P. v. Barron CA4/1

Filed 3/6/13 P. v. Barron CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061221
Plaintiff and Respondent,
v. (Super. Ct. No. SCD230124)
LUIS FRANCISCO BARRON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Charles G.
Rogers, Judge. Affirmed.
A jury convicted defendant Luis Barron of the first degree murder of Joanna
Vargas (Pen. Code, § 187, subd. (a))1 and assault with a firearm against Pierre
Westbrooks (§ 245, subd. (a)(2)), and found true enhancing allegations that Barron
discharged and personally used a firearm in connection with the crimes. The court
sentenced Barron to an indeterminate term of 50 years to life plus a consecutive
1 All further statutory references are to the Penal Code unless otherwise specified.
determinate term of 14 years. Barron contends he was denied effective assistance of
counsel because his attorney did not seek a voluntary intoxication instruction.
I
FACTS
A. The Assault
Around 12:30 a.m. on August 27, 2010, Westbrooks and Mr. Pope walked
together to the front gate of their apartment complex on Van Dyke Avenue. Pope noticed
three males standing near a white SUV and, as Pope walked to his car, he heard someone
say, "What's he looking at?" and saw Barron pull out a shotgun. Pope jumped in his car
and sped off. As Pope drove away, the three men approached Westbrooks. Barron
(holding the shotgun) and his companions surrounded Westbrooks and said, "This is
Mission Bay Locos" and called him a "fool." As the men were standing around
Westbrooks, a car drove up and a Hispanic male got out. Barron's companions starting
chasing the Hispanic male on foot, and that group disappeared around a corner as
Westbrooks and Barron watched. A few minutes later, the driver of the SUV (a female )
started the SUV, Barron got into the car and it drove away. Barron did not smell of
alcohol, and did not appear to be intoxicated or impaired.
B. The Murder
Around 1:15 a.m. that same morning, a white SUV approached Lindbergh Park.
About 15 seconds later, a gunshot rang out. Joanna Vargas, who was at the park with
Jose Flores and two others (including Mr. Cardenas), fell to the ground; Flores, who had
been dancing with Vargas, felt something strike him. After the shot, Cardenas saw the
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SUV, with its headlights off and windows open, cruising past slowly. The SUV was
occupied by three or four people.
By the time paramedics arrived around 1:30, Vargas was dead. She was killed by
a shotgun slug that entered her back and partially exited her right chest wall.
C. Barron's Companions' Testimony
Around 8:00 p.m. on August 26, Mr. Zaragosa and Mr. Mendoza met Barron at
the home of Barron's girlfriend (Ms. Ikonen) and the group consumed alcohol. Zaragoza
testified he had four "glasses" of whiskey,2 and also consumed two Xanax pills, and
Barron drank about the same amount of alcohol. Mr. Mendoza testified he drank less
than the others, drinking only two glasses of whiskey and (after the group took a break to
go to the store to buy beer) later drank a beer. Mendoza saw Barron consume one Xanax
pill. The group left the house around 9:30 p.m. because Barron wanted to acquire some
spray cans of paint to go "tagging."
Mendoza testified the alcohol he consumed did not impair his faculties or
awareness, and Barron did not appear to be falling down drunk or to slur his words
during the course of the evening. Ms. Ikonen also testified Barron was not "particularly
drunk," was not "stumbling over," and was holding a conversation without slurring his
words.
Ikonen drove the group to Barron's mother's apartment in Ikonen's SUV. Barron
went inside the apartment; Zaragosa and Mendoza got out and waited next to the SUV,
2 Zaragosa stated they drank from oversized coffee mugs, and each of the cups he
drank was filled between half to three-quarters full.
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and Ikonen remained in the driver's seat. When Barron emerged and came back to the
SUV, he was carrying a shotgun. Ikonen, who had seen two men (Westbrooks and Pope)
watching Barron return to the car, told Barron the two men had seen him. Barron,
Zaragosa and Mendoza then approached the two men and Barron "got into . . . one of the
gentlemen's face" and appeared to be aggressively confronting him. During the
confrontation, Barron pulled out the shotgun and brandished it at one of the men, asking
"Are you talking shit?" causing the man to back away.
At one point, Zaragosa saw Mendoza chasing another man while Barron remained
standing with the black man. When Mendoza returned, he, Barron and Zaragosa went
back to the car and got in. Barron told Ikonen to drive away, and at some point explained
to her that the reason he had chosen not to "do something" was because the black man
whom Barron was confronting was "an old man."3 Barron put the shotgun down on the
floor of the car as they drove away.
Mendoza asked to be dropped off at his girlfriend's house, near the site of the
murder. As they drove past the park, Barron asked Ikonen to slow down. Suddenly,
Mendoza saw Barron pointing the shotgun out the window and heard the "boom" when
he fired. The others were startled, and were exclaiming "what the fuck," and "what's
going on," but Barron told Ikonen to shut up and said "I think hit somebody" or "I think I
just hit a girl." Barron instructed Ikonen to stop the car, after which he opened the door,
3 Westbrooks was 49 years old at the time of trial.
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got out and retrieved the shotgun shell. He then got back into the car and urged Ikonen to
"go, go, go."
Ikonen drove to Ocean Beach near Sunset Cliffs before finally stopping. They
threw the gloves Barron was wearing over the cliff, Barron hid the shotgun in a bush, and
the group then drove off. After a short stop at an apartment where he conferred with a
friend, Barron announced they were going to drive to Mexico and explained he wanted to
get the car cleaned up to get rid of gunpowder traces. Once there, he let Mendoza and
Zaragosa out to find their own way home, but not without warning them that "snitches
get stitches," to deter them from reporting the incident.
Barron and Ikonen spent the night at Barron's father's house in Mexico while the
car was being cleaned. Barron told his father that he had shot a girl. The day after the
shooting, Ms. Campbell (who had a child with Barron) confided to a friend that Barron
had phoned her, crying and hysterical, and told her "I didn't mean to shoot the girl. I
meant to hit the boy."
II
ANALYSIS
Barron argues he was denied effective assistance of counsel because his attorney
did not request a jury instruction on voluntary intoxication (CALCRIM No. 625), and
there was a reasonable probability he would have obtained a more favorable result had
the instruction been given.
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A. Legal Framework
Ineffective Assistance of Counsel
" 'In assessing claims of ineffective assistance of trial counsel, we consider
whether counsel's representation fell below an objective standard of reasonableness under
prevailing professional norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to undermine confidence in the
outcome. [Citations.] A reviewing court will indulge in a presumption that counsel's
performance fell within the wide range of professional competence and that counsel's
actions and inactions can be explained as a matter of sound trial strategy. Defendant thus
bears the burden of establishing constitutionally inadequate assistance of counsel.
[Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged, an appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation. [Citation.]' " (People v. Gamache (2010) 48
Cal.4th 347, 391.)
Where, as here, the record is silent on whether counsel might have had reasons for
not requesting an instruction on voluntary intoxication, an appellate claim of ineffective
assistance of counsel on direct appeal "must be rejected unless counsel was asked for an
explanation and failed to provide one, or there simply could be no satisfactory
explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition
for writ of habeas corpus." (People v. Carter (2003) 30 Cal.4th 1166, 1211.) "A
reviewing court will indulge in a presumption that counsel's performance fell within the
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wide range of professional competence and that counsel's actions and inactions can be
explained as a matter of sound trial strategy." (Ibid.)
Voluntary Intoxication
"[E]vidence of voluntary intoxication [can be] relevant on the issue of whether the
defendant actually formed any required specific intent." (People v. Pensinger (1991) 52
Cal.3d 1210, 1243.) Thus, in a homicide case, it may be relevant to the issues of
premeditation and deliberation and intent to kill. (§ 29.4.) However, a trial court "has no
duty to instruct sua sponte on voluntary intoxication." (People v. Clark (1993) 5 Cal.4th
950, 1022, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.) Rather, " '[a]n instruction on the significance of voluntary intoxication is a
"pinpoint" instruction that the trial court is not required to give unless requested by the
defendant.' " (People v. Verdugo (2010) 50 Cal.4th 263, 295.)
Importantly, " 'a defendant is entitled to such an instruction only when there is
substantial evidence of the defendant's voluntary intoxication and the intoxication
affected the defendant's "actual formation of specific intent." ' " (People v. Verdugo,
supra, 50 Cal.4th at p. 295.) Substantial evidence of intoxication alone is not enough;
there must also be evidence that the intoxication impaired the defendant's ability to
formulate intent. (People v. Williams (1997) 16 Cal.4th 635, 677-678.) The mere
consumption of alcohol is not enough to warrant the instruction (People v. Miller (1962)
57 Cal.2d 821, 830-831 ["[t]he mere fact that a defendant may have been drinking prior
to the commission of a crime does not establish intoxication"]), and the mere fact there
was some level of inebriation does not warrant the instruction absent some additional
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evidence the defendant was unaware of what he or she was doing because of intoxication.
(See People v. Carpenter (1997) 15 Cal.4th 312, 395 [testimony that as a result of
drinking alcohol the defendant's speech was " 'weird,' " or he "had 'sort of a dreamy look
in his eyes,' " or he was " 'in a daze, like spaced out' " was insufficient to warrant a
diminished capacity instruction].).)
B. Analysis
Here, although there was evidence Barron had been drinking alcohol earlier in the
evening, the defense produced absolutely no evidence, from either lay or expert
witnesses, that his drinking had any effect on his ability to formulate intent at the time of
the shooting. To the contrary, the only evidence was that Barron had stopped drinking
several hours before the shooting, and two of his coparticipants testified Barron did not
appear "particularly drunk," was not "stumbling over," and was holding a conversation
without slurring his words. Moreover, despite the alcohol consumption, Barron
continued to manifest an ability before the shooting both to engage in purposeful and
goal-directed behavior (e.g. by directing Ikonen to drive him to his mother's apartment
where he was able to find and retrieve the shotgun inside the home) and to make
decisions based on discrete and rational criteria (e.g. his decision not to escalate his
assault on Westbrooks because Westbrooks was "an old man"). The evidence also
showed he was able to engage in rational and goal directed-behavior during, and in the
immediate aftermath of, the shooting: he directed Ikonen to "slow down" immediately
before firing the fatal shot; he directed her to stop the car so he could remove evidence of
his crime (the shotgun shell); he told her to "go, go, go" after returning to the car
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(suggesting he was subjectively able to appreciate the need to escape); he twice stated "I
think I just hit a girl," suggesting he was sufficiently sober that he could accurately
perceive and recollect events; and he was able immediately to begin formulating and
implementing a plan of escape (by ridding himself of the weapon and fleeing to Mexico
to sanitize the escape vehicle). Finally, he admitted to Campbell he "didn't mean to shoot
the girl [but instead] meant to hit the boy," suggesting his ability to engage in intended
behavior was not impaired.
To establish a claim of ineffective assistance of counsel, Barron must show his
counsel's conduct was deficient--that it fell below an objective standard of reasonableness
under prevailing professional norms--and that he was prejudiced as a result, meaning a
favorable verdict was reasonably probable had the instruction been given. (People v.
Palmer (2005) 133 Cal.App.4th 1141, 1158.) Because there was no substantial evidence
his condition was significantly impaired (People v. Miller, supra, 57 Cal.2d at pp. 830-
831), much less that the level of inebriation made him unaware of what he was doing
(People v. Carpenter, supra, 15 Cal.4th at p. 395), there was insufficient evidence to
support the instruction and therefore Barron's trial counsel did not provide ineffective
assistance of counsel by not requesting the instruction. (See People v. McPeters (1992) 2
Cal.4th 1148, 1173 [defense counsel not required to advance unmeritorious arguments].)
Separately, and alternatively, we also note the record is silent on why defense
counsel did not pursue a voluntary intoxication defense at trial. When the record on
appeal sheds no light on why counsel acted or failed to act in the manner challenged, a
claim of ineffective assistance of counsel is more appropriately decided in a habeas
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corpus proceeding, and the claim on appeal must be rejected unless there simply could be
no satisfactory explanation for counsel's conduct. (People v. Mendoza Tello (1997) 15
Cal.4th 264, 266-267.) One plausible explanation for the dearth of lay or expert
testimony to support a defense that Barron's drinking impaired his ability to formulate
intent at the time of the shooting is that defense counsel did investigate that avenue and
could find no testimonial support to undermine the evidence to the contrary. A second
tactical reason for not proffering the defense could have been that counsel believed
proffering an intoxication argument that it perceived to be a weak argument would have
detracted from the defense theory of the case: that Barron specifically intended to shoot
into a park he reasonably believed was empty of people, and it was a tragic accident that
someone was present in a dark park after 1:00 a.m. to be hit by the shot. Because this
theory of accident was the proffered defense, counsel could have reasonably believed that
asserting Barron was too intoxicated to form any intent could have been inconsistent with
this argument.
In People v. Wader (1993) 5 Cal.4th 610, the court rejected an ineffective
assistance of counsel claim under analogous circumstances. There, defense counsel did
not request the voluntary intoxication instruction, and instead proffered the defense that
his intent when he fired the fatal shot was to scare the victim and nothing more. The
Wader court rejected the ineffective assistance of counsel claim, stating "[a]n instruction
on voluntary intoxication as negating specific intent would have been inconsistent with
defendant's theory of the case. Accordingly, we cannot say that defense counsel had no
rational tactical purpose in not requesting an instruction on intoxication." (Id. at p. 643.)
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Because there are reasonable tactical explanations for counsel's decision not to
request a voluntary intoxication instruction, Barron has not shown his counsel was
ineffective on direct appeal and must pursue this claim by petition for writ of habeas
corpus.
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
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