threatened defendant or even raised his voice. According to Fernandez, defendant indicated that he was “tripping on this cat.” Before defendant started shooting, Fernandez heard him ask, “What are you going to do about it?” Pomales also indicated that defendant was “mad dogging” them.

There is no evidence that defendant subjectively or objectively attempted to kill either Garay or Burkhart under a heat of passion. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) The facts simply indicate that defendant armed himself and sought confrontations with anyone who appeared to be a member of a different gang.

There also is no evidence that defendant acted in self-defense. Neither victim was armed; neither attacked nor threatened to attack defendant. To the contrary, defendant was the aggressor and initiated unprovoked attacks on the victims.

The trial court committed no error in refusing to instruct on attempted voluntary manslaughter. There was not even a scintilla of evidence to justify the instruction.

C. Judicial Notice of Garay’s Failure to Appear

Defendant contends that his constitutional rights to due process and a fair trial were violated when the trial court took judicial notice of the fact that a warrant was issued for Garay after he failed to appear. Again, we disagree.

After the prosecution and defense had rested, the prosecutor requested that the court take judicial notice of the fact that Garay was ordered back to court but failed to appear and that a warrant was issued for his arrest. Defense counsel objected and argued that such information was prejudicial because the jury might believe or infer that Garay did not appear because he was afraid. The trial court overruled the objection and instructed the jury: “[A]s part of the record the court is going to take judicial notice that Mr. Lee Garay was ordered back to court. He did not return to court. And so a bench warrant, that is an arrest warrant, was issued for his arrest. That is part of the events for your consideration.”

“No evidence is admissible except relevant evidence.” (Evid. Code, § 350.) Judicially noticed evidence must be relevant and is subject to the admissibility requirements of Evidence Code section 352. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on another point in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1275-1276.) In general, the trial court is vested with wide discretion in determining relevance and in weighing the prejudicial effect of proffered evidence against its probative value. (People v. Valencia (2008) 43 Cal.4th 268, 286.)

Evidence Code section 352 states: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

Evidence of Garay’s failure to appear was minimally relevant. Detective Gunner explained that gangs intimidate members of the community to prevent them from testifying against gang members. He testified that Burkhart was reluctant to testify. There also was evidence that the Pomales sisters were reluctant to identify defendant and did not want to cooperate with the legal system. That Garay failed to return to court after being ordered to do so was relevant to the issue of the effect of gang intimidation on witness credibility.

Defendant also claims that the prosecutor “capitalized” on the court’s decision to inform the jury that a warrant had been issued for Garay. The prosecutor stated in opening argument: “One crime scene where Lee Garay, but for the grace of God, survived. You didn’t hear from Lee Garay. We wouldn’t [sic] get him into court. But you heard there are reasons why people don’t come to court. If you don’t have a victim, that doesn’t mean you can’t prove the case. Many times when you have a murder, you don’t have a victim but we have other evidence and witnesses to show what he did to Mr. Garay.” In defendant’s view, this argument invited the jury to infer, without support from the record, that defendant was responsible for Garay’s failure to appear.

Even assuming there was error in the instruction to the jury and the prosecutor’s subsequent argument, it was clearly harmless. Under the federal constitutional standard, reversal is required unless the error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) This is the case here. The evidence against defendant was overwhelming. Defendant’s cousin, Fernandez, saw him shoot an unarmed Garay. Larter also identified defendant as the man talking to Garay before she heard the shooting. The gun used in the Garay shooting also was used in the Burkhart shooting. Burkhart, who recognized defendant from a previous encounter, identified defendant as the man who accosted and pointed a gun at him. Burkhart, who was unarmed, began to run away from defendant when he saw the gun, and was then shot in the back. There is no possibility defendant would have been acquitted absent the instruction and argument regarding Garay’s failure to appear.

Under the less stringent state constitutional standard, reversal would not be required, in that it is not reasonably probable defendant would have been acquitted had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.)

DISPOSITION

The judgment is affirmed.

We concur: PERLUSS, P. J., ZELON, J.


Summaries of

People v. Pinedo

California Court of Appeals, Second District, Seventh Division
Apr 22, 2009
No. B205678 (Cal. Ct. App. Apr. 22, 2009)
Case details for

People v. Pinedo

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAMES EDWARD PINEDO, Defendant…

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

Date published: Apr 22, 2009

Citations

No. B205678 (Cal. Ct. App. Apr. 22, 2009)