Opinion
B160722.
7-24-2003
THE PEOPLE, Plaintiff and Respondent, v. OMAR ALEJANDRO ZAVALA, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler and Peggie Bradford Tarwater, Deputy Attorneys General, for Plaintiff and Respondent.
Omar Zavala appeals from the judgment entered following a jury trial in which he was convicted of attempted premeditated murder and assault with a firearm, with further findings that he used and discharged a firearm, inflicted great bodily injury, and committed the offenses for the benefit of a street gang. In a bifurcated court trial, defendant was found to have sustained a prior felony conviction. He contends that, with respect to the attempted murder offense, the evidence was insufficient to support the findings of intent to kill and premeditation. He further contends that the trial court erred in allowing evidence of a mid-trial ballistics test and in denying his motion for a mistrial when his codefendant entered a guilty plea. We affirm.
BACKGROUND
Defendant and Thomas Trevino were members of the LCV street gang in the Antelope Valley. In early February 2001, they became acquainted with Sonia Ortiz. Sonia Ortiz has two sisters, Sandra Ortiz (Sonias twin) and Clemmie Graves.
On February 17, 2001, Sonia and Sandra Ortiz went to Gravess Lancaster residence. Their purpose was to baby-sit while Graves went out for dinner with her boyfriend, Salvador Santos, who was associated with the Paca Flats gang of Pacoima. While baby-sitting, Sandra called defendant and Trevino and asked them to come to Gravess house so the four could "hang out" together after Graves returned. About 20 to 30 minutes later, two cars pulled up on the opposite side of the street from the house. The first car was an Acura in which Trevino was the driver and defendant was the passenger. Other LCV gang members were in the second car.
Soon thereafter, Graves and Santos returned to the house, pulling part way into the driveway. Defendant asked Santos where he was from, which meant that he wanted to know Santoss gang affiliation (Santos had a shaved head and was wearing baggy clothes in the style of a gang member). Santos felt disrespected because someone was asking him about his gang affiliation in front of his (Santoss) own house. Santos responded by saying "What?" in a tone that would let defendant know that he felt disrespected.
Defendant, who was either standing next to the passenger door of the Acura or just getting out of the car through that door, then fired multiple gunshots at Santos. Santos fled upon hearing the shots, at first not realizing that he had been hit. Santoss brother approached and asked Santos if he was all right. At that point Santos heard more bullets and hid behind a nearby car. Eyewitness testimony coupled with physical evidence indicated that defendant fired the first shots while getting out from the passenger side of the Acura and then moved toward the front of the car (perhaps for cover in the event that Santos had a gun), where he continued to fire.
Santos sustained a gunshot wound to the stomach, causing an injury to his hip bone that required surgery.
Defendant, Trevino and others were in a car that was involved in a traffic stop the day after the shooting. A .45-caliber handgun found in the car matched a bullet and casings that had been found at the scene. A gang expert testified that asking someone about gang affiliation could lead to a violent confrontation if the person asked were from a rival gang. It would be a sign of weakness to back down if the question were met with a disrespectful response. Shooting someone who had disrespected ones gang is a sign of strength and itself garners respect from members of the shooters gang.
DISCUSSION
1. Sufficiency of the Evidence
Defendant contends the evidence was insufficient to support both the intent element of attempted murder and the jurys separate finding of premeditation. We disagree.
a. Intent to kill
"To sustain a charge of attempted murder, the evidence must demonstrate a deliberate intention unlawfully to kill a fellow human being. [Citation.] [P] There is rarely direct evidence of a defendants intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendants actions. [Citation.]" (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)
Here, upon asking Santos to state his gang affiliation and hearing a disrespectful "What?" in response, defendant fired several shots at Santos from across the street, hitting him once in the stomach. As acknowledged by defendant in the quotation from People v. Lashley (1991) 1 Cal.App.4th 938 in defendants opening brief, "the very act of firing a [firearm] toward the victim at a range and in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . ." (Id. at p. 945.) Defendant misplaces reliance on People v. Ratliff (1986) 41 Cal.3d 675, 695-696, 224 Cal. Rptr. 705, 715 P.2d 665, and People v. Johnson (1981) 30 Cal.3d 444, 447-449, 179 Cal. Rptr. 209, 637 P.2d 676. In these cases, failure to properly instruct on intent to kill was found to be prejudicial because the trier of fact could have concluded that the defendant fired without such intent. Defendant here does not claim that jury instructions were inadequate, nor on this record could he do so. Regardless that the jury below could have theoretically interpreted the evidence to fall short of proving intent, we conclude that it was sufficient to convince a rational trier of fact beyond a reasonable doubt that defendant intended to kill Santos. (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal. Rptr. 431, 606 P.2d 738.)
b. Premeditation
In analyzing the sufficiency of a finding of premeditation, this court is required to "focus upon evidence of (1) the defendants planning activity prior to the killing; (2) his motive to kill, derived from his prior relationship or conduct with the victim; and (3) the manner of killing, indicating some preconceived design to kill in a certain way. Evidence of all three elements is not essential, however, to sustain a conviction. A reviewing court will sustain a conviction where there exists evidence of all three elements, where there is extremely strong evidence of prior planning activity, or where there exists evidence of a motive to kill, coupled with evidence of either planning activity or a manner of killing which indicates a preconceived design to kill. [Citation.]" (People v. Edwards (1991) 54 Cal.3d 787, 813-814, 819 P.2d 436, citing People v. Anderson (1968) 70 Cal.2d 15, 26-27, 73 Cal. Rptr. 550, 447 P.2d 942, italics in original.) "In identifying categories of evidence bearing on premeditation and deliberation, Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation. [Citation.] . . . The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive." (People v. Perez (1992) 2 Cal.4th 1117, 1125, 831 P.2d 1159.)
Here, the manner in which defendant attempted to kill Santos demonstrated calculation; that is, firing multiple shots from relatively close range in separate groups of gunfire, the second group coming after Santoss brother approached him and asked if he was all right. Planning was demonstrated in that defendant was armed with a handgun. And evidence of motive is strong-namely, gang glorification.
Gang culture requires that when an armed gang member such as defendant asks an apparent gangster for his affiliation, the questioner must be ready to act if the response indicates that the other person demonstrates his disrespect for the questioner. As noted by the prosecutor in final argument: "Gang members know ahead of time what theyre going to do when they encounter rival gang members. . . . Thats why this violence erupts. The violence doesnt erupt just by accident. [P] . . . Gang members know ahead of time how theyre going to handle certain situations. [P] . . . Thats why they carry their guns a lot of the times, so that when they run into rivals they can handle[] the situation. . . . [P] . . . [P] . . . Am I saying that he always has it in his mind that when he sees a rival hes going to kill them? No. Or that hes going to try to kill them? No. But that is an option for gang members. [P] . . . [P] . . . [Defendant] took a gun with him. He had that choice. When he saw Salvador Santos and he decided to get out of the car and hit up Salvador Santos, he could have left the gun there. . . . [P] . . . He knew exactly what he was doing. He made that conscious choice, Im going to hit up this suspected gang member with a gun in my hand. Where are you from. And so is it a big surprise that when this other person does not back down, a gun is pulled out and shot[?]"
The prosecutors assessment of the situation was correct. As noted in the standard instruction given to the jury, "The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. [P] The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time . . . ." (CALJIC No. 8.20.) A short period of time was enough in this case. The jurys finding that defendants attempt to murder Santos was premeditated was adequately supported by the record.
2. Evidence of Ballistics Test
As is the situation in many trials involving gang affiliation, evidence was presented here regarding the high value placed on respect and honor within a gang, as well as specter of retaliation against anyone who cooperates with authorities in the prosecution of a gang member. Thus, as we have seen in many gang cases, the trial record is replete with instances of witnesses contradicting themselves and recanting statements made out of court and at the preliminary hearing. As a result, the evidence below was less than clear regarding whether defendant was the passenger or the driver of the Acura or whether the shots came from the passengers side or the drivers side of the vehicle.
To meet this contradictory evidence, during the course of trial the prosecution proposed that a test be conducted with the gun used in the shooting and a car similar to the Acura to determine if the location of the spent casings found at the scene would indicate whether the shots had been fired from the passengers or the drivers side of the vehicle. Defense counsel complained that the test would be subjective, but the court stated that counsel would be free to cross-examine the officer who would be conducting the test. During the next court session, after the test had been conducted, defense counsel objected to evidence of the test, arguing that he did not have an expert to rebut the results. The prosecutor responded that the officer would not testify as an expert and that he would only state the distances the casings traveled after having been expelled from the drivers or passengers side of the Acura. The trial court ruled that the evidence would be relevant, and stated that, if defendant so requested, it was prepared to appoint an expert for the defense to rebut the officers testimony. Defendant never made such a request.
Defendant contends that evidence of the test should have been excluded because it violated Penal Code section 1054.7, which requires that discovery in criminal matters be turned over at least 30 days before trial. Defendant recognizes that the statute contains an exception "if the material and information becomes known to, or comes into the possession of, a party within 30 days of trial," in which case "disclosure shall be made immediately . . . ." (Ibid.) Nonetheless, citing People v. Little (1997) 59 Cal.App.4th 426, defendant argues the prosecutions immediate disclosure here was inadequate because "the material and information necessary to conduct the ballistic test was known to and in the possession of the prosecution and the police more than 30 days prior to trial. The mere fact that the prosecution and the police delayed conducting the test until the middle of trial should not remove them from the 30 day rule in section 1054.7." Defendants reliance on People v. Little, supra, is misplaced.
Discoverable materials include results of tests or experiments which the prosecutor intends to offer in evidence at trial. (Pen. Code, § 1054.1, subd. (f).)
In Little, a new trial was granted based on the prosecutions failure to disclose that one of its witnesses had a prior felony conviction. On appeal, the People argued that disclosure was not required because the fact of the conviction was not known. (People v. Little, supra, 59 Cal.App.4th at pp. 428-430.) The grant of new trial was affirmed, the Little court reasoning that under the discovery statutes, ignorance was no excuse because the witnesss prior record was reasonably accessible by the use of rap sheets. (Id. at p. 433; see also In re Littlefield (1993) 5 Cal.4th 122, 133-134, 851 P.2d 42.)
In contrast to the reasonably accessible information in Little, defendant has not cited any authority for the proposition that, because the components for conducting a test may be available prior to trial, the People are required to conduct that test more than 30 days before trial so that its results can be turned over within that time frame. Indeed, our reading of the trial record suggests that the importance of conducting a ballistics test was recognized only during trial, as a result of conflicting and confusing testimony that most likely had not been anticipated by the prosecutor.
In any event, the trial court offered, and defendant declined, the opportunity for the appointment of a defense expert to counter the evidence introduced as a result of the ballistics test. To paraphrase People v. Carpenter (1997) 15 Cal.4th 312, 386-387, 935 P.2d 708, "The prosecution need not provide discovery of evidence before it exists. It provided the [test results] to the defense a reasonable time after [the test was conducted]. Moreover, defendant did not request a continuance of trial. It is defendants burden to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm. [Citation.] He does not meet this burden." Similarly, defendant did not meet his burden in this case.
3. Motion for Mistrial
The trial started with defendant and Trevino as codefendants. During presentation of the prosecution case, but outside the presence of the jury, Trevino changed his plea to guilty. Before proceedings resumed, the court stated that it intended to read CALJIC No. 17.46 and asked defendant if he had any objection. Defense counsel stated that he did not per se object to the instruction but requested that a mistrial be declared because, regardless of any instruction, the jury would continue to link the codefendants in their minds and would "figure out something" with respect to what happened to Trevino. The request was denied. On appeal, we hold properly so.
When proceedings resumed, the court instructed the jury as follows:
"You may also have noted that Mr. Trevino and his attorney, Mr. Houchin, are no longer with us in the courtroom.
"Ladies and Gentlemen, the issue of the guilt or innocence of defendant Trevino is no longer before you to decide as a jury. Do not consider this fact for any purpose. It is not relevant whether defendant Zavala is guilty or not guilty — is not relevant to whether defendant Zavala is guilty or not guilty of any of the charges that have been alleged against him.
"Furthermore, do not conclude from the fact that I am giving this instruction that I am expressing an opinion as to the facts or whether defendant Zavala is guilty or not guilty of either of the crimes charged or any of the allegations.
"So were going to proceed at this point."
"A motion for mistrial is directed to the sound discretion of the trial court. [The Supreme Court has] explained that [ a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 985-986, 997 P.2d 1044.) We see nothing in this record which would suggest that the trial court abused its discretion in denying the mistrial motion here.
DISPOSITION
The judgment is affirmed.
We concur: SPENCER, P. J., ORTEGA, J.