People v. Echavarria

• Decision Date: 03 August 2017
• Docket Number: E065257
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Moses Manuel ECHAVARRIA, Defendant and Appellant.

13 Cal.App.5th 1255

221 Cal.Rptr.3d 608

The PEOPLE, Plaintiff and Respondent,

v.Moses Manuel ECHAVARRIA, Defendant and Appellant.

E065257

Court of Appeal, Fourth District, Division 2, California.

Filed August 3, 2017

Allison H. Ting, Santa Monica, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MILLER, J.

A jury found defendant and appellant Moses Manual Echavarria, guilty of (1) first degree murder ( Pen. Code, § 187, subd. (a) )¹ ; and (2) assault with a firearm (§ 245, subd. (a)(2)). The jury found true the allegations that, during the murder, defendant personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)); and personally used a firearm (§ 12022.5, subd. (a)). The jury also found true the allegation that, during the assault, defendant personally used a firearm. (§ 12022.5, subds. (a) & (d).)²

Defendant moved the trial court for a new trial due to alleged juror misconduct. (§ 1181.) The trial court denied defendant's motion. The court sentenced defendant to prison for a determinate term of two years six months, and an indeterminate term of 50 years to life.

Defendant raises four issues on appeal. First, defendant contends the trial court erred by denying his motion for a new trial. Second, defendant contends the prosecutor erred by arguing the intent required for premeditated first degree murder is akin to choosing a beverage or a meal. Third, in the alternative, defendant asserts his trial counsel was ineffective for failing to object to the prosecutor's argument about intent. Fourth, defendant asserts the trial court erred when it concluded the assault sentence must be served consecutive to the murder sentence. We reverse the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. PROSECUTION'S CASE

Donald Allen Woodward, Sr., was defendant's mother's boyfriend. Woodward had a construction business—he performed stucco work. On one occasion, Woodward worked as a subcontractor for defendant's construction company. Woodward and defendant agreed Woodward would perform stucco work on a house in Barstow for $2,200. Woodward expected to be paid approximately one week after he completed his work, but he was not paid.

Woodward called defendant once or twice per week to ask about the payment. On one occasion, defendant's wife called Woodward and asked for receipts for material and labor expenses. Approximately three weeks after the stucco work was completed, defendant paid Woodward $1,000.

At Thanksgiving, Woodward spoke to defendant in person. Defendant told Woodward that defendant was paid $1,600 for the stucco work. Defendant was unsure if or when Woodward would receive the remaining $1,200. Woodward offered to work out a payment plan with defendant. The conversation ended in a friendly manner.

After the Thanksgiving conversation, Woodward continued calling defendant approximately once per week to collect the $1,200. On December 3, 2011, Woodward went to the home in Barstow where the stucco work had been performed to speak to the homeowner. On December 4, Woodward spoke to the homeowner's son on the telephone. Woodward asked the son if Woodward's stucco work was unsatisfactory. The son explained that the stucco work was acceptable and that he believed the bill had been paid in full.

After the conversation ended, when Woodward was on his way home, he saw his friend, Andrew Battaglia, who lived on the same street as Woodward. Battaglia was in front of his (Battaglia's) house. Battaglia also performed construction work. Woodward stopped to speak with Battaglia. While Woodward was at Battaglia's home, defendant called Woodward. Woodward spoke to defendant on speakerphone, and Battaglia was nearby.

Defendant was "ranting and raving" about Woodward contacting the Barstow homeowner and son directly. Defendant said Woodward "violat[ed defendant's] job site." Woodward explained he contacted the homeowner to find out why the bill had not been paid in full. During the phone call, defendant faulted Woodward for not giving him an invoice for the stucco work.

Defendant told Woodward to meet him at Hesperia Lake. Defendant told Woodward to come alone. Woodward refused because it was dark outside. Woodward suggested the two meet at a well-lit public place because "[n]obody is going to do nothing stupid there." Defendant continued to demand Woodward meet him by himself at Hesperia Lake. Ultimately, defendant, who was angry, told Woodward to come to defendant's house. Woodward agreed to meet defendant at defendant's house. Woodward believed he was meeting defendant in order to give defendant an invoice.

Battaglia had an invoice book in his truck. Battaglia retrieved a blank invoice for Woodward. Woodward completed the invoice. Eric Brabant arrived at Battaglia's house for the purpose of having dinner with Battaglia. Woodward, Battaglia, and Brabant left Battaglia's house. The three stopped and picked up Lee Keohi, who was Battaglia's friend.

The four men stopped at a liquor store where Woodward purchased an 18-pack of beer. The men then continued to defendant's apartment; they did not drink the beer while driving to defendant's apartment. The men's car was parked across the street from defendant's apartment, which is on a two-lane road. When the men arrived, Woodward saw defendant exiting the apartment. Defendant said to Woodward, " ‘I told you to come alone, mother fucker.’ " Woodward responded that he was alone, because he was the only person exiting the car.

As Woodward walked toward defendant, while Woodward was in the middle of the street, defendant pointed a gun at Woodward. Defendant said he would "blow [Woodward's] fucking head off." Woodward had not noticed a gun when he initially saw defendant exiting the apartment. Woodward believed defendant must have been holding the gun behind him as he exited the apartment.

Woodward did not believe defendant would shoot anyone. Woodward continued walking toward defendant in order to give defendant the invoice. Defendant struck Woodward with the gun. Woodward fell to the ground. When Woodward fell, Battaglia exited the vehicle and ran toward Woodward. Brabant and Keohi remained in the vehicle. When Battaglia reached Woodward, he squatted, grabbed Woodward's shirt, and attempted to move Woodward away from defendant.

"[A]ll of a sudden," after Battaglia crouched down, defendant shot Battaglia. Battaglia stood up, then fell to the ground. "Seconds" passed between Battaglia squatting down and defendant shooting Battaglia. Defendant went inside his apartment. Battaglia died due to the gunshot. The bullet entered Battaglia's chest, near his shoulder, and traveled in a downward trajectory in Battaglia's body. Such a trajectory was possible if the shooter was standing and the victim was crouching down at the shooter's knees and bending forward at the waist. There was no gunpowder on Battaglia's shirt, which indicated Battaglia was more than three feet away from defendant when defendant shot him.

B. DEFENDANT'S CASE

Defendant testified at his trial. Defendant spoke to Woodward on December 4 at 6:08 p.m. Woodward was angry during the phone call. Woodward told defendant "he was going to get his money one way or another, even if he had to kill [defendant]." Defendant suggested Woodward meet him at Hesperia Lake in order for Woodward to give defendant an invoice. Defendant planned to go to Big Bear with his family on the evening of December 4 followed by fishing at Hesperia Lake, in order to celebrate defendant's birthday, thus defendant and his family would be at the lake if Woodward stopped by.

Woodward declined meeting at Hesperia Lake. Woodward suggested meeting at a local restaurant. Defendant declined. Defendant suggested meeting at the sheriff's station, but Woodward declined. Defendant suggested meeting at defendant's house. No time was scheduled for the meeting. Defendant did not recall telling Woodward to come to the meeting alone.

Defendant stayed home on December 4; he did not go to Big Bear or Hesperia Lake due to the situation with Woodward. After Woodward and defendant spoke on the telephone, defendant noticed three vehicles drive by his house. Defendant lived on a street with a lot of traffic. The first vehicle lingered for a while, drove by defendant's house slowly, and the driver looked at defendant suspiciously. The second vehicle belonged to a friend of Woodward. The third vehicle stopped in front of defendant's driveway, the driver lowered a window and then stared at defendant.

Defendant was alarmed and scared due to the phone call from Woodward and the people driving by his house. When Woodward arrived at defendant's house at approximately 8:00 p.m., defendant placed his gun in his back pocket. It was dark outside when Woodward arrived, but defendant could see Woodward was with other people.

Defendant exited his house, and walked toward Woodward. Woodward grabbed the back of defendant's shirt and said, "Let's do this, mother fucker." Defendant struck Woodward with his hand—defendant was not holding the gun. Woodward fell to the ground. A third person then punched defendant's face. Multiple people surrounded defendant and proceeded to punch and kick defendant. Defendant was punched and kicked all over his body.

Defendant could hear his daughter screaming. Defendant feared for his life and the lives of his wife and children. Defendant removed the gun from his pocket, and in the process of moving it, the gun fired. Defendant was not aiming the gun when it fired and he did not intend to shoot anyone when it fired. After the gun fired, everyone dispersed. Defendant went inside his apartment. Defendant bled "pretty good" from his nose, mouth, and lips as a result of the beating. Defendant did not wash his face...