IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
February 14, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RUDY JOSEPH ORNELAS, DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF07-5385)
The opinion of the court was delivered by: Butz , J.
P. v. Ornelas
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Rudy Joseph Ornelas of attempted murder (Pen. Code, §§ 21a, 187, subd. (a), 664--count 1),*fn1 possession of a firearm by a felon (former § 12021, subd. (a)(1)--count 2), and assault with a semiautomatic firearm (§ 245, subd. (b)--count 4). The jury found true allegations that defendant intentionally and personally discharged a firearm (former § 12022.53, subd. (c)) in the commission of count 1 and that he personally used a firearm (former § 12022.5, subd. (a)) in the commission of count 4. The jury found not true an allegation that count 1 was "done willfully with premeditation and deliberation." (§ 664, subd. (a).) The jury deadlocked and a mistrial was declared on a count of conspiracy to commit assault with a semiautomatic firearm. (§ 182, subd. (a)(1)--count 3.)
In a bifurcated proceeding, the trial court found that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and had served four prior prison terms (§ 667.5, subd. (b)).
Defendant was sentenced to state prison for 45 years, consisting of 18 years (double the upper term) for count 1, 20 years for discharge of a firearm, five years for the prior serious felony conviction, and two years for prior prison terms.*fn2 He was awarded 1,480 days of presentence credit pursuant to section 2933.1.*fn3
On appeal, defendant contends (1) his trial counsel rendered ineffective assistance when he failed to request a mistrial; (2) the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of attempted voluntary manslaughter; and (3) the court erred by failing to instruct sua sponte that defendant's out-of-court statements must be viewed with caution (CALCRIM No. 358). We shall affirm the judgment.
In February 2007, Melinda McKinnon was dating and living with Claudio Magobet.*fn4 One day, McKinnon left Magobet's house and took his wallet with her. That night she met up with victim Abel Trevino, with whom she had had a prior sexual relationship, and they ended up having sex at a local motel.
The next day, defendant telephoned Magobet and told him that he had seen McKinnon with Trevino the previous night and that McKinnon had Magobet's wallet. Defendant also said that his own keys were missing; he believed Trevino might have them. Defendant and Magobet agreed to meet up and look for McKinnon and Trevino. Magobet took his loaded nine-millimeter handgun with him.
Defendant and Magobet spent the day driving around West Sacramento, drinking beer, and checking multiple locations for Trevino or McKinnon. At one point, defendant asked Magobet if he could hold Magobet's gun because "he would know how to handle the situation."
Defendant and Magobet found Trevino at a trailer owned by Ray Mata. Defendant and Magobet yelled and threatened Trevino as they approached the trailer. Mata allowed the duo to enter because Magobet assured Mata that there would be no problems.
Defendant and Magobet asked Trevino about the location of Magobet's wallet and defendant's keys. Trevino denied knowing anything about them. Defendant then asked Trevino to step outside to continue the conversation. Trevino resisted but eventually followed defendant out the front door.
As soon as they got outside, Trevino used his left hand to strike defendant on the back of the head. Defendant "bobbl[ed] around" and hit a truck. Before Trevino could strike him again, defendant regained his composure and reached in his pants for the gun. Trevino pushed defendant and tried to run away.
Defendant fired the gun at Trevino from close range but missed. Trevino took cover behind the truck. Defendant then fired a second shot at Trevino, missing again. Still hiding behind the truck, Trevino pleaded for defendant to stop shooting. Defendant fired a third shot at Trevino, missing again. Finally, Trevino ran from the truck and tried to jump a wooden fence. Defendant fired a fourth shot at Trevino, which also missed.
Defendant's wife, Angelina Ornelas (Angelina), testified that a few months after the shooting Magobet gave her a key to his Lexus: "He said, I'm giving you this key to my '99 Lexus. He said, tell [defendant] to stay quiet, and I'll get him out of this mess because all of this mess is mine." Magobet also told Angelina that he had fired the gun at Trevino.
Angelina further testified about a conversation she had with Trevino after the shooting. "He said he was sorry for [defendant] being in custody and that he was going to clean his [sic] self up from drugs and go straighten it up and fix it, but I don't know if he ever did."
Cathy Perez, a neighborhood friend, testified that on the night of the shooting, Magobet came to her house, sweaty, out of breath, and frantic, and asked if he could spend the night. Magobet had a small gun in his hand and told Perez that he "just shot at Abel." Perez did not let him stay.
Sonya Mariscal, a criminal investigator working for the defense, testified that she interviewed Mata's neighbor, John Gilman. Gilman told Mariscal that he had heard a gunshot and had seen Trevino run out of Mata's trailer followed by an unknown "Hispanic male." Gilman told Mariscal that he knew defendant and did not see him at the trailer that night.
I. Ineffective Assistance of Counsel Claim
Defendant contends his trial counsel rendered ineffective assistance when, after Trevino unexpectedly testified that defendant had beaten Angelina, counsel timely objected and moved to strike the testimony but did not move for a mistrial. We disagree.
This exchange occurred during the prosecutor's direct examination of Trevino:
"Q. [PROSECUTOR]: All right. And had you spoken with [defendant] that day?
"A. [TREVINO]: You know what? Prior to that day, I seen [defendant] at another house or whatever, at the trailer. As a matter of fact, he pulled up with somebody else. He didn't know I was there that day, you know. We had already had a conversation here and there. He said he wanted to knock me out. He's been looking for me. We went outside, you know. I went outside basically to get knocked out and he changed the subject to--once again, he says, you know what? I would never fight you, Abel. I'd just pop you. You know what I mean? I'd shoot you. [¶] I tell him, hey, you know what? It's good. You know what I mean? Because we both know, you know what I am saying, that you're a sissy. You know what I mean? The only person he's ever beat up is his wife. [¶] Anyways--
"[DEFENSE COUNSEL]: Objection, ask that it be stricken.
"THE COURT: Sustained.
"THE COURT: Why don't you ask another question." (Italics added.)
"'"[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citation.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"'" (People v. Avena (1996) 13 Cal.4th 394, 418.)
"'"[If] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 (Mendoza Tello).) A "court reviewing the conduct of counsel must in hindsight give great deference to counsel's tactical decisions." (People v. Holt (1997) 15 Cal.4th 619, 703.)
The appellate record does not disclose why trial counsel failed to request a mistrial. Defendant argues "there could be no conceivable reason for defense counsel not to request a mistrial . . . once the jury was excused." However, a conceivable reason readily appears. The defense theory was "that Claudio Magobet is guilty of this crime." Trevino's lay opinion that defendant was "a sissy," who would never follow through on his voiced threat to "pop" or "shoot" Trevino, supported the defense theory that Trevino had been shot by someone else.
By objecting and moving to strike, but not asking for a mistrial, counsel evidently sought to retain the favorable portion of Trevino's testimony while discarding the unfavorable. Trial counsel rationally could believe that, even if a juror were unable to put aside Trevino's stricken testimony about defendant beating up Angelina, the juror would have no reason to separate it from Trevino's opinion--voiced in the same breath and not expressly stricken from the record--that defendant was too much of "a sissy" to shoot Trevino. As noted, this opinion directly supported the defense theory. Because there could be a satisfactory explanation for trial counsel's failure to move for a mistrial, the claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. (Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
II. No Instruction on Lesser Included Offense of Attempted Voluntary Manslaughter
Defendant contends his attempted murder conviction must be reversed because the trial court failed to instruct the jury sua sponte on the lesser included offense of attempted voluntary manslaughter. In his view, there was sufficient evidence of heat of passion and imperfect self-defense to warrant the instruction. We are not convinced.
In discussing potential jury instructions, this exchange occurred:
"THE COURT: I suppose out of an abundance of caution I should also discuss the issue of self-defense or imperfect self-defense. Once again, those jury instructions, while it would be a real stretch to apply them to this case, theoretically might be applicable, but, once again, I assume that using the same analysis you've already articulated, since [defendant] says he wasn't involved at all in these crimes, the theory of self-defense or imperfect self-defense would not be a theory that you would likely discuss with the jury, true?
"[DEFENSE COUNSEL]: True. I would just say for the record that the closest we came in my estimation to that evidence was that Mr. Magobet believed that Mr. Trevino might have a gun and that it might become violent at the Mata trailer. There's even--in that evidence there isn't anything that would lead a reasonable jury to conclude that Mr. Trevino either, one, had a gun or, two, attempted to use it--
"THE COURT: Right.
"[DEFENSE COUNSEL]: --so I don't know how you could shoot at somebody who you never saw with a gun, but that's certainly not going to be our defense.
"THE COURT: All right. Then I would find neither of these instructions [self-defense or imperfect self-defense] should be given. I find that the defense has made an appropriate tactical decision that neither instruction should be given in this case. [¶] All right. The final issue concerning jury instructions involves potential lesser included offenses. Theoretically, attempted voluntary manslaughter is a lesser included offense to attempted murder, but since we wouldn't be instructing the jury on any theory that would reduce culpability for the attempted murder charge to attempted voluntary manslaughter, I do not believe that an attempted voluntary manslaughter instruction should be given. [¶] Furthermore, in a case such as this where the defendant denies any criminal culpability in the crimes, there is no sua sponte duty for the jury [sic] to instruct on attempted voluntary manslaughter. I reference People v. Gutierrez [(2003)] 112 Cal.App.4th 704[, 709], so I will not give lesser included instructions with Count 1. [¶] . . . [¶] [Defense Counsel], do you request any lesser included offenses in this case?
"[DEFENSE COUNSEL]: No, Your Honor. . . . "
Defendant claims the trial court erred when it failed to instruct the jury on the lesser included offense of attempted voluntary manslaughter based on heat of passion and imperfect self-defense. We consider the second issue first.
"'"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense.'" (People v. Breverman (1998) 19 Cal.4th 142, 154-155 (Breverman).)
It is not necessary to consider whether substantial evidence supported an instruction on attempted voluntary manslaughter based on imperfect self-defense. If it did, the trial court would have a duty to give the instruction even though the defense had "made an appropriate tactical decision" that the instruction should not be given. (Breverman, supra, 19 Cal.4th at p. 155.) But the doctrine of invited error would operate to preclude defendant from gaining reversal on appeal because of such an error made at his behest. (People v. Duncan (1991) 53 Cal.3d 955, 969-970.)
Because it was limited to theories of self-defense and imperfect self-defense, the trial court's finding of an "appropriate tactical decision" did not appear to extend to voluntary manslaughter on the theory of provocation and heat of passion. The court clouded the issue when, without discussing provocation and heat of passion, it announced that the jury "wouldn't be instruct[ed] . . . on any theory that would reduce culpability for the attempted murder charge to attempted voluntary manslaughter." (Italics added.) But because defendant never made a tactical decision to forego instructions on provocation and heat of passion, the doctrine of invited error does not apply.
Defendant claims there was sufficient evidence of provocation and heat of passion because Trevino, by his own admission, had used his left hand to strike defendant on the back of the head, then prepared to strike him again, and ultimately pushed him as Trevino tried to run away. We disagree.
"'[T]he passion aroused need not be anger or rage, but can be any "'"[v]iolent, intense, high-wrought or enthusiastic emotion"'" [citations] other than revenge.'" (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411, italics added.) Even if defendant's temper had "reach[ed] a boiling point" due to the theft of his car keys before Trevino inflicted what defendant terms a "cheap shot," the only emotion reasonably aroused by that shot was the passion for revenge.
Defendant replies that a punch was held substantial enough to support a heat-of-passion instruction in People v. Ramirez (2010) 189 Cal.App.4th 1483, 1487. But Ramirez is highly unusual, if not unique, in that its discussion of prejudice was certified for publication but its predicate discussion of the instructional error was not. (Ibid.) Thus, in its published portion, Ramirez had no occasion to address or distinguish Lujan or to consider whether the provocation was based on some emotion other than revenge. Ramirez is not authority for propositions it did not consider or discuss. (E.g., People v. Wells (1996) 12 Cal.4th 979, 984, fn. 4.) The omission of instructions on provocation and heat of passion was not error.
III. CALCRIM No. 358
Defendant contends the trial court erred prejudicially by failing to instruct the jury sua sponte that his out-of-court statements must be viewed with caution, pursuant to CALCRIM No. 358.*fn5 We find no prejudicial error.
Many of the disputed statements were introduced into evidence through Magobet. For example, Magobet testified that defendant told him that he wanted to find Trevino because defendant's keys were missing and he suspected that McKinnon and Trevino may have had something to do with it. Magobet also testified that, while he and defendant were driving around, defendant stated that he "wasn't too happy with" Trevino because Trevino owed him money related to a drug sale. Magobet further testified that, just moments prior to the shooting, he heard defendant directly accuse Trevino of taking defendant's car keys.
As to statements related by Magobet, we find neither error nor prejudice. The jury was instructed that "Magobet was an accomplice to" the crimes charged against defendant, and that "[a]ny testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining it with care and caution and in light of all the other evidence." (See CALCRIM No. 335 (new Jan. 2006) (Apr. 2010 rev.).)
It is well settled that the correctness of jury instructions is to be determined from the entire charge of the court; thus, the absence of one instruction may be cured by matters included in another instruction. (People v. Burgener (1986) 41 Cal.3d 505, 538-539, overruled on another point in People v. Reyes (1998) 19 Cal.4th 743, 753.) As to defendant's statements related through Magobet, the jury was adequately instructed to view the evidence with caution.
Defendant also relies on Trevino's testimony that, the day before the shooting, defendant and Magobet were leaving messages on his telephone all day. Trevino claimed the duo had "already c[o]me to the conclusion that they were going to shoot" him. According to Trevino, the duo wanted him to go to "a boat dock or somewhere secluded."
Defendant's reliance on Trevino's testimony is misplaced. When defendant objected that the testimony lacked foundation and was speculative, the trial court allowed it in evidence for the sole purpose of proving Trevino's state of mind. Nothing in the record suggests that the jury used the testimony for the improper purpose of proving defendant's intent to shoot Trevino. Thus, as to Trevino's testimony, the omission of CALCRIM No. 358 could not have been prejudicial. (People v. Dickey (2005) 35 Cal.4th 884, 905 (Dickey); People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Defendant also relies on Officer Steve Godden's testimony that Trevino's girlfriend, Tiffany Martinez, had related that defendant had "told [Martinez] that [Trevino] was doing him wrong or doing him bad and taking his money." Later, when defendant and Magobet arrived at Martinez's residence prior to the shooting, defendant asked her where Trevino was.
There was substantial conflict as to what defendant had told Martinez. (See Dickey, supra, 35 Cal.4th at p. 905.) Martinez disavowed her statements to Officer Godden, stating that "some of the stuff [she] told" Godden during her interview with him "wasn't true." In her trial testimony, Martinez admitted that most of what she had told Officer Godden during the interview was not true because she had been under the influence of drugs that caused her to hallucinate. She felt that Godden had intimidated her.
Defendant claims it is reasonably probable that the jury would have rejected Martinez's testimony regarding his statements had it been instructed to consider those statements with caution. But Martinez's recantation of her statements and her disavowal at trial similarly cast doubt upon the statements that she had attributed to defendant. It is not reasonably probable that CALCRIM No. 358 would have caused the jury to reject statements that it had credited notwithstanding Martinez's repeated disavowals. Thus, the omission of CALCRIM No. 358 could not have been prejudicial. (Dickey, supra, 35 Cal.4th at p. 905; Watson, supra, 46 Cal.2d at p. 836.)
The judgment is affirmed.
We concur: RAYE , P. J. MAURO , J.