Opinion
F070694
01-27-2017
THE PEOPLE, Plaintiff and Respondent, v. ANGEL RODRIGUEZ, JR., Defendant and Appellant.
Han N. Tran, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F12907506)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Hilary A. Chittick, Judge. Han N. Tran, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted Angel Rodriguez, Jr. of first degree murder (Pen. Code, § 187, subd. (a); count 1) and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3), finding true he personally and intentionally discharged the firearm, causing death (§ 12022.53, subd. (d)). For an alleged second victim during the same incident, he was found not guilty of both attempted murder (§§ 664/187, subd. (a); count 2) and the lesser included offense of assault with a deadly weapon (§ 245, subd. (a); count 2). A prison sentence of 55 years to life was imposed.
All future statutory references are to the Penal Code unless otherwise noted.
On appeal, appellant contends the trial court erred when it failed to instruct the jury on the manslaughter doctrines of imperfect self-defense and heat of passion. He also argues his trial counsel was ineffective during closing arguments. We affirm.
BACKGROUND
I. Relevant Facts From The Prosecution's Case.
A. The initial confrontation.
On September 22, 2012, the Flores family was having a barbeque in the backyard of their residence in Sanger, California. Among others, Eduardo Flores, Bonifacio Flores, and Nicolus Flores Villagran, who were all brothers, and their father, Casimiro Flores, were present. At around 9:00 p.m., a man was seen looking into the backyard over a fence on the side of the house. Eduardo mistakenly thought the man was an uncle, and he called to him, but the man walked away towards the front yard. Eduardo and Bonifacio followed. In the front yard, they saw the man speaking with Villagran. Neither Eduardo nor Bonifacio knew the man, whom they identified in court as appellant.
Appellant was asking about his sister. He appeared angry, he spoke with a raised voice, and he appeared drunk. Casimiro came out of the house. The men told appellant that they did not know his sister, and they repeatedly told him to leave. Appellant continued to ask about his sister. Bonifacio stood about three feet in front of appellant, telling him to leave. Villagran stood on one side of Bonifacio, and Casimiro on the other side. Appellant cursed when he was told the Flores family was going to call the police. Appellant said he knew his sister was there. Villagran told appellant, "We can throw some punches" or words to that effect, but Villagran never touched appellant. Casimiro told Eduardo to call 911 because appellant was getting more aggressive and did not want to leave. Eduardo retrieved a house phone and he called 911 while standing outside in the front yard. The confrontation lasted about two to three minutes before Eduardo called the police. While calling 911, the Flores family members continued to ask appellant to leave, and appellant continued to yell and curse. A recording of Eduardo's 911 call was played for the jury.
B. The shooting.
While Eduardo called 911, appellant left the Flores property and began walking away. Villagran walked across the front yard to the street, where he stopped and watched appellant leave. Bonifacio walked to a parked car on the street. When appellant was approximately 20 to 25 feet away, he turned around and walked back. Appellant was about six to 10 feet from Villagran when he raised his arm and fired a gun, shooting Villagran. According to Bonifacio and Eduardo, appellant then pointed his gun at Bonifacio and fired it once or twice while Bonifacio was standing on the sidewalk near a parked car. Bonifacio was not struck and appellant fled. Eduardo testified appellant fired between three to five times.
Two distinct gunshots can be heard on the 911 recording, which captured the yelling that occurred between the parties before the shots were fired. At approximately 10:00 p.m., a police detective heard gunshots while he was on a nearby but unrelated call, telling the jury he heard a total of three shots. The detective immediately drove in the direction of the shots, and he saw appellant running fast. Appellant did not stop when repeatedly ordered to do so, and the detective drew his firearm. Appellant stopped and was detained. He had a .38-caliber revolver, which contained three expended casings and two live rounds. He appeared to be under the influence of alcohol. A urine sample was collected from appellant at 11:10 p.m., which later revealed a blood-alcohol level of .23 percent. Paramedics and law enforcement arrived at the scene of the shooting. Villagran, who had fallen on the front yard of the residence, was pronounced dead at the scene at approximately 10:28 p.m.
C. Law enforcement's investigation.
A detective interviewed Casimiro, who stated Villagran had been arguing with appellant when Casimiro first saw appellant in the front yard. When appellant was walking away, Villagran called out, "We can throw some punches and whatnot." Appellant was already leaving when Villagran yelled out, "Hey." At that point, appellant turned and walked back. When he started walking back, appellant said, "I'm crazy right now and I don't give a fuck."
On the night of the incident, Bonifacio told a detective he drank about seven to eight beers earlier that evening, and Casimiro told a detective he had consumed "a beer." At trial, Casimiro testified he had consumed two beers and Bonifacio testified he could not remember, but it was "[a] few. Four or five."
A forensic pathologist performed an autopsy of Villagran's body. Two gunshot wounds were located. One shot entered the chest near the left nipple, which pierced the heart and right lung, causing death. The other gunshot was located to the back of the left forearm.
D. Testimony from appellant's family.
Appellant's mother and sister testified. Appellant was very protective of his sister, who had been in special education classes until she dropped out of high school due to pregnancy. On the night in question, appellant's sister was 16 years old and she had left home without permission to attend a party. His sister testified she did not know the Flores family, and she was not at their residence that night. Appellant returned home, and his mother noticed that he smelled of alcohol. Appellant said he would look for his sister. He appeared mad and he said, "I have the devil inside," several times. His mother did not want him to go out, but he pushed her aside and left.
II. Relevant Defense Evidence.
Bruce Terrell, a board certified psychiatrist, opined that a person with a blood-alcohol level of .23 percent would have had a slightly higher blood-alcohol level 90 minutes earlier. Such a person would have severely impaired judgment, impacting their ability to think rationally, they would react impulsively and have difficulty regulating emotions.
A hypothetical was posed involving a person with a .23 percent blood-alcohol level who was in a heated argument, was trying to leave, people were following him, and he heard things being yelled out to him. Terrell opined that such a person would likely misinterpret the situation. It was very likely such a person could become very aggressive and the level of violence would likely escalate. With that level of intoxication, the person would have a lot of confusion and irrational thinking. The person would act more impulsively, and the ability to plan would be greatly impaired.
III. Proposed Jury Instructions.
During trial, defense counsel requested jury instructions on heat of passion manslaughter (CALCRIM No. 570) and imperfect self-defense manslaughter (CALCRIM No. 571). The trial court stated there was insufficient evidence regarding provocation. The trial court noted appellant was the initial aggressor. The trial court also did not have any evidence appellant actually believed he was in danger of being killed or suffering great bodily injury. The court refused to give either of the voluntary manslaughter instructions.
DISCUSSION
I. The Trial Court Did Not Err In Declining To Instruct Regarding The Doctrine Of Imperfect Self-Defense.
Appellant contends the trial court erred when it denied the defense request to instruct the jury on imperfect self-defense. He contends the error was prejudicial, requiring reversal of count 1.
A. Standard of review.
A de novo standard of review is used when a trial court has allegedly failed to instruct on an assertedly lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1218.) A trial court is required to instruct the jury on a lesser included offense only if there is substantial evidence that absolves the defendant from guilt of the greater offense but not the lesser. (Ibid.) Substantial evidence in this regard has been defined as evidence a reasonable jury could find persuasive. (Ibid.) In reviewing this claim, we are to view the evidence in the light most favorable to appellant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
B. Analysis.
Appellant maintains he was confronted by four males, who were loud, frustrated and angry with him, and who stood close together in front of him. Villagran yelled out "an explicit threat" to inflict punches, and when appellant tried to walk away, both Villagran and Bonifacio followed him. He asserts the circumstantial evidence supported the conclusion he actually believed he was in imminent danger of death or great bodily injury from either Villagran or other family members based on the threats and the "loud mob of men" who had confronted him. He contends his "actual perception" was "indisputably colored" by his intoxication. He believes Terrell's testimony by itself, and in conjunction with the other trial evidence, was substantial evidence supporting an instruction on imperfect self-defense. We disagree.
Imperfect self-defense is also known as unreasonable self-defense. (People v. Elmore (2014) 59 Cal.4th 121, 129 (Elmore).) The doctrine of imperfect self-defense requires "'[a]n honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury ....'" (People v. Rogers (2006) 39 Cal.4th 826, 883 (Rogers).) This doctrine negates malice aforethought, the mental element necessary for murder, resulting in a conviction of manslaughter. (Ibid.) Our Supreme Court applies this doctrine narrowly and only when the defendant has an actual belief in the need for self-defense, and only when the defendant fears immediate harm that must be dealt with instantly. (Ibid.) "Thus, a trial court's duty to instruct on this theory arises 'whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense.' [Citation.]" (Ibid.)
Two Supreme Court cases are instructive. In Elmore, supra, 59 Cal.4th 121, a mentally ill defendant stabbed a woman to death at a bus stop with a sharpened paintbrush handle. (Id. at p. 130.) At trial, he requested instruction on imperfect self-defense. He claimed that delusions made him believe he needed to defend himself. (Id. at p. 131.) Elmore rejected the defendant's argument, because "unreasonable self-defense involves a misperception of objective circumstances, not a reaction produced by mental disturbance alone." (Id. at p. 134.)
In Rogers, supra, 39 Cal.4th 826, the defendant, a sheriff's deputy, was convicted of first degree murder of one prostitute, and second degree murder of a second prostitute. (Id. at p. 835.) At trial, the defendant testified in his own defense, and admitted killing the first victim. (Id. at p. 841.) Circumstantial evidence linked the defendant to the other killing. (Id. at pp. 840-841.) Three mental health professionals testified for the defense. They reviewed the defendant's childhood, which involved traumatic episodes of sexual abuse and physical beatings. The defendant suffered from possible multiple personality disorder and depression, among other issues. (Id. at pp. 841-843.) At trial, the defendant could not independently recall all of the first victim's murder. However, he had a recollection of events based on watching a videotape of himself created while he was under the effects of sodium amytal and being interviewed by his psychiatrist. The defendant testified he was with the prostitute in his truck. After a dispute, he pushed her out. She walked "toward him pointing her finger at him, and he felt threatened, so he pointed a gun at her, pulled the trigger, and shot her. A second or two later, he shot her five more times." (Id. at pp. 843-844.) The defendant only thought of protecting himself, he feared her and her reporting him. The defense experts all opined that this murder was done impulsively, and without any planning or deliberation. (Id. at pp. 844-845.)
On appeal, the defendant asserted, in part, that the trial court prejudicially erred in failing to instruct on voluntary manslaughter under an imperfect self-defense theory. (Rogers, supra, 39 Cal.4th at p. 882.) Rogers rejected that argument, finding there was no substantial evidence from which the jury could have concluded the defendant shot the first victim "due to an honest but unreasonable belief that he needed to defend himself from an imminent threat to his life or to his bodily integrity." (Id. at p. 883.) Neither the defendant nor his experts testified the defendant actually believed he had to kill the victim to defend himself from an imminent threat. To the contrary, the testimony from the expert witnesses was more susceptible to an interpretation the defendant feared for his emotional, and not his physical, survival. (Ibid.) Rogers found no error. (Id. at p. 884.)
Here, appellant left the Flores' property after being confronted. He stopped when he was about 20 to 25 feet away. Although Villagran and Bonifacio followed a short distance, both men stopped walking. Appellant turned back after apparently hearing Villagran's invitation to fight. When he started walking back, appellant stated, "I'm crazy right now and I don't give a fuck." When he was about six to 10 feet from Villagran, appellant fired his gun twice, striking Villagran in the chest. Appellant fled.
This record does not contain substantial evidence establishing appellant shot Villagran due to an actual or honest belief he needed to defend himself. Terrell's expert testimony also did not support such an inference, but merely suggested appellant's intoxication impaired his ability to process information, produced irrational and emotional thinking, made him prone to violence, and caused him to misinterpret the circumstances. Based on this record, the trial court did not err in failing to instruct on the doctrine of imperfect self-defense.
Because the trial court did not err, we will not address appellant's contentions regarding prejudice.
II. The Trial Court Did Not Err In Declining To Instruct Regarding The Doctrine Of Heat Of Passion Manslaughter.
Appellant asserts the trial court erred in refusing to instruct the jury on voluntary manslaughter based on heat of passion. He contends he was prejudiced, and seeks reversal of count 1.
A. Standard of review.
Voluntary manslaughter is "the unlawful killing of a human being without malice" based upon "a sudden quarrel or heat of passion." (§ 192, subd. (a).) Manslaughter is a lesser-included offense of murder. (People v. Avila (2009) 46 Cal.4th 680, 705 (Avila).) Provocation is the factor which distinguishes the "'heat of passion'" form of voluntary manslaughter from murder. (Ibid.) "'The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim.' [Citation.]" (Ibid.) For heat of passion to reduce murder to voluntary manslaughter, the passion must be a type that would naturally occur in the mind of an ordinarily reasonable person under the facts and circumstances of the case. (Ibid.)
B. Analysis.
Appellant argues there was substantial evidence he was sufficiently provoked and under the actual influence of a strong passion when he killed. He contends he grew increasingly frustrated and angry during the argument as the Flores men confronted him. Some of the Flores men had been drinking, and they had amassed against him. Due to his intoxication, he "irrationally disbelieved" them. The "breaking point" occurred when Villagran verbally provoked him when he "attempted" to walk away. He asserts a reasonable person would have acted from passion under these circumstances, which was supported by Terrell's opinion testimony. We disagree.
Our Supreme Court has found a manslaughter instruction not warranted where the events leading to the killing were not sufficient "'to arouse feelings of homicidal rage or passion in an ordinarily reasonable person.'" (Avila, supra, 46 Cal.4th at p. 706.) In Avila, the victims and their friends were socializing in a parking lot and talking with three young women. The defendant and one or two other men approached. The men told at least two of the young women to get in their car, but the women refused to leave, and the defendant became "irate." (Id. at p. 686.) Somebody in the victims' group uttered a possible gang reference, and the defendant responded with a possible gang reference. A brief argument ensued with the defendant, and someone from the victims' group agreed to fight. (Id. at pp. 686, 706.) The confrontation, however, appeared to dissipate, and the victims started toward their vehicles. When the victims reached various cars, the defendant attacked them with a large knife, stabbing three of them. Two of the victims died. (Id. at pp. 686-687.)
On appeal, Avila rejected the defendant's argument there was sufficient evidence of provocation to warrant instruction on voluntary manslaughter. The Supreme Court determined the victims and their friends were not the initial aggressors. Even assuming a gang reference was stated to the defendant, which a gang member might have perceived as some sort of a challenge, Avila held reasonable people do not become homicidally enraged when hearing "a fleeting gang reference or challenge." (Avila, supra, 46 Cal.4th at p. 706.) Likewise, even assuming someone from the victims' group agreed to fight, "it is scarcely a comment that would reasonably incite homicidal rage." (Ibid.) Avila found no error. (Id. at p. 707.)
Here, as in Avila, there is insufficient evidence of provocation. Neither Villagran nor any of the Flores men were the initial aggressors. Appellant was walking away when Villagran invited appellant to fight. Reasonable people may become angry when a person challenges them to a fistfight. However, such a challenge would not arouse feelings of homicidal rage in an ordinarily reasonable person. On this record, the trial court did not err in refusing to instruct on heat of passion manslaughter.
Because the trial court did not err, we will not address appellant's contentions regarding prejudice.
III. This Record Does Not Establish Ineffective Assistance Of Counsel And Any Presumed Error Was Not Prejudicial.
Appellant contends his trial counsel was constitutionally ineffective during closing arguments. He claims he was prejudiced and seeks reversal of count 1.
A. Background.
Early during her closing arguments, defense counsel said this was a hard case, "a case where we have a villain on one side and a really good person on the other side. The Rodriguez family is a good family. The Flores family is a good family. And what happened that day was tragic. So I don't envy your position and the decision you need to make."
Counsel stated appellant was 19 years old, and he became very intoxicated. "He showed up at the Flores residence because he heard what seemed to be a party or some people in the back yard, and he looked in the back yard to see if his sister was there." Appellant never attempted to break into the Flores residence, and the 911 call established he was drunk. Everything on the 911 call sounded chaotic, with a lot of loud voices, misunderstanding, and "fear of each other." Defense counsel said it was sad because these families "could have been friends. But instead there was anger, there was misunderstanding, there was yelling."
Appellant was threatened as he was leaving. Villagran yelled, "Hey." Defense counsel asserted appellant only shot twice, with both shots at Villagran, who was following him off the property and threatening punches.
Counsel emphasized that appellant was worried about his sister, who was "mentally disabled," and he was scared for her because she became pregnant. According to Terrell, a person with a blood-alcohol level of .23 percent was not capable of making rational decisions. Such a person would misinterpret things.
Bonifacio testified he had four beers, but he told the police he had consumed eight beers, which counsel noted was a big difference. Casimiro testified he drank two beers and he told an officer at the scene that he had one beer. Counsel argued "they were drinking" and "a lot of commotion" occurred in the 911 call. They were yelling back and forth, with both sides "probably" making threats.
Defense counsel argued that only two shots occurred, which could be heard in the 911 call. Eduardo's testimony about the number of shots was not true. She contended that the three "civilian witnesses" for the prosecution changed their "posture" during cross-examination and became evasive. She invited the jury to disbelieve their testimony because they did not answer defense questions. Only two bullets were recovered at the scene, the two found in Villagran.
Defense counsel suggested that appellant did not flee from police, but ran towards the detective who responded to the shots fired. "He was going towards safety, towards a police officer." Appellant had a loaded gun with him, but he did not use it on police officers even when he had a chance. Counsel questioned whether "a cold-blooded murderer" would have acted that way if he wanted to flee.
The detective was mistaken when he testified he heard three shots fired because only two shots were heard on the 911 call, which were about two seconds apart. "Two seconds is all that went by, which is really very quick, and taken in consideration with everything else, my client's intoxicated, the provocation, everything together, this is not a case of premeditated murder. It's just not." Defense counsel ended by stressing the prosecution's theory was not correct that a bullet was meant for Bonifacio.
B. Standard of review.
Under the federal and state constitutions, a criminal defendant is entitled to the assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The constitutional right is a guarantee to effective assistance. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a defendant must establish two criteria: (1) that counsel's performance fell below an objective standard of reasonable competence and (2) that he was thereby prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The defendant has the burden of showing both deficient performance and resulting prejudice. (People v. Lucas (1995) 12 Cal.4th 415, 436.)
C. Analysis.
Appellant argues his counsel "inexplicably" labeled him a "villain" and failed to argue for any verdict other than first degree murder for count 1. He asserts the use of the term "villain" was "even more shocking" because defense counsel called Villagran "a really good person" and labeled as "good" the Flores and Rodriguez families. He notes counsel had no evidentiary basis for these comments, which he calls bizarre, irrelevant and nonsensical. He maintains he was deprived of a potentially meritorious defense when his counsel "failed to argue that sister's absence all day and the hostile confrontation with the Flores family were provocations that could have reduced appellant's culpability from first degree murder to second-degree murder." He asserts his counsel's "closing statement was rambling, vague, and did not explicitly ask the jury to do anything specific." He contends counsel's actions fell below an objective standard of reasonableness under prevailing professional norms. We disagree.
1. Counsel's performance.
An appellate court is to defer to counsel's reasonable tactical decisions, and there is a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. (People v. Lucas, supra, 12 Cal.4th at pp. 436-437.) An appellate court will reverse the conviction "only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581.) In conducting this review, the appellate court considers whether the record contains any explanation for counsel's actions; if the record sheds no light on counsel's actions, the claim is not cognizable unless counsel was asked for an explanation and failed to provide one, or unless there could be no satisfactory explanation for the actions taken. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; People v. Kelly (1992) 1 Cal.4th 495, 520.)
The right to effective assistance of counsel extends to closing arguments. (Yarborough v. Gentry (2003) 540 U.S. 1, 5 (Yarborough).) The decision of how to argue to the jury after the presentation of evidence is inherently tactical, and judicial review of a defense attorney's summation is highly deferential. (Yarborough, supra, at p. 6; People v. Freeman (1994) 8 Cal.4th 450, 498.)
Here, although we do not condone calling appellant a "villain" during closing arguments, defense counsel's actions appeared calculated to gain credibility with the jury. Overwhelming evidence established appellant's guilt for Villagran's senseless murder. Defense counsel only used the term "villain" one time when she opened her remarks, noting the jury's difficult position in deciding the case. Shortly after using this term, defense counsel argued only two shots were fired, and appellant never fired at Bonifacio. She invited the jury to disbelieve the testimony from the Flores family, whom she contended were evasive during cross-examination. She noted that both Bonifacio and Casimiro had consumed beer that night. Defense counsel suggested appellant did not flee from police, and his actions did not show he was a murderer. The two shots heard on the 911 call suggested everything happened quickly. With appellant's intoxication and the provocation, defense counsel argued this was not a case of premeditated murder.
Although defense counsel could have argued in the manner appellant now suggests, it is not our role to determine if different approaches were available, but, rather, whether the record discloses no rational tactical reason for the approach taken. The record establishes an explanation for defense counsel's approach. The incriminating evidence against appellant was strong but his counsel offered some other choice in his favor. Accordingly, appellant has not established that his counsel's performance fell below an objective standard of reasonable competence.
2. Prejudice.
To establish prejudice, appellant must show a "reasonable probability" the result would have been different without the alleged errors. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Williams (1997) 16 Cal.4th 153, 215.)
Appellant asserts a miscarriage of justice occurred stemming from defense counsel's actions, so that reversal is required without analyzing prejudice. In the alternative, he contends there is a reasonable probability a different result would have occurred. He contends the trial evidence was sufficient to raise a reasonable doubt regarding provocation to justify a second degree murder verdict based on his severe intoxication, Terrell's testimony about the effects of intoxication, the volatile confrontation, and Villagran's threat. We disagree.
Even if we were to presume defense counsel's actions fell below an objective standard of reasonable competence, the trial evidence did not establish sufficient provocation. It is not reasonably probable a different result would have occurred had defense counsel not called appellant a "villain" and/or if she had argued in the manner appellant now suggests. Confidence in the outcome of this trial is not undermined. This record does not demonstrate a miscarriage of justice and appellant has not established prejudice. Accordingly, this claim fails.
DISPOSITION
The judgment is affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
POOCHIGIAN, J. /s/_________
PEÑA, J.