People v. Gonzalez

Decision Date23 March 2011
Docket NumberNo. D055698.,D055698.
Citation118 Cal.Rptr.3d 637
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Perla Isabel GONZALEZ, Defendant and Appellant.

Background: Defendant was convicted in the Superior Court, San Bernardino County, No. FVA024527, Michael A. Knish, Commissioner, of first degree provocative act murder and attempted premeditated and deliberate murder with personal firearm use. Defendant appealed.

Holdings: The Court of Appeal, Benke, Acting P.J., held that:

(1) evidence supported finding that defendant engaged in acts in conscious disregard for life that would provoke a lethal response;

(2) evidence supported finding that defendant's provocative acts proximately caused the killing of her accomplice;

(3) jury instruction did not permit jury to find defendant guilty based solely on accomplice's provocative acts;

(4) instruction that first degree murder did not require defendant to personally premeditate was harmless error;

(5) trial court was not required to instruct sua sponte that use of lethal force to prevent escape would not support provocative act murder;

(6) defense counsel was not ineffective in failing to request instruction that use of lethal force to prevent escape would not support provocative act murder; and

(7) trial court was not required to instruct on involuntary manslaughter as lesser included offense.

Affirmed.

Aaron, J., filed concurring and dissenting opinion.Laura G. Schaefer, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzales and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.

BENKE, Acting P.J.

Roberto Canas-Fuente (Canas) killed Fernando Morales, the boyfriend of appellant Perla Isabel Gonzalez (Perla), during a fight between Morales and Canas. Morales, along with Perla, his accomplice, ambushed Canas as he was picking up his daughter at a street corner. Canas at the time did not know either Morales or Perla.

During the fight, Morales pulled out a knife with a three- to four-inch blade, thrust it at Canas and cut him in the cheek. After Canas threw Morales to the ground, Morales got up and ran to Perla, who had been standing about 10 feet away, by her car, anxiously watching the fight. From her car, Perla grabbed a rifle she had brought to assault Canas, cocked it, pointed it at Canas and then handled it to Morales. Afraid for his life, Canas ran at Morales. During the struggle for the weapon, Canas was shot three times. Although wounded, Canas gained control of the rifle and a few seconds later shot and killed Morales, as Morales ran away.

Perla was tried and convicted on a provocative act murder theory of the attempted murder of Canas and of the first degree murder of Morales. She appeals.

FACTUAL AND PROCEDURAL BACKGROUND

Because Perla challenges the sufficiency of the evidence, we describe in detail the facts surrounding the killing.1

A. The People's Case

Canas and his wife Joan Curiel were married but separated in May 2005. Curiel was living with Ricardo Gonzalez (Ricardo), Perla's brother. Also living with Curiel and Ricardo was the minor child of Curiel and Canas (daughter), Curiel's otherchildren and Curiel's mother Rosalba Osguera-Alvarez (Osguera).

Canas and Curiel shared custody of their daughter. However, because Canas and Ricardo did not get along, Canas typically picked up his daughter at a prearranged location near Curiel's residence. Before the shooting, Canas and Ricardo had argued several times on the telephone and had at least one physical altercation outside of Curiel's home. Each blamed the other as the cause of their feud.

On the evening of May 21, 2005, Curiel called Canas, who worked as an emergency room technician, to arrange for treatment for Osguera. Curiel dropped Osguera off at the hospital where Canas worked. After Osguera returned home, Curiel and Ricardo began arguing over whether Curiel had lied to him about "partying" with Canas while Ricardo was away. During their argument, Canas called and spoke to Curiel. According to Ricardo, Canas bragged that he and Curiel had been intimate while Ricardo was in Mexico.2 Canas understood Curiel to say she did not want Ricardo in the home and Canas could hear children screaming in the background. Concerned for his daughter, Canas immediately left work and drove to Curiel's residence.

When Canas arrived, Curiel was leaving the house with her children, including their daughter. Ricardo was not far behind. As Curiel drove off with the children, Ricardo got into his car and followed her; Canas in turn got back inside his car and followed Ricardo. Canas testified he pulled along side Ricardo, rolled down his window and yelled, "What the fuck are you thinking? The kids are in the car. Knock it off." 3 After Canas cut off Ricardo, Ricardo took off in the opposite direction of Curiel. Canas followed Ricardo to make sure Ricardo did not continue following Curiel and the children, then returned to Curiel's home and called the police. Ricardo also called the police.

Later that evening, after the police had left, Ricardo's mother Beatrice Gonzalez (Beatrice), Perla, Morales and Ricardo's brother Jorge Gonzalez (Jorge) met outside Curiel's home. Ricardo discussed what had happened with Canas earlier that evening. Beatrice argued with Curiel and told Curiel that her son did not need such problems. Perla told Curiel that if anything happened to Ricardo, they were going to "kick [Canas's] ass."

As they stood outside Curiel's home, Jorge testified that Canas continued to call the house and argue with Ricardo. Finally, Jorge answered the telephone and agreed to fight Canas a short distance from Curiel's house. Jorge, his friend, Perla and Morales all drove to a nearby street corner and waited about 20 minutes for Canas to arrive. Jorge testified that Morales had a "B.B. gun" rifle in the car and that Morales shot it out the car window while they waited for Canas. When Canas failed to show, the group went back to Curiel's house and everyone left for the night.

The next morning, Perla went to Jorge's house. Perla told Jorge that Curiel had told her that Canas was going to be pickingup his daughter and Perla wanted Jorge to come with her to intercept and "beat up" Canas because he was harassing Ricardo. Before Jorge left with Perla, Jorge grabbed a baseball bat. Jorge testified he intended to break Canas's car windows with the bat.

Perla and Jorge next went to pick up Morales. As Jorge walked around Perla's car, he saw a light brown rifle in the back. They all drove to Curiel's house. On the drive over, Jorge told Morales that Jorge was going to fight with Canas and break Canas's car windows with the bat. Morales agreed to help Jorge if Canas got the upper hand in the fight.

Jorge knocked on the front door of Curiel's house and asked to speak with his brother Ricardo. While he was waiting at the door, he saw Canas's daughter and knew Canas had not picked her up yet. Jorge left the house and walked back to the car, where Perla and Morales waited. They next drove to the intersection near Curiel's house where they had waited for Canas the night before.

After waiting at the intersection for a time, they decided to leave. However, Perla's car would not start. Jorge alone started running back to Curiel's house to get help while Perla and Morales waited at the car. As Jorge ran, he passed Osguera, who was walking Canas's young daughter to the street corner to meet Canas. Another of Curiel's children (minor) followed behind Osguera and Canas's daughter.

Minor, who was 15 years old at the time of trial and 13 years old at the time of the killing, testified she passed Jorge who was quickly walking in the opposite direction, toward Curiel's home. Minor caught up with Osguera and Canas's daughter, and saw Morales, whom she knew, further down the road under the hood of the car. Minor also saw Perla. Minor testified she and Osguera were waiting for Canas to tell him to leave with his daughter because Morales and Perla were there waiting for him and minor knew that Canas and Ricardo had argued the night before. Osguera testified Perla approached her and told her to leave.

After about 10 minutes, Canas arrived at the intersection. Canas drove past Perla's broken-down car and stopped near where Osguera, his daughter and minor waited. Canas opened his driver side door and beckoned Osguera to approach. Osguera hastily approached Canas and told him to take his daughter and leave. At the same time, Morales—who Canas did not then know—approached Canas and said, "Hey, puto, I heard you had a problem." Canas initially thought Morales was joking. Canas saw Perla, who he also did not know at the time, standing near the trunk of her car, staring at him about 10 feet away. Canas told Osguera to get his daughter in the car and leave just as Morales started throwing punches. Osguera drove off in Canas's car with his daughter.

Canas started to throw punches back at Morales. Canas next saw Morales pull a three- to four-inch knife from his waistband, raise it near his ear and point it at Canas. Morales then lunged at Canas and cut Canas on the left side of his face. Morales came at Canas again with the knife. Canas ducked, grabbed Morales's legs, lifted him up and slammed him to the ground on his back. Morales quickly got up and ran towards Perla. Canas saw Perla move to the passenger side of the car, reach inside and meet Morales near the trunk with a "rifle type weapon" in her hand. Before Perla handed the rifle to Morales, Canas saw her "cock it" by pulling back the hammer of the gun. Perlaalso pointed the rifle at Canas.4

Scared for his life, Canas ran at Morales. During the struggle, the rifle discharged multiple times and Canas suffered three gun shot wounds. Canas...

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