Opinion
G052114
01-20-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN VALENTIN ROMERO, Defendant and Appellant.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10CF2439) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed as modified. Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
Juan Valentin Romero was convicted of premeditated and deliberate attempted murder and assault with a semiautomatic firearm. The jury found the firearm and great bodily injury enhancements to be true, but did not find the gang enhancement true. The trial court sentenced Romero to life with the possibility of parole for the attempted murder conviction plus an additional 25 years to life for the firearm enhancement. On appeal, Romero challenges the sufficiency of the evidence supporting the jury's finding of premeditation and deliberation. He also contends the court committed instructional error, or alternatively, his counsel was ineffective for failing to request the correct instructions. Finally, Romero contends, and the Attorney General agrees, the abstract of judgment must be amended to accurately show he was not sentenced pursuant to the "Three Strikes" law. We agree the abstract of judgment must be amended, but conclude the rest of Romero's contentions lack merit. We affirm the judgment as modified.
I
Simply stated, the prosecution's case was that Romero, armed with a loaded gun, went to a market and recognized a rival gang member, Joseph Mawson, whom he had fought with in juvenile hall. In the market Mawson verbally harassed Romero and his wife. After leaving the market Romero later returned. Romero approached Mawson and initiated a verbal altercation, during which he pulled out the gun and shot Mawson multiple times at close range. Mawson survived. The defense's theory of the case was that in firing the gun Romero acted in self-defense or in imperfect self-defense. A. Romero's Background and Gang Expert Testimony
The prosecution presented evidence Romero was a member of the Santa Nita gang, and Mawson was a member of a rival gang called Middle Side. There was documented proof Romero and Mawson fought with each other while in juvenile hall. The shooting took place in territory claimed by the Santa Nita gang. B. The Shooting
In July 2009, Mawson and his girlfriend, Yujarira Pineda, went to a grocery market to purchase beer. While inside the market, Mawson told Pineda he recognized someone from juvenile hall. As the couple walked out of the market's parking lot, Romero approached them. They exchanged words from approximately five feet apart from each other. Pineda heard five gunshots and saw Mawson fall to the ground. Before the shooting Pineda heard Romero say, "Fuck you" and "I don't give a fuck about the rules. Fuck your lady." Mawson suffered five gunshot wounds injuring his shoulder, chest, left armpit and back. Due to the nature of the wounds it was unclear exactly how many times he was shot.
At trial, Pineda did not recall making this statement to the police about what Romero said before the shooting. However, she also testified she was being honest and truthful during the police interview.
After the shooting, Romero fled the scene. Police officers pursued him and eventually detained him. Romero possessed a handgun, two .380 caliber bullets and one spent casing. While he was detained, Pineda identified him as the shooter. Police later determined one of the bullets removed from Mawson's body had been fired from Romero's handgun. C. Defense Case
Romero's wife, Alexia Romero (Alexia) testified on Romero's behalf. She stated that in 2009 they had been married for four years and at the time of the shooting they had a four-month-old son. She claimed Romero was not a gang member, but they lived in Santa Nita gang territory, and associated with Santa Nita members (including her brother). Alexia did not know Romero had a gun with him that day and she had never before seen him possess one.
Alexia recalled she and Romero went to the grocery market with their son. Inside the market, Mawson said to Romero "look at the little bitch" and Pineda laughed. Alexia stated Romero did not respond to the insult other than to "laugh it off," but she told Mawson "to stop acting like a girl until he was alone." She told Mawson to leave them alone because they were with their child. Romero told Alexia to "shut up" and keep walking because he knew the man from juvenile hall. She said Mawson and Pineda followed them around the market and when they reached the register Mawson called Alexia a bitch. Alexia repeatedly told Mawson to "shut up" and Romero told his wife to keep quiet. Alexia then told Romero to get out of the market because she was afraid the other guy "was going to start something." Alexia assumed he was a gang member because of his appearance and choice of words.
Romero left the market and Alexia continued to trade insults with Mawson and Pineda. Alexia called Mawson "a little bitch" and Pineda called Alexia a "bitch" before leaving the market.
After Alexia paid for her groceries, she saw Romero enter the market and they walked out together to the parking lot. She recalled Romero was upset. He told her, "I saw red" and "let's go." She did not see a gun. On their way to the car, police officers arrived and Romero ran away. At the time, she did not know why he fled.
Romero testified he was not a gang member, but because he grew up in Santa Nita territory, he associated with members. Two months before the shooting, Romero found a loaded gun in the street and decided to keep it because he "thought it was cool to have it." However, he hid it from his wife since she would have told him to get rid of it. Because he had no place to keep the gun, he would store it outside in a trash can at night and possess it during the day. He had never fired the gun before the incident with Mawson.
Romero recognized Mawson in the grocery market because they had fought seven years earlier in juvenile hall. He maintained the fight was not gang related but started after Romero laughed when a friend called Mawson a "mecos," which means sperm cell. Romero determined Mawson was a Middle Side gang member from his tattoos.
Romero recalled Mawson verbally attacked him in the market by saying "he had fucked [him] up" and Romero was a "punk" and a "bitch." Romero's response was to laugh. Mawson and his companion followed them in the market and Alexia became upset. The verbal confrontation continued at the check-out register. Alexia told Romero to leave the market.
Romero said he was upset and started to walk home but then remembered he had the car keys. Romero admitted the route he pursued to his home was not the most direct route, but the way he always goes. It also was a route that looped around to the location where he encountered Mawson. As he returned to the market's parking lot, he saw Mawson and his girlfriend. Romero yelled, "Why do you have to fuck with me when I'm with my family?" Mawson, standing just a few feet away, replied, "Fuck you and your family." Romero saw Mawson move towards him "like he was going to try to fight." Knowing Mawson was a member of a gang that carried weapons, Romero felt scared and pulled the gun out from his pocket and shot Mawson two or three times before the gun stopped working. Romero claimed he did not think about pulling out the gun and shooting, it happened too quickly. Romero had been "hit up" by gang members before and they had pointed guns at him.
After the shooting, Romero, feeling scared and angry, ran into the market and found his wife. He recalled telling her "Hurry up, we have to go." At the car he tried to empty the gun and wrap it up in his shirt. When he saw the police, Romero thought he needed to get away from his family because he did not want to be charged with child endangerment. He fled the scene but was eventually captured and arrested.
At the request of both parties, the court gave the following version of CALCRIM No. 1403: "You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes and enhancements. [¶] OR [¶] The defendant had a motive to commit the crimes charged. [¶] You may also consider this evidence when you evaluate the credibility and believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime."
A jury convicted Romero of willful, deliberate and premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)) (count 1), and assault with a semiautomatic firearm (§ 245, subd. (b)) (count 2). The jury found true two enhancements (§ 12022.7, subd. (a) [personal infliction of great bodily injury] and § 12022.5, subd. (a) [personal use of a firearm]). The jury also found not true the enhancement pursuant to section 186.22, subdivision (b)(1) (the crime was committed for the benefit of a criminal street gang). The information alleged Romero suffered a juvenile adjudication of a strike prior offense pursuant to section 667, subdivisions (d) and (e)(1), and section 1170.12, subdivisions (b) and (c)(1). The trial court found this strike prior conviction to be true, but struck it pursuant to section 1385, subdivision (c)(1).
All further statutory references are to the Penal Code.
The court sentenced Romero to life with the possibility of parole on count 1, plus an additional 25 years to life for the firearm enhancement. The court did not impose the great bodily injury enhancement in count 1 and stayed the sentence in count 2 pursuant to section 654. Romero filed a timely notice of appeal.
II
Romero asserts there was insufficient evidence to support the jury's finding of premeditation and deliberation. He also argues the trial court committed prejudicial instructional error by instructing with CALCRIM No. 1403 on the limited purpose of gang evidence without including the bracketed portions pertaining to self-defense and imperfect self-defense. Alternatively, Romero contends his counsel was ineffective for failing to request the correct instructions.
Sufficiency of the Evidence
"Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation . . . . Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.] The standard of review is the same in cases such as this where the People rely primarily on circumstantial evidence. [Citation.]" (People v. Perez (1992) 2 Cal.4th 1117, 1124.) "'An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise. [Citations.]'" (People v. Halvorsen (2007) 42 Cal.4th 379, 419.)
In People v. Anderson (1968) 70 Cal.2d 15, the California Supreme Court formulated a framework to aid reviewing courts in analyzing the sufficiency of the evidence to sustain findings of premeditation and deliberation. Three types of evidence are typically relied upon to support an inference of premeditation and deliberation: "(1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as 'planning' activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a 'motive' to kill the victim . . . [and]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a 'preconceived design' to take his victim's life in a particular way for a 'reason' which the jury can reasonably infer from facts of type (1) or (2)." (Id. at pp. 26-27.) Courts will sustain findings of premeditation and deliberation where there is evidence of all three types. Otherwise, courts require "at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3)." (Id. at p. 27.)
Here, Romero testified that after the confrontation inside the market while he, his wife, and their child were standing in the checkout line, his wife suggested he leave the market. At that time, Mawson and his girlfriend were standing nearby in a different checkout line. Rather than going to the car to wait for his wife and child, Romero decided to walk home. Romero explained he returned to the market after realizing he had the car keys. He admitted the path he had taken to walk home was not the most direct route. However, it was a route that caused him to encounter Mawson and his girlfriend at the driveway of the market. Based on this evidence, the jury could conclude Romero left and returned to the market with a plan to confront Mawson.
There was no dispute that Romero and Mawson had fought each other in juvenile hall. And there was no dispute about the heated nature of the confrontation in the market between the two and their companions. Romero admitted he was upset Mawson disrespected him and his family inside the market. Upon seeing Mawson and his girlfriend when he returned to the market, Romero initiated another confrontation by asking Mawson, "Why do you have to fuck with me when I'm with my family?" From this conduct, the jury could reasonably infer Romero had a motive to kill Mawson.
We conclude the facts showing planning and motive surrounding the killing are such that the jury could reasonably infer Romero had a preconceived design to take Mawson's life in a particular way. "'Premeditation and deliberation can occur in a brief interval. "The test is not time, but reflection. 'Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.'"' [Citation.]" (People v. Sanchez (2001) 26 Cal.4th 834, 849.) Thus, we reject Romero's contention there was insufficient evidence to support the jury's finding of premeditation and deliberation.
Instructional Error
The Attorney General argues Romero forfeited his claim of instruction error because at trial he failed to request the bracketed portions regarding self-defense and heat of passion in CALCRIM No. 1403. We shall address the merits of his contention because Romero alternatively alleges he received ineffective assistance of counsel.
The Attorney General repeatedly refers to the defense of heat of passion. A review of the record establishes the defenses offered by Romero were self-defense and imperfect self-defense. Accordingly, we do not address the defense of heat of passion. --------
"We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 (Ramos).) On appeal, we review independently the question whether the trial court failed to instruct on defenses. (People v. Waidla (2000) 22 Cal.4th 690, 739.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.]" (Ramos, supra, 163 Cal.App.4th at p. 1088.)
Here, Romero claims the omission of bracketed portions of CALCRIM No. 1403 precluded the jury from considering certain gang-related evidence in evaluating Romero's self-defense and imperfect self-defense claims. The subjective elements of self-defense and imperfect self-defense are identical. "Under each theory, the appellant must actually believe in the need to defend himself against imminent peril to life or great bodily injury. To require instruction on either theory, there must be evidence from which the jury could find that appellant actually had such a belief." (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.) Romero asserts the trial court's omission of the bracketed portion of CALCRIM No. 1403, was error in light of the evidence supporting his defense of self-defense and imperfect self-defense.
"'"[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction."' [Citations.]" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) In addition to CALCRIM No. 1403, the court instructed the jury with CALCRIM No. 604 (imperfect self-defense) and CALCRIM No. 3470 (self-defense). CALCRIM No. 604 instructed the jury, "In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant." CALCRIM No. 347 instructed the jury, "When deciding whether the defendant's beliefs were reasonable, consider all the circumstances that were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed."
In examining the jury instructions as a whole, we assume "jurors are '"'"intelligent persons and capable of understanding and correlating all jury instructions which are given."' [Citation.]" [Citations.]' [Citation.]" (People v. Smith (2008) 168 Cal.App.4th 7, 13.) The instructions on self-defense and imperfect self-defense, specifically advised the jury it could consider "all the circumstances as they were known and appeared to the defendant" in determining whether he acted in self-defense or in imperfect self-defense. (CALCRIM Nos. 604 & 3470.) This would include gang-related facts and evidence known to Romero.
Taking into account the instructions on self-defense and imperfect self-defense, and the specific language of CALCRIM No. 1403, we conclude the instructions as given adequately explained to the jury that they could consider gang evidence known to Romero in deciding whether he acted in lawful self-defense or imperfect self-defense. In summary, it was not reversible error for the trial court to omit the bracketed portions on self-defense and imperfect self-defense.
In any event, any error would not have been prejudicial. The parties disagree on applicable harmless error standard. Romero asserts the harmless error standard under Chapman v. State of California (1967) 386 U.S. 18, 24 (Chapman) [reviewing court must be convinced beyond a reasonable doubt the error did not contribute to the verdict obtained]. The Attorney General argues Chapman does not apply because the trial court's failure to include those bracketed portions in CALCRIM No. 1403, did not amount to a federal constitutional error. She reasons that because the jury was not precluded from using the gang evidence to determine whether Romero acted in self-defense, his federal constitutional rights to due process and a fair trial were not implicated. Relying on People v. Rivas (2013) 214 Cal.App.4th 1410, 1430, the Attorney General asserts the alleged instructional error would be subject to the harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818 [reviewing court determines whether it is reasonably probable a result more favorable to the appealing party would have been reached in absence of the error].
"[T]he United States Supreme Court . . . has consistently applied [the standard of prejudice under Chapman, supra, 386 U.S. at page 24] to instructional error cases involving either misinstruction of a single element of a charged crime or a constitutional defense." (People v. Avila (1995) 35 Cal.App.4th 642, 662, disapproved on other grounds in People v. Flood (1998) 18 Cal.4th 470, 493.) In this case, because the alleged instructional error may have compromised Romero's right to present his claim of self-defense or imperfect self-defense, we conclude the appropriate standard of review is Chapman.
Under the Chapman standard, a federal constitutional error requires reversal unless the prosecution shows the error was "harmless beyond a reasonable doubt." (Chapman, supra, 386 U.S. at p. 24.) Alternatively stated, a conviction need not be reversed if the prosecution shows "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Ibid.) The reviewing court conducting a harmless error analysis under Chapman looks to the "whole record" to evaluate the error's effect on the jury's verdict. (Rose v. Clark (1986) 478 U.S. 570, 583.)
Here, Romero testified he had been "hit up" by gang members before and they had pointed guns at him. Based on his memory, he was scared of Mawson because he knew Mawson was a member of a gang that carried weapons. But if Romero was so fearful of Mawson, one has to wonder why he would leave his wife and child at the market with Mawson and walk home. Also inconsistent with a claim of fear is Romero's decision to return to the market and instigate a confrontation with Mawson by yelling, "Why do you have to fuck with me when I'm with my family?" Thus, even assuming it was error for the trial court to omit the bracketed portions of CALCRIM No. 1403, we find beyond a reasonable doubt no more favorable result could have occurred absent the error. There is no reasonable possibility that the error might have contributed to the verdict.
Ineffective Assistance of Counsel
Although we have determined it was not error for the trial court to have omitted bracketed portions of CALCRIM No. 1403, we nonetheless will address Romero's claim of ineffective assistance of counsel. "To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel's performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. [Citation.]" (People v. Benavides (2005) 35 Cal.4th 69, 92-93.)
Romero has failed to establish he received ineffective assistance of counsel. In the absence of instructional error, counsel's performance cannot be viewed as deficient for failing to request the bracketed portions of the instructions. As discussed ante, if we were to find instructional error, Romero was not prejudiced even under the heightened federal constitutional standard articulated in Chapman, surpa, 386 U.S. at page 24. Moreover, the jury was instructed it could consider all circumstances known to defendant in determining whether he acted in self-defense or in imperfect self-defense. There is no reasonable probability that if this information was also included within CALCRIM No. 1403, Romero would have received a more favorable result.
Error in Abstract of Judgment
We agree with the parties that the abstract of judgment must be amended to accurately show Romero was not sentenced pursuant to the Three Strikes law.
III
The matter is remanded and the trial court is directed to amend the abstract of judgment to show Romero was not sentenced pursuant to the Three Strikes law, and to forward a certified copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation Division of Adult Operations. The judgment is affirmed in all other respects.
O'LEARY, P. J. WE CONCUR: FYBEL, J. IKOLA, J.