California Court of Appeal, Second District, First Division
APPEAL from a judgment of the Superior Court of Los Angeles County, Gary E. Daigh, Judge. Affirmed. (Super. Ct. No. TA104589).
[168 Cal.Rptr.3d 14] Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.
Juan Carlos Rodarte appeals his conviction of one count of attempted murder (Pen. Code, §§ 664, 187, subd. (a)), with a true finding that he inflicted great bodily injury on his victim (§ 12022.7, subd. (b)), one count of shooting from a motor vehicle (former § 12034, subd. (c), now § 26100, subd. (c)), with true findings on both counts that defendant personally discharged a firearm causing great bodily injury to his victim (§ 12022.53, subd. (d)), and that defendant's discharge of a firearm came within the meaning of section 12022.53, subdivisions (b) and (c).
Defendant argues the trial court erred in failing to instruct on the defense of imperfect self-defense on count 2 charging him with shooting from a motor vehicle under section 26100, subdivision (c). We disagree, and affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant and the victim, Jesus Ayala, were both involved with Sonia Manzo at different times. Manzo had two children, a son Raymond, who is defendant's child, and a daughter, Maritza, who is Ayala's child. On the night of December 23, 2008, defendant shot Ayala from his car, seriously injuring Ayala. Defendant claimed that he was afraid Ayala had a weapon and was going to harm him.
In an information filed November 22, 2010, and amended September 22, 2011 and December 7, 2011, defendant was charged with one count of attempted murder (§§ 664, 187, subd. (a); count 1), one count of shooting from a motor vehicle (§ 26100, subd. (c); count 2), and one count of discharging a firearm from a motor vehicle (§ 26100, subd. (d); count 3). The information also alleged on count 1 that defendant personally inflicted great bodily injury under section 12022.7, subdivision (b) causing Ayala to become comatose [168 Cal.Rptr.3d 15] and paralyzed. On all three counts the information charged that defendant personally discharged a firearm, causing great bodily injury (§ 12022.53, subd. (d)), and that defendant's discharge of a firearm came within the meaning of section 12022.53, subdivisions (b) and (c). A prior conviction of assault was alleged as a strike (§ 170.12, subds. (a)-(d)) and as a serious or violent felony (§ 667, subd. (a)(1)).
1. The Shooting
Alfredo Martinez has known the victim Ayala since high school and considered Ayala to be a good friend. Next to Ayala's house is an alleyway. At 7:00 p.m. on December 23, 2008, Martinez was with Ayala in Ayala's car with Manzo and her sister Ericka. The car had no front passenger seat, so Martinez, Manzo, and Ericka were all in the backseat. Ayala drove his car into the alley and parked it. Ayala went into the house, leaving the three seated in the backseat in the car.
A white car pulled up next to the car. Defendant was the driver. Defendant, who was " furious," told Manzo to get out of the car. Defendant was waving a gun. Martinez got out of the car. Ayala came out of his house and walked up to defendant's car. Ayala did not say anything. Ayala's hand touched the window. Defendant shot once at Ayala. Ayala fell to the ground, and defendant drove off.
Martinez drove Ayala to the hospital. Martinez did not know defendant.
Ayala testified that he became involved with Manzo in October 2006. He knew Manzo had a baby boy, Raymond, with defendant. He was in a relationship with her until April 2007. They had problems with defendant. During this time, Ayala saw Raymond nearly every day because Raymond would be with Manzo. Defendant told Ayala to " back away" from Manzo because she was the mother of defendant's child. Manzo went back and forth between defendant and Ayala. As a result, Ayala ended his relationship with Manzo. Ayala found out that right after they broke up, Manzo was back with defendant.
Ayala was not present for his daughter's birth because at the time he did not believe the child was his. Manzo was asking for his help with the child, so he had a paternity test and found out the child was his. As a result, Ayala wanted more visitation with his daughter. On one occasion, he went to defendant's house, where Manzo was living, to visit his daughter when she was about four or five months old. Ayala took his grandmother with him to avoid problems. Before this visit, Ayala had not had any in-person contact with defendant. His grandmother got out of the car to speak to defendant. Ayala did not go in to avoid problems with defendant.
In early 2008, he began a " visitation custody battle" with Manzo. From January to May of 2008, Manzo would bring Maritza to Ayala's house to visit. Their relationship was friendly, and he also saw Raymond during this time. In July 2008, Manzo brought Maritza to Ayala's house and began to stay with him. However, she would go away for a few weeks and then come back. At times, Manzo lived in a domestic violence shelter. When Ayala served Manzo with the custody papers, she did not take it well. She would not let him [168 Cal.Rptr.3d 16] see Maritza. Ayala obtained visitation rights and visited Maritza during the period she resided at defendant's house. Ayala and Manzo would meet in a public place so that Ayala could avoid defendant.
Sometime after Maritza was born, Manzo and Ayala had an argument because she came to his house and told him that defendant had hit her. Manzo wanted to go back to defendant's house, and Ayala burnt her with an ...