Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF060711, Richard A. Erwood, Judge.
Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Rhonda Carthwright-Ladendorf and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI, Acting P.J.
On December 25, 2007, defendant Noe Ponce went to a mobile home park in Thermal to pick up his girlfriend. While there, defendant and his friend took beer from the back of Efrain Gabriel Roda’s car. When Efrain confronted defendant and his friend, an argument ensued. Defendant grabbed a gun from his car and shot once at the ground near where Efrain’s brother, Ezequiel, was standing. He paused, then pointed the gun at Efrain and fired one time. Efrain was hit in the upper chest and was permanently paralyzed as a result of the gunshot wound.
Defendant was convicted of the attempted murder of Efrain along with several personal weapon-use enhancements, including causing great bodily injury and permanent paralysis. He was also convicted of assault with a deadly weapon against Ezequiel. He contends on appeal:
1. Insufficient evidence was presented to support his conviction for the attempted murder of Efrain, as there was no evidence of his intent to kill.
2. The evidence established that defendant acted in unreasonable self-defense, and his conviction must be reduced to attempted voluntary manslaughter.
3. Insufficient evidence was presented to prove that defendant committed the attempted murder of Efrain with premeditation and deliberation.
We conclude the evidence supports defendant’s convictions and affirm the judgment.
I
PROCEDURAL BACKGROUND
Defendant was found guilty of violating Penal Code sections 664/187, subdivision (a) for the attempted willful, premeditated, and deliberate murder of Efrain and assault with a firearm (§ 245, subd. (a)(2)) on him. In addition, the jury found true the special allegations as to both counts that defendant personally used a firearm (§ 12022.5, subd. (a)); he personally discharged a firearm (§ 12022.53, subd. (c)); and he caused great bodily injury resulting in paralysis (§ 12022.7, subd. (b)). As to the attempted murder, the jury found an additional allegation true that defendant caused great bodily injury (§ 12022.53, subd. (d)). The jury also found defendant guilty of assault with a firearm (§ 245, subd. (a)(2)) against Ezequiel and found true the special allegation that defendant personally used a firearm (§ 12022.5, subd. (a)). The jury found defendant not guilty of the attempted murder or attempted voluntary manslaughter of Ezequiel.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was sentenced on the attempted premeditated and deliberate murder of Efrain to life with the possibility of parole, plus a consecutive 25 years for the personal use of a firearm causing great bodily injury allegation. In addition, the trial court imposed a one-year sentence for the assault with a firearm on Ezequiel, plus one year four months for the use of a firearm for that count. The trial court struck or stayed the remaining sentences. Defendant’s resulting sentence was life with the possibility of parole, plus 27 years 4 months.
II
FACTUAL BACKGROUND
On December 24, 2007, around 8:00 or 9:00 p.m., 19-year-old Efrain arrived at Ezequiel’s mobile home located in the Lawson Trailer Park in Thermal in Riverside County. Efrain arrived with his friend Felix Rodriquez.
Efrain was testifying under a grant of immunity for any possible charges arising from the incident.
Efrain, Ezequiel, Rodriguez, and some others sat around an outside bonfire and drank beer throughout the evening. Efrain estimated he had 10 beers. At 11:00 p.m., a girl later identified as Jacky Diaz arrived. About one or two hours later, defendant arrived in a red Mustang with his friend Rodolfo Guillen. Defendant and Guillen did not talk to anyone.
Efrain could not identify defendant in court. However, Rodriguez identified him from a photographic lineup.
Guillen was not tried with defendant and is not a party to this appeal.
After defendant and Guillen stayed for about 2 hours, they walked to Efrain’s car, which was parked nearby, and took an 18-pack of Bud Light out of the backseat. They then loaded the beer into the back of the Mustang. Guillen then got into the driver’s seat of Efrain’s car. Efrain got up from his seat at the bonfire and approached defendant and Guillen.
Efrain asked what they were doing in his car, and one of them told him it was none of his business. Guillen told him, “Fuck you.” They both told Efrain that they were going to “fuck [him] up.” Guillen exited the driver’s seat and pulled out a “blade.” Rodriguez observed defendant and Efrain start arguing. Efrain accused defendant and Guillen of taking his beer, and they denied it. Efrain asked to look in the trunk of the Mustang, but defendant and Guillen refused to open it.
Ezequiel came and stood by Efrain. Ezequiel advised everyone to calm down and not to fight. He got between defendant and Efrain. Rodriguez also tried to calm Efrain down, and Diaz and Ezequiel’s wife tried to calm defendant and Guillen.
Efrain grabbed a belt from his car. He wrapped it around his hand and told defendant and Guillen he was going to hit them with it if they came toward him. Efrain swung the belt around with the belt buckle on the swinging end. Defendant and Guillen were within about eight feet of him.
Diaz grabbed a gun from the Mustang and pointed it up in the air. She told everyone to calm down and then appeared to try to fire the gun up in the air, but it did not go off. Efrain immediately either lowered the belt in his hand or threw it behind him and stood “still.” Diaz gave defendant the gun.
Efrain believed that defendant then fired the gun at Efrain’s feet but did not hit him. Both Rodriguez and Ezequiel felt that defendant was pointing the gun at Ezequiel. Ezequiel fainted and fell to the ground; he remembered nothing after this. Rodriguez went and hid behind a car.
Guillen and defendant kicked Ezequiel as he lay on the ground. Defendant pointed the gun directly at Efrain. Defendant did not immediately fire but paused and then fired directly at Efrain, hitting him in the upper chest. Rodriguez told Efrain not to panic and called the police.
Defendant, Guillen, and Diaz left in the Mustang. Rodriguez gave a description of the Mustang to the police.
When the first sheriff’s deputies arrived, Efrain was lying on the ground with a gunshot wound to his neck. Efrain was not speaking and was having trouble breathing. A bullet fragment and a spent nine-millimeter shell casing were found on the ground behind Efrain’s car.
Efrain did not recall going to the hospital, but when he awoke there he could not move his legs. He was still unable to walk or move his legs at the time of trial. He had been told that he would probably never walk again. Efrain denied that he was yelling at defendant and Guillen about taking the beer. Rodriguez, however, thought that Efrain was angry about the beer being taken.
Riverside County Sheriff’s Deputy Rafael Lopez was nearby the Lawson Trailer Park when he saw the Mustang driving in his direction at a high rate of speed. Deputy Lopez activated his overhead lights, but the car failed to yield and increased its speed. The Mustang eventually made a turn and got stuck in dirt. Defendant jumped out of the vehicle and ran into an open field. Guillen and Diaz were detained.
In the backseat of the car, a black nine-millimeter handgun was found on the floor board behind the passenger seat. There were several spent shell casings throughout the vehicle. In addition, there was an 18-pack of Bud Light behind the driver’s seat. A name tag from a local restaurant was found bearing the name “Noe.”
On December 27, 2007, defendant was located at a mobile home park next to the park where the shooting occurred. He tried to evade the deputies but was apprehended. A knife was never found in the car or on Guillen’s person.
Defendant testified in his own defense as follows:
On the night of December 24, 2007, defendant went to the Lawson Trailer Park to pick up Diaz. When he arrived, he and Guillen sat down at the bonfire.
Sometime later they decided to leave. As he was walking by a car, he grabbed two beers from the back seat without permission. He opened one of the beers and started drinking it while leaning against the car. Efrain then approached him and pushed him. Defendant dropped the beer on the ground. Efrain started yelling at defendant, asking him why he had taken the beer.
Efrain then grabbed a belt and started swinging it. Defendant yelled to him that he had not taken any beers. Efrain said to defendant, “You know what? I’m going to teach you not grab what doesn’t belong to you.”
Defendant backed up toward his car and told Efrain to calm down. He wanted to leave, but Efrain told him he wanted to look in defendant’s car. Efrain appeared to be angry. Other people approached and tried to calm them down. Efrain blocked defendant’s way to his car.
Defendant saw a gun in Diaz’s hand. She called defendant over and gave it to him. He fired a shot into the ground to “prevent the other people from approaching.” After the first time he shot the gun, he looked over at Diaz,and she told him not to do anything stupid.
When defendant turned around, he saw Efrain swinging the belt at him. Defendant thought the belt was going to hit him in the face. Defendant claimed that he closed his eyes and shot at Efrain. Efrain fell immediately to the ground. Defendant fired because he feared for his life; he thought the belt could kill him.
Defendant claimed that he had previously been hit with a belt buckle on his head, and it had cut his skull open.
Defendant immediately left and ran his car into an embankment. He ran from his car because he was frightened and did not think anyone would believe his story.
Defendant admitted that he lied to sheriff’s deputies after the incident, saying that someone was trying to take the gun from Diaz and that he was trying to protect her. He also lied about shooting the first shot up into the air rather than at the ground.
On rebuttal, an investigator who interviewed defendant before trial confirmed that defendant had told him initially in the interview that a large man grabbed Diaz and started hitting her, and defendant pushed through three men to get to Diaz. Further, defendant admitted about an hour into the interview that he had not shot the first round into the air. Defendant never told the investigator that he was in fear of the belt when he shot Efrain.
III
INSUFFICIENT EVIDENCE OF ATTEMPTED MURDER
Defendant contends that the evidence was insufficient to support his conviction of attempted murder of Efrain, as there was no evidence of his intent to kill.
A. Standard of Review
“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1141, disapproved of other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) “Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (Young,at p. 1181.)
B. Analysis
A conviction for attempted murder “requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]” (People v. Lee (2003) 31 Cal.4th 613, 623.) “Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’” (People v. Smith (2005) 37 Cal.4th 733, 739.) “Malice is express when the killer harbors a deliberate intent to unlawfully take away a human life.” (People v. Lasko (2000) 23 Cal.4th 101, 104.) “Express malice requires a showing that the assailant ‘“‘either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.’ [Citation.]”’ [Citation.]” (Smith, at p. 739.) “Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.” (People v. Pre (2004) 117 Cal.App.4th 413, 420; see also Smith, at p. 739.)
“[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive, although again, where motive is shown, such evidence will usually be probative of proof of intent to kill. Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositive the very act of firing a weapon ‘“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. [Citation.] Where attempted murder is the charged crime because the victim has survived the shooting, this principle takes on added significance.” (People v. Smith, supra, 37 Cal.4th at p. 742.)
In People v. Lashley (1991) 1 Cal.App.4th 938, a case with somewhat similar facts involving a verbal altercation among two groups and a resulting gunshot wound, the court held, “The question of defendant’s intent at the time of the shooting was a factual issue that the trial court determined adversely to him. The only possible reason for reaching a different result here rests on the untenable theory that an unsuccessful killing constitutes conclusive evidence of lack of intent. There is nothing inherently illogical or absurd in a finding that a person who unsuccessfully attempted to kill another did so with the intent to kill. The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship necessarily establish a less culpable state of mind.” (Id. at p. 945.)
Here, Efrain testified that he confronted defendant and Guillen after he saw them take beer from his car and then saw Guillen get into his car. When he asked them what they were doing, they both told him that it was none of his business. Guillen pulled out a knife, and they threatened to “fuck” up Efrain. Afraid, Efrain went to his car and retrieved a belt that he started swinging.
Defendant got a gun from Diaz and shot at Ezequiel’s feet. Efrain testified that defendant then pointed the gun directly at him. Efrain saw defendant shoot directly at him, hitting him in the upper chest. This act of shooting directly at Efrain and hitting him in the upper chest was sufficient to show defendant’s intent to kill Efrain. (See People v. Smith, supra, 37 Cal.4th at p. 742.)
Although defendant cites to his own testimony that he did not aim at Efrain, obviously the jury disregarded his testimony. Defendant did not make a startled response in shooting Efrain. Both Efrain and Ezequiel testified that defendant took deliberate aim in shooting the gun.
Clearly the jury here believed Efrain’s testimony that defendant pointed the gun at him and deliberately shot at him. Nothing about his testimony was “physically impossible or inherently improbable....” (People v. Young, supra, 34 Cal.4th at p. 1181.) We find substantial evidence supported the jury’s verdict finding that defendant had the intent to kill Efrain.
IV
IMPERFECT SELF-DEFENSE SUPPORTED BY SUBSTANTIAL EVIDENCE
Defendant contends, assuming we find that he had the intent to kill Efrain, that his conviction must nonetheless be reduced to attempted voluntary manslaughter because no rational juror would have rejected that he acted with the unreasonable belief in the need for self-defense.
Imperfect self-defense occurs when one kills another person because he actually but unreasonably believed in the need to defend himself from imminent death or great bodily injury. (People v. McCoy (2001) 25 Cal.4th 1111, 1116; In re Christian S. (1994) 7 Cal.4th 768, 783.) Under such an “unreasonable self-defense” theory, the crime committed is manslaughter, not murder. (McCoy, at p. 1116.)
The California Supreme Court has explained both reasonable and unreasonable self-defense as follows: “For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is ‘imperfect self-defense,’ i.e., ‘the defendant is deemed to have acted without malice and cannot be convicted of murder,’ but can be convicted of manslaughter. [Citation.]... Moreover, for... imperfect self-defense, the fear must be of imminent harm. ‘Fear of future harm no matter how great the fear and no matter how great the likelihood of the harm will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury.’ [Citation.]” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, fn. omitted; see also People v. Hardin (2000) 85 Cal.App.4th 625, 629-630.)
The jury here was fully instructed on the issue of perfect self-defense (Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 505) and imperfect self-defense (CALCRIM No. 604).
Although the jury was also instructed on reasonable self-defense, which is a complete defense, defendant does not argue on appeal that such defense was supported by the evidence. 1
There was no substantial evidence that defendant unreasonably believed that he was in imminent danger from Efrain to support imperfect self-defense. Defendant’s argument relies on his testimony that Efrain was swinging the belt at him at the time that he shot Efrain. However, all the other testimony supported that Efrain had put the belt down to his side or had dropped it at the time that defendant shot at him. Moreover, defendant admitted that he lied to police in his interview, which affected his credibility.
We believe the evidence supports the absence of imperfect self-defense beyond a reasonable doubt. (See People v. Banks (1976) 67 Cal.App.3d 379, 384 [prosecution bears burden of proving beyond a reasonable doubt the absence of self-defense or defense of others].)
V
INSUFFICIENT EVIDENCE OF PREMEDITATION AND DELIBERATED ATTEMPTED MURDER OF EFRAIN
Defendant finally contends that if this court finds there was sufficient evidence of attempted murder, and we reject he acted in imperfect self-defense, that there was insufficient evidence presented that Efrain’s attempted murder was committed with premeditation and deliberation. We set forth the standard of review for sufficiency claims in part III, ante.
An unlawful “willful, deliberate, and premeditated [attempted] killing” is attempted murder in the first degree. (§ 189.) “‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
The test on appeal is whether a rational trier of fact could have found premeditation and deliberation beyond a reasonable doubt based upon the evidence presented. (People v. Perez (1992) 2 Cal.4th 1117, 1124; People v. Anderson (1968) 70 Cal.2d 15, 25.) The three categories of evidence for a reviewing court to consider with respect to premeditation and deliberation are: (1) prior planning activity, (2) motive, and (3) the manner of killing shows a preconceived design to take the victim’s life. (Perez, at p. 1125; Anderson, at pp. 26-27.) “‘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. Koontz, supra, 27 Cal.4th at p. 1080; see also People v. Young, supra, 34 Cal.4th at p. 1182.)
Such evidence need not be present in some special combination or be accorded a particular weight, nor is the list exhaustive. (People v. Pride (1992) 3 Cal.4th 195, 247; People v. Perez, supra, 2 Cal.4th at p. 1125.) Rather, they serve as an aid to assess whether the killing or attempted killing was the result of preexisting reflection. (Perez, at p. 1125.)
Here, the trial court, in rejecting defendant’s motion for new trial, summed up the evidence supporting premeditation and deliberation as follows: “After he fired it in the ground,... the victim was still standing there, not approaching him, basically not moving. At that point in time the defendant raised the gun, he pointed the gun at the victim, he then paused, according to the victim’s testimony, and then fired the gun.... [¶] This wasn’t a shooting that was done necessarily very quickly, just grabbing the gun and shooting at the victim. He paused, and there was a noticeable pause of a few seconds prior to firing the gun.”
Such determination was sound. Defendant took the gun from Diaz and then shot toward Ezequiel. Then, instead of immediately firing at Efrain, he paused. Premeditation and deliberation does not require any extended period of time; “‘“[t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....” [Citations.]’ [Citation.]” (People v. Koontz, supra, 27 Cal.4th at p. 1080.) After a few moments, defendant then pointed the gun directly at Efrain and fired. Efrain was hit on the upper chest, suffering permanent paralysis. Clearly, the manner of attempted killing showed deliberation. (People v. Perez, supra, 2 Cal.4th at p. 1125.) We find, as the trial court concluded, that substantial evidence supported the jury’s finding that the attempted murder of Efrain was committed with premeditation and deliberation. We therefore reject defendant’s claim.
VI
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., MILLER, J.