People v. Garcia CA2/4 ( 2015 )

Filed 6/18/15 P. v. Garcia CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B250582
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA381662)
v.
PETER IGNACIO GARCIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, William
N. Sterling, Judge. Affirmed.
Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and
Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Peter Ignacio Garcia appeals from the judgment entered following his
conviction by jury of voluntary manslaughter, evading an officer, and possession of a
firearm by a felon. Defendant contends that there was insufficient evidence at trial to
support his voluntary manslaughter conviction, and that the trial court erred in refusing to
either grant his motion for new trial or dismiss the charges in the interest of justice. We
affirm.
FACTUAL AND PROCEDURAL SUMMARY
I. Procedural Background
In an amended information filed on October 1, 2012, defendant was charged with
the murder of Christina Salazar (Pen. Code, § 187, subd. (a) (count 1)),1 evading an
officer with willful disregard (Veh. Code, § 2800.2, subd. (a) (count 2)), and possession
of a firearm by a felon (§ 12021, subd. (a)(1) (count 3)). The information contained
special allegations that in count 1 defendant personally and intentionally discharged a
firearm, causing great bodily injury and death (§ 12022.53, subds. (b), (c), and (d)), and
that defendant was armed with a firearm in connection with count 2 (§ 12022, subd.
(a)(1)). The information further alleged that defendant suffered convictions of a prior
serious or violent felony (as to all three counts) (§§ 667, subds. (b)-(i), 1170.12),
conviction of a prior serious felony (as to count 1) (§ 667, subd. (a)), and that defendant
served a prior prison term for a serious felony and failed to remain free of custody for a
period of five years following the conclusion of that term (§ 667.5, subd. (b)).
The jury trial commenced in October 2012. On October 23, 2012, the jury
acquitted defendant of murder, but found him guilty of the lesser included offense of
voluntary manslaughter on count 1 (§ 192, subd. (a)). The jury further found the firearm
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
enhancement true as to count 1(§ 12022.5, subd. (a)).2 The jury also convicted defendant
of counts 2 and 3 and found the firearm enhancement true as to count 2. Defendant
waived his right to trial on the prior conviction and prison term allegations and
subsequently admitted them.
On June 28, 2013, the trial court heard and denied defendant’s motion for new
trial. The court sentenced defendant to a total term of 40 years to life—a base term of 25
years to life on count 1, plus 10 years for the firearm enhancement and five years for the
prior serious felony conviction enhancement, and 25 years to life for count 2, to run
concurrent to the sentence in count 1. The sentence for count 3 was stayed pursuant to
section 654. Defendant timely appealed.
II. Evidence at Trial
While many of the events preceding the homicide were the subject of conflicting
evidence at trial, it was undisputed that on March 2, 2011 at about 1:00 p.m., defendant
shot Christina Salazar (Salazar) as she ran across the street near the corner of Adams
Boulevard and Maple Avenue in Los Angeles, hitting her in the back and fatally
wounding her. It was also undisputed that at some point earlier in the day, Salazar shot
defendant’s sister, Diana, in the leg, but the precise timing and location of that shooting
were in dispute. The prosecution’s case therefore focused on proving that defendant
chased and shot Salazar with the malice required for murder, rather than in self-defense
or defense of others as defendant claimed.
A. Prosecution Evidence
Salazar lived in Chino, but in March of 2011 was staying with her sister and her
sister’s family, including her sister’s daughter Monique, while attending school.
Salazar’s sister lived near 29th Street and Main Street in Los Angeles. At that time,
defendant lived with his family, including his mother, Martha Garcia, and his sister,
2
The firearm enhancements under section 12022.53 charged on count 1 in the
amended information do not apply to voluntary manslaughter. (§ 12022.53, subd. (a).)
Thus, the jury evaluated whether defendant personally used a firearm within the meaning
of section 12022.5. subdivision (a), the applicable enhancement for a conviction of
voluntary manslaughter.
3
Diana Garcia,3 a few blocks away on 27th Street, just west of Maple. Salazar and Diana
did not like each other.
1. The Morning of the Shooting
Lisa Lopez, Salazar’s cousin, testified that she spent the morning of March 2, 2011
with Salazar. Lopez lived nearby, on the north side of Adams, just west of the
intersection with Maple. That day, Lopez and Salazar planned to sell food prepared by
Lopez’s mother-in-law to raise money for an upcoming trip to Las Vegas. Lopez picked
up Salazar and Monique in Lopez’s car around 8:00 a.m. from Salazar’s sister’s house
and drove them to buy bread. They dropped the bread off at Lopez’s house, and Lopez
then drove Salazar and Monique back to Salazar’s sister’s house to shower and change
clothes. Lopez picked them up again about 20 to 30 minutes later, around 10:00 a.m.,
and they returned to Lopez’s home to prepare food orders. Sometime between 12:00
p.m. and 1:00 p.m., all three walked together to Ranch Market, located on the southwest
corner of Adams and Maple. Salazar and Monique continued walking south on Maple.
Salazar planned to drop off Monique at Monique’s grandfather’s house, located near 29th
and Trinity Streets, and then return to Lopez’s house. Lopez bought some sodas at the
market and returned home.
2. The Shooting
On March 2, 2011, around 1:00 p.m., Alberto Sanchez, who is blind in one eye,
was walking north on Maple near the corner of 27th Street when he heard yelling. He
saw a woman later identified as Salazar running northbound past him and being chased
by a group of about five people. The group was about 40 feet behind Salazar. Defendant
was part of the group and held a handgun as he ran. One of the members of the group
was limping. Sanchez screamed at the group to call the police and an older woman in the
group responded “get the fuck out of the way because we are going to kill her.” The
group continued up Maple and turned left into a driveway just south of Adams, leading to
a parking lot on the corner of Adams and Maple. Salazar was screaming and “looked
3
We refer to individuals with the last name of Garcia by their first names to avoid
confusion.
4
desperate.” Sanchez continued north after the group once they turned into the parking lot
and he lost sight of them.
Sanchez stopped when he reached the driveway. He heard three gunshots and saw
defendant fire a gun at Salazar as she ran across Adams.4 Salazar was about halfway
across the street when she was hit. Defendant and the rest of the group then ran back
south down Maple. Sanchez ran over to Salazar and saw that she was deceased. Sanchez
did not see any struggle between Salazar and defendant or his group prior to the shooting
and did not see defendant holding a cell phone.
Several other eyewitnesses offered testimony at trial regarding the shooting.
Akeem Coburn was putting his daughter into his vehicle, which was parked on the east
side of Maple, north of the intersection with Adams. He saw two “hispanic females . . .
holding down a[nother] hispanic female” in the parking lot driveway on the southwest
corner of the intersection. The driveway opened onto the south side of Adams, west of
the intersection. Coburn also saw defendant standing near the group of females. The
female being restrained (Salazar) was screaming and “trying to get away”; Coburn was
originally alerted by the screaming, which lasted five to ten seconds. Salazar was “trying
to run away” but the other two females were “trying to pull her back by the arms.” It did
not appear to Coburn that Salazar was aggressive toward the other women or trying to
fight back, “she was just trying to get loose and run away from them.”
Salazar then broke away and ran into the street heading northwest. Defendant
stepped four to five feet into the street, “pointed the gun at her and just started shooting.”5
Coburn heard four to six shots total. Coburn saw Salazar run, get hit with a bullet when
she was at least halfway across the street, and then continue running forward toward the
sidewalk until she collapsed behind a vehicle. Coburn testified that he was watching
Salazar as she was shot, that she was shot in the back and he did not see her turn back
4
According to the LAPD detective who initially interviewed him, Sanchez said he
did not see the actual shooting at Maple and Adams.
5
Coburn also testified that defendant was using a cell phone while he was shooting.
5
around toward the group at any time. He did not see anything in her hands while she was
running. After the shots were fired, the group ran south on Maple.6 Coburn also saw a
group of people running toward Salazar to help her. He did not see anyone take anything
from that location.
Bradley Dawn was sitting in his car in the parking lot on the northwest corner of
Adams and Maple. He “heard a loud bang” that “was pretty clear [] was a gun shot”; the
noise caught his attention and he looked toward Adams. Within “a second or two,” he
saw a man step into the street, raise a gun and fire two shots in quick succession in a
westerly direction down Adams. Dawn was unable to see what the man was shooting at.
The man and a girl “that was with him” then turned and ran east on Adams and then
south on Maple. As the girl ran, Dawn could see she was limping. As he drove away,
Dawn saw a young woman on the side of the road holding a cell phone, “obviously in
shock,” and a body lying at her feet behind a parked white car. He also saw people
coming out of the medical building across the street and running toward the victim.
Victor Mejorada was inside his home on the north side of Adams. He heard a
gunshot and went to the window. He saw Salazar, a friend of his, running across the
street. He then saw defendant on the sidewalk shooting at Salazar. Salazar was in the
middle of the street, looking forward when she was shot. Mejorada did not see her turn
back toward defendant prior to the shooting. He heard “one or two” shots. Salazar fell in
the street, got up and continued toward Lopez’s house. Mejorada ran outside and saw
Lopez, shouting and crying, near Salazar. After the gunshots, Mejorada saw defendant
and two girls running out of the parking lot toward 27th Street. He did not see anyone
remove anything from Salazar while she was lying on the street.7
6
Coburn testified that he saw a larger group of people scatter down Maple after the
shooting—defendant and the two females ran across the parking lot, joined another group
of five to nine people standing near the driveway exiting onto Maple, and the entire group
ran south on Maple.
7
Mejorada testified inconsistently as to whether he saw Salazar carrying a purse
while she was running.
6
Kevin Guevara had just gotten out of school and was walking on the north side of
Adams heading west to the bus stop. He heard girls screaming on the other side of the
street and then saw one girl running with a “male chasing after her.” Guevara saw
Salazar running diagonally toward him across the street. He then heard “more than
three” gunshots and he ducked for cover. Salazar was in the middle of the street when
defendant shot her, she collapsed, then got back up and tried to run. Defendant “shot her
again” and “that’s when she collapsed behind the car.” Salazar never turned around
toward defendant. Defendant then turned and fled toward Maple. Guevara, who had
observed the shooting from about half a block away, then walked over to try to help
Salazar. Guevara called an ambulance and waited with Salazar until it arrived. He did
not see anyone take any property from Salazar.8
Lopez, Salazar’s cousin, testified that about 20 minutes after she left Salazar and
Monique near Ranch Market, she was at her home, located just northwest across Adams
from the parking lot where defendant confronted Salazar. Lopez heard what she thought
might be a gunshot, but she was not sure because it could have been hammering from the
construction work being done on her home. A construction worker then told her that
something had happened to her cousin. Lopez went to her front door, looked outside, and
saw Salazar in the middle of the street, screaming and running toward her. Salazar was
limping and holding her stomach. Lopez grabbed her phone, ran outside and fell; by the
time she reached the street Salazar had fallen to the ground behind a white car. She was
the first person to reach Salazar. Lopez called 911 and stayed with Salazar until the
paramedics arrived. Lopez did not see the shooter and did not see Salazar get shot.
Lopez stated Salazar was carrying a purse when they left Lopez’s house to walk to the
market after noon, but did not have it when she next saw Salazar was running across the
8
Guevara testified that while Salazar was running across the street, he saw two girls
on the sidewalk on the south side of Adams screaming at Salazar to run and one of them
screamed Salazar’s name. He assumed those girls were “with” Salazar. After Salazar
was shot, while Guevara was trying to help her, he saw one of the same girls run behind a
nearby house and then return to the scene, talking on a cell phone.
7
street. She stated that she had never seen Salazar with a gun and was not aware that she
ever possessed one.
3. The Police Pursuit
After returning home, defendant got into a gray Ford Explorer and led LAPD
officers on a high-speed chase lasting more than 20 minutes. Defendant drove erratically,
failing to stop for stop signs and red lights, reaching up to 90 miles per hour, colliding
with other vehicles, and at times driving on the wrong side of the street. At one point
during the pursuit, defendant drove back to 27th and Maple near his residence and threw
a pistol out of his car window. An LAPD officer recovered the .9 millimeter pistol,
which was partially broken from the impact of hitting the ground. Defendant also threw a
gun magazine out of his window near Maple and 24th Street. Another LAPD officer
recovered the magazine, which contained four live rounds of .380-caliber ammunition.
Eventually, defendant again drove back to 27th Street, stopped the vehicle near his house
and surrendered to police.
4. Investigation
Lucia Montoya, a forensic attendant with the coroner’s office, tested Salazar’s
hands for gunshot residue at approximately 2:00 a.m. on March 3, 2011, after
transporting her body from the hospital to the coroner’s office. Debra Kowal, a
criminalist with the coroner’s office, testified that no gunshot residue was found on either
of Salazar’s hands. That meant the findings were inconclusive; Salazar might not have
discharged a firearm, might have discharged a firearm but had no gunshot residue
deposited on her hands, or the residue could have been removed, such as by washing or
wiping the hands.
An autopsy was performed on Salazar’s body on March 5, 2011. Salazar died
from a single gunshot wound and resultant bleeding. The gunshot wound was located in
the center of her back between her shoulder blades. The coroner recovered a .380-caliber
bullet from Salazar’s chest cavity and noted that the bullet traveled through her body
from “right to left back to front and upward.” That trajectory was consistent with
someone hunched over and running away from the shooter. There was no soot or
8
stippling on Salazar’s body, indicating the gunshot likely was fired from more than a few
feet away.
LAPD Homicide Detective Jose Calzadillas and his partner were assigned to the
investigation and arrived at 27th Street and Maple just as the police pursuit concluded.
They determined there were two potential shooting locations, one on 27th Street and one
on Adams. At the Adams scene, they recovered a .25-caliber spent casing and two spent
.380-caliber casings. They also recovered a live .25-caliber round near the middle of the
street, about eight to ten feet away from a fresh blood stain. They did not recover a
firearm from that location.
Detective Calzadillas interviewed Diana on the day of the incident. She told him
Salazar shot her in the leg on 27th Street and then fled towards Adams,9 and drew a
diagram of the location. Diana was the only witness who told him that Salazar was
armed with a weapon. She further claimed that she never went to the Adams Street
location.10
Fadil Biraimah, an LAPD criminalist, analyzed defendant’s gun (a .9 millimeter
pistol), the .380 and .25-caliber bullet casings recovered from the Adams scene and the
.380-caliber bullet recovered from Salazar’s body. He determined that the .380-caliber
casings and bullet were fired from defendant’s pistol. The .25-caliber bullet and casing
recovered from the Adams scene were not fired from defendant’s pistol, but without the
firearm for comparison, Biraimah could not say whether the .25-caliber casing and bullet
were both fired from the same gun. Biraimah did not examine the unexpended .25-
caliber round recovered from the Adams scene, but he noted there were many reasons
why it might have been there.
9
As detailed below, Diana testified for the defense that although the initial
confrontation with Salazar was outside the Garcia residence on 27th Street, Salazar shot
her in the leg after they reached Adams and Maple.
10
The entirety of Diana’s interview was played for the jury. The transcript or
recording of that interview was not included in the record on appeal and the Attorney
General’s summary of, and citations to, that transcript are not evidence we can properly
consider.
9
Detective Calzadillas observed a blood trail between 27th Street near defendant’s
house and the parking lot at Adams and Maple. He couldn’t tell in which direction the
bleeding person was traveling. When asked by defense counsel what evidence he had
that there was a shooting on 27th Street (as opposed to two shootings at Adams and
Maple), he noted that Diana told him she had been shot on 27th Street. He also relied on
Sanchez’s testimony that he saw a woman limping to and from the Adams location and a
statement by a 911 caller that she saw “Little Chucky” (Salazar) with a gun on 27th Street
and heard a gunshot just as “they” (presumably Salazar and Diana) “went out of view
northbound” on Maple from 27th Street.11
Detective Calzadillas testified that he checked the data on defendant’s phone and
discovered there was a call at 1:09 p.m. on the date of the shooting. He did not specify at
trial whether the call was made to or received by defendant. Detective Calzadillas was
unable to discover the identity of the owner of that phone number.
B. Defense Evidence
Defendant did not testify at trial, but introduced several percipient witnesses and
experts to support his self-defense case. Defendant’s evidence focused on Salazar’s role
as the aggressor against Diana and, later, defendant. He argued that he shot Salazar based
on a reasonable belief that it was necessary to protect himself and/or Diana from further
immediate harm after Salazar turned toward them and attempted to shoot at them again as
she fled.
1. Testimony of Percipient Witnesses
Erica Torres, a friend of Diana’s, testified that she was in her home on 27th Street,
near the Garcia residence, on March 2, 2011. At some point that afternoon, she left to
walk to the store. At the corner of 27th and Maple, a gold vehicle stopped and she saw
Salazar (whom she referred to as “Lil Chuckie”) get out of the front passenger’s seat; she
11
Detective Calzadillas identified the 911 caller as Sabrina Garcia and discussed
some of the contents of her 911 call during cross-examination at trial. The record on
appeal does not contain a transcript of the call or any other information regarding the
caller’s identity or details of the call.
10
also noticed “a couple of girls” in the back seat. She recognized the vehicle as one that
Salazar’s older sister usually drove.12 Salazar asked Torres if she had seen Diana that day
and Torres said she had not. Salazar then said she wanted to kill Diana. Torres “just
looked away and walked to [her] destination.” When Torres looked back, she saw the
vehicle turn onto 27th Street. Torres stated it “wasn’t the first time” she heard Salazar
threaten to kill or “jump” Diana. That day, she did not warn Diana about the threat and
“didn’t think [Salazar] was being serious.” After Torres returned home from the store
(about 20 minutes later) she heard gunshots. At some point, she heard the police outside
and tried to go over and speak to Diana, who was sitting on her porch wearing bloody
pants, but a police officer told her to return home. Torres did not report Salazar’s threat
against Diana until approximately six months later, when she was interviewed by the
defense.
Martha Garcia is defendant’s and Diana’s mother. She testified that Salazar “had
problems with Diana for a long time” and would “come to the house to look for Diana.”
Around noon on March 2, 2011, Martha and Diana left the house to buy some food. As
they were walking to their car, they saw Salazar across the street. Salazar started
shouting at Diana and motioning for Diana to come across the street. Salazar was
carrying a black purse. Diana started yelling back at Salazar; Martha was pulling Diana
by her sweater, “trying to pull her . . . back into the house . . . because I didn’t want
anything to happen.” Diana broke loose and went across the street, where she and
Salazar continued arguing. Martha heard Diana yell “oh my god, she’s got a gun,” but
did not see any gun herself. Martha ran into her house and told defendant and his friend,
Priscilla, that Salazar was outside with a gun. She then called her husband and told him
to call 911. By the time she hung up the phone, defendant and Priscilla had left the
house. She went back outside but did not see anyone. She denied leaving her house and
12
During the prosecution’s case, Lopez testified that Salazar’s sister, with whom
Salazar was staying, drove a gold Intrepid, but that the sister took the car to work that day
and did not arrive at Lopez’s house (on her way home for lunch) until shortly after
Salazar was shot. Lopez did not see Salazar in a gold vehicle that day.
11
going toward Maple and Adams and stated that she cannot run due to her arthritis. At
some later point, she saw defendant, Diana, and Priscilla coming back down 27th Street
from the direction of Maple. Diana was limping and bleeding.
At trial, Martha denied telling an officer during an interview on March 2, 2011
that she heard a gunshot during the argument between Salazar and Diana and then ran
into the house. She also denied telling the officer that after defendant and Diana
returned, they both fled the location in her car. She claimed that the officer was lying and
was “corrupt.” When she was interviewed again a few hours after the shooting at the
police station, she told Detective Calzadillas she never heard a gunshot.
Diana testified that she had stayed home sick from high school on March 2, 2011.
As she was leaving her house with her mother, she saw Salazar across the street. She had
known Salazar for about four years and had had “several problems” with Salazar before,
including having Salazar and her sisters “jump” Diana on a prior occasion. Diana
testified that Salazar did not like her because of a guy Diana was dating and because she
refused Salazar’s efforts to get her to join the Ghetto Boyz gang.13
That day, Salazar was motioning for Diana to come across the street and was
calling Diana a “fucking bitch, a fucking slut,” and an “ugly-ass Chihuahua.” Diana’s
mother tried to restrain her, but Diana told her “I’m fed up. I’m tired of living like this.”
She crossed the street to confront Salazar “to see what the problem was.” Salazar then
said “let’s go to the corner to talk.” As they were walking toward the corner, Salazar
pulled out a gun. Diana described it as a small gun, which Salazar pulled out of a “big,
dark purse.” Diana was scared and said “oh, my god, she has a gun.” She then tried to
convince Salazar to “put the gun down. We can talk it out.”
Salazar started running up Maple toward Adams and Diana turned and saw
defendant and Priscilla coming toward her. Diana ran with them, but testified that she
13
Defendant claimed Salazar was a gang member and used the nickname “Lil
Chuckie.” Salazar’s cousin, Lopez, denied that Salazar was ever in a gang, but
acknowledged on cross-examination that Salazar was “throwing” a sign for the Ghetto
Boyz gang in a photo introduced by the defense.
12
“wasn’t thinking” when she decided to do so. They ran up to Adams and Maple, through
the shopping center parking lot on the southwest corner, and stopped on the sidewalk.
Defendant was on his cell phone and was “reaching out to give [Salazar] the phone. He
was telling her to take the phone . . . and put the gun down.” But Salazar refused, said
“fuck you,” and shot Diana in the leg.14 Salazar was about two feet from Diana at the
time.
After she was shot, Diana tried to take cover behind a car in the parking lot
because she thought Salazar might shoot her again.15 Salazar started running across the
street in a northwest direction. Then Salazar leaned forward, “it looked almost as if she
was going to fall, and she twisted to the left and she had both hands on the gun.” Diana
ducked for cover after she saw the gun in Salazar’s hand. She heard two gunshots back
to back. Diana then limped home with defendant and Priscilla.
Diana testified that she originally told the police on the day of the incident that she
got shot on 27th Street because she was scared. She “didn’t think they were going to
believe me, and I didn’t want to be involved with the other -- with the incident, so I tried
to keep us like as far as we can [sic] from that incident.” She refused to sign the diagram
she had drawn during her interview with police on March 2, 2011.
Diana stated she didn’t see defendant go into the street or fire shots because she
was in shock and scared and was “too busy holding [her] injury.” She never saw
defendant with a gun. She didn’t remember looking to see that Salazar was shot, stating
“That’s when I just saw [defendant] and Priscilla running, so that’s when I started
running, too.” She said she only found out that Salazar had died and why defendant was
in jail near the end of her March 2, 2011 interview with the police. She did not know
Salazar had died when she drew the diagram showing she was shot on 27th Street.
14
A .25-caliber bullet was removed from Diana’s leg at the hospital on March 22,
2011 and turned over to the LAPD.
15
During cross-examination, Diana said she took cover behind a car parked at the
curb.
13
Diana admitted during cross-examination that defendant called her while he was
engaged in the police pursuit. Diana tried to convince him to come home, not to make
things worse. After defendant tossed the gun out of the car near the Garcia family home
and drove away, Diana texted him that “they [the police] got the gun, the pigs.” She
claimed that was the first time she saw the gun.
2. Testimony of Defendant’s Experts
Dr. Kenneth Solomon, forensic scientist, testified as a reaction time expert for
defendant. Given a hypothetical matching the version of events related by Diana (that
Salazar shot her, then ran, then turned back around toward Diana and defendant with her
gun, then was shot by defendant), Dr. Solomon gave his opinion of the time it would take
for defendant to perceive Salazar turning back toward him and react with two gunshots,
hitting her with the second shot. The fastest possible time would be around 1.75 seconds,
which would give Salazar time to turn back around to face forward so that the bullet
would hit her in the back. He assumed for the hypothetical that Salazar turned toward
defendant and then immediately turned back around.
Anthony Paul, a firearms expert, examined the live .25-caliber round recovered
from the Adams scene and offered the opinion that the markings on the bullet were
consistent with it being jammed in a gun. He also stated that a jammed bullet is generally
removed from the gun by the user pulling back the slide to eject the bullet and clear the
gun and, in this case, the bullet was “extracted and ejected manually from the gun.” On
cross-examination, Paul discussed a “stove pipe” situation, where the bullet is fired but
the expended casing becomes caught in the gun and is not automatically ejected. In that
hypothetical, you would not find the expended casing at the location of the shooting,
unless the shooter had manually ejected the casing.
Randolph Beasley testified as defendant’s expert on blood spatter. Based on his
review of photographs of the crime scene and the blood trail, he offered the opinion that
the person depositing the blood trail was traveling from the Adams scene south on Maple
and then west on 27th Street, ending at defendant’s residence. He also noted that some of
14
the blood stains were inconclusive as to the direction of travel, but none of the stains
showed travel from 27th Street north to the Adams scene.
C. Rebuttal
LAPD Officer Manuel Gutierrez testified that he interviewed Martha Garcia in
Spanish at the Garcia residence on the day of the incident. She told him that she saw the
butt of a gun inside Salazar’s purse as Salazar and Diana were arguing and walking east
on 27th Street. Martha heard a gunshot and then ran inside to call for help.
DISCUSSION
I. Sufficiency of the Evidence
Defendant contends that there was insufficient evidence to support his voluntary
manslaughter conviction because all the evidence suggested that he shot Salazar in self-
defense.16 As such, he argues that the “only rational conclusion” for the jury to reach was
that Salazar’s killing was justifiable homicide. We conclude that substantial evidence
supports defendant’s conviction and therefore affirm.
A. Legal Principles
In reviewing a challenge to the sufficiency of the evidence, “the relevant inquiry is
whether, on review of the entire record in the light most favorable to the judgment, any
rational trier of fact could have found the elements of the offense beyond a reasonable
doubt. [Citations.]” (People v. Young (2005) 34 Cal.4th 1149, 1180.) “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 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.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
“Murder is the unlawful killing of a human being . . . with malice aforethought.”
(§ 187, subd. (a).) A defendant who commits an intentional and unlawful killing without
16
Defendant does not challenge his convictions on counts two (evading a police
officer) and three (felon in possession of firearm).
15
malice is guilty of the lesser included offense of voluntary manslaughter. (§ 192, subd.
(a).) The element of malice necessary for murder may be negated by a showing either
that the defendant acted “upon a sudden quarrel or heat of passion” or in imperfect self-
defense. (Ibid.; People v. Blakeley (2000) 23 Cal.4th 82, 87-88 (Blakeley).) “Heat of
passion arises if, ‘“at the time of the killing, the reason of the accused was obscured or
disturbed by passion to such an extent as would cause the ordinarily reasonable person of
average disposition to act rashly and without deliberation and reflection, and from such
passion rather than from judgment.”’ [Citation.]” (People v. Beltran (2013) 56 Cal.4th
935, 942.) Under the imperfect self-defense doctrine, a defendant acts in “the
unreasonable but good faith belief” that it is necessary to defend oneself or another
person from the imminent danger of death or great bodily injury. (Blakely, supra, 23
Cal.4th at p. 88 (citations omitted).) By contrast, if a defendant believed that his use of
deadly force was necessary to defend himself or another from such imminent danger, and
that belief was objectively reasonable, then he acted in “‘perfect self-defense’” and is
exonerated completely. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)
B. Substantial Evidence Supported Defendant’s Conviction
Defendant contends that the undisputed evidence established that “this was a
victim provoked homicide” and that Salazar posed a continuing imminent threat at the
time he shot her. In support of this argument, defendant selectively relies on the evidence
consistent with his version of the shooting—that it was “only after [Salazar] actually shot
Diana, ran across Adams Boulevard, turned back and attempted to shoot her a 2nd time,”
that defendant shot Salazar. However, while there was certainly evidence at trial that
supported defendant’s theory, defendant ignores or minimizes the substantial evidence
supporting the jury’s finding that defendant shot Salazar either in the unreasonable belief
that she posed an imminent lethal threat or in the heat of passion.17
17
At trial and on appeal, both parties focused primarily on the self-defense theory.
But the jury was instructed as to both heat of passion (using CALCRIM No. 570) and
self-defense (CALCRIM No. 571).
16
First, while defendant claims Salazar shot Diana just moments before he shot
Salazar, there was contrary evidence suggesting that Salazar shot Diana during their
initial confrontation on 27th Street. Indeed, Diana herself initially claimed as much
during her report to the police on the day of the incident and confirmed that report with a
diagram. In addition, several witnesses, including defendant’s mother Martha, reported
hearing a gunshot on 27th at the time of the incident there between Diana and Salazar,
and Sanchez reported seeing Diana limping while traveling to and from the Adams scene.
But even if we accept defendant’s contention that Salazar shot Diana at the Adams
location immediately before running across Adams, the undisputed fact remains that
defendant shot Salazar while she was running away from him and Diana and did so when
she was at least halfway across the street. Thus, to show that defendant had a reasonable
belief that he had to shoot a fleeing Salazar to defend himself and/or Diana against an
imminent threat, defendant relies on the evidence that Salazar turned back toward them
and attempted to shoot again.
But the prosecution presented multiple eyewitnesses who testified that they
observed Salazar as she ran, and as she was hit by defendant’s bullet, and none of them
saw her turn back toward the Garcias. Nor did any of them see Salazar with a gun. In
fact, Diana was the only person who testified that Salazar ran and then turned toward
Diana and defendant with a gun in her hand.18 Further, the undisputed evidence
establishing that the bullet struck Salazar in her back was entirely consistent with the
inference that she was facing forward as she ran and did not turn. The jury was free to
weigh the testimony and credibility of all of the witnesses and to reject defendant’s claim
18
Notably, Diana’s credibility as a witness was impeached on several key issues.
She admitted to lying to the police about where she was shot and her presence at the
Adams location. She also acknowledged referring to police as “pigs” in a text to
defendant and her testimony at trial included other inconsistencies such as where and
when she took cover from Salazar and how much she knew about Salazar’s shooting at
the time it occurred. While there was evidence that two other people—Sabrina Garcia
(the 911 caller) and Martha (in a statement she recanted on the stand)—stated they saw
Salazar with a gun on 27th Street, Diana was the only witness to testify that Salazar had a
gun once she reached Adams and Maple.
17
that he acted reasonably under the circumstances. It is not the role of the “reviewing
court [to] resolve[] credibility issues nor evidentiary conflicts . . . [r]esolution of conflicts
and inconsistencies in the testimony is the exclusive province of the trier of fact.
[Citation.]” (People v. Young, supra, 34 Cal.4th at p. 1181.)
Defendant acknowledges that none of the eyewitnesses, other than Diana, saw
Salazar turn, but he argues that the .25-caliber bullets found at the Adams scene
“conclusive[ly]” establish that she did so. That evidence was consistent with defendant’s
theory that Salazar shot Diana in the leg at the Adams scene (leaving a .25-caliber bullet
fragment in her leg and a casing at the scene) and then tried to shoot again but failed
when her gun jammed (leaving a live .25-caliber round at the scene). But the evidence
was far from conclusive on that point. Contrary to defendant’s claim, his firearms expert
did not testify that a .25-caliber bullet in fact “had been ejected when Christina’s gun
jammed.” His expert merely stated that the markings on the live round were consistent
with it being jammed in a gun.
Moreover, no gun was ever recovered, and the prosecution presented evidence
suggesting alternative explanations for the presence of the .25-caliber live round and
expended casing at the Adams scene. And while defendant notes that his reaction time
expert opined that it would have been possible for Salazar to turn around to face
defendant and Diana and turn again to face forward before being shot in the back with
defendant’s second bullet, that possibility does not constitute evidence that this was the
actual sequence of events. The expert’s opinion is equally consistent with Salazar facing
forward the entire time as she ran across Adams.
In sum, viewing the evidence in the light most favorable to the prosecution, we
conclude that substantial evidence supports the verdict against defendant.
II. Motion for New Trial
Defendant argues that the trial court erred in denying his motion for a new trial, as
the jury’s verdict was not supported by the evidence. We disagree.
18
A. Relevant Proceedings
The court heard argument on defendant’s motion for a new trial on June 28, 2013.
The trial court indicated its tentative ruling that it was “not inclined to grant a new trial,”
as the evidence presented to the jury “was more than sufficient to sustain a conviction.”
The court noted that while “there is no dispute” that Salazar shot Diana, “there is a big
dispute about when it happened and whether [defendant] was present when it happened.”
The court acknowledged the “conflicting testimony” and that the jury “has the right to
reject or accept either version of the case. . . . There is a dispute in the evidence and the
jury accepted one theory and not the other.”
The court and defense counsel then engaged in the following colloquy:
“The court: Aren’t you asking me to reweigh the evidence as opposed to make a
determination whether the evidence, if believed, was sufficient to support a conviction?
Aren’t you asking me to put myself in the position of the jury and reweigh the evidence?
Mr. Mgdesyan: Well, I think the court has the power.
The court: Well, I could set aside the verdict. That’s a different motion, which I
am not inclined to do. But there was a motion for a new trial where the issue is
sufficiency of the evidence, it doesn’t seem to me that I -- within my discretion, to
reweigh the evidence when the standard is, was there sufficient evidence presented
which, if believed by the jury, would be sufficient to prove the charge beyond a
reasonable doubt. That’s the standard on a motion for a new trial.
Mr. Mgdesyan: I understand that, but I don’t . . . think the evidence presented at
this case establishes that my client -- what the jury’s verdict came back. It doesn’t
establish that. And I would ask the court to grant the motion for a new trial because the
verdict is not consistent with what was presented at trial, your honor. And the court had
the power to set aside the verdict if it believed . . . that the jury’s verdict was not
supported by the evidence in this case.”
The court then noted that its focus “is to determine whether the evidence presented
if it was sufficient, if believed, to prove the case beyond a reasonable doubt. And there
was sufficient evidence for them to believe -- to reject your expert, to find him not
19
credible, and to believe that the defendant chased her down after they shot [sic] and
executed her.” Defense counsel argued that Detective Calzadillas made up the theory
that Diana was shot on 27th Street and there was “no evidence to corroborate this.” The
court responded that “I see no reason to believe that. . . . [¶] The motion for a new trial
is denied. The jury heard the case. They made the decision. I see absolutely no reason
to override their decision.”
B. Legal Principles
The trial court may grant a new trial when the verdict is contrary to the evidence.
(§ 1181, subd. (6).) While the trial court “must weigh the evidence independently,” it is
“guided by a presumption in favor of the correctness of the verdict and proceedings
supporting it. [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 523-524 (Davis).)
“The trial court ‘should [not] disregard the verdict . . . but instead . . . should consider the
proper weight to be accorded to the evidence and then decide whether or not, in its
opinion, there is sufficient credible evidence to support the verdict.’ [Citation.]” (Id. at
p. 524.) “If the court is not convinced that the charges have been proven beyond a
reasonable doubt, it may rule that the jury’s verdict is ‘contrary to the . . . evidence.’
[Citations.]” (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.)
There is a strong presumption that the trial court properly exercised its broad
discretion in ruling on a motion for a new trial. (Davis, supra, 10 Cal.4th at p. 524.)
“The determination of a motion for a new trial rests so completely within the court’s
discretion that its action will not be disturbed unless a manifest and unmistakable abuse
of discretion clearly appears.” (People v. Williams (1988) 45 Cal.3d 1268, 1318.)
C. Trial Court Properly Exercised Its Discretion
Defendant contends that the trial court improperly refused to exercise its discretion
to “independently review the evidence and determine if the weight of that evidence was
contrary to the jury’s finding” that defendant committed manslaughter. Pointing to the
court’s comments during argument on his motion, defendant claims the trial court “was
under the mistaken impression” it was bound by the jury’s determination.
20
We find no error in the court’s consideration of defendant’s motion. The record
establishes that the court, having heard all of the evidence at trial, believed that the
evidence presented “was more than sufficient to sustain a conviction.” In particular, the
court noted the conflicting evidence regarding defendant’s self-defense claim, including
evidence supporting the prosecutor’s theory that Diana was shot on 27th Street, and
concluded the evidence was sufficient to reject the testimony of defendant’s experts and
find that defendant “chased [Salazar] down after [Salazar shot Diana] and executed her.”
The statements by the trial court that it saw “no reason” to override the jury’s decision are
consistent with the court’s independent assessment of the evidence and agreement with
the jury’s determination. Thus, the record does not establish that the trial court
misunderstood the scope of its duty and we will not presume otherwise. (People v. White
Eagle (1996) 48 Cal.App.4th 1511, 1521–1523.)
Alternatively, defendant contends that even if the trial court properly understood
and applied the correct standard, it abused its discretion in refusing to override a jury
verdict that was “contrary to the overwhelming weight of the evidence.” As discussed in
Section I, supra, we disagree with defendant’s claim that the jury verdict was
unsupported by substantial evidence. As such, the trial court did not abuse its discretion
in denying defendant’s motion for new trial.19
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, Acting P. J. MANELLA, J.
19
For the same reasons, we reject defendant’s argument that the trial court should
have dismissed the manslaughter charge in the interest of justice under section 1385.
21