People v. Flores

• Decision Date: 27 February 1986
• Citation: 223 Cal.Rptr. 465,178 Cal.App.3d 74
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Roy S. FLORES, Defendant and Appellant. F004174.

Page 465

223 Cal.Rptr. 465

178 Cal.App.3d 74

The PEOPLE, Plaintiff and Respondent, v. Roy S. FLORES, Defendant and Appellant.

F004174.

Court of Appeal, Fifth District, California.

Feb. 27, 1986.

Certified For Partial Publication ^*

Review Denied June 20, 1986.

Eric L. Henrikson, Oakland, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Jane N. Kirkland, Edmund D. McMurray, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

PAULINE DAVIS HANSON, Acting Presiding Justice.

I

Appellant Roy Segundo Flores was convicted of two counts of second degree murder (Pen.Code, § 187) ¹ and one count of attempted murder (§§ 187/664). As to each count, it was found that appellant used a firearm ( § 12022.5). Appellant was sentenced to a term of 15 years to life for each murder conviction, and 9 years for the attempted murder conviction.

FACTS

On the night of August 28, 1984, two men were killed at the San Antonio Alegre Bar (Alegre) and a third was wounded.

Jose Meza, a customer, testified he was a friend of the two men who were killed. Meza stated that as he approached the Alegre he noticed a man leaving the building. Inside, when Meza left the booth where two friends, Juan Espinoza and Eulogio Garcia, were sitting, he saw the same man return, carrying a handgun, he walked to the booth and began shooting at Meza's friends, killing both of them and wounding an innocent bystander. When the man Appellant was arrested later at Community Hospital while being treated for a gunshot wound. Appellant told a police officer at the hospital he had been wounded at the Alegre during a shooting incident. Appellant was identified at trial as the man with a gun at the bar. Two witnesses identified appellant from a photographic lineup.

with the handgun fled, Meza followed and fired at him with a pistol Meza had in his possession. The man returned the fire as did Meza, who chased the suspect down the street.

DISCUSSION

II The Implied Malice Instruction

Appellant contends the jury was not instructed properly that implied malice requires the finding that appellant acted with a subjective appreciation of the risk created by his conduct. The jury was instructed as follows:

"Malice is implied when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose, and with a wanton disregard for human life."

This language in CALJIC No. 8.11 is the first alternative implied malice instruction. Appellant argues the language was incomplete and should have been read in conjunction with the second alternative implied malice instruction in CALJIC No. 8.11, which states malice exists:

"[when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life].]"

Appellant maintains the latter language informs the jury that the subjective awareness criterion of malice is necessary.

The instruction in People v. Phillips (1966) 64 Cal.2d 574, 51 Cal.Rptr. 225, 414 P.2d 353, upon which appellant relies, reads:

" '[The] unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder of the second degree (1) If the killing proximately results from an unlawful act, the natural consequences of which are dangerous to life, which act is deliberately performed by a person who knows that his conduct endangers the life of another, or (2) If the circumstances proximately causing the killing show an abandoned and malignant heart....' " (Id., at p. 586, 51 Cal.Rptr. 225, 414 P.2d 353.)

The court in Phillips was concerned that the terms "unlawful" and "abandoned and malignant heart," as used in the instruction, could mislead the jury. (Id., at p. 587, 51 Cal.Rptr. 225, 414 P.2d 353.) The court concluded the following is a more accurate statement on the definition of malice:

" '[T]he killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.' " (Id., at p. 587, 51 Cal.Rptr. 225, 414 P.2d 353.)

The court suggested a jury so instructed would properly use a subjective rather than an objective standard. (Id., at p. 588, 51 Cal.Rptr. 225, 414 P.2d 353.)

Cases citing Phillips state that a finding of implied malice depends upon a determination the defendant actually appreciated the risk involved, i.e., a subjective standard. (People v. Watson (1981) 30 Cal.3d 290, 296-297, 179 Cal.Rptr. 43, 637 P.2d 279.) In Watson, the California Supreme Court discussed the term "implied malice" as it related to probable cause and a second degree murder charge. (Id., at pp. 299-300, 179 Cal.Rptr. 43, 637 P.2d 279.) The Watson court reiterated the language of Phillips, ² but provided another definition of the term:

"Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life." (Id., at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279.)

The trial court used essentially the same language when it instructed the jury on implied malice. Other courts also have used the definition alternatively. (See People v. Atkins (1975) 53 Cal.App.3d 348, 359, 125 Cal.Rptr. 855 [the exact instruction used in the instant case was held to be sufficient]; People v. Poddar (1974) 10 Cal.3d 750, 754-755, 111 Cal.Rptr. 910, 518 P.2d 342 [same instruction read to the jury].)

The specific phrase, "which act is done for a base, antisocial purpose and with wanton disregard for human life," requires the jury to question appellant's subjective thoughts while committing the crime. The jury was alerted to the necessity of finding a subjective awareness. We find no error.

III ³

IV Attempted Murder and a Finding of Express Malice

Appellant contends that in instructing on the crime of attempted murder, no reference to implied malice should be made. (People v. Johnson (1981) 30 Cal.3d 444, 448, 179 Cal.Rptr. 209, 637 P.2d 676; People v. Collie (1981) 30 Cal.3d 43, 61, 177 Cal.Rptr. 458, 634 P.2d 534; People v. Murtishaw (1981) 29 Cal.3d 733, 765, 175 Cal.Rptr. 738, 631 P.2d 446. Appellant is correct. (People v. Santascoy (1984) 153 Cal.App.3d 909, 918, 200 Cal.Rptr. 709.) Our question is whether appellant suffered any prejudice as a result of any confusion in the instructions.

In reviewing the instructions as a whole, as we must, we ascertain that the instructions were sufficient to alert the jury that a finding of a specific intent to kill is necessary for a conviction of attempted murder. We affirm the judgment in count three.

The jury was instructed as follows:

"When one attempts to kill a certain person, but by mistake or inadvertence injures a different person, the crime, if any, so committed is the same as though the person originally intended to be killed, had been injured." (CALJIC No. 8.65 as modified.)

By the above crucial instruction, the court informed the jury that it would be impossible to find attempted murder based on transferred intent, a necessary element here, unless appellant intended to kill. The victim in count three was not an intended recipient of the armed assault; attempted murder occurred only if the intent existed to kill someone. The jury previously had been instructed: "In the crime of attempted murder, the necessary mental state is malice aforethought," and that "[m]alice is express when there is manifested an intention unlawfully to kill a human being."

The jurors were not misled by the instructions which followed these instructions on intent to kill:

"Regarding Count III, an attempt to commit a crime, consists of two elements, namely, a specific intent to commit the crime, and a direct, but ineffectual act, done toward its commission.

"In determining whether or not such an act was done, it is necessary to distinguish between mere preparation, on the one hand, and that [sic ] actual commencement of the doing of the criminal deed, on the other. Mere preparation, which may consist of planning the offense, or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt, but acts of a person who intends to commit a crime will constitute an attempt where they, themselves, clearly indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design, the progress of which would be completed unless interrupted by some circumstance not intended in the original design." (CALJIC No. 6.00.)

A number of cases have affirmed convictions, even though instructions were given incorrectly, by considering the findings necessarily made on other counts where convictions resulted. In People v. Murtishaw, supra, 29 Cal.3d 733, 175 Cal.Rptr. 738, 631 P.2d 446, although there was instructional error, the California Supreme Court held because the jury found the defendant guilty on three counts of first degree murder on the same facts and rejected his diminished capacity defense, it was virtually certain the jury found the defendant intended to kill the victims. (Id., at p. 765, 175 Cal.Rptr. 738, 631 P.2d 446.) The facts also clearly established a specific intent to kill ⁴ which could be rejected only on a finding of diminished capacity. The same intent to kill was presumed present as to the fourth victim who survived. (Ibid.) Unlike Murtishaw, here, in addition to the conviction for attempted murder, appellant was convicted of two counts of second degree murder which properly can be based upon a finding of implied malice and for which crimes...