Opinion
A123247
11-22-2011
THE PEOPLE, Plaintiff and Respondent, v. ROLANDO FERNANDEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Mateo County Super. Ct. No. SC062255A)
A jury rejected defendant Rolando Fernandez's self-defense claim and convicted him of two counts of second degree murder stemming from a barroom brawl that ended in three shooting deaths. Defendant contends his convictions must be reversed due to prejudicial trial court error in (1) refusing to instruct the jury on the heat of passion/sudden quarrel theory of voluntary manslaughter as a lesser included offense of murder, (2) prohibiting him from introducing evidence of the victims' gang membership and gang customs, and (3) instructing the jury on limitations to the use of self-defense for which there was no substantial evidence. We find no prejudicial error, and affirm the judgment.
I. BACKGROUND
Defendant was charged by indictment with two counts of murder (Pen. Code,§ 187, subd. (a)) in connection with the shooting deaths of Jesus Hernandez and Humberto Calderon. As to both counts, it was alleged defendant personally used a firearm causing death (§ 12022.53, subd. (d)) and committed multiple murders (§ 190.2, subd. (a)(3)). Defendant pleaded not guilty to all charges, and a jury trial commenced on May 7, 2008. A. Prosecution Case
All further statutory references are to the Penal Code.
Bartender Ana Lilia Cardenas saw her friend Ignacio "Chano" Mendes arrive at the Headquarters Bar a few minutes after 6:00 p.m. on Friday, April 14, 2006. Mendes was accompanied by another man wearing a gray hooded sweater who she had seen with Mendes five or six times. Defendant's cousin, Ruben Ramos, joined them, and defendant arrived later and also joined the group. The men were all from the same part of Mexico. As the evening wore on, Mendes and his friends became more intoxicated.
Angelica Cervantes was at the bar that evening with several friends, including Jesus Hernandez. The group drank and danced until a man in a gray hooded sweater tapped Hernandez on the shoulder and made a gesture for him to go outside to the patio. It did not seem to Cervantes like a friendly gesture, but she could not hear what they were saying. Cervantes had noticed a group of about five men at another table staring at them earlier. The man in the hooded sweater was one of them. He and Hernandez walked out onto the patio.
Juana Alvarez, Hernandez's girlfriend, was also at the bar that night. She also noticed a group of men staring at them. When Hernandez went outside with the man with the hooded sweater, she followed them to the patio. Alvarez saw the man in the hooded sweater try to provoke Hernandez into a fight. Hernandez appeared angry, but he did not fight the man. Hernandez got up and made a phone call. When he was done with the call, the man in the hooded sweater approached them and said, "I'm sorry, that's your girl, I didn't mean to disrespect." Hernandez and Alvarez returned to their table. Hernandez ordered a beer. As he was ordering, Humberto Calderon arrived at the bar with a group of other men. Cervantes thought there were 10 guys with him. Alvarez saw maybe three others with him. Calderon spoke with Hernandez and then they walked over to the man in the hooded sweater and signaled for him to come outside. They all went out to the patio. Alvarez saw a total of 10 or 15 men from both groups go out to the patio. A few minutes after they went out, Cervantes and Alvarez could hear gun fire.
Ramos and Mendes went outside together. Right after they stepped through the door, Ramos heard shooting. Ramos saw one shooter in each group. He did not see a gun in defendant's hand, but he saw the flame from a gun. Ramos did not recall telling the police he saw defendant with a gun shooting at a "cholo." When he turned to run inside, Ramos saw Mendes had been shot and was lying face down on the ground.
Ramon Arreola, whose uncle owned the Headquarters Bar, was also there that night. He knew Mendes and greeted him after he arrived. He had seen defendant in the bar before and recognized him. Arreola stopped a loud argument that developed outside the bathroom that night and afterward defendant came up to him and told him, "Don't worry, if there's trouble I got your back."
Arreola was outside on the patio when he heard gunshots. He tried to take cover behind a walk-in refrigerator on the patio. He saw defendant standing near the door to the bar shooting a handgun. Defendant was shooting in the direction of a locked gate door leading from the patio to a parking lot. Two people were standing there at the gate. He fired about 15 shots at the two people who were about eight feet from him. They were "raising their hands, trying to turn away, kind of jumping up and down in a slow motion." They appeared to be trapped in the corner by the gate and neither of them had a gun. Arreola did not see anyone else on the patio with a gun and no one was shooting at defendant. When the firing stopped, Arreola ran into the bar and through it to get to his car parked outside on the street.
Angel Jimenez was on the patio having a cigarette when two groups of people lined up on either side of him to fight. Jimenez knew a lot of the people in one of the groups as people from the neighborhood, including his friend Jesus Hernandez. One of the groups were "pisas," meaning fellow natives of Mexico. Jimenez thought there were about 10 people in each group. One of the pisas approached Hernandez and said he had been disrespected by one of Hernandez's friends. A fight broke out between Humberto Calderon and one of the pisas. When another pisa hit Calderon, everybody started fighting. Thirty or forty seconds later, Jimenez heard gunshots. Jimenez saw defendant in front of him shooting toward the fence. Defendant walked forward as he fired his gun and deliberately aimed at the gate. He did not try to duck or conceal himself as he was walking toward the gate and shooting. Defendant was the only person firing.
Jimenez ran into the ice machine closet for cover. The closet was the size of an average bathroom. He heard six or seven more gunshots as he hid, all coming from one gun. Jimenez saw defendant again when he stepped into the ice machine closet with a gun in his hand. He was two or three feet from Jimenez. Defendant looked at Jimenez and pointed the gun at him. Jimenez said to him in Spanish, "[W]ow, man, I didn't do nothing." At that point, defendant shuffled through his pockets, pulled out a clip of bullets, and reloaded his gun. He worked the action on the gun, held it up, and left the closet with his arm outstretched and his finger on the trigger. He fired two more rounds at the gate. The last two shots were fired with an appreciable pause in between.
The measured distance between the ice machine closet and the gate was 21 feet. At that distance, in the lighting conditions that existed on the patio at the time of the shootings, defendant would have been able to clearly see the people who were standing at the gate.
When the sound of gunfire stopped, Jimenez left the ice machine closet. He saw his friends, Jesus Hernandez and Humberto Calderon, on the ground by the gate. Hernandez was dead and Calderon was dying. Neither man had a gun or other weapon, and there was no sign either had ever been armed. As he exited through the bar, Jimenez noticed defendant holding the body of Mendes and calling his name. He was surprised to see defendant was still there after he had killed two people.
Hernandez and Calderon died from multiple gunshot wounds. Hernandez was shot three times, including a fatal shot to the back of the head. Hernandez had a blood alcohol level of .02 percent, the equivalent of one beer. No drugs were detected in his bloodstream. Calderon was 18 years old at the time of his death. He was shot five or six times in the neck, leg, and buttock. Calderon died from a combination of all of his injuries. His blood alcohol level was .07 percent or the equivalent of three and a half drinks. B. Defense Case
Michael Bass and Domingo Naranjo were at birthday party for Calderon when Calderon got a call and told them they had to go to the Headquarters Bar to help Hernandez. After arriving at the bar, Bass followed people outside to the patio. A fight broke out and Bass joined in. Calderon was involved along with some other people Bass did not know. Almost immediately, Bass heard gunshots close by. Bass immediately ran toward the fence and jumped over it. As he was running down the street, he saw Naranjo driving the car they had used to get to the bar. Bass called out, and Naranjo stopped to pick him up. Naranjo had been shot. He later admitted to Bass he had been shooting that night.
Bass's grand jury testimony was read to the jury because he invoked his Fifth Amendment rights at trial and the prosecutor refused to grant him immunity.
Naranjo was charged jointly with defendant for the murders of Hernandez and Calderon, and was charged in addition with the murder of Mendes and assault with a firearm on Camillo Serrano. Before trial, he entered a negotiated plea to one count of voluntary manslaughter with a weapon use enhancement, and was sentenced to 21 years in prison.
Nabila Alvarez was at the bar with a group of friends including Camillo Serrano. She saw an argument between two men near where she was sitting and then saw several people rush out to the patio. A few minutes later she heard numerous gun shots. When she heard the first shots, she turned toward the sound and saw Serrano holding his stomach and realized he had been shot. She went to help him and had to step over another man who was lying on the floor.
Claudia Alvarez was at the bar with several friends. About 1:00 a.m. she went to the patio with Serrano to have a cigarette. A fight was in progress when they arrived. She saw Naranjo pull a gun and heard shots fired. She did not see another gun. When the shooting started she ran inside and tripped over a body on the floor.
Defendant testified on his own behalf. He was 26 years old at the time of the shootings and lived in San Jose with his wife and two daughters. He had known Mendes for a couple of years and they were close friends. Ruben Ramos is his cousin. He met the two men at Headquarters Bar between 9:00 p.m. and 10:00 p.m. on April 14, 2006. He was carrying a gun for protection that night because he was getting death threats stemming from money he owed on a drug deal that had gone bad in 2005. He had previously sold heroin as well as marijuana.
Between 10:00 p.m. and 1:00 a.m., defendant drank about 10 bottles of Corona and three Remy Martins. He also used cocaine or methamphetamine about 12:30 a.m. There were several people at the bar who he thought were Norteño gang members. He could tell from the way they dressed and acted. They were dancing and getting aggressive. Close to 1:00 a.m., defendant saw a bunch of people run outside to the patio. He went out to the patio to see what was going on. He saw a bunch of Norteños out there who seemed to be arguing. He walked closer looking for Mendes and Ramos. He saw Mendes hit someone on the side of the head and assume a fighting position. Immediately, shots started going off. He heard two or three shots and began firing back toward the area where the gunfire originated. The person who was firing was moving toward the gate. Defendant was really scared and thought he was "being hit." He did not know who was shooting at him, but thought he was a Norteño because of his clothing. His gun jammed and as he was trying to clear it, he saw two people running towards him and firing. He cleared the jam, fired the rest of his clip back at them, and ran toward the ice machine to reload. He could not leave because a lot of people were still trying to go through the door from the patio back into the bar. While he was reloading he continued to hear shots. Defendant saw a Norteño in the ice machine room, but he did not shoot him because the man did not threaten his life. He was scared the whole time. He panicked and thought he had been shot. Because he had never been shot before all he wanted to do was to protect himself from the individuals who were shooting at him.
Defendant admitted he first told police Mendes was the one who fired the gun that night.
Defendant left the ice machine closet and ran for the exit, firing two or three more shots—without looking—toward the gate where the people shooting at him had been. Inside the bar, he saw Mendes on the floor. He tried to help, but left as more Norteños came in asking what had happened. There were cars packed with Norteños arriving as he left. When defendant noticed emergency lights behind him as he was speeding away from the bar, he became confused and thought Norteños were chasing him. He did not stop for the police and eventually crashed his car. He tossed his gun across the street and threw an extra clip into the backyard behind him. He threw the gun away so the police would not shoot him. He lied to them when they asked him if he had a gun.
A criminalist testified he found particles consistent with gunshot residue on Calderon's and Hernandez's hands. He concluded the victims may have either discharged a firearm or otherwise had their hands in an environment of gunshot residue. The criminalist noted gunshot residue might be found on a person who was located within two and a half feet in any direction of a firearm being discharged, or within 14 feet if the person was located in the muzzle direction. It was not uncommon for shooting victims to have gunshot residue on them.
Defense expert, Dr. Phillip Trompetter, was a clinical psychologist who specializes in police officer reactions during deadly force confrontations. He described common perceptual distortions that can occur during such encounters where even trained police officers react in unexpected ways. Studies have found between 17 and 38 percent of officer-involved shootings are based on mistakes of fact. Lighting conditions and the stress of a deadly force confrontation lead to confusion and distortions. Even trained officers can have a delay in registering that a threat no longer exists and will keep shooting past the time the danger has ceased. A person takes about one and a quarter seconds to fall after being fatally shot, which may cause the shooter to keep firing even after firing a fatal shot. C. Verdict, Sentence, Appeal
The jury found defendant guilty of two counts of second degree murder, and found true that he personally used a firearm causing death. The jury found the multiple special circumstances allegations not true.
The trial court sentenced defendant to serve 80 years to life in state prison. This timely appeal followed.
II. DISCUSSION
Defendant contends his convictions must be reversed due to prejudicial trial court error in (1) refusing to instruct the jury on the heat of passion/sudden quarrel theory of voluntary manslaughter; (2) prohibiting the defense from introducing evidence of the common gang membership of Naranjo and the victims and of gang customs; and (3) instructing on limitations to the use of self-defense that were unsupported by the evidence. A. Denial of Heat of Passion Instruction
Defense counsel requested the standard voluntary manslaughter instruction, CALCRIM No. 570, relating to sudden quarrel or heat of passion, as well as CALCRIM No. 522, relating to the effect of provocation in reducing the degree of murder. Counsel argued the shooting was provoked by the actions of Naranjo as well as by Hernandez and Calderon. The court declined to instruct with CALCRIM 570. At the prosecutor's request, it used CALCRIM No. 522 with the bracketed portions that refer to provocation reducing murder to manslaughter deleted.
CALCR1M No. 570 provides in relevant part: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment."
CALCR1M No. 522 provides: "Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide. [¶] 1f you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.] [¶] [Provocation does not apply to a prosecution under a theory of felony murder.]"
The court found there was no factual basis for a heat of passion/sudden quarrel instruction. The court stated: "[T]he fact Mr. Naranjo allegedly provoked [defendant] by allegedly shooting first for public policy reasons does not allow [defendant] to shoot two other people and in my view of defendant's testimony . . . there was no claim that he ended up shooting [the victims] because he was provoked to do so." Later the court stated that the defendant's defense and evidence of either perfect or imperfect self-defense was not consistent with a sudden quarrel theory.
Defendant argues the following facts and evidence warranted a heat of passion instruction: (1) a large, aggressive group defendant perceived to be wearing gang clothing came to the bar in response to a call from one of the shooting victims; (2) the incident happened quickly; (3) defendant testified 20 of the group members were beating up on Ramos; (4) Naranjo, a member of the group, shot first and the scene immediately became chaotic; (5) defendant felt scared, thought he had been shot, and panicked because he had never been shot at before; and (6) according to defendant's expert, Dr. Trompetter, even trained police officers experience confusion and distortion in a sudden confrontation, causing them to misperceive the danger.
There was no evidence defendant knew his friend Mendes had been shot or killed until after he had killed the victims and was on his way out of the bar.
"A heat of passion theory of manslaughter has both an objective and a subjective component. [Citations.] [¶] ' "To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' " [Citation.]' [Citation.] '[T]he factor which distinguishes the "heat of passion" form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct . . . must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] [¶] To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation." (People v. Moye (2009) 47 Cal.4th 537, 549-550 (Moye).)
Voluntary manslaughter is a lesser included offense of intentional murder. (People v. Barton (1995) 12 Cal.4th 186, 201 (Barton).) The existence of a sufficient provocation negates the malice element of intentional murder, i.e., it negates the intent to unlawfully kill. (Id. at p. 199.) But a voluntary manslaughter instruction is not required merely because there is some evidence to support a heat of passion theory: "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed. ([Citation]; accord, Barton, supra, 12 Cal.4th 186, 201, fn. 8 ['evidence that a reasonable jury could find persuasive'].)" (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).)
Defendant principally relies on the facts of Breverman to establish the sufficiency of his evidence to support the requested voluntary manslaughter instruction. Breverman arose from the following facts: "Two young men . . . walking by defendant's house got into a fight with a larger group of youths congregated in the driveway. The two sustained cuts and bruises before the fracas ended . . . . The next night, at least one of the pair returned with a group of friends . . . . Members of the group taunted defendant, then used a baseball bat and other implements to batter his automobile, which was parked in the driveway near his front door. Defendant fired several shots through a window pane in the front door, then came outside and fired further shots toward the fleeing vandals. One bullet from this second volley fatally wounded a member of the group." (Breverman, supra, 19 Cal.4th at p. 148.) The defendant was charged with murder, and the jury was instructed on reasonable self-defense, the permissible use of force to resist a violent domestic intruder, and voluntary manslaughter arising from an unreasonable belief in the need for self-defense. (Id. at p. 152.) The issue on appeal was whether the trial court erred by failing sua sponte to instruct on heat of passion voluntary manslaughter. (Ibid.)
In discussing the evidence supporting that theory, the Supreme Court stated: "[T]here was evidence that a sizeable group of young men, armed with dangerous weapons and harboring a specific hostile intent, trespassed upon domestic property occupied by defendant and acted in a menacing manner. . . . Defendant and the other persons in the house all indicated that the number and behavior of the intruders, which defendant characterized as a 'mob,' caused immediate fear and panic. Under these circumstances, a reasonable jury could infer that defendant was aroused to passion, and his reason was thus obscured, by a provocation sufficient to produce such effects in a person of average disposition." (Breverman, supra, 19 Cal.4th at pp. 163-164, fn. omitted.) The court also found it critical that the defendant was faced with "a large, armed, and clearly hostile group of men who, [he] had reason to suspect, were seeking revenge for the incident of the previous evening," and "feared the intruders intended to force their way into the residence." (Id. at p. 164, fn. 11.)
The facts here are distinguishable from those in Breverman. The confrontation occurred in a public place, not at defendant's home, and the alleged provocation for defendant's conduct was of an entirely different nature. According to defendant's account, he had no interaction with Hernandez and his friends until the moment fighting broke out. He had merely noticed them toward the end of the evening and thought they were acting in an aggressive manner on the dance floor and might be Norteños. By defendant's account, he followed a crowd outside to the patio to see what was happening, and saw a fight break out between his companions, Ramos and Mendes, and Hernandez's friends. He did not describe any emotion he had at seeing that. In fact, by his own account, he did not have time to react because two or three shots rang out almost immediately, before he could even join the fight. He testified the shots were "[r]eally close, they were shooting at us." That was the moment when, by his account, defendant first felt personally menaced. When asked what happened after he heard the shots, defendant responded, "I started shooting back." Thus, the only provocation defendant testified to for bringing out his own loaded gun and starting to shoot round after round at Hernandez and Calderon was his perception that they were shooting at him.
According to other witnesses, defendant's group had been staring at Hernandez's group all evening and a member of defendant's group, the unidentified man wearing a hooded sweater, initiated the first, unfriendly contact between the two groups.
These are not like the facts in Breverman. The defendant in that case described a growing menace and terror as a vengeful, armed mob trespassed on his property, challenged him to fight, battered his car, and seemed to be about to force its way into his house. (Breverman, 19 Cal.4th at pp. 163-164 & fns. 11, 12.) There was no such buildup or preamble here. Defendant did not say he began shooting out of a sudden boiling over of anger, rage, or distress at anything the victims or their friends had done up to the moment when the shooting began. As he describes them, his emotions were focused on the fear of being shot or killed. He said he felt fear and panic when the shots were fired. When asked what he was scared of, defendant responded, "I thought I was being hit." Asked what was "going on in [his] head" as he was firing his weapon, defendant responded: "I was very scared, I panicked, I never been shot before, my thing was to protect myself from the individuals that were shooting at me." (Italics added.) Asked why he did not go after the Norteño he found standing next to him in the ice machine alcove, defendant explained, "He didn't threaten my life. He didn't try to take my life away." It is hard to find anything of substance in defendant's account of himself that would not, if credited by the jury and corroborated by other evidence, support a claim of justifiable homicide based on reasonable self-defense. If that was the case, he was not entitled to an instruction on heat of passion voluntary manslaughter. (See People v. Wickersham (1982) 32 Cal.3d 307, 327-328 [court should not instruct on heat of passion voluntary manslaughter where the same facts would give rise to a finding of reasonable self-defense], overruled on another point in Barton, supra, 12 Cal.4th at p. 201.) Defendant's testimony he felt fear and panic about being shot at, without more, is too insubstantial to support a heat of passion voluntary manslaughter instruction.
We find this case is closer on its facts to Moye than it is to Breverman. The defendant in Moye was convicted of second degree murder for beating another man to death with a baseball bat. (Moye, supra, 47 Cal.4th at p. 540.) As in this case, the jury was instructed on reasonable self-defense and imperfect self-defense, which would have supported conviction for voluntary manslaughter. (Ibid.) Relying on his own testimony at trial about the circumstances of the beating, the defendant argued on appeal that the trial court erred in refusing a defense request for a further instruction on a heat of passion/sudden quarrel theory of voluntary manslaughter. (Ibid.)
According to the defendant, he and some friends drove up to the victim in order to talk to him about a fight they had both been involved in the night before, and patch things up. (Moye, supra, 47 Cal.4th at p. 545.) The victim kicked the defendant's car and ran off. (Ibid.) The defendant was upset and chased after the victim to see where he ran, allegedly so he could report him to the police. (Ibid.) When the defendant caught up with the victim, the victim smirked at him and threatened him with a bat he was holding in his hands, saying, " ' "Yeah, now I got you." ' " (Ibid.) The victim hit him several times with the bat on his arms and hands until the defendant was able to grab the bat away from him. (Id. at pp. 545-546.) The defendant struck the victim with the bat but the victim kept coming after defendant, so the defendant kept hitting him until he fell down. (Id. at p. 546.) At that point, the defendant got scared and ran. (Ibid.) The defendant explained his state of mind during this event as follows: " 'I, like, wasn't, like, in the right state of mind. I was worried about getting hit. I didn't want to get beat down and possibly be killed, so I was just worried about getting hit. And then when I got the bat from him, I was worried about getting hit again, because he kept coming at me.' " (Id. at p. 546.)
The Supreme Court affirmed the trial court's ruling, finding the evidence to support a heat of passion theory was insubstantial: "In the face of defendant's own testimony, no reasonable juror could conclude defendant acted ' " 'rashly or without due deliberation and reflection, and from this passion rather than from judgment . . .' " [citations]'. . . . Although defendant did testify he was not in a 'right state of mind' when Mark . . . turned and attacked him after the chase, he immediately explained he was referring to his thought processes being caught up in the effort to defend himself from Mark. Defendant took great pains in his testimony to justify each blow he landed on Mark with the bat as a direct, defensive response to successive advances by Mark during his attack on defendant. . . . [¶] In short, the thrust of defendant's testimony below was self-defense—both reasonable self-defense (a complete defense to the criminal charges), and unreasonable or imperfect self-defense (a partial defense that reduces murder to manslaughter). There was insubstantial evidence . . . to establish that defendant 'actually, subjectively, kill[ed] under the heat of passion.' " (Moye, supra, 47 Cal.4th at pp. 553-554.)
In our view, defendant's claim here has the same defect identified in Moye. Everything he testified to points to self-defense, whether reasonable or unreasonable, and none of the testimony establishes that he killed actually, subjectively under the heat of passion. Like the defendant's testimony in Moye that he was not in his right state of mind because he feared being hit and possibly killed, defendant's testimony here that he felt fear and panic about being shot at or losing his life is insufficient to support a heat of passion instruction. Defendant's reliance on Breverman is misplaced. As the court stated in Moye: "Nothing in Breverman suggests an instruction on heat of passion is required in every case in which the only evidence of unreasonable self-defense is the circumstance that a defendant is attacked and consequently fears for his life." (Moye, supra, 47 Cal.4th at p. 555.) Because a reasonable jury could not rely on the evidence defendant cites to find heat of passion voluntary manslaughter, no fundamental unfairness resulted from the trial court's refusal to instruct on that theory. (Ibid.)
The trial court did not err in declining to instruct the jury on heat of passion voluntary manslaughter. B. Exclusion of Gang Evidence
Defendant sought to present evidence that several witnesses, his codefendant Naranjo, and the victims were all known members of the Norteño gang, as well as evidence gang culture requires that gang members come to the aid of fellow members. His trial counsel initially argued the foregoing evidence was relevant to the credibility and bias of witnesses, and later argued it was potentially relevant and admissible as to defendant's state of mind. The trial court initially withheld a ruling until it heard the defense evidence.
The issue was reconsidered after defendant testified. During his testimony, he stated he thought the men were members of the Rolison Rats, a Norteño gang. Defense counsel thereafter sought to introduce evidence Serrano was in fact a member of that gang. The prosecutor argued the evidence was inadmissible because it would be offered to invite jurors to improperly infer from the men's gang membership that they must have acted aggressively on a specific occasion—the night and early morning of April 14 and 15, 2006, at the Headquarters Bar. The prosecutor pointed out defendant was very clear he was shooting at people who were shooting at him, but he did not know who those people were. The trial court agreed the gang evidence was inadmissible, finding no nexus between it and defendant's self-defense claim.
Defendant contends the trial court erred because his testimony assertedly "put his own state of mind at issue as it related the involvement of, and or danger to him and others posed by gang members at the scene, including [the victims]." He maintains the evidence was relevant both to his self-defense and heat of passion theories. We have already addressed the latter theory, and do not find that it would have been strengthened by the gang evidence in issue. We note that defendant did testify he believed the group squaring off against his friends were Norteño gang members.
Defendant's self-defense theory, as presented through his testimony, would also not have been bolstered by evidence of the victims' gang membership or culture. According to defendant, his friends were attacked and he was being shot at by Norteños. It was the fact they were shooting at him, not their gang membership that he used to explain why he began shooting and continued to shoot. If the jury believed him, it would not have needed to hear from a gang expert in order to understand how defendant would feel when persons he believed were gang members were shooting at him.
Defendant also contends gang evidence would have affected the jury's evaluation of witness credibility. He suggests it would have demonstrated bias or concern about retaliation. In fact, the trial court did not rule out the use of gang membership evidence for those purposes. Instead, it laid down guidelines requiring defendant to spell out the need for such impeachment evidence in connection with the actual testimony of specific witnesses. (See People v. Bojorquez (2002) 104 Cal.App.4th 335, 342-345 [recognizing the probative value of gang evidence in establishing possible bias or fear must be carefully weighed against its tendency to invite improper inferences about a member's conduct on a given occasion].) In our view, it was reasonable to require a particularized showing that the probative value of gang membership evidence for impeachment purposes outweighed its potentially prejudicial effects. While the need for such a showing would have been even more compelling if Naranjo had remained as a codefendant, it was still reasonable to require it after he changed his plea, because of potential prejudice to the prosecution. While defendant now complains in very general terms that he should have been allowed to use gang evidence for impeachment purposes, he fails to specify particular witnesses who should have been subject to such impeachment, or how the jury's evaluation of those witnesses' credibility might have affected the outcome had it heard such evidence.
The trial court did not abuse its discretion by excluding gang evidence unless and until defendant could make a predicate showing of its relevance and probative value, either as to his claim of self-defense, or to impeach particular witnesses. Since he failed to do so, the evidence was properly excluded. C. Instructions on Limits to Self-defense
Conceding that his trial counsel interposed no objections to them at trial, defendant now challenges the trial court's use of two instructions stating limits on the right to use self-defense—CALCRIM Nos. 3471 and 3472. Defendant contends no substantial evidence supported the use of either instruction. He asks us to review the use of these instructions under section 1259 insofar as they affected his substantial rights or, in the alternative, to find his trial counsel rendered ineffective assistance by failing to object.
CALCR1M No. 3471 as given states: "A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if: [¶] 1. He actually and in good faith tries to stop fighting; [¶] AND [¶] 2. He indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting [¶] AND [¶] 3. He gives his opponent a chance to stop fighting. [¶] 1f a person meets these requirements, he then has a right to self-defense if the opponent continues to fight. [¶] 1f you decide that the defendant started the fight using only non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting."
CALCR1M No. 3472 as given states: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force."
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"Mutual combat" means an express or implied mutual intention or consent to fight that precedes the claimed need for self-defense. (People v. Ross (2007) 155 Cal.App.4th 1033, 1045-1047 (Ross).) There was testimony in this case that defendant's group, consisting of about five men according to witness Cervantes, had been eyeing Hernandez and his friends in a hostile manner all evening until one of defendant's companions, dressed in a gray hooded sweater, approached Hernandez and initiated some sort of argument. Hernandez's girlfriend saw the man in the gray sweater try to provoke Hernandez into a fight. The evidence established this occurred just before Hernandez made his call to Calderon to ask for help. Witness Alvarez saw Hernandez's friends walk over to the man in the gray sweater and signal for him to come outside to the patio with them, which he did. She saw men from both groups go out onto the patio, presumably including defendant. According to witness Arreola, defendant had told him at one point during the evening, "Don't worry, if there's trouble I got your back." According to witness Jimenez, defendant was part of a group of "pisas" facing off against Hernandez and his group. Once a fight broke out between Calderon and one of the pisas, and Calderon was hit, everybody started fighting. In our view, the foregoing constitutes ample evidence to support an instruction on mutual combat.
Defendant contends the court should have explained the meaning of mutual combat sua sponte, apparently to clarify that it does not mean both combatants willingly engage in a fight, but that they mutually consent to fight each other before any blow is struck. Defendant did not request such a clarification in the trial court or argue that point to the jury, and he has not shown there was any actual jury confusion on the issue. (Cf. Ross, supra, 155 Cal.App.4th at p. 1047.) Defendant's premise is that he was prejudiced because "there was no evidence of any on-going relationship, much less animosity between [him] and his group and Hernandez's group." He maintains he was not implicated in any hostile interaction between the man in the gray sweater and Hernandez, and cites testimony that the man was later heard to apologize to Hernandez in any event. At most, defendant points up a conflict in the evidence. In our view, considering all of the testimony about what transpired in the bar leading up to the fight and shootings, as discussed above, the jury could have reasonably inferred that the man in the gray sweater acted in concert with Mendes, Ramos, and defendant in seeking Hernandez out, and that defendant—as well as many others in the bar—felt the heightening tension and potential for trouble. The risk that the jury felt the mutual combat instruction applied merely because defendant willingly shot back once the shooting started seems negligible on this record.
There was also substantial evidence in the record supporting the use of CALCRIM No. 3472. Defendant arrived at the bar carrying a loaded weapon and an extra clip of ammunition. Joaquin Laguna testified defendant was acting in a loud, obnoxious, and demanding manner the entire night. He was intoxicated and using drugs. He and his friends were eyeing Hernandez's group the entire evening in such an obvious manner that multiple bar patrons noticed it. Based on defendant's own testimony about how he perceived Hernandez's group, his state of intoxication, and the manner in which the conflict developed, the jury could infer that rather than being afraid of the group, defendant and his friends actively resented their presence in the bar and were repulsed by the way they dressed, danced, and acted. The evidence also showed a member of defendant's group went out of his way to initiate a hostile interaction with Hernandez— an interaction that was sufficiently provocative and ominous to cause Hernandez to request reinforcements. Based on all of the evidence, the jury could infer the man in the gray sweater was not acting on his own, but was sent as an emissary from defendant and his companions to pick a fight. Defendant's comment to Arreola, "if there's trouble I got your back," suggests defendant knew what was coming. The rapidity and aggressiveness with which he responded to the first shot fired, the fact he advanced on his targets who were trapped against a fence, and the number of times he shot the unarmed victims when no one else was still shooting, tend to substantiate the theory that, far from being in fear for his life, defendant was seizing an opportunity to vent his rage at persons he resented. Finally, although defendant denied on direct as well as cross-examination that he was looking for trouble that night, the jury was entitled to weigh the credibility of such denials along with the other evidence.
Even assuming for the sake of analysis that CALCRIM No. 3472 should not have been given on the facts of this case, we do not find it reasonably probable that it affected the jury's verdict. Although sufficient to warrant the use of the instruction, the evidence supporting it was not particularly strong. There was no evidence, for example, defendant directly engaged with Hernandez's group at any time prior to the shooting. The jury in fact rejected the prosecution's premeditation/first degree murder theory which, as argued by the prosecution, was based on substantially the same premise and factual evidence as the instruction. Applying the state law harmless error standard (People v. Watson (1956) 46 Cal.2d 818, 836), we therefore find no prejudice in the use of CALCRIM No. 3472. We also reject defendant's claim—unsupported by any pertinent legal authority— that the use of CALCRIM Nos. 3471 and 3472 constituted federal constitutional error by improperly reducing the prosecution's burden of proving malice. The use of these instructions did not prevent the jury from considering any evidence relevant to establishing his defense, nor did they lighten the prosecution's burden of proving malice.
III. DISPOSITION
The judgment is affirmed.
Margulies, Acting P.J.
We concur:
Dondero, J.
Banke, J.