People v. Duenas

• Decision Date: 21 September 2012
• Docket Number: B232101
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JULIO DUENAS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. JULIO DUENAS, Defendant and Appellant.

B232101

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

Dated: September 21, 2012

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County

Super. Ct. No. KA088051)

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles E. Horan, Judge. Affirmed in part, reversed in part and remanded with directions.

Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.

SUMMARY

Defendant Julio Duenas appeals from a judgment entered after a jury convicted him of one count of murder in the first degree (Pen. Code, § 187, subd. (a)),¹ three counts of attempted willful, deliberate, and premeditated murder (§§ 187, subd. (a), 664), and one count of possession of a firearm by a felon (§ 12021, subd. (a)), and found to be true various firearm allegations (§§ 12022, subd. (a)(1), 12022.53, subd. (b)-(d), 12022.7, subd. (a).) He was sentenced to a total of 275 years to life, plus 46 years in state prison.

Duenas contends that the convictions are not supported by substantial evidence and that the trial court committed various errors in its jury instructions and in sentencing. We affirm in part and reverse in part.

FACTS AND PROCEEDINGS BELOW

I. Prosecution Evidence

Steven Castaneda and Duenas were friends.² On November 3, 2007, Castaneda went to a ranch about 10 minutes from the My Place Bar to meet Duenas. When he arrived at the ranch, Duenas got into Castaneda's SUV, a brown Yukon, and they followed another vehicle driven by Duenas's friends to the My Place Bar. They parked in back of the bar.

Consuelo Baca owned the My Place Bar and was working on November 3, 2007 as the bartender. Duenas arrived at the bar at about 7:00 p.m. with his group, entering through the back door. Baca served Duenas several Tecate beers. Duenas was the only one in the bar who drank Tecate that night. Duenas said that he had been invited so other friends were paying for the drinks and neither Castaneda nor Duenas paid for drinks. Jesus Mendoza went to the bar that night between 8:30 and 9:00 p.m. with two friends, including Bernardo Mendoza.³

Two musicians were playing in the bar, one of whom was Raul Castro. Customers would pay the musicians, and the musicians paid Baca one dollar for every song they played. A man in Duenas's group of friends was ordering music, but left without paying. After the man left, Duenas and others were ordering music. At around 9:00 p.m., when the musicians were done playing, they asked Duenas for payment. There was an argument among Duenas and others about paying the musicians. Duenas said he was not paying for the music since he was invited and told Castaneda to get his SUV. Castaneda sensed a fight coming and left to get his SUV and planned to drive away.

Duenas asked his friends who were still there to help pay. One of Duenas's friends pulled out a $100 bill to give to Duenas, but Duenas did not take the money and instead hit him in the face. Baca came out from behind the bar and told Duenas not to fight, to calm down, and saying she would call the police if he continued fighting. Duenas said, "Be quiet. You don't know who I am. You don't know me." Duenas kicked Baca on the left hip or buttocks and Baca fell. A customer named "Alejandro" said, "Hit a man, don't hit a woman" and punched Duenas. According to Baca and Jesus, it was just Duenas and Alejandro fighting. Other people tried to separate Duenas and Alejandro. The fight moved outside through the front door. A group of people, including Jesus and Bernardo, followed the fight outside, watching.

Castaneda had pulled up the driveway toward the street when he heard a bottle break and turned to see three men punching Duenas in the face in front of the bar. When the men fighting with Duenas saw Castaneda, they ran into the bar. Castaneda told Duenas to get into the SUV, and he did.

Meanwhile, Baca had stayed inside the bar when the fight had moved outside and called the police to report that a customer had hit her. While she was on the phone, someone came in and told her that Duenas had left in a light-colored SUV. She told the police on the phone that Duenas had left and the police asked if she still wanted the police to come and she said "well, he left already."

In his SUV, Castaneda told Duenas he would take him to his car back at the ranch. Duenas was bleeding a little from the mouth and nose. Duenas was angry andsaid, "They jumped me," "Fuck these motherfuckers, they jumped me," and asked Castaneda why Castaneda did not jump in and help Duenas. Castaneda did not reply. When they got to the ranch, Duenas got out and told Castaneda to wait. Castaneda started pulling away and Duenas told him again to wait. Duenas pulled out the stereo of his car and reached inside. He got back into Castaneda's SUV and Castaneda saw that Duenas had a gun. Duenas told Castaneda to take him back to the bar. Castaneda told Duenas, "No, you go alone if you want to." Duenas got "loud" and told Castaneda, "Take me back to the bar. . . . I'm going to shoot and kill the people that jumped me."⁴ Castaneda said that "when he told me that, I didn't believe he was going to do it. I just thought like probably just playing, he's just going to show off the gun and scare them." Castaneda also claimed that he thought Duenas would shoot him if he did not drive Duenas to the bar so he started driving. When they got back to the bar, Duenas told Castaneda to drive into the back parking lot, which he did. Duenas then told him to turn around and stop on the driveway connecting the back parking lot and the front of the bar. Duenas told Castaneda to wait, and Duenas got out with the gun. Duenas walked toward the front door of the bar, and fired one shot. Castaneda jumped when he heard the shot and turned and saw that Duenas had the gun pointed in the air. Castaneda then realized that Duenas was "serious" and panicked. He made a right turn onto the street and heard four more shots. Castaneda did not see Duenas shoot anyone.

In the bar, about 15 to 25 minutes after Duenas left the bar, someone told Baca that Duenas was back. She saw the SUV in the back parking lot, and she closed and locked both the back door and front door to keep Duenas from coming back into the bar and fighting. About 10 minutes later, Castro, one of the musicians, said he wanted to leave. Baca opened the front door for him and saw the SUV on the exit driveway about to leave. Baca wrote down the license plate number on a napkin. When she finished writing, she saw Duenas coming from the passenger side of the SUV toward the bar andshe closed and locked the front door. According to Baca, no one approached with Duenas. Baca thought Duenas was going to continue fighting because the man who had hit Duenas was still inside the bar.

Upon closing the door, Baca immediately heard gunshots and a noise like the door had been struck. She did not realize she was hit until she walked toward the bar stools and noticed she was bleeding a lot from her right chest area. The bullet had entered her back and exited her chest area. About 10 seconds after she closed the door, she heard the front door burst open. She heard more shots and hid under the sink. When the shooting stopped, Baca waited about a minute before coming out from under the sink. She called the police and reported the shooting.

Jesus testified that he heard someone kicking the front door and, when the door opened, he saw Duenas at the door. He was 15 feet away and saw Duenas enter shooting a gun. Jesus and Bernardo turned and ran. They ran toward the back door, but it was locked. Jesus turned over the pool table and hid behind it, getting down on the ground and covering his head and face with his arms. The pool table was situated so that it was not visible from the front door. Jesus heard eight to nine gunshots. Jesus was shot in the back. It bled "a little" and hurt "a little" and was described as a "graze" wound. After the shooting stopped, Jesus moved his hands to see if Duenas had left and saw Duenas standing in the bar, still pointing the gun. After Duenas left, Jesus got up and tried to pick up Bernardo, shaking him, but he did not respond.

Meanwhile, Castaneda had driven down the street, then made a U-turn to head home. Duenas came running out across the street. Duenas said, "Don't let me down" and raised his gun. Castaneda stopped, and Duenas got in the SUV. Duenas told Castaneda to take him to Los Angeles, directing Castaneda where to go. Duenas made a phone call in the SUV and said in the call that he had just shot the people who had jumped him, that he would pick up his car from the ranch in the morning, and that "whoever got in the way, he was going to shoot them." Duenas was mad and breathing hard and saying, "Fuck these guys." Duenas tried to reach his girlfriend by phone but was unable to reach her. Castaneda drove Duenas to a party and Duenas's girlfriendcame outside. Duenas opened the SUV passenger door and got out, telling his girlfriend that he shot some people at a bar who had jumped him. When Duenas moved further away from the SUV's open door, Castaneda drove away.

At around 10:00 p.m., Sheriff Deputy William Strnad and his partner Deputy Ryan Vienna responded to a 911 hang-up call from the My Place Bar, arriving within minutes of the call. They were the first officers to arrive. A woman walking...