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People v. Rivas

Court of Appeal of California
Jul 1, 2008
No. B198176 (Cal. Ct. App. Jul. 1, 2008)

Opinion

B198176

7-1-2008

THE PEOPLE, Plaintiff and Respondent, v. EVAN JOSHUA RIVAS, Defendant and Appellant.

Kelly M. Cronin, 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, Jaime L. Fuster and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published


Evan Joshua Rivas appeals from the judgment entered following a jury trial in which he was convicted of assault with a firearm, a handgun, count 1 (Pen. Code, § 245, subd. (a)(2)), with the finding that he personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a) and discharging a firearm with gross negligence, count 2 (Pen. Code, § 246.3). He was sentenced to prison for seven years, consisting of the middle term of three years and four years for the firearm enhancement for count 1 and a stayed sentence in count 2. Appellant contends the trial court erred when it gave a flight instruction over appellants objection. For reasons explained in the opinion, we affirm the judgment.

Appellant also contended the trial court erred when it refused the jurys request for a read-back of closing argument but withdrew that claim in his reply brief. Appellant further advises this court that we need not recalculate appellants presentence custody credits because the trial court has corrected the award. Counsel has provided this court with the minute order reflecting the correction.

FACTUAL AND PROCEDURAL HISTORY

On January 15, 2007, Joseph Rodriguez was at a party with appellant and other friends in Covina. When Mr. Rodriguez left the party and walked into the parking lot area, he saw a lot of his friends "huddled up with other people . . . [he] didnt know, and it looked like there was going to be a fight." As soon as Mr. Rodriguez "ran up" to see "what the problem was," a fight broke out. People were fighting each other with fists and feet.

Appellants brother, "Jared," was on the ground and there were six to eight people "on" him and kicking him. Mr. Rodriguez believed Jared was going to get stabbed and therefore he needed to get to Jared quickly. Mr. Rodriguez did not see any weapons, did not get stabbed and, as far as he knew, Jared did not get stabbed. While Mr. Rodriguez was "in the tussle," he heard shots and then "ran for [his] life. . . ." Mr. Rodriguez was shot in his left hand. He waited until the shots stopped and then ran to the street to "catch" a ride. He left the area with appellant and another friend, "Axel," and told appellant he had been shot and to take him to the hospital. Near Queen of the Valley Hospital they got into an accident. Mr. Rodriguez got out of the car and ran to the hospital, where he was treated for his wounds.

When Mr. Rodriguez talked to a detective at the hospital, Mr. Rodriguez did not want to tell the detective he was involved in the fight. Mr. Rodriguez told the detective that he had asked his friend "Manny" to drive him to the hospital. The truth was that he (Mr. Rodriguez) had driven away with appellant. Manny arrived at the hospital shortly after Mr. Rodriguez, and Mr. Rodriguez did not want to involve anyone else in the incident. Mr. Rodriguez denied running to appellants car and telling him "you shot me." Mr. Rodriguez recalled telling the detective that while he was fighting he had seen Jared, appellants brother, fighting with other people and that he was "getting jumped" and was on the ground. He did not recall telling the detective that he knew appellant had been carrying a 9 millimeter handgun in his car. He did not recall telling the detective that he had seen appellant holding a handgun in his hand, that appellants arm was raised parallel to the ground or that appellant was pointing the gun in his general direction and firing it. He did not recall telling the detective that after he got shot, he shouted at appellant, "you just shot me." He did not tell the detective that he and appellant left in different cars, that both cars left the area to go to the hospital and that he saw appellant crash in the other car. Appellant appeared very drunk, and in light of the accident, Mr. Rodriguez wanted to "shield" appellant.

Ruben Vega was at the party. When he left, he noticed people fighting and pushing. A couple of men left the fight and ran behind a building, returning a couple of minutes later. When he saw them again, he heard gunfire and saw that one of the men was holding a handgun. Mr. Vega could not see who was shooting the gun but heard eight or nine shots and saw the shooter moving in a "sweeping motion."

Detective Richard Walczak of the Covina Police Department interviewed Mr. Rodriguez at the hospital. Mr. Rodriguez told him he did not recognize anyone in the crowd except a friend, "Hector." He also said he did not see anyone with a gun and could not provide any information about a possible suspect. He said his friend "Manny" drove him to the hospital.

Detective Walczak spoke to Mr. Rodriguez a couple of days later. Mr. Rodriguez stated he wanted to help his friend by coming forward with the truth. He indicated he had heard that appellant had been arrested. In response, Detective Walczak stated appellant had not been arrested. Mr. Rodriguez stated he had gone to the party with appellant and had seen him during the fight; appellant was holding a gun, parallel to the ground, firing it at Mr. Rodriguez when Mr. Rodriguez was struck in the hand with a bullet. Mr. Rodriguez also said appellant was known to carry a 9 millimeter handgun in his vehicle. Mr. Rodriguez also said that when he left the scene of the shooting, he followed appellant in another vehicle and that appellant got into a traffic accident. Mr. Rodriguez stated that when he realized he was shot he yelled out, "you shot me."

Three days after the shooting, Detective Tom Tardif questioned appellant about what had taken place at the party where the shooting occurred. Appellant stated he had gone to the party with Mr. Rodriguez and another gentleman named "Ax[e]l." When the party ended, he walked to his car with some girls and heard "screaming and gunshots . . . from the parking lot area. . . ." Appellant said he went to his car, took a gun out from under the drivers seat, and went back to where he had heard the screaming and gunshots to protect his brother and friend. He saw his brother on the ground being beaten up. He shot twice into the ground and then everyone started running. Someone appellant did not know took the gun away and appellant ran back to his car with Mr. Rodriguez and Axel and left. When they got into the car to leave, Mr. Rodriguez told him that appellant had shot him in the hand and he needed to go to the hospital. They drove around looking for a hospital and got into a collision. Appellant stated he was drunk, had consumed three or four beers, and that Mr. Rodriguez had just walked to the hospital. A friend picked up appellant and took him home. Appellant stated he sometimes borrows the gun to protect himself. He described it as a large, black "semiauto" handgun. It was loaded, but he was not the one who loaded it. He stated he shot the gun two to three times at the group around his brother and then shot the rest of the bullets in the gun at another individual farther down in the parking lot. He had seen one male with a knife who he thought was going to stab his brother. After "he emptied the gun into the crowd" appellant ran back to his car and left. He said he threw the gun out of the window when they were looking for the hospital. Initially appellant said he did not hit anyone when he fired the gun but then admitted that when he was shooting at the person who was holding the knife, that individual fell to the ground.

Following this conversation, appellant was arrested. After he waived his Miranda rights, appellant gave basically the same version of what had happened that night. This time, however, he said he gave the gun to the friend who picked him up and asked him to destroy it.

Miranda v. Arizona (1966) 384 U.S. 436.

DISCUSSION

The trial court asked if either side wished to be heard regarding whether the facts of the case would give rise to an inference of flight or attempted flight. The prosecution argued that the instruction needed to be given based on the statement of appellant and based on the evidence. Appellants counsel argued that the evidence was that, after the shooting, appellant and two of his friends got into a vehicle and that there was no indication "in this state of the evidence that he — that [appellant] knew that someone was shot or hurt. There was a mention that he saw someone fall, I think, and thats about it. . . ." The court agreed with appellants counsel, "that the testimony can be taken in about five different ways . . . ." The court concluded, however, it was going to give the instruction over appellants objection, stating that "if the jury does conclude that the defendant was aiming at the fellow with the knife, did pull the trigger, did see the guy go down, if they make those conclusions, and that he ran to the car and left the scene in a manner of flight, if they make those conclusions, we got to tell them what to do with it. And thats the thrust of this instruction. [¶] Its really not a `you shall. Its a `be careful and be warned." Appellants counsel agreed.

The jury was instructed pursuant to CALJIC No. 2.52, "The flight or attempted flight of a person immediately after the commission of a crime, or after [he/she] is accused of a crime, is not sufficient in itself to establish [his/her] guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide."

Appellant contends the instruction was error because appellant left the scene with the specific purpose of accompanying Mr. Rodriguez to the hospital. Appellants contention is without merit. Penal Code section 1127c provides, "In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine." "`A flight instruction is proper whenever evidence of the circumstances of defendants departure from the crime scene . . . logically permits an inference that his movement was motivated by guilty knowledge. [Citation.]" (People v. Shea (1995) 39 Cal.App.4th 1257, 1270.)

Here there was sufficient evidence supporting the instruction. Detective Tardif testified that appellant told him that when he saw his brother on the ground being beaten, appellant shot his weapon at the group attacking his brother and then fired the remaining bullets at another person farther down in the parking lot. Appellant then ran away from the shooting and back to his car. Even before appellant was aware that Mr. Rodriguez had been shot, appellant was in his vehicle preparing to drive away. The evidence logically permitted an inference that appellants movement was motivated by guilty knowledge. (See People v. Shea, supra, 39 Cal.App.4th 1257, 1270.)

Further, the instruction acknowledged the possibility that flight might not have been shown by the evidence and it was for the jury to determine if it had. (See People v. Harris (1992) 10 Cal.App.4th 672, 675.) Additionally, the jury was instructed pursuant to CALJIC No. 17.31, inter alia, "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, because an instruction has been given, I am expressing any opinion as to the facts."

DISPOSITION

The judgment is affirmed.

We concur:

WILLHITE, J.

SUZUKAWA, J.


Summaries of

People v. Rivas

Court of Appeal of California
Jul 1, 2008
No. B198176 (Cal. Ct. App. Jul. 1, 2008)
Case details for

People v. Rivas

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EVAN JOSHUA RIVAS, Defendant and…

Court:Court of Appeal of California

Date published: Jul 1, 2008

Citations

No. B198176 (Cal. Ct. App. Jul. 1, 2008)