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People v. Perez

July 29, 2010


Ct.App. 2/1 B198165 Los Angeles County Super. Ct. No. BA298659-01 Judge: Judith L. Champagne

The opinion of the court was delivered by: Baxter, J.

Defendant fired a single bullet at a distance of 60 feet, from a car going 10 to 15 miles per hour, at a group of seven peace officers and a civilian who were standing less than 15 feet apart from one another in a dimly lit parking lot late on the night in question. There was evidence that defendant believed he was shooting at a group of rival gang members, but no evidence he was targeting any particular individual when he fired at the group. The bullet hit one officer in the hand, nearly severing his finger, but killed no one. The jury returned special findings that defendant knew or reasonably should have known that the victims were peace officers, and convicted defendant of, among other crimes, seven counts of premeditated attempted murder of a peace officer and one count of premeditated attempted murder (the civilian victim).

The Court of Appeal reasoned that the jury could find on this evidence that "the officers' proximity to each other was such that in intending to kill any of the officers defendant's shooting endangered the lives of all." On that basis, the court affirmed defendant's convictions of eight counts of attempted murder. But shooting at a person or persons and thereby endangering their lives does not itself establish the requisite intent for the crime of attempted murder. "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.) We granted review to determine whether, on these facts, sufficient evidence supports the multiple convictions of attempted murder where no particular individual was being targeted, and one shot was fired at the group, striking a single officer.

We conclude the evidence is sufficient to sustain only a single count of premeditated attempted murder of a peace officer. "The mental state required for attempted murder is the intent to kill a human being, not a particular human being." (People v. Stone (2009) 46 Cal.4th 131, 140 (Stone) [indiscriminate firing of a single shot into a group of 10 to 25 youths supported one generic count of attempted murder].) Here, defendant fired the single shot at the group intending to kill someone, but without targeting any particular individual, and without using a means of force calculated to kill everyone in the group. The prosecutor argued to the jury that the evidence established defendant did not have "a specific target in mind" when he fired the single shot at the group and did not intend to "kill everybody" in the group, but rather intended to "kill anybody, wherever that bullet hit." On facts such as these, where the shooter indiscriminately fires a single shot at a group of persons with specific intent to kill someone, but without targeting any particular individual or individuals, he is guilty of a single count of attempted murder. (Id. at p. 134.)

There is no doubt that defendant endangered the lives of every individual in the group into which he fired the single shot. His assault with a firearm against each victim in the group led to his conviction of seven counts of assault with a semiautomatic firearm on a peace officer and one count of assault with a firearm on a civilian victim, for which offenses he could properly be separately punished, subject to Penal Code section 654*fn1 and applicable sentencing guidelines. On these facts, however, defendant can be found guilty of only a single count of premeditated attempted murder of a peace officer. Accordingly, the judgment of the Court of Appeal will be reversed and the matter remanded to that court for further proceedings consistent with the views expressed herein.

Facts and Procedural Background

Defendant Rodrigo Perez appealed from the judgment entered following his conviction by jury trial of seven counts of premeditated attempted murder of a peace officer (§§ 664, subds. (e), (f), 187, subd. (a)), one count of premeditated attempted murder (§§ 664, 187, subd. (a)), one count of assault with a semiautomatic firearm (§ 245, subd. (b)), seven counts of assault with a semiautomatic firearm on a peace officer (§ 245, subd. (d)(2)), and one count of felony vandalism (§ 594, subd. (a)). The jury further found that defendant personally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c), (d)) and inflicted great bodily injury as a result of a firearm being discharged from a motor vehicle (§ 12022.5), and that all the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Defendant was sentenced on one count of premeditated attempted murder (pertaining to injured peace officer Rodolfo Fuentes) to 15 years to life, plus an enhancement of 25 years to life for personal use of a firearm causing great bodily injury. Sentences on the remaining attempted murder convictions were imposed to run concurrently, and sentences on the convictions of assault with a semiautomatic firearm on a peace officer, as well as all remaining firearm use enhancements, were imposed but stayed pursuant to section 654, for an aggregate prison term of 40 years to life.

On July 1, 2005, Los Angeles police officers who were sitting in an unmarked car across from Christopher Dena Elementary School on East Olympic Boulevard and South Grande Vista Avenue in East Los Angeles saw a car stop in front of the school. Defendant exited from the front passenger seat and, using a can of spray paint, sprayed graffiti that identified the Eighth Street gang on two walls. Defendant then got back into the car, which sped off. A gang expert testified that defendant is a member of the Eighth Street criminal street gang, which is a rival of the Varrio Nueva Estrada (VNE) gang. The Eighth Street gang claims territory bordered on one side by South Grande Vista Avenue; VNE claims the territory on the other side of the street.

On the afternoon of the following day, July 2, 2005, defendant, his girlfriend, Vanessa Espinoza, and Espinoza's cousin, Lissette Guerrero, attended a barbeque in Elysian Park. Guerrero testified that the three left the barbeque after dark. Defendant dropped Guerrero and Espinoza off at defendant's house and drove away. Espinoza testified (under a grant of immunity) that defendant woke her up around 3:00 a.m. the next morning (July 3). Defendant appeared intoxicated and told Espinoza he thought he had shot a cop.

Meanwhile, about 1:30 a.m. on July 3, 2005, officers responded to a report of a carjacking. The car that had been stolen was in an apartment building parking lot abutting the VNE side of Grande Vista Avenue. Officers arrived at the scene and detained some of the carjacking suspects. The carjacking victims were brought to the scene and made positive in-field identifications of the suspects and certain property found in the stolen car.

At one point, eight uniformed officers and one of the carjacking victims, as well as three marked police cars, were in the parking lot. A fourth marked police car was at a nearby corner. One of the officers noticed a car with two people inside turning from East Olympic onto South Grande Vista, about 60 feet away, and driving approximately 10 to 15 miles per hour. A shot was fired from the passenger side window. The shot hit the middle finger of Officer Rodolfo Fuentes, who was standing next to and talking to one of the carjacking victims. Officer Fuentes dropped down (as did the other officers), pulling the carjacking victim down with him. The car, which appeared to be occupied by two Hispanic males, sped off northbound on Grande Vista.

The parking lot where the officers were standing was illuminated by overhanging lights. There were also some trees between the lot and Grande Vista Avenue. The lighting conditions were described by one officer as "good enough where you can see." Officer Monahan, who was standing alone approximately 20 to 30 feet from the group of eight other officers, described the lighting as "very dim" and "very dark." When the shot was fired, several officers were standing in close proximity to one carjacking victim and the stolen car. As described in the testimony of the various officers, the carjack victim was standing next to Officer Fuentes; Officer Trujillo was two feet from Fuentes; Officer Meneses was about three feet away; Officer Davis was four to eight feet away; Officer Aguilera was approximately five feet away; Officer Villaneda was 10 to 15 feet away from Officer Fuentes; and Officer Ortega was standing near the group of officers while taking photographs of the victim's car.*fn2

The bullet that hit Officer Fuentes almost severed his middle finger, requiring surgery and several days of hospitalization. Investigators established that the trajectory of the bullet continued through a metal security door and the wooden front door of a unit in the nearby apartment building, ultimately striking a kitchen cabinet and bouncing into the bathroom of the unit. The recovered bullet was found to be consistent with a .40-caliber (or a 10-millimeter) semiautomatic handgun, possibly manufactured by Glock. The vehicle used in the shooting was eventually identified as being registered to defendant's girlfriend, Espinoza.

Jose Morales, who testified in the hope of receiving leniency following a non-related conspiracy plea, stated he had grown up with defendant. Defendant told Morales that on the night in question he had been drinking with friends and decided to pass by the VNE's territory. When defendant got to a stop sign, he saw some men with bald heads who he thought were VNE gang members. (One officer testified that, at the time of the incident, his head was "shaved." Another officer described his hair as "close shaved.") Defendant told Morales that "he shot and when they ducked that is when he noticed it was police officers, because [of] the ...

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