People v. Boyes

• Decision Date: 14 November 1983
• Docket Number: Cr. 23632
• Citation: 149 Cal.App.3d 812,197 Cal.Rptr. 105
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Leandro BOYES, Defendant and Appellant. AO11618.

Page 105

197 Cal.Rptr. 105

149 Cal.App.3d 812

The PEOPLE, Plaintiff and Respondent, v. Leandro BOYES, Defendant and Appellant.

AO11618.

Cr. 23632.

Court of Appeal, First District, Division 4, California.

Nov. 14, 1983.

Certified for Partial Publication on Dec. 14, 1983.

Quin Denvir, State Public Defender, Jean Sternberg, Deputy State Public Defender, San Francisco, for defendant and appellant.

John K. Van De Kamp, Atty. Gen., Martin S. Kaye, Dane R. Gillette, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

BALLACHEY, Associate Justice ^*.

Leandro Boyes appeals from his conviction of murder (Pen.Code, § 187) ¹, attempted murder (§§ 664/187), and attempted robbery (§§ 664/211). The jury also found firearm use allegations to be true with respect to all three counts. The verdicts were returned on August 12, 1981.

On September 30, 1981, the trial court denied appellant's motion for a new trial. It sentenced appellant to 17 years to life imprisonment for second degree murder as enhanced by the firearm use finding. It imposed an additional consecutive term of 3 years representing one-third of the mid-term for attempted murder as enhanced by the use allegation. Finally, it imposed a stayed sentence of 8 months for attempted robbery.

Later, on October 20, 1981, the trial court vacated the sentence imposed on September 30. It ordered appellant to serve the full mid-term of 7 years for attempted murder consecutive to the 17-years-to-life sentence on the murder count with the use enhancement. It again stayed the attempted robbery sentence. The total sentence was thus 24 years to life, rather than 20 years to life as originally ordered.

On New Year's Eve 1980, the decedent, Tony Zapeda, and Paul Perez went to the St. Francis Hotel in San Francisco where they had several drinks. At 2:00 a.m., they drove to Ceasar's Palace on Mission Street; they parked up the street from the club. When they emerged from Ceasar's at about 4:30 a.m., they were unable to start the car. Zapeda removed his jumper cables from the car and opened the hood while Perez began walking back to Ceasar's to seek assistance from Zapeda's cousin whom they had seen there. Before Perez reached the club, a black Lincoln drove by. Zapeda, standing in the street by his disabled car, said something like "All I need is a jump." An occupant of the car shouted "Get out of the street, punk." Perez heard three or four shots and saw Zapeda fall backwards. The Lincoln sped away.

Benny Andino, another patron of Ceasar's, observed the occupants of the Lincoln shortly before the shooting. Andino identified the driver of the vehicle as codefendant Eduardo Henriquez (who was acquitted on motion with respect to the murder and by the jury on the remaining charges) and the front seat passenger as appellant Leandro Boyes. After the Lincoln pulled away from the front of Ceasar's, Andino saw it stop for a moment up the street. He heard three shots and saw the car "peel" away and turn right at the corner of Valencia and Mission.

Austin Fretty encountered the Lincoln and its occupants not long after the Zapeda shooting. At 5:00 a.m., Fretty was walking along Dolores Street on his way home from a New Year's Eve party. At the corner of 20th and Dolores a man Fretty identified as appellant accosted him at gunpoint and demanded money. Before Fretty could comply, appellant fired, telling him "I'm going to kill you, punk." Appellant fired another five rounds at Fretty, emptying the pistol. He walked away without picking up the money Fretty had thrown to the ground. Appellant walked to a large black car parked "catty corner" across the street. Fretty saw two other men and two women in the car. The victim was hospitalized and ultimately survived his wounds.

At 5:30 a.m., police officers investigating the Zapeda shooting saw the Lincoln parked at a Shell service station and detained its occupants. They were identified as Henriquez, the driver, Antoinette Imholz, the middle front-seat passenger, appellant Leandro Boyes, the right front-seat passenger, and Ricky Rodriguez and Karen Denton, the back-seat passengers.

A .38 caliber handgun was found in the waistband of Imholz' pants. Police also found a box of .38 caliber ammunition on the floor of the car and two .38 caliber shell casings in appellant's shirt pocket. Ballistics tests confirmed that the gun seized from Imholz had been used in the shootings of Zapeda and Fretty. Appellant told the police he could "barely remember" firing the gun. The officers stated that appellant appeared sober at the time of his arrest.

The two female passengers testified for the prosecution. Denton received immunity from prosecution while Imholz was permitted to plead guilty as an accessory to the charged crimes.

The women testified that they had been walking home from Ceasar's at about 4:45 a.m. when Henriquez pulled up in the Lincoln and offered them a ride home. Imholz and Denton accepted. Henriquez, appellant and Rodriguez all had beers in their hands and appeared to have been drinking earlier in the evening. Appellant in particular was acting oddly. Imholz stated he seemed "really high" and was "just staring." As they were driving away from Ceasar's, a man approached the car. Appellant shouted loudly at the man to get out of the street. Denton and Imholz then heard three shots fired from the front seat. They testified, however, that they did not actually see the gun in appellant's hand. Similarly, Henriquez testifying in his own defense, claimed to have heard three "pops" from the front passenger seat but not to have seen appellant fire.

Henriquez drove the Lincoln away from the scene. Appellant sat impassively, displaying no emotion. Later, however, appellant suddenly became angry with Rodriquez for flirting with Denton and told him to "knock it off."

As they were driving down Dolores Street, appellant suddenly told Henriquez to stop the car. Appellant said, "Wait a minute," and ran across the street. The other occupants of the car saw appellant speak to a man on the corner. They heard more "pops" and the man screamed, "No!" Appellant returned to the car and they departed. Again, he displayed no emotion.

Although the other occupants were only vaguely aware appellant had shot anybody on either occasion, his behavior had by this time frightened them. Henriquez whispered to Imholz to hide the gun. She placed it under her sweater. Shortly later, police officers arrested the group at the Shell station.

A toxicologist testified for the defense that tests of blood and urine samples taken from defendant at about 11:00 a.m. indicated that at 5:00 a.m. his blood alcohol level was approximately .15. The tests also revealed the presence of cocaine and PCP. His blood contained .03 micrograms per milliliter of PCP and his urine .07 micrograms per milliliter. The toxicologist testified that even a fairly low quantity of PCP can significantly alter behavior. Reactions to PCP vary among individuals. "Some just don't do anything, just staring, and other people behave violently or other ones just don't even hear anybody talking to them."

Dr. David Smith, director of a drug abuse clinic, testified that the use of alcohol with PCP increases the probability of a violent reaction. On the basis of his interview with appellant in jail, Dr. Smith stated that appellant had a history of alcohol and PCP abuse, but had not used PCP for about four months prior to the New Year's Eve incidents. Appellant told Smith that he had consumed alcohol and cocaine that night and later smoked what he believed was simply a marijuana joint. The joint induced feelings of PCP intoxication, frightening appellant. Appellant told Smith he was only vaguely aware of what transpired during the rest of the night. "His sense became progressively more irritated and then after that has very vague and distorted recall of what transpired, had flashes of memory, distortions, disassociation, hearing a gun firing but not knowing what happened."

On the basis of this interview and the results of the tests on appellant's blood and urine, Smith concluded that appellant had been unable to harbor malice aforethought or the specific intent to rob or kill anyone at the time of the incidents. He admitted, however, that the levels of alcohol and PCP in appellant's system would not inevitably prevent someone from harboring such intent.

A. ^**

B. Did the instruction on the rebuttable presumption of consciousness impermissibly lighten the prosecution's burden of proof?

The court defined unconsciousness and delivered the following instruction concerning its proof:

"Evidence has been received which may tend to show that Defendant Boyes was unconscious at the time and place of the commission of the alleged offense for which he is here on trial. If after a consideration of all the evidence you have a reasonable doubt that the Defendant was conscious at the time the crime was committed he must be found not guilty.

"If the evidence establishes beyond a reasonable doubt that at the time of the commission of the alleged offense the Defendant Boyes acted as if he was conscious, there is a rebuttable presumption that he was conscious, as to which rebuttable presumption the Defendant has the burden of raising a reasonable doubt.

"However, if, notwithstanding the Defendant's appearance of consciousness, the evidence raises a reasonable doubt whether he was in fact conscious, you must find that he was then unconscious."

Appellant contends the rebuttable presumption of consciousness contravenes Ulster County Court v. Allen (1979) 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777, and Sandstrom v. Montana (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, by reducing the prosecution's burden of proving guilt beyond a reasonable doubt. Defense counsel's apparent failure to object to this instruction does not waive any error in its delivery. (People v. Roder (1983) 33 Cal.3d 491, 497, fn. 6, 189...