People v. Chinchilla

• Decision Date: 05 February 1997
• Docket Number: No. B097763,B097763
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 886, 97 Daily Journal D.A.R. 1249 The PEOPLE, Plaintiff and Respondent, v. Elio CHINCHILLA, Defendant and Appellant.

Page 761

60 Cal.Rptr.2d 761

52 Cal.App.4th 683, 97 Cal. Daily Op. Serv. 886,

97 Daily Journal D.A.R. 1249

The PEOPLE, Plaintiff and Respondent, v. Elio CHINCHILLA, Defendant and Appellant.

No. B097763.

Court of Appeal, Second District, Division 5, California.

Feb. 5, 1997.

Certified for Partial Publication. ^*

Review Denied April 30, 1997.

Koryn & Koryn, Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Robert Carl Schneider and Thomas W. Casparian, Deputy Attorneys General, for Plaintiff and Respondent.

GODOY PEREZ, Associate Justice.

Defendant and appellant Elio Chinchilla appeals from the judgment entered following a jury trial which resulted in his conviction of assault with a firearm, multiple counts of assault with a firearm upon a peace officer and attempted murder. He contends there was insufficient evidence of intent to kill to support the attempted murder convictions as to two different victims and that the jury instruction given incorrectly defined reasonable doubt. After review, we affirm the judgment. In the published portion of this opinion, we hold that intent to kill two different victims can be inferred from evidence that the defendant fired a single shot at the two victims, both of whom were visible to the defendant.

PROCEDURAL BACKGROUND

Defendant was charged by information with assault with a firearm upon Roberto Guzman (Pen.Code, § 245, subd. (a)(2)) (count 1); attempted premeditated murder of Gregory Clark (Pen.Code, §§ 664, 187, subd. (a)) (count 2); assault with a firearm upon peace officer Gregory Clark (Pen.Code, § 245, subd. (d)(1)) (count 3); attempted premeditated murder of Scott Peterson (Pen.Code, §§ 664, 187, subd. (a)) (count 4); assault with a firearm upon peace officer Scott Peterson (Pen.Code, § 245, subd. (d)(1)) Defendant was sentenced to a total of 22 years in prison comprised of the nine-year high term for attempted murder on count 2, plus a consecutive middle term of two years and four months for attempted murder on counts 4, 6, and 8, plus a consecutive middle term of one year for assault with a firearm on count 1, plus a consecutive five years for the gun use (Pen.Code, § 12022.5, subd. (a)(1)). In a nunc pro tunc order, defendant was additionally sentenced to the mid-term of three years on counts 3, 5, 7 and 9, which term was stayed pursuant to Penal Code section 654.

                (count 5);  [52 Cal.App.4th 686] attempted premeditated murder of Kenneth Meisels (Pen.Code, §§ 664, 187, subd.  (a)) (count 6);  assault with a firearm upon peace officer Kenneth Meisels (Pen.Code, § 245, subd.  (d)(1)) (count 7);  attempted premeditated murder of Sandra Silofau 1 (Pen.Code, § Pen.Code, §§ 664, 187, subd.  (a)) (count 8);  and assault with a firearm upon peace officer Sandra Silofau (Pen.Code, § 245, subd.  (d)(1)) (count 9).  As to each count it was further alleged that he personally used a gun.  (Pen.Code, § 12022.5, subd.  (a)(1).)   After a jury trial, defendant was convicted of assault with a firearm (count 1), assault with a firearm upon a police officer (counts 3, 5, 7, and 9), and attempted murder (counts 2, 4, 6, and 8).  The jury was unable to reach a unanimous decision as to the allegation that the attempted murders were premeditated and the trial court declared a mistrial as to that allegation.  The jury found true the allegation, as to each count, that defendant personally used a gun
                

FACTS

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103), the evidence established that Roberto Guzman bought and paid for a car from defendant several months before the occurrence of the incidents out of which the charges herein arose. On July 25, 1992, Guzman parked this car in front of the market where he worked.

When Guzman and a coworker went outside the market to deposit the trash at about 10 p.m. that night, Guzman was told that someone was in his car. Going to his car, Guzman discovered defendant sitting inside of it. When Guzman asked defendant what he was doing in the car, defendant got out of the car and walked away. Guzman called the police. Between 15 and 30 minutes later, Guzman saw defendant at some pay phones near the market. Defendant appeared to be intoxicated and said to Guzman, " '[h]ey, look. Are you going to give me the money?' " Defendant then lifted his shirt and showed Guzman a gun. Guzman ran back into the store when he saw the gun. As Guzman ran, defendant fired one shot at him. Guzman hid behind a trailer.

Police Officers Gregory Clark and Scott Peterson responded to a report of a shooting at the market that night. As he pulled into the parking lot, Clark observed Guzman's car parked in a stall in front of the market. As Clark got out of the patrol car, Guzman ran up to him, pointed at defendant, and said, " '[t]hat's him.' " When Clark noticed that defendant was carrying a gun in his right hand, Clark took cover behind the patrol car. Clark instructed defendant to put the gun down and called for backup.

Defendant disregarded Clark's instructions and continued walking. Officers Kenneth Meisels and Sandra Silofau arrived on the scene at about this time. Meisels parked their car in the middle of the street, got out of the car holding a shotgun and yelled at defendant to drop his gun. Defendant continued to ignore the officers' instructions and began to make waving motions with his left hand. He then ran around a restaurant located at the corner of the parking lot. As Clark acted to contain the area, he spotted defendant behind a large green electrical box. Clark was about 15 to 20 feet away when he saw a gun come up from the around the corner of the electrical box, heard two shots and saw two muzzle flashes. Clark recognized the gun from which the shots Meanwhile, Meisels and Silofau had run to another corner of the building. After hearing two shots fired from the rear of the building, they heard Clark yell into his radio that he had been fired upon. Meisels was crouched down facing the direction in which defendant was believed to be located and Silofau was crouched down behind and "just above" him when defendant backed into Meisels's field of vision, turned and fired one shot towards Meisels and Silofau. Meisels and Silofau both saw the muzzle flash. Meisels returned fire once and hit defendant in the head. As he fired, Meisels fell backward. Thinking Meisels had been shot, Silofau dragged him to the corner before she went down the walkway with her gun drawn. There, she observed defendant laying face down in the dirt. Defendant was moving and still had a gun in his hand. Silofau waited for defendant to fire again, but Officer Cale came up to defendant and kicked the gun out of his hand, then handcuffed him. Silofau and Cale placed defendant's gun in the trunk of Cale's patrol car.

came as the gun he had seen defendant holding earlier.

After defendant was transported by paramedics, Silofau and the other officers at the scene began collecting evidence. Silofau recovered the bullet defendant had fired at her and Meisels. At the hospital to which defendant had been transported, Sergeant Lew Gosnell retrieved defendant's clothing. In his pants pocket, Gosnell found a set of keys and 13 live .38-caliber rounds. One of the keys was later found to open the door lock of Guzman's car, but none of them fit the ignition.

In defense, forensic toxicologist Alan Keltz testified that defendant's blood alcohol level was tested at .17 percent that night. According to Keltz, a person with a blood alcohol level of .17 percent would be expected to show some loss of critical judgment and impairment of perception, memory and comprehension.

DISCUSSION

I. Sufficiency of the evidence

Defendant contends the conviction of attempted murder of Sandra Silofau (count 8), must be reversed because the evidence was insufficient. He argues the evidence established that defendant fired a single bullet at Kenneth Meisels and Sandra Silofau, and that a single shot cannot support attempted murder convictions as to both Silofau (count 8) and Meisels (count 6), because the doctrine of transferred intent does not apply. We agree that the doctrine of transferred intent is inapplicable to the facts of this case, but conclude that it was not, in fact, applied here and that the evidence is sufficient to support the verdict.

"[T]he transferred intent doctrine is applied to impose criminal liability--which otherwise could not be imposed--if a defendant attempts to kill one person but by mistake or inadvertence kills someone else. [Citation.]" (People v. Hayden (1994) 22 Cal.App.4th 48, 57, 27 Cal.Rptr.2d 127, italics in original; see also People v. Sears (1970) 2 Cal.3d 180, 189, 84 Cal.Rptr. 711, 465 P.2d 847 ["if a person purposely and of his deliberate and premeditated malice attempts to kill one person but by mistake and inadvertence kills another instead, the law transfers the intent and the homicide so committed is murder of the first degree. [Citations.]"].) It has been held inapplicable to convict a defendant of two or more attempted murders resulting from a single act by which the defendant intended to kill only one person. (People v. Czahara (1988) 203 Cal.App.3d 1468, 1474, 250 Cal.Rptr. 836.) In Czahara, the court explained: "[W]here a single act is alleged to be an attempt on two persons' lives, the intent to kill should be evaluated independently as to each victim, and the jury should not be instructed to transfer intent from one to another." (Id. at p. 1475, 250 Cal.Rptr. 836.)

Here, the jury was instructed in pertinent part as follows: "[Defendant is accused in [Count[s] ... 6 and 8 of] the information of having committed the crime of attempt to commit murder.... [p].... [p] In order to prove such crime, each...