People v. Gonzalez CA4/1 ( 2014 )


Menu:
  • Filed 2/26/14 P. v. Gonzalez CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                                         D063129
    Plaintiff and Respondent,
    v.                                                         (Super. Ct. No. JCF26568)
    JESSE GONZALEZ, JR.,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Imperial County, Christopher
    J. Plourd, Judge. Affirmed with directions.
    Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
    General, Julie L. Garland, Assistant Attorney General, Anthony Da Silva and Susan
    Miller, Deputy Attorneys General, for Plaintiff and Respondent.
    In July 2012, a jury found Jesse Gonzalez, Jr., guilty of two offenses: willful,
    deliberate and premeditated attempted murder (Pen. Code, 664, §§ 187, subd. (a))1 with
    infliction of great bodily injury (§ 12022.7, subd. (a)) causing permanent paralysis
    (§ 12022.7, subd. (b)) and personal use of a deadly weapon (§ 12022, subd. (b)(1)) (count
    1); and assault with a deadly weapon (§ 245, subd. (a)(1)) with infliction of great bodily
    injury (§ 12022.7, subd. (a)) causing permanent paralysis (§ 12022.7, subd. (b)) (count 2).
    In October, the court sentenced Gonzalez to life in prison plus six years on count 1: life
    in prison for attempted murder with premeditation and deliberation, five years for causing
    permanent paralysis, and one year for personal use of a deadly weapon.2 The court
    stayed sentence on count 2 and the remaining enhancements. Gonzalez appeals,
    contending substantial evidence does not support the conviction of attempted murder
    with premeditation and deliberation; trial counsel was ineffective because he did not
    request a modified version of CALCRIM No. 522 regarding provocation; and the court
    abused its discretion by precluding the jury from privately viewing and discussing video
    evidence in the jury room during deliberations.
    1      All further statutory references are to the Penal Code.
    2      Gonzalez contends the amended abstract of judgment erroneously lists the
    sentence on count 1 as "13 years to life" and must be corrected. Respondent properly
    concedes the point. Additionally, the court did not specify whether the sentence on
    count 1 carries the possibility of parole. It does. (§ 664, subd. (a).)
    Gonzalez also contends the $240 restitution fine and the $240 parole revocation
    fine violate ex post facto laws and must be reduced to $200 each. The court stated it was
    imposing the "minimum mandatory restitution fine" of $240. At the time of Gonzalez's
    offenses, the minimum restitution fine was $200. (§ 1202.4, former subd. (b)(1).) The
    parole revocation fine must be in the same amount as the restitution fine. (§ 1202.45,
    subd. (a).) Respondent concedes the restitution fine must be reduced. We agree.
    2
    THE PEOPLE'S CASE
    On Christmas night 2010, Lance Hicks was working at his bar, the Hard Luck
    Tavern in El Centro. After the tavern closed at 2:00 a.m., three men came to the front
    door and were turned away by Hicks's wife, Ana Hicks. Within a minute or two, the
    back door blew open and a boulder that had been holding the door ajar tumbled inside
    and rolled across the floor. Hicks picked up the boulder, walked to the back door, put the
    boulder outside and saw the three men. Hicks said something such as, "Why Christmas?
    Why throw the boulder?" One of the men, Gonzalez, ran at Hicks very fast, crouching
    low. Hicks was scared and defended himself. He did not recall the ensuing fight, but
    remembered Gonzalez hugging him and stabbing him in the back. Hicks felt as if his
    legs disappeared. He fell on his back and Gonzalez got on top of him and began stabbing
    him. Hicks held up his hand, asked Gonzalez to stop, said he was hurt and asked for help
    and an ambulance. Ana Hicks and others gathered around. Hicks lost consciousness.
    His next memory was being in the hospital many days later. He had 15 stab wounds,
    including wounds to his neck, chest, arm and back. He had a punctured lung. A stab
    wound to his spine rendered him a paraplegic.
    Dorian Gray, a bartender at the Hard Luck Tavern, saw Louis Murillo and two
    others try to enter the tavern shortly after 2:00 a.m. on December 26, 2010. Ana Hicks
    asked them to leave and they left. Approximately two minutes later, Gray heard a loud
    noise outside, then a loud bang on the back door, and "saw a leg leaving the back door."
    Hicks went outside to investigate. After a minute, Gray walked to the back door, saw a
    rock holding it open and heard a commotion outside. He retrieved a stun gun from
    3
    behind the bar and ran outside. Gray saw Hicks lying on his back on the ground.
    Gonzalez had his knee on Hicks's midsection and appeared to be punching him many
    times, fast. Murillo and the other person who had entered the tavern were standing
    nearby. Murillo said, "Let's go." Gray fired the stun gun into the air twice and moved
    toward Hicks. Gray saw a blade in Gonzalez's hand and realized he was stabbing Hicks.
    Gray saw Gonzalez stab Hicks nine to ten times, and had the impression stab wounds had
    been inflicted before he arrived on the scene. There was blood on Gonzalez's hand, on
    the blade and all over Hicks. Gray attempted to use the stun gun on Gonzalez but it did
    not appear to have any effect. Murillo and his companion grabbed Gonzalez by the shirt
    and pulled him away from Hicks. Gonzalez, Murillo and the third person ran away with
    Gray in pursuit. Gray stopped after running five or ten feet because Hicks said he was
    hurt and asked for help. Gray unsuccessfully tried to help Hicks get up, then ran to the
    back door of the Hard Luck Tavern and yelled that Hicks had been stabbed.
    Justin Bostic, an off-duty deputy sheriff, was outside the Hard Luck Tavern before
    the attack. He saw three individuals enter the tavern, leave immediately, pull down a
    fence adjacent to the tavern and walk through the opening they had created. When Bostic
    heard yelling, he ran in the direction the three individuals had gone. He saw Hicks lying
    on the ground in back of the tavern and heard him moaning and groaning. Bostic
    administered first aid until paramedics arrived. During that time, Hicks lost
    consciousness several times.
    The People introduced into evidence video recordings from surveillance cameras
    focused on seven areas inside the Hard Luck Tavern. The People's exhibit shows the
    4
    events depicted in video footage taken inside the tavern, introduced into evidence by
    Gonzalez and described below.
    DEFENSE EVIDENCE
    On the night of December 25, 2010, Ramon Bonesi was with Gonzalez and
    Murillo at Gonzalez's home. They drank beer until around 10:00 p.m., then walked to the
    Owl bar, where they drank beer and hard liquor. When the Owl closed around 2:00 a.m.,
    they walked to the Hard Luck Tavern. They entered the tavern but were escorted out a
    minute later because it was closing time. They began walking home, then heard a noise
    and began running. Bonesi, who was in front, noticed Gonzalez was no longer behind
    him, and went back to look for him. Bonesi saw a scuffle near the back door of the Hard
    Luck Tavern. Hicks was on the ground; Gonzalez was on top of him, punching him; and
    Hicks was fighting back. Bonesi tapped Gonzalez on the shoulder and Gonzalez got up.
    Bonesi did not see anyone else until Gray came at them with the stun gun. Gonzalez,
    Murillo and Bonesi ran to Gonzalez's house. Bonesi saw a cut on Gonzalez's arm and
    asked about it. Gonzalez said he had stabbed someone during the fight. Gonzalez later
    told Bonesi that he had blacked out and did not remember the incident.
    Gonzalez testified that on December 25, 2010, he drank two beers and smoked a
    marijuana cigarette at home. Bonesi arrived in the late afternoon with an 18-pack of
    beer. They drank all of the beer and smoked marijuana. Murillo joined them. They
    drank more beer. Gonzalez drank a total of at least 20 beers. The three men walked to
    the Owl bar. Gonzalez carried a knife with a four to five-inch blade. At the Owl he
    drank beer and two or three shots of tequila. He left the Owl, went to the Conga bar and
    5
    drank more beer. Then, with Bonesi and Murillo, he tried to enter the Hard Luck Tavern.
    They were unsuccessful. As they left the tavern, Gonzalez saw a big rock. He threw it in
    the direction of the door, thinking "it would be funny," then ran. He did not remember
    walking back to Hicks, but did remember Hicks in front of him, yelling and cursing.
    Hicks hit him in the head a couple of times and kicked him. Gray was behind Hicks and
    appeared to have a weapon. Gonzalez was scared. He hit Hicks with his fist, and when
    Gray moved closer, Gonzalez pulled out his knife and struck Hicks in the abdominal area.
    Gonzalez "blacked out" and did not remember hitting or stabbing Hicks again, but did
    remember Hicks was on his back, Gonzalez was on top of him and Hicks was grasping
    his collar. Gonzalez "pushed [Hicks] off" and ran home, discarding the knife on the way.
    When Gonzalez got home, he realized he had a stab wound. He did not remember much
    of the evening because he was drunk.
    The next day, Gonzalez discarded his bloody clothes in a dumpster. He did not
    intend to kill Hicks and "didn't plan for this to happen." Gonzalez believed his
    intoxication might have affected his judgment. He had had problems with anger for a
    long time, angered easily and sometimes took his anger out on others physically. He had
    been in quite a few fights. He had been the instigator of approximately 40 percent of
    those fights.
    Psychiatrist John Greene evaluated Gonzalez in June 2012. Gonzalez told Greene
    that he had problems with anger when he was a child and got into trouble as a result. In
    high school, he got into a couple of fights a year and started the fights about 40 percent of
    the time. After he graduated from high school, he was terminated from a job corps
    6
    program for fighting. Gonzalez suffered from alcohol and methamphetamine abuse,
    which meant his repeated use had affected "his ability to behave appropriately while he
    [was] using those substances."3 Gonzalez reported using alcohol and marijuana at the
    time of his crime, and Greene believed his intoxication was a factor in the offense and
    significantly impaired his memory. Selective memory impairment was common in
    people who drank substantial amounts of alcohol. A person with a history of anger issues
    and fighting might commit the offense here even without having consumed alcohol.
    Stress could also lead to misjudgment and rash actions.
    Green's conclusions were based on what Gonzalez had reported. If Gonzalez was
    truthful about the amount of alcohol and marijuana he had consumed, his ability to think
    rationally would have been substantially impaired, and he "would most likely [have]
    act[ed] irrationally" and impulsively. Memory impairment was a mental illness, and
    testing strongly suggested Gonzalez "was not lying about symptoms of mental illness."
    Gonzalez's account to Green was consistent with what defense counsel had relayed to
    Green as Gonzalez's account to counsel; this supported Green's opinion that Gonzalez
    was truthful.
    Defense counsel introduced video clips into evidence. A video taken inside the
    Hard Luck Tavern depicts three men entering through the front door. A blond woman
    moves toward them, gesturing and pushing one of them in the direction of the door. One
    of the men also gestures. The three men leave. A man, apparently Hicks, approaches the
    3      Gonzalez told Greene he had resumed using methamphetamine about a month
    before the offense.
    7
    door after the men are outside. Within a minute, he looks toward the back door of the
    tavern, moves toward the back door and disappears from view. Within seconds, another
    man, apparently Gray, follows him quickly, holding an object, apparently the stun gun,
    and also disappears from view. Approximately one minute later, the blond woman, a
    brunette woman and a man run toward the back of the tavern and disappear from view.
    Within seconds, the brunette woman comes into view, running from the back door area
    toward the front of the tavern.
    The defense also introduced into evidence a video taken outside the tavern. That
    video shows a paved area in the foreground and walls and parked cars in the background.
    Three people are seen running in the background, from left to right, one after the other.
    Almost immediately, a fourth person follows at a slower pace. A person comes into view
    on the right and moves toward the fourth person. The fourth person moves back slightly,
    stretches an arm toward the other person and moves his foot in a kicking motion, but does
    not touch the other person. The other person moves toward the fourth person, the fourth
    person reciprocates, and they make contact. Standing close together, they move toward
    the left and out of view, as the other person hits the fourth person repeatedly. More
    people appear. There is a flash. Emergency vehicles arrive.
    ATTEMPTED MURDER
    Gonzalez contends his intoxication and Hicks's provocation (cursing at him after
    he had begun running away, then kicking and punching him) precluded a finding of
    attempted murder with premeditation and deliberation.
    8
    Attempted "willful, deliberate, and premeditated murder . . . shall be punished by
    imprisonment in the state prison for life with the possibility of parole. . . . The additional
    term provided in this section for attempted willful, deliberate, and premeditated murder
    shall not be imposed unless the fact that the attempted murder was willful, deliberate, and
    premeditated is charged in the accusatory pleading and admitted or found to be true by
    the trier of fact." (§ 664, subd. (a).) Willfulness refers to an intent to kill. (See People v.
    Concha (2009) 
    47 Cal.4th 653
    , 666.) " 'Deliberation' refers to careful weighing of
    considerations in forming a course of action; 'premeditation' means thought over in
    advance. [Citations.] 'The process of premeditation and deliberation does not require
    any extended period of time. "The true test is not the duration of time as much as it is the
    extent of the reflection. Thoughts may follow each other with great rapidity and cold,
    calculated judgment may be arrived at quickly. . . ." [Citations.]' [Citation.]" (People v.
    Koontz (2002) 
    27 Cal.4th 1041
    , 1080.)
    "In reviewing a sufficiency of evidence claim, the reviewing court's role is a
    limited one. ' "The proper test for determining a claim of insufficiency of evidence in a
    criminal case is whether, on the entire record, a rational trier of fact could find the
    defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the
    evidence in the light most favorable to the People and must presume in support of the
    judgment the existence of every fact the trier could reasonably deduce from the evidence.
    [Citation.]" ' [Citations.] [¶] ' "Although we must ensure the evidence is reasonable,
    credible, and of solid value, nonetheless it is the exclusive province of the trial judge or
    jury to determine the credibility of a witness and the truth or falsity of the facts on which
    9
    that determination depends. [Citation.] Thus, if the verdict is supported by substantial
    evidence, we must accord due deference to the trier of fact and not substitute our
    evaluation of a witness's credibility for that of the fact finder. [Citations.]" [Citation.]'
    [Citation.]" (People v. Smith (2005) 
    37 Cal.4th 733
    , 738-739.)
    A rational jury could have accepted Hicks's version of events and rejected
    Gonzalez's version. The evidence set forth above, including Hicks's and Gray's
    testimony, would allow a reasonable jury to conclude that in a short period of time,
    before he attacked Hicks, Gonzalez considered the circumstances and, after reflection,
    decided to kill Hicks. Substantial evidence supports the finding of deliberation and
    premeditation and the conviction of attempted murder.
    INEFFECTIVE ASSISTANCE OF COUNSEL
    Defense counsel argued that Hicks provoked Gonzalez by yelling, cursing and
    landing the first blow; Gonzalez acted because of a sudden quarrel and in the heat of
    passion; he was so intoxicated he acted rashly and without thinking; and this was a case
    of imperfect self-defense. At counsel's request, the court instructed the jury on the lesser
    included offense of attempted voluntary manslaughter if "[t]he defendant attempted to
    kill someone because of a sudden quarrel or in the heat of passion" and "because he was
    provoked" (CALCRIM No. 603) and on complete and imperfect self-defense (CALCRIM
    Nos. 505, 604). The court also instructed the jury could "consider evidence of voluntary
    intoxication in deciding if the People [had] proved . . . deliberation and premeditation"
    (CALCRIM No. 3426) and that "[a] decision to kill made rashly, impulsively, or without
    careful consideration of the choice and its consequences is not deliberate and
    10
    premeditated" (CALCRIM No. 601). Gonzalez contends counsel was ineffective because
    he did not request a modified version of CALCRIM No. 522, instructing that provocation
    insufficient to reduce attempted murder to attempted voluntary manslaughter may
    nevertheless support a finding that the attempted murder was not premeditated and
    deliberate.
    The defendant has the burden of showing he received ineffective assistance of
    counsel, that is, that counsel did not act in a manner expected of a reasonably competent
    attorney and counsel's acts or omissions prejudiced the defendant. (Strickland v.
    Washington (1984) 
    466 U.S. 668
    , 687-688, 691-692.) To establish prejudice, "[t]he
    defendant must show that 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." (Id. at p. 694.)
    Here, there was no substantial evidence of provocation; the evidence was, at most,
    " ' "minimal and insubstantial." ' " (People v. Middleton (1997) 
    52 Cal.App.4th 19
    , 33.)
    The record does not demonstrate the lack of a request for a modified version of
    CALCRIM No. 522 caused Gonzalez any prejudice. (See People v. Koontz, 
    supra,
    27 Cal.4th at pp. 1085-1086.) This defeats his contention of ineffective assistance of
    counsel.
    THE JURY'S VIEWING OF THE VIDEO EVIDENCE
    During trial, the videos introduced into evidence were played in open court. The
    court instructed the jury that if it wished to see the videos again, it should send a note
    11
    through the bailiff, and the videos would then be played in open court. Soon after the
    jury began deliberating, the court received a note asking to view the videos "privately
    (without audience) to discuss among ourselves." The court discussed the note with
    counsel, who agreed on the following procedure. Because the videos were playable only
    via a program on the prosecutor's laptop computer, which also contained files the jury
    was not entitled to see, the jury would watch the videos in open court. The court would
    suggest to the jurors that each video be played three times, would admonish them not to
    speak while viewing the videos and would tell them to write another note if they wished
    to view the videos again. The court informed the jurors of the procedure, and before the
    videos were played, received a note from the jury asking whether the videos would be
    played in real time, or if they could be played in slow motion. The court responded the
    videos would be played in real time, and if the jurors wished to see the videos in slow
    motion, they should send another note.
    At defense counsel's request, the court allowed the jury to gather around the screen
    to obtain a better view. The videos were played three times. The jury returned to the
    deliberation room, and a short time later sent the court a note asking to view the video
    taken outside the Hard Luck Tavern three times frame by frame and once in real time.
    The court responded that for technological reasons, the video could not be played frame
    by frame, so it would be played a couple of times at quarter speed and then a couple of
    times at half speed. The court told the jurors to make a note of any point they would like
    the video stopped, and the court would try to accommodate any request. The court
    admonished the jury not to hold any discussions in open court, then had the video played
    12
    twice at quarter speed and twice at half speed. The court asked the jurors if they wished
    the video played again at quarter or half speed. The jurors did not ask to see the video
    again. The court told the jurors to send another note if they had further requests. After
    the jury left the courtroom, the court stated its belief that the video could not be played
    more slowly than quarter speed. The prosecutor agreed. Defense counsel did not
    comment.
    The next morning, the jury sent the court a note asking to see the video "at
    [quarter] speed and [half] speed, three times." Defense counsel told the court that he and
    the prosecutor "would like to have the jurors review the videos as if they were in a private
    deliberative area." The court closed the courtroom and directed the jurors not to talk
    while the video was playing. The court told the jurors they were free to position
    themselves for the best view. The prosecutor played the video three times each at half
    speed and quarter speed. The court excused the jurors for further deliberations and asked
    them to send another note if they had another request.
    A little more than one hour later, the court received a note from the jury asking to
    view the video after the lunch break, three times in real time, two times at half speed and
    once at quarter speed. After the lunch break, the court told the jurors to position
    themselves for the best view and admonished them to refrain from discussion. The video
    was played at the three speeds requested. The jury returned to the deliberation room.
    After deliberating for a period lasting between one and one-quarter hour and two hours
    40 minutes, the jury notified the court it had reached a verdict.
    13
    Gonzalez contends that requiring the jurors to view the videos in open court,
    without simultaneously discussing what they saw, and without "independently starting,
    stopping and rewinding the video clips as much as they wanted," "prevented the jurors
    from deliberating and evaluating the evidence in a meaningful manner."
    "[S]ection 1137 . . . provides that the jurors, upon retiring for deliberation, may
    take with them all papers which have been received into evidence (except depositions).
    Moreover, there is judicial authority that transcripts of tape-recorded testimony may be
    taken into the jury room." (People v. Fujita (1974) 
    43 Cal.App.3d 454
    , 473.)
    Nevertheless, "what may be taken by the jury into the jury room is left to the sound
    discretion of the trial court." (People v. Walker (1957) 
    150 Cal.App.2d 594
    , 603.)
    Here, the court did everything possible to accommodate the jury's requests to view
    the videos. The court allowed the jurors to position themselves so as to have a clear
    view, and to view the videos at various speeds, as many times as they wished. The only
    limits the court imposed were those required by technology and the extraneous material
    on the prosecutor's laptop that the jury was not entitled to see. There was no error.
    14
    DISPOSITION
    The trial court is directed to correct the abstract of judgment to provide the
    sentence on count 1 is life in prison with the possibility of parole plus six years, and the
    restitution fine and parole revocation fine are $200 each. The court is directed to forward
    the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
    The judgment is otherwise affirmed.
    McDONALD, Acting P. J.
    WE CONCUR:
    AARON, J.
    IRION, J.
    15
    

Document Info

Docket Number: D063129

Filed Date: 2/26/2014

Precedential Status: Non-Precedential

Modified Date: 10/30/2014