People v. Javier

Decision Date31 July 2003
Docket NumberB160036.
CourtCalifornia Court of Appeals Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. FRANCISCO JAVIER RANGEL and CARLOS TOLEDO, Defendants and Appellants.

APPEAL from judgments of the Superior Court of Los Angeles County, Dale S. Fischer, Judge. Los Angeles County Super. Ct. No. BA203184.

Affirmed.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant Francisco Javier Rangel.

Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Toledo.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Jeffrey B. Kahan, Deputy Attorneys General, for Plaintiff and Respondent.

HASTINGS, J.

Francisco Rangel and Carlos Toledo (collectively referred to as appellants) appeal from the judgment entered after a jury convicted both of second-degree murder (Pen. Code, § 187 , subd. (a)) and attempted premeditated murder. (Pen. Code §§ 664/187, subd. (a).) Both were sentenced to state prison for 65 years to life plus life with the possibility of parole.

Both appellants contend that there is insufficient evidence to support the verdicts, the trial court erred in admitting hearsay evidence, and the trial prosecutor improperly commented on appellants' silence. Each of these contentions is without merit and therefore the conviction should be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On May 29, 2000, Erick Ponce and brothers, Sean and Daniel Ohayon, all members of the Harpy's gang, drove to a video store in Los Angeles. After leaving the store, they drove around looking for rival gang members on their turf. Appellants Rangel and Toledo were members of a rival gang, A.T.C. In the area of 38th Street and Budlong, from about 30 feet away, Ponce recognized Rangel and Toledo walking on the street. Ponce said, "That's them," jumped out of the car, and ran towards Rangel and Toledo intending to beat them up. However, after running about 15 feet, Rangel pulled out a gun and Ponce stopped. Toledo told Rangel to "shoot them" and Ponce turned to run away. Ponce heard a gun shot and realized it was in the direction of the car. He ran towards the car, but fell. He got up and decided instead to run down the street towards Exposition. At the same time, Sean Ohayon drove away with his brother Daniel, who had been wounded in the head, to the nearest police station where Daniel died. Meanwhile, Rangel and Toledo chased after Ponce. Toledo caught up with Ponce, tripped him, and kicked and punched him as he lay on the ground. After about a minute had passed, Rangel caught up with Ponce, stood above him and shot him behind his right ear.

Ponce was the only witness to identify appellants. Appellants argued that their guilt had not been proven beyond a reasonable doubt and that Ponce's statements were not credible. The trial court overruled appellants' objection to the introduction of a tape recording used to impeach Ponce. Also, the trial court overruled appellants' objection to the prosecutor's comments, in closing arguments, about the lack of witnesses and evidence presented by appellants.

DISCUSSION
1. Standard of Review

"'The proper test to determine a claim of insufficient evidence in a criminal case is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. [Citations.] In making this determination, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. . . . Our task . . . is twofold. First, we must resolve the issue in the light of the whole record. . . . Second, we must judge whether the evidence . . . is substantial. . . .' (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal. Rptr. 228, 721 P.2d 110.)" (People v. Proby (1998) 60 Cal.App.4th 922, 928, italics in original, internal quotation marks omitted.)

2. Insufficiency of Evidence
a. Credibility of Witness

Initially, in court, Ponce positively identified appellants as the assailants. But, the day after, Ponce recanted and testified he was positively sure it was not them. When asked about his contradictory statements, Ponce admitted he was initially lying and that he felt an obligation to help the People convict somebody because Daniel Ohayon was dead. Upon redirect examination by the People, Ponce confirmed that during the previous night he received a phone call from Sean Ohayon advising him "to do the right thing." He admitted that word was out on the street that he could get hurt if he testified. Though the appellants objected to this line of questioning on grounds of hearsay, the trial court allowed limited use of it in evaluating the credibility of Ponce and his state of mind at that time. Appellants contend that Ponce's recanted identifications were too inherently suspect to be determined as substantial evidence for the convictions.

This court "'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.)" (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404.) The credibility of a witness is for the trier of fact to determine. (Ibid.) If the trier of fact credits Ponce's initial statements, then this court cannot reject that decision unless there exists "' either a physical impossibility that it is true, or its falsity must be apparent without resorting to inferences or deductions.'" (Ibid .)

It is not inherently improbable that Ponce's original testimony was true but that he recanted out of fear for retaliation by other gang members. A gang expert, called by the prosecutor, explained that a snitch could be considered one who came to court, took the stand, testified, and identified a gang member. He testified in support of Ponce's behavior and stated that a gang member who becomes a snitch could be killed and faces other forms of retaliation. Furthermore, Ponce's clear and positive identifications at the hospital are sufficient under the substantial evidence test to support the convictions. (People v. Cuevas (1995) 12 Cal.4th 252, 257, 906 P.2d 1290 [holding that the sufficiency of an out-of-court identification to support a conviction should be determined under the substantial evidence test].) It was within the jurors role to decide that such statements made just shortly after the incident, where the mind is fresh, were accurate and truthful. Additionally, it was not unreasonable for the jury to believe those statements since Ponce was consistent in identifying Rangel and Toledo, until he was reminded of the ramifications of being a snitch.

b. Self-Defense

Appellants argue that the shooting of Daniel Ohayon was not murder because it was justified self-defense. "To be acquitted of responsibility for a person's death based on self-defense, the defendant must have acted pursuant to an actual and reasonable belief in the need to defend himself under circumstances that would lead a reasonable person to fear the imminent infliction of death, or great bodily injury. ( §§ 197, 198, 199; People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083, 921 P.2d 1.)" (People v. Watie (2002) 100 Cal.App.4th 866, 877.) "Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter." (In re Christian S. (1994) 7 Cal.4th 768, 771, 872 P.2d 574 italics in original.)

The evidence does not establish a foundation for either self-defense or imperfect self-defense. The evidence does not support either a reasonable or unreasonable belief that appellants were in imminent danger of death or great bodily injury when the shootings occurred. Though Ponce jumped out of the car and ran towards appellants, intending to scuffle with them, he stopped when Rangel pulled out his gun. While Ponce may have been the initial aggressor, control of the situation shifted to Rangel and Toledo after the gun was pulled and Rangel stopped. At that point there was no longer an apparent need for appellants to defend themselves. Appellants became the aggressors when Toledo yelled "shoot them" and Rangel did so.

Appellants also argue that the murder was at most manslaughter based on sudden quarrel or heat of passion. "The heat of passion requirement for manslaughter has both an objective and a subjective component. (People v. Wickersham (1982) 32 Cal.3d 307, 326-327, 185 Cal. Rptr. 436, 650 P.2d 311.) The defendant must actually, subjectively, kill under the heat of passion. (Id . at p. 327.) But the circumstances giving rise to the heat of passion are also viewed objectively." (People v. Steele (2002) 27 Cal.4th 1230, 1252; People v. Gutierrez (2002) 28 Cal.4th 1083, 1143.)

In this case, there was not sufficient provocation such that "' the heat of passion . . . would naturally be aroused in the mind of an ordinary, reasonable person, under the given facts and circumstances, or in the mind of a person of ordinary self-control. (People v. Valentine , 28 Cal.2d 121, 169 P.2d 1; People v. Danielly, 33 Cal.2d 362, 202 P.2d 18.)'" (People v. Brunk (1968) 258 Cal. App. 2d 453, 456-457, 65 Cal. Rptr. 727.) In Brunk, a bartender was shot by a patron when the bartender tried to force the patron to leave the bar. (Id. at p. 454.) The appellate court refused to reduce the conviction...

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