Opinion
A156443
03-04-2020
THE PEOPLE, Plaintiff and Respondent, v. CESAR VALADEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. SCN229163)
Cesar Valadez appeals after a jury found him guilty of two counts of attempted murder of a peace officer (Pen. Code, §§ 187, subd. (a), 664), among other offenses. The jury found allegations that the attempted murders were "willful, deliberate, and premediated" within the meaning of section 664, subdivision (f), to be true. Valadez contends substantial evidence does not support the jury's premeditation finding with respect to one attempted murder count. He also challenges certain fines and fees the trial court ordered him to pay, asserting the court's failure to first hold a hearing on his ability to pay violated his constitutional rights. We affirm.
Undesignated statutory references are to the Penal Code. --------
BACKGROUND
A.
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.) "[U]nlike murder, attempted murder is not divided into degrees. The prosecution, though, can seek a special finding that the attempted murder was willful, deliberate, and premeditated, for purposes of a sentencing enhancement." (People v. Mejia (2012) 211 Cal.App.4th 586, 605; see § 664, subd. (f).)
B.
Shortly before midnight on October 31, 2017, San Francisco Police Department Officers Shawn Hintzen and Samuel Fung were on foot patrol when they received a report of a car break in. The officers, dressed in full uniform, approached a parked Chrysler to investigate. The Chrysler was later determined to have been stolen. When Hintzen and Fung approached, holding flashlights and asking who owned the car, a few people standing near the Chrysler looked nervous and walked away.
Valadez was seated in the Chrysler, attempting to roll a joint. He closed an open door as the officers approached. Hintzen testified that he announced, "San Francisco Police" and asked Valadez to open the car door. Valadez refused, saying he did not have the keys. As they spoke, Valadez was climbing back and forth between the front and back seat, acting as if he was trying to hide something. He appeared "like he was almost panicking."
Hintzen announced "SFPD" again and instructed Valadez to exit the car. Valadez said "fuck it," and kicked open the driver's side rear door, which triggered the car alarm. As the door opened, Hintzen was standing half a foot away, right beside the driver's side rear window, holding only his flashlight. Hintzen moved in to detain Valadez, but Valadez immediately fired two to four rounds at Hintzen's chest and stomach. After Valadez fired his weapon, Hintzen drew his own gun, but a bullet struck his hand, knocking the gun from his grasp.
When Hintzen fell to the ground, Valadez opened fire on Fung, who was running away from the Chrysler. Valadez chased Fung, continuing to shoot at him as Fung ran down the block and returned fire. Valadez only stopped shooting when he had emptied his magazine and collapsed from a gunshot wound. When he was detained shortly thereafter, Valadez was wearing a waistband gun holster and a folding knife on his belt. An empty nine-millimeter semiautomatic handgun lay nearby. Officers found a bottle of cognac and two gallon-sized bags of marijuana in the backseat of the Chrysler.
A bullet fragment penetrated officer Hintzen's bullet proof vest and shattered the cell phone in his breast pocket. Although the prosecution's firearms expert was unable to match the bullet fragment conclusively to Valadez's firearm, the expert did observe "similar class characteristics" and excluded both police-issued firearms as sources. Hintzen also suffered gunshot wounds to his hand and abdomen, which the expert believed may have resulted from shots fired by Officer Fung.
The firearms expert testified that Valadez's firearm could hold 18 rounds of ammunition and was equipped with a trigger safety that required depression of two separate areas on the trigger before the weapon would fire. The expert opined the gun had a "heavy trigger pull"—requiring eight pounds of force to fire a bullet, compared to the five or six pounds of force required to fire a typical firearm. The gun also had a "striker safety" that prevents it from firing if dropped.
A woman who lived close to the scene largely corroborated the officers' testimony. She was awakened when she heard an "authoritative" male voice through her window say the word "car" and something to the effect of "it's not worth going to jail for" and "I need to see your hands." Although she did not hear anyone expressly say "SFPD" or "police" before she heard multiple gunshots, she "assumed" based on tone and context that the voice belonged to a police officer. She looked out her window and saw a person standing on the driver's side of a dark car. She saw this person move and then "saw sparks and heard gunshots."
C.
Valadez testified in his own defense. He admitted he was on post-release community supervision (community supervision) at the time of the shooting and knew he was not legally permitted to possess a firearm. He denied knowing that the Chrysler was stolen. But, because he previously failed to report to his assigned probation officer, Valadez assumed (correctly) that a warrant had been issued for his arrest.
Valadez testified he did not know the "two figures" wearing "dark clothes" and telling him to exit the car were police or hear any indication to that effect. He did not see any police insignia because "[i]t was dark." He had been attempting to roll a joint, with the car door open, when the figures first approached the Chrysler. He closed the car door in an effort to hide his marijuana. Valadez explained: "I just thought maybe [the people I came with] set me up to get robbed. I was being robbed. I didn't know what was going on." He remembered a flashlight shining in his face but admitted he did not see any of the "dark figures" with a gun or hear them direct him to give up anything.
Valadez climbed into the driver's seat, thinking he could start the car. Being unable to do so, Valadez decided to exit the car to get away. By this point, his loaded gun had fallen out of its holster onto the seat beside him. When he opened the car door, he held the gun in his right hand with his finger in the "trigger well." Valadez said he did not have his finger on the trigger. When he heard the car alarm, Valadez froze. The man later identified as Officer Hintzen tried to grab his arm or hand, causing the gun to accidentally discharge between two and four times. Valadez testified he did not pull the trigger or intend to fire.
Valadez jumped out of the vehicle, and the other "dark figure," who would later be identified as Officer Fung, started shooting at him. Valadez "reacted" by "shooting back."
Valadez drank cognac and smoked marijuana in the hours before the shooting. A forensic toxicologist testified Valadez's blood alcohol level was 0.07 percent shortly after he was detained. Although this level was relatively "low," it might cause decreased inhibitions, slowed information processing, some sensory motor impairment, as well as diminished attention, judgment, and control. These effects may be increased by using marijuana. With the concentrations of drugs and alcohol found in Valadez's blood, he would nonetheless be capable of planning and making decisions.
D.
Valadez was convicted of two counts of attempted murder of a peace officer (§§ 187, subd. (a), 664; counts one and two); discharging a firearm from a motor vehicle (§ 26100, subd. (c); count three); two counts of assault on a peace officer with a semiautomatic firearm (§ 245, subd. (d)(2); counts four and five); and discharging a firearm with gross negligence (§ 246.3, subd. (a); count seven). He was acquitted on charges of receiving stolen property (§ 496d, subd. (a); count six). The jury also found "true" enhancement allegations that the attempted murders were "willful, deliberate, and premediated" (§ 664, subd. (f)) and that, as to counts one, two, four, and five, Valadez personally used and intentionally discharged a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (c)).
The trial court sentenced Valadez to state prison for an aggregate term of 40 years to life. The court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $40 court operations fee (§ 1465.8, subd. (a)(1)), and a $30 court facilities fee (Gov. Code, § 70373, subd. (a)(1)).
DISCUSSION
A.
Valadez argues the evidence was insufficient to support the jury's premeditation and deliberation finding as to count one (attempted murder of Hintzen). We disagree.
1.
" 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance." ' " (People v. Mendoza (2011) 52 Cal.4th 1056, 1069 (Mendoza).) "An intentional [attempted] killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citations.] However, the requisite reflection need not span a specific or extended period of time." (People v. Stitely (2005) 35 Cal.4th 514, 543.) " ' "Premeditation and deliberation can occur in a brief interval. 'The test is not time, but reflection.' " ' " (People v. Solomon (2010) 49 Cal.4th 792, 812.)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), the California Supreme Court identified three categories of evidence relevant to the existence of premeditation and deliberation: (1) actions before the attempted murder indicative of planning; (2) motive; and (3) a manner of attempted killing that reflects a preconceived plan to kill. The Anderson factors are not "all required" nor "exclusive." (People v. Gonzalez (2012) 54 Cal.4th 643, 663.) "However, '[w]hen the record discloses evidence in all three categories, the verdict generally will be sustained.' " (People v. Stitely, supra, 35 Cal.4th at p. 543.)
2.
Valadez contends the jury's premeditation and deliberation finding is unsupported because the record shows he shot Hintzen as the result of a chance encounter during which he acted rashly and impulsively. We will not reweigh the evidence as Valadez suggests. Considering the record in the light most favorable to the judgment as we must, we conclude a rational trier of fact could find Valadez guilty beyond a reasonable doubt. (Mendoza, supra, 52 Cal.4th at pp. 1068-1069.)
As to the first Anderson factor, there was evidence of planning notwithstanding the fact that the entire incident was brief or that the police initiated the encounter. (See Mendoza, supra, 52 Cal.4th at p. 1069 [" ' " 'cold, calculated judgment may be arrived at quickly' " ' "].) At trial, a video recording of the shooting was played for the jury. We have also viewed that recording, which does not appear to capture the entire encounter but nonetheless shows an interval of time (albeit short) elapsed between the time the officers approached the Chrysler and Valadez's shooting of Hintzen. During that time, the officers testified Valadez appeared nervous, tried to evade contact, and attempted to hide something in the car. He apparently landed on a decision when he said "fuck it," kicked the door open, and shot Hintzen. A rational jury could conclude Valadez used his time inside the car to decide his course of action—or, in other words, to plan to kill both police officers.
Additional evidence suggests planning. Although Valadez testified his loaded gun fell out of its holster when he climbed into the front seat, the jury was not required to credit Valadez's testimony. Rather, the jury could reasonably conclude that Valadez pulled out his loaded gun and placed his finger in the trigger well to further his design to kill Hintzen immediately on exiting the car. (See People v. Wright (1985) 39 Cal.3d 576, 593, fn. 5 [evidence defendant obtained weapon supports planning inference].)
Turning to motive, we find further support for the jury's finding. The prosecution's theory was that Valadez shot the officers to avoid returning to custody. Valadez was on community supervision for a prior offense and had failed to report to his probation officer; he also possessed a large quantity of marijuana and armed himself (unlawfully) with a gun. The prosecution's theory was consistent with the fact that Valadez fired immediately after he kicked open the door and as Hintzen moved towards him. Valadez's theory, on the other hand—that he fired only accidentally and believed he was being robbed—is inconsistent with the evidence.
Valadez's accidental-firing theory conflicts with the firearm expert's testimony regarding the gun's safety features, Hintzen's testimony, and the neighbor's testimony—stating she saw multiple muzzle flashes immediately after seeing movement on the driver's side of the car. Further, Valadez admitted neither "dark figure" had a weapon or demanded property. If he truly believed he was being robbed, the jury may well have doubted his explanation for choosing to leave the relative safety of the car to "avoid being robbed, just get out of there." The jury was entitled to credit the officers' observations of Valadez's behavior, as well as the neighbor's statements regarding what she heard and saw, and conclude Valadez knew Hintzen was a police officer and shot him to avoid arrest.
Finally, the third factor (manner of attempted killing) suggests premeditation and deliberation. That Valadez left the relative safety of the Chrysler with a loaded gun in his hand and then fired the gun immediately after opening the car door is further indication of premeditation, as he was able to surprise officer Hintzen, who had not drawn his gun. On exiting the Chrysler in a way that maintained his control over the situation, Valadez immediately shot Hintzen in the chest, firing two to four times from at most a few feet away. Firing a gun at such a vital body part evidences preconceived deliberation. (Mendoza, supra, 52 Cal.4th at pp. 1065, 1071 [shooting officer in head from a few feet away after using "contrived" acts "reflected stealth and precision"]; People v. Halvorsen (2007) 42 Cal.4th 379, 422 [shooting victims in the head or neck from within a few feet "sufficiently ' "particular and exacting" ' to permit an inference that defendant was 'acting according to a preconceived design' "].)
Substantial evidence supports the jury's finding that Valadez's attempted murder of officer Hintzen was willful, deliberate, and premeditated. (See People v. Brady (2010) 50 Cal.4th 547, 553-554, 563-564 [defendant shot police officer within minutes of officer shining spotlight on defendant's car but rational jury could conclude defendant on supervised release, knowing he illegally possessed a firearm, quickly and coldly planned to kill officer to avoid arrest]; People v. Salas (1972) 7 Cal.3d 812, 816, 824-825 [evidence sufficient to support premeditation finding where defendant, fleeing a robbery, hid proceeds in car while police officer approached, refused to comply with officer's orders, and then shot officer in neck].)
B.
We summarily reject Valadez's argument that the trial court violated his constitutional rights when it imposed $370 of fines and fees without first determining his ability to pay. (People v. Dueñas (2019) 30 Cal.App.5th 1157, 1166 ["a state may not inflict punishment on indigent convicted criminal defendants solely on the basis of their poverty"] (Dueñas).) First, Valadez's attempt to murder two police officers is "not a crime either 'driven by' poverty or likely to 'contribut[e] to' that poverty such that an offender is trapped in a cycle of repeated violations and escalating debt." (People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Second, because Valadez is serving a prison sentence of 40 years to life, and presumably is eligible for paid prison employment, there is no basis for finding that he will be unable to pay $370. (See §§ 2700 [labor "require[d] of every able-bodied prisoner" subject to Department of Corrections rules and regulations], 2801, subd. (b); Cal. Code Regs., tit. 15, § 3040, subd. (a).) Any error was harmless. (See People v. Jones (2019) 36 Cal.App.5th 1028, 1035.)
DISPOSITION
The judgment is affirmed.
/s/_________
BURNS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.