People v. Medina CA2/6 ( 2022 )

Filed 9/26/22 P. v. Medina CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B309771
(Super. Ct. No. 2011041363)
Plaintiff and Respondent, (Ventura County)
v.
AUGUSTINE RINCON
MEDINA,
Defendant and Appellant.
Augustine Rincon Medina appeals his conviction, by
jury, of four counts of premeditated and deliberate attempted
murder (Pen. Code, § 664/187, subd. (a))1, felony evasion (Veh.
Code, § 2800.2, subd. (a)), discharging a firearm with gross
negligence (§ 246.3, subd. (a)), battery (§ 243, subd. (e)),
possession of a firearm by a felon (§ 29800, subd. (a)(1), formerly
§ 12021, subd. (a)(1)), unlawful firearm activity (§ 29805, subd.
All further statutory references are to the Penal Code,
1
unless otherwise indicated.
(c)(1), formerly § 12021, subd. (c)(1)), and unlawful possession of
ammunition. (§ 30305, subd. (a), formerly § 12316, subd. (b)(1).)
The jury further found that the victim of each attempted murder
was a peace officer (§ 190.2, subd. (a)(7)) and that each attempted
murder included the intentional discharge of a firearm.
(§12022.53, subd. (c).) The trial court sentenced appellant to an
indeterminate term in state prison of 140 years to life, plus a
determinate term of five years.
Appellant contends: 1. he received ineffective
assistance of counsel at trial because defense counsel did not
object when the prosecutor’s closing argument explained
circumstantial evidence and reasonable doubt in a way that
diluted the government’s burden of proof; 2. the trial court erred
when it declined to instruct the jury on assault on a peace officer
as a “lesser-encompassed offense” of attempted murder; 3. the
trial court erred when it permitted Ventura County Sheriff’s
Deputy Eric Perdue to offer his opinion that appellant was trying
to kill him and Deputy Greg Guilin; 4. the trial court should have
excluded Perdue’s testimony regarding the impact of the crimes
on him and other officers; 5. the trial court erred when it
admitted into evidence a 911 call that preceded the attempted
murders; 6. cumulative error requires reversal; and 7. the
sentence imposed for unlawful possession of ammunition should
be stayed pursuant to section 654. We affirm.
FACTS
Appellant had a long term relationship with T.
Vasquez, the mother of his three young children although they
did not live together. Appellant verbally and physically abused
Vasquez. One evening, Vasquez and the three children returned
to their Oxnard apartment. A few minutes later, appellant
2
entered the apartment uninvited. He accused Vasquez of having
a boyfriend and threatened to kill her. Appellant hit and pushed
Vasquez, causing her to fall down. He demanded to see her
phone. Vasquez told appellant her phone was still in the car. He
demanded the keys and threatened to “fuck [her] up” if she did
not give them to him. Vasquez gave appellant the keys. He
threatened to kill her if she did not move out of the apartment
within five days. When appellant went outside to retrieve
Vasquez’s phone from the car, she gathered the children and ran
with them down the street to another apartment where her older
daughter, A. Castro, was visiting with a friend.
Castro called 911 at 8:08 p.m. to report the incident.
Vasquez was standing next to Castro while she spoke with the
operator. By the time Oxnard police officers arrived at Vasquez’s
apartment, appellant had already left.
Meanwhile, at about 8:45 p.m., Deputy Perdue was
patrolling in Ojai when he saw appellant drive by in an
Oldsmobile sedan and cross the center line. Perdue followed
appellant while he ran the Oldsmobile’s license plate. He learned
the car was registered to a probationer named Vincente Flores.
Perdue continued to follow the Oldsmobile while requesting
assistance from another deputy. Appellant eventually rolled
through a stop sign and Perdue activated his lights to initiate a
traffic stop. Appellant ignored the lights and kept driving. He
eventually turned onto Ojai Avenue, the main street of downtown
Ojai, and drove a few blocks before stopping abruptly. Appellant
opened the driver’s side door and fired five shots toward Perdue.
Appellant sped off in the direction of Highway 33. Perdue
followed.
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Appellant led Perdue and another deputy down
Highway 33 toward Ventura. He made an abrupt “brake check”
near the Stanley Ave. exit which allowed another patrol car
driven by Deputy Guilin, to catch up and take the lead in the
ongoing chase.
Appellant continued to drive at extremely high
speeds down Highway 33 eventually turning on to the 101
freeway heading toward Ventura. He stopped his car in the
middle of the freeway near the Seaward exit, got out of the car
and fired at the police officers. Perdue testified that he saw
appellant grip the gun with both hands and aim at them. Bullets
hit Deputy Guilin’s vehicle. Appellant got back into his car and
continued driving down the freeway.
Appellant exited the freeway at Vineyard Avenue in
Oxnard and drove back toward Vasquez’s apartment. He stopped
briefly in an alley near the apartment, fired more shots at the
police officers behind him and then drove away again.
About 15 minutes later, one of appellant’s front tires
blew out and the chase ground to a halt on Victoria Avenue in
Oxnard. Eight to ten police units caught up to appellant. He
opened his car door, aimed his firearm at the officers and fired at
least two times. Appellant’s shots hit one of the police vehicles,
but none of the officers were physically injured. Oxnard police
officers fired several rounds at appellant, striking him in the
head and shoulder. He was taken into custody about one hour
after Perdue first attempted to stop him.
The search of appellant’s vehicle yielded a .38-caliber
Smith & Wesson revolver containing three expended casings in
the cylinder. Nine expended casings and one live round were
located inside the car.
4
The defense theory at trial was that appellant was
shooting at the police officers because he wanted to get away
from them. He did not intend to kill anyone.
DISCUSSION
1. Ineffective Assistance of Counsel. Appellant
contends that, during her closing argument, the prosecutor
explained the jury instructions on circumstantial evidence and
reasonable doubt in a way that diluted the People’s burden of
proof. He further contends his counsel was ineffective because
counsel failed to object to the argument.
In her closing argument, the prosecutor urged the
jury to adopt a “reasonable” interpretation of the evidence that
supported guilt, rather than an “unreasonable” interpretation
that would support “innocence.” For example, the prosecutor
argued, “In this case, innocence is irrational. It’s irrational that
the gun pointed itself at the police cars.” She further argued the
evidence had “proven beyond a reasonable doubt that the
defendant is guilty of all charges, that guilt is reasonable and
that innocence is unreasonable.” The prosecutor’s closing
argument was accompanied by Power Point slides that repeated
the phrase, “Innocence is Irrational” four times.
In discussing the reasonable doubt standard, the
prosecutor again argued, “You must consider all of the evidence.
You must accept reasonable interpretations. . . . [¶] Beyond a
reasonable doubt, which is the People’s burden to you, is an
abiding conviction [of] the charge. The defendant tried to murder
Greg Guilin after he tried to murder Eric Perdue. Innocence in
this case is irrational.”
Appellant contends the prosecutor misstated the
government’s burden of proof because she continually insisted the
5
jury had to accept a “reasonable” interpretation of the evidence,
without also noting that the facts had to be proven beyond a
reasonable doubt. Although he concedes counsel’s failure to
object forfeited appellate review of this issue, appellant contends
the failure to object rendered his trial counsel ineffective. (People
v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno).)
Appellant “bears the burden of showing by a
preponderance of the evidence that (1) counsel’s performance was
deficient because it fell below an objective standard of
reasonableness under prevailing professional norms, and (2)
counsel’s deficiencies resulted in prejudice.” (Centeno, supra, 60
Cal.4th at p. 674.) We presume counsel’s performance was
competent and that counsel’s actions or inactions are a matter of
sound trial strategy. (Ibid.) “On direct appeal, a conviction will
be reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose
for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus
proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) The
decision whether to object is “‘inherently tactical, and the failure
to object will rarely establish ineffective assistance.’” (People v.
Carrasco (2014) 59 Cal.4th 924, 985, quoting People v. Hillhouse
(2002) 27 Cal.4th 469, 502.)
The record here is silent regarding defense counsel’s
reason for not objecting. There is, however, a satisfactory
explanation for the “failure” to object. Counsel might have
believed that his own closing argument, together with the trial
court’s correct jury instructions, would be sufficient to counter
6
any improper remarks by the prosecutor without drawing more
attention to them. Because this would have been a reasonable
tactical choice, we cannot conclude defense counsel provided
ineffective assistance.
2. Instruction on Assault on a Peace Officer.
Appellant requested that the trial court instruct the jury on
assault with a deadly weapon on a peace officer as a lesser
included offense of the charged crime, attempted murder. The
trial court denied the requested instruction, concluding assault
with a deadly weapon was not a lesser included offense of
attempted murder. Appellant contends the trial court erred
because assault with a deadly weapon is a “lesser-encompassed”
offense of attempted murder because the facts alleged in the
information include every element of the lesser offense. There
was no error.
As an initial matter, any claim of instructional error
has been forfeited because appellant did not raise the lesser
related offense, or “lesser-encompassed” offense argument in the
trial court. (People v. Weaver (2012) 53 Cal.4th 1056, 1082;
People v. Fuiava (2012) 53 Cal.4th 622, 726.) Had the contention
not been forfeited, we would reject it.
“[E]ven absent a request, and even over the parties'
objections, the trial court must instruct on a lesser offense
necessarily included in the charged offense if there is substantial
evidence the defendant is guilty only of the lesser.” (People v.
Birks (1998) 19 Cal.4th 108, 118 (Birks).) Sentence enhancement
allegations are not considered in determining whether one crime
is a lesser necessarily included offense of another. (People v.
Wolcott (1983) 34 Cal.3d 92, 100-102.) More specifically, “gun use
and great bodily injury enhancement allegations accompanying
7
an attempted murder charge do not render assault with a deadly
weapon a lesser included offense of the charged attempted
murder.” (People v. Alarcon (2012) 210 Cal.App.4th 432, 436
(Alarcon).)
Because assault with a deadly weapon is not a lesser
included offense of attempted murder, the trial court had no duty
to instruct on assault. (Alarcon, supra, 210 Cal.App.4th at p.
439.) Appellant was also not entitled to instruction on the theory
that assault with a deadly weapon is a lesser related offense of
attempted murder. (People v. Schmeck (2005) 37 Cal.4th 240,
291-292, abrogated on another ground, People v. McKinnon
(2011) 52 Cal.4th 610, 637-643; Birks, supra, 19 Cal.4th at p.
136.)
Appellant contends Birks does not apply here,
however, because the accusatory pleading alleged all of the
elements of the lesser offense. But Birks rejected this reasoning
when it held that a defendant could not require the trial court to
instruct on a lesser offense that was not necessarily included in
the charged offense but instead bore only “some conceptual and
evidentiary ‘relationship’ thereto.” (Birks, supra, 19 Cal.4th at p.
112.) We are, of course, required to follow Birks and conclude
there was no error. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
3. Deputy Perdue’s Opinion Testimony. Deputy
Perdue testified that he was angry after appellant first fired
shots at him, “Because that individual was – more or less just
tried to kill me.” He further testified that he chased appellant for
several public safety reasons, from appellant’s many traffic
violations “to trying to kill me.” Perdue later testified that, when
appellant suddenly stopped on the 101 freeway, he determined
8
appellant “was a male who was trying to shoot and kill my
partner.”
Appellant contends the trial court should have
sustained his objections to this testimony because Perdue was
speculating about appellant’s state of mind when he testified
appellant was “trying to kill” him or his partner. There was no
prejudicial error.
In People v. Smith (2015) 61 Cal.4th 18, 48-49, a
witness testified that certain events occurred “‘before . . . my
brother started torturing’” the victim. Our Supreme Court
rejected the argument that this testimony was an improper lay
opinion on the question of whether her brother had committed a
special circumstance. “It was simply part of her narrative. A
witness who uses the word ‘torture’ in describing a sequence of
events is not more testifying ‘in the form of an opinion’ (Evid.
Code, § 800) than a witness describing a ‘robbery.’” (Id. at p. 49.)
Perdue’s testimony falls within the same category. He was
describing his observation of appellant shooting at him and his
fellow officer. (Ibid.)
Any error in admitting this testimony was harmless.
(Evid. Code § 353; People v. Watson (1956) 46 Cal.2d 818.) The
evidence was overwhelming that appellant took aim and fired
multiple shots at police officers on four separate occasions. It is
not reasonably likely the jury would have reached a different
conclusion had Perdue testified appellant was “shooting at” him,
rather than “trying to kill” him.
4. Testimony Regarding Impact of Shooting. The
prosecutor concluded her direct examination of Perdue by asking
him how his involvement in this incident was reflected in his
“attitude towards testifying today.” Perdue responded, “It’s life-
9
changing. Life-changing is the best analogy to state it.
¶] [¶] There’s too much emotions to pin it down to one, but it’s
nine years ago. It’s still affects me and my coworkers. Some of
them are retired now.” Appellant contends the trial court erred
when it denied his motion in limine to exclude the testimony
because it had minimal relevance to Perdue’s credibility and was
unduly prejudicial. We review the trial court’s decision to admit
the testimony for abuse of discretion and find none. (People v.
Williams (2008) 43 Cal.4th 584, 634-635; People v. Ayala (2000)
24 Cal.4th 243, 282.)
First, the trial court did not abuse its discretion when
it determined the testimony was relevant to Perdue’s credibility.
Perdue was at times emotional while testifying and his
description of the events differed in some respects from other
witnesses. Defense counsel challenged his credibility and
recollection on cross-examination. Because his credibility was at
issue, testimony that might help the jury understand Perdue’s
demeanor was relevant. The testimony was not unduly
prejudicial within the meaning of Evidence Code section 352. It
was brief and unlikely to “evoke an emotional bias against
[appellant] as an individual . . . .” (People v. Bolin (1998) 18
Cal.4th 297, 320.)
Second, any error was harmless because it is not
reasonably probable appellant would have obtained a more
favorable result had the testimony been excluded. As we have
noted, the evidence was overwhelming that appellant led
multiple peace officers on a high speed chase and, on four distinct
occasions during the chase fired multiple shots at the officers.
Jurors could reasonably infer that Perdue and his fellow officers
10
found the incident life-changing and stressful, even without his
testimony on the issue.
5. A. Castro’s 911 Call. After appellant assaulted T.
Vasquez, she fled her apartment with her young children and ran
down the street to an apartment where her older daughter, A.
Castro was hanging out with a friend. Castro called 911 with
Vasquez standing nearby. During the call, Castro told the
operator that appellant “has a gun,” and “wants to kill” Vasquez.
She explained this was not the first time appellant had
threatened Vasquez and that, “he’s been trying to kill her for the
past couple of months.” Castro told the operator that appellant
broke into Vasquez’s house and took her keys and her purse.
Vasquez ran away with her children and was not at her
apartment. When the operator asked where Vasquez was, Castro
said, “[s]he’s right here standing next to me.” On two occasions,
Vasquez herself talks to the 911 operator, describing what
appellant was wearing and stating she did not know if appellant
is still at her house.
Appellant moved to exclude the recording and
transcript of the call on the ground that it was hearsay because
Castro had no personal knowledge of the events she was
reporting. The trial court denied the motion, concluding instead
that the call was admissible under Evidence Code section 1240 as
a spontaneous statement. Appellant contends the trial court
erred because Castro did not personally observe the events she
described in the call and there is no way to know whether she
was repeating Vasquez’s statements or embellishing them.
Appellant contends the statements that appellant wanted to kill
Vasquez should also have been excluded because they describe a
state of mind rather than a condition or event. Finally, he
11
contends Castro’s statement that appellant had been trying to
kill Vasquez for months was inadmissible character evidence and
unduly prejudicial. (Evid. Code, §§ 352, 1101, subd. (a).)
Evidence Code section 1240 provides that a
statement is not hearsay “if the statement: (a) Purports to
narrate, describe, or explain an act, condition, or event perceived
by the declarant; and (b) Was made spontaneously while the
declarant was under the stress of excitement caused by such
perception.” A statement qualifies as spontaneous under this
section where: (1) there has been an occurrence startling enough
to produce nervous excitement and render the statement
“‘spontaneous and unreflecting;’” (2) the statement is made before
“‘there has been time to contrive and misrepresent, i.e., while the
nervous excitement may be supposed still to dominate and the
reflective powers to be yet in abeyance;’” and (3) the statement
relates to the occurrence that preceded it. (People v. Poggi (1988)
45 Cal.3d 306, 318; see also People v. Thomas (2011) 51 Cal.4th
449, 495.) Such a statement is considered trustworthy because it
is made under the stress of excitement, when the declarant lacks
an opportunity for reflection or fabrication. (People v. Clark
(2011) 52 Cal.4th 856, 925; Thomas, supra, at p. 496.)
The preliminary facts needed to bring a statement
within the exception require proof by a preponderance of the
evidence. (People v. Tewksbury (1976) 15 Cal.3d 953, 966.) We
will uphold the trial court’s determination if it is supported by
substantial evidence. We review its decision to admit the
evidence for abuse of discretion. (People v. Phillips (2000) 22
Cal.4th 226, 236.)
The trial court did not abuse its discretion when it
admitted the 911 call. The transcript of the call shows that
12
Vasquez arrived at the apartment where Castro was staying
suddenly, while she was still panicked from her violent encounter
with appellant. Vasquez stood next to Castro while Castro
described the incident to the 911 operator. Castro either directly
relayed information from Vasquez to the operator or provided
context for the incident that Vasquez did not correct. During the
call, both women were obviously stressed by appellant’s startling
and violent behavior. Castro’s statements qualify as spontaneous
for purposes of Evidence Code section 1240 because they either
described appellant’s shocking and violent conduct or provided
context for it. (People v. Farmer (1989) 47 Cal.3d 888, 903-904,
disapproved on another ground, People v. Waidla (2000) 22
Cal.4th 690, 724, fn. 6.) There was no abuse of discretion.
Any error in admitting the 911 call was harmless
because there is no reasonable probability appellant would have
attained a more favorable result had the evidence been excluded.
Vasquez made several statements to the police that corroborated
Castro’s statements during the 911 call. In addition, the officers
who responded observed that Vasquez had fresh injuries inflicted
during her confrontation with appellant.
6. Cumulative Error. Appellant contends the
cumulative effect of these errors requires reversal. “We conclude
that any errors or assumed errors were nonprejudicial, whether
reviewed separately or cumulatively, and thus reject the
contention.” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254,
308.)
7. Section 654. After appellant was taken into
custody, the car he had been driving was searched. Officers
recovered a revolver containing three expended casings that
13
remained in the cylinder. Nine expended casings and one live
round were also located inside the car.
The jury convicted appellant on count 8, possession of
a firearm by a felon (§ 29800, subd. (a)(1), formerly § 12021, subd.
(a)(1)), count 9, unlawful firearm activity (§ 29805, subd. (c)(1),
formerly § 12021, subd. (c)(1)), and count 10, unlawful possession
of ammunition by a prohibited person. (§ 30305, subd. (a),
formerly § 12316, subd. (b)(1).) The trial court found that section
654 barred imposition of a consecutive term on count 9 but
declined to apply the statute to count 10. Instead, it imposed a
consecutive term of eight months for the possession of
ammunition. Appellant contends the trial court erred and that
the eight-month term imposed on count 10 should be stayed
pursuant to section 654 because possession of the ammunition
was part of the same criminal intent and objective as possession
of the firearm.
“Section 654 prohibits punishment for two offenses
arising from the same act or from a series of acts constituting an
indivisible course of conduct.” (People v. Sok (2010) 181
Cal.App.4th 88, 99.) “Whether a course of criminal conduct is
divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the intent and objective of the
actor. If all of the offenses were incident to one objective, the
defendant may be punished for any one of such offenses but not
for more than one.” (Neal v. State of California (1960) 55 Cal.2d
11, 19, overruled on other grounds, People v. Correa (2012) 54
Cal.4th 331, 334.)
The trial court has wide latitude in making the
factual determination whether section 654 applies in a given
case. We will not reverse its findings if there is any substantial
14
evidence to support them. (People v. Jones (2002) 103
Cal.App.4th 1139, 1143.)
It has long been the rule that, “‘[S]imultaneous
possession of different items of contraband’ are separate acts” for
purposes of section 654. (People v. Jones (2012) 54 Cal.4th 350,
358 (Jones), quoting In re Hayes (1969) 70 Cal.2d 604, 612.) We
have also held, however, that where “all of the ammunition is
loaded into the firearm,” possession of both the firearm and the
ammunition is an indivisible course of conduct and “section 654
precludes multiple punishment.” (People v. Lopez (2004) 119
Cal.App.4th 132, 138.)
Unlike the defendants in Lopez, supra, and Sok,
supra, appellant here possessed both a firearm and a bullet that
was not loaded into the firearm. Both items were contraband for
appellant, a felon. Section 654 does not prohibit multiple
punishment for appellant’s simultaneous possession of two
separate items of contraband under these circumstances. (Jones,
supra, 54 Cal.4th at p. 358.) Because appellant possessed
unloaded ammunition, the jury could reasonably infer that he
had two separate intents: first, to fire the ammunition already
loaded in the revolver and second, to reload and fire again if
needed. These separate intents support separate punishments.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J. BALTODANO, J.
15
Ryan J. Wright, Judge
Superior Court County of Ventura
______________________________
David Andreasen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, Nima Razfar, Deputy Attorney General, for
Plaintiff and Respondent.