Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CF2256 Francisco P. Briseno, Judge.
Arthur Martin, 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, Andrew Mestman and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Defendant Inocente Secundino, Jr., appeals after a jury found him guilty of first degree murder. The jury also found defendant committed the murder for the benefit of a criminal street gang and that he personally discharged a firearm causing death. Defendant argues the judgment of conviction should be reversed because (1) insufficient evidence supported the finding he acted with malice when he shot and killed a rival gang member; and (2) portions of the given jury instructions on self defense and imperfect self defense did not apply to the facts of this case and thus misled the jury.
We affirm. Substantial evidence supported the finding defendant did not believe he was acting in self defense or defense of another person when he chased Steve Arreguin and two other men and fatally shot Arreguin in the back of the head. Defendant forfeited the argument the challenged instructions should have been modified or clarified. Even if his argument was not forfeited, there was no reasonable likelihood the jury misconstrued or misapplied them.
FACTS
Around 2:30 p.m. on July 17, 2006, defendant and Francisco Salgado were standing on the sidewalk in front of a house near the intersection of Maple Street and Chestnut Street in Santa Ana. Defendant belonged to the Lopers criminal street gang (Lopers); Salgado “kicks it with Lopers.” Defendant and Salgado were talking to three men who lived at the house; the men did not belong to the Lopers.
Gerson Medel rode a bicycle toward the group and stopped the bicycle between defendant and Salgado. Medel asked defendant, “[w]here are you from?” Defendant responded, “Lopers.” Medel then said, “BTS” and “fuck Lopers”; BTS stands for another criminal street gang in the area, called Brown Thugs.
Salgado hit Medel in the back of the head. Defendant said he was going to get the “pisto” which is a slang word for “gun” in Spanish. Defendant then ran toward his house which was located about a block away from the Maple and Chestnut Streets intersection. Salgado and Medel argued but did not engage in any further physical altercation. Medel eventually left.
Defendant, riding a bicycle, returned to the intersection and he appeared to have something in his pocket. He asked Salgado which way Medel went. Salgado pointed down Maple Street. Defendant rode away.
Medel returned on foot to the intersection with two other men. One of the men with Medel, Steven Arreguin, had some kind of object protruding from his pocket; two witnesses stated it appeared to be the butt of a gun but also could have been a cell phone. After Salgado saw the group of three men approaching him, he started to run away; a witness heard the three men screaming, “I’m going to get this bitch.” The three men chased Salgado until two of the men saw defendant coming toward them.
The three men stopped chasing Salgado and started running away from defendant; defendant got off the bicycle and, while holding a gun, ran toward them. The three men continued to run away in a single file line, screaming something at defendant; the last one in line was Arreguin. Arreguin turned toward defendant as he continued to run away; he did not try to pull anything from his pocket and none of the three men threatened defendant or stopped to confront him. Defendant stopped in the middle of the street and held the gun with both hands. He fired the gun three times, fatally shooting Arreguin in the back of the head.
Medel rushed to Arreguin’s side and appeared to one witness to be going through his pockets. Medel remained with Arreguin until police officers arrived. The police officers searched Arreguin’s pockets in which they found a silver cell phone, a screwdriver, a black marker, and a key ring. The police officers did not find a gun after searching Medel and the general vicinity of the crime scene.
Defendant fled from the police. He briefly lived in Mexico and then moved to Coos Bay, Oregon, where he used an assumed name. He was arrested in Oregon on May 20, 2008.
Detective David Rondou of the Santa Ana Police Department’s gang homicide detail along with detective Julian Rodriguez interviewed defendant on May 21, 2008 in Oregon. Defendant told the detectives that a guy from BTS approached him and Salgado and disrespected them by saying “fuck Lopers.” He said Salgado punched the guy and the guy took off. Defendant went back to his house to get his gun and then set out looking for the guy. He saw the guy with two other men. Defendant said he threw his bike because he thought one of them was going to pull a gun and “it’s going to be me or you.” Then, defendant chased the men who started running away from him. Defendant admitted to Rondou and Rodriguez that he stopped and fired the gun three times; he admitted aiming at one of the men in the back of the head while that man was running away from him. Defendant also admitted never seeing any weapon on the men running away from him.
PROCEDURAL BACKGROUND
Defendant was charged in an information with murder in violation of Penal Code section 187, subdivision (a) and with street terrorism in violation of Penal Code section 186.22, subdivision (a). (All further statutory references are to the Penal Code.) The information alleged defendant committed the murder offense (1) for the benefit of, at the direction of, or in association with the Lopers with the specific intent to promote, further, or assist in the criminal conduct of members of that criminal street gang, within the meaning of section 186.22, subdivision (b)(1); (2) by intentionally and personally discharging a firearm, within the meaning of section 12022.53, subdivision (d); and (3) while he was an active participant in the Lopers and in furtherance of the activities of that criminal street gang, within the meaning of section 190.2, subdivision (a)(22).
The jury found defendant guilty of both offenses as charged and found the three enhancement allegations true. Defendant was sentenced to a life term without the possibility of parole for the first degree murder conviction and a consecutive prison term of 25 years to life for the section 12022.53, subdivision (d) enhancement. The trial court imposed and then stayed a 10 year sentence for the section 186.22, subdivision (b)(1) enhancement and imposed a concurrent two year sentence for the street terrorism offense. Defendant appealed.
DISCUSSION
I.
Substantial Evidence Supported the Finding Defendant Did Not Believe He Was Acting in Self defense or in the Defense of Another Person When He Shot and Killed Arreguin.
Defendant contends insufficient evidence showed he did not believe, albeit unreasonably, that he was acting in his own defense or in any other person’s defense when he shot and killed Arreguin. For the reasons we will explain, defendant’s argument is without any merit.
“When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]... We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
“‘“Murder is the unlawful killing of a human being with malice aforethought. [Citation.] A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of... voluntary manslaughter. [Citation.]” [Citation.] Generally, the intent to unlawfully kill constitutes malice. [Citations.] “But a defendant who intentionally and unlawfully kills [nonetheless] lacks malice... when [he] acts in a ‘sudden quarrel or heat of passion’ [citation], or... kills in ‘unreasonable self defense’—the unreasonable but good faith belief in having to act in self defense [citations].” [Citation.]’” (People v. Rios (2000) 23 Cal.4th 450, 460.) “Imperfect self defense obviates malice because that most culpable of mental states ‘cannot coexist’ with an actual belief that the lethal act was necessary to avoid one’s own death or serious injury at the victim’s hand.” (Id. at p. 461.)
Here, more than substantial evidence supported the finding defendant did not have a good faith belief that the act of shooting Arreguin was necessary to avoid an imminent danger of death or great bodily injury. Substantial evidence showed defendant ran home to retrieve a gun in response to Medel stating “fuck Lopers.” When defendant returned on his bicycle looking for Medel, he saw Medel in the company of Arreguin and another man chasing Salgado. The three men stopped chasing Salgado when they saw defendant approaching them and they started running away. Although defendant considered that one of the men might have a gun, he never saw a gun or any other weapon in their possession. Putting aside that concern and even though the men were running away, defendant continued to run after them. Defendant then stopped in the middle of the street, held the gun he had retrieved from home with two hands, and fired three shots. Defendant aimed at the back of Arreguin’s head and met his target, fatally wounding Arreguin.
Defendant specifically admitted to Rondou and Rodriguez during the May 2008 interview that at the time he shot Arreguin, Arreguin was running away from defendant and he aimed at the back of Arreguin’s head.
“Rondou: Okay. And then they’re running away from you.
“[Defendant]: Yes.
“Rondou: So you... you were shooting at this guy’s back.
“[Defendant]: Right here.
“Rondou: Were you aiming at him? Show me how you shot.
“[Defendant]: Like this.
“Rondou: Oh, like a cop?
“[Defendant]: Yeah.
“Rondou: You just straight up underneath like a cop, huh?
“[Defendant]: Yeah.
“Rondou: What were you trying to hit?
“[Defendant]: In the head.
“Rondou: Back of his head.
“[Defendant]: Yeah.
“Rondou: And he’s running away from you? They’re running this way down Maple.
“[Defendant]: Mmm hm.
“Rondou: Okay.
“Rodriguez: Anything else about that?
“[Defendant]: Not really. I... that’s... that’s the only story I can tell you that I know.
“Rondou: Well, I don’t want the only story. Is that the truth?
“[Defendant]: Yeah, that’s true.” (Some capitalization omitted.)
Even if Arreguin, Medel, or the other man had a weapon on July 17, 2006, defendant did not see it and was not threatened with it.
Defendant testified at trial that when Arreguin turned back toward him, defendant thought Arreguin was reaching for a gun in his pocket. But the jury did not believe that when defendant aimed and shot Arreguin in the back of the head, he did so believing in good faith that action was necessary to protect against death or great bodily injury to himself or another person. As discussed ante, substantial evidence supported the jury’s finding.
We find no error.
II.
Defendant Forfeited His Contention of Instructional Error; Even If the Given Instructions Could Have been Clarified, There Was No reasonable Likelihood the Jury Misconstrued or Misapplied Them.
Defendant argues portions of the instructions given to the jury on self defense and defense of others, although correct statements of the law, were inapplicable to the facts of the case and thus likely misled the jury. Defendant argues that because the evidence at trial showed he was not an aggressor within the meaning of the instructions, the portions of CALJIC Nos. 5.17 and 5.54, which render the self defense doctrine inapplicable to aggressors, should have been deleted or modified.
The jury was instructed with CALJIC No. 5.17 as follows: “A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary manslaughter. [¶] As used in this instruction, an ‘imminent’ peril or danger means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer. [¶] However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force, attack or pursuit. [¶] This principle applies equally to a person who kills in purported self-defense or purported defense of another person.” (Italics added.)
CALJIC No. 5.54 instructed: “The right of self-defense is only available to a person who initiated an assault, if [¶] 1. He has done all the following: [¶] A. he has actually tried, in good faith, to refuse to continue fighting; [¶] B. he has by words or conduct caused his... opponent to be aware, as a reasonable person, that he wants to stop fighting; and [¶] C. he has by words or conduct caused his... opponent to be aware, as a reasonable person, that he has stopped fighting. [¶] After he has done these three things, he has the right to self defense if his opponent continues to fight, or [¶] 2. The victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self defense.”
Defendant argues that although these instructions correctly state the law, they should have been modified or clarified to account for the evidence showing he was not the aggressor. (See People v. Cross (2008) 45 Cal.4th 58, 67 [“Giving an instruction that is correct as to the law but irrelevant or inapplicable is error”].)
Defendant did not raise this issue in the trial court. He did not ask that the trial court modify or clarify any portion of the jury instructions, which he contends did not apply to his case. Because the instructions correctly state the law, and defendant did not request modification or clarification, he has forfeited any claim of instructional error. (People v. Jenkins (2000) 22 Cal.4th 900, 1020; People v. Bolin (1998) 18 Cal.4th 297, 328.) “[A] defendant is not entitled to remain mute at trial and scream foul on appeal for the court’s failure to expand, modify, and refine standardized jury instructions.” (People v. Daya (1994) 29 Cal.App.4th 697, 714.)
Even if defendant’s contention of instructional error has not been forfeited, we believe there was no reasonable likelihood the jury misconstrued or misapplied the challenged portions of the instructions. (People v. Smithey (1999) 20 Cal.4th 936, 963 964.) CALJIC No. 5.17 allowed the jury to decide whether defendant “by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force, attack or pursuit.” Similarly, CALJIC No. 5.54 allowed the jury to determine whether defendant “initiated an assault.”
Furthermore, the jury was also instructed with CALJIC No. 17.31 as follows: “The purpose of the court’s instructions is to provide you with the applicable law so you may arrive at a just and lawful verdict. Whether some instructions apply will depend upon what you find to be the facts. Please disregard any instruction which applies to facts determined by you not to exist.” We presume the jury followed the trial court’s instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) We find no error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.