People v. Nieto Benitez

Decision Date03 December 1992
Docket NumberNo. S022789,S022789
Citation4 Cal.4th 91,840 P.2d 969,13 Cal.Rptr.2d 864
CourtCalifornia Supreme Court
Parties, 840 P.2d 969 The PEOPLE, Plaintiff and Respondent, v. Martin NIETO BENITEZ, Defendant and Appellant.

Stephen Gilbert, Santa Monica, under appointment by the Supreme Court, for defendant and appellant.

Fern M. Laethem, State Public Defender, Philip M. Brooks, Deputy State Public Defender, Ronald Y. Butler, Public Defender (Orange), Carl C. Holmes, Chief Deputy Public Defender, Deborah Ann Kwast, Asst. Public Defender, Thomas Havlena and Denise M. Gragg, Deputy Public Defenders, as amici curiae on behalf of defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart and George Williamson, Chief Asst. Attys. Gen., Harley D. Mayfield and Gary W. Schons, Asst. Attys. Gen., Robert M. Foster, Rudolf Corona, Jr., Raquel M. Gonzalez and Nancy L. Palmieri, Deputy Attys. Gen., for plaintiff and respondent.

GEORGE, Justice.

This case presents the question whether the act of brandishing a firearm may constitute an act sufficiently dangerous to life to support a conviction of second degree murder on an implied malice theory. (Pen.Code, §§ 187, subd. (a), 189.) 1 The Court of Appeal held that although the act of intentionally firing a handgun could support a finding of malice, the act of intentionally brandishing a handgun, as a matter of law, could not support such a finding. Because the trial court's instructions permitted the jury to base a finding of malice on defendant's intentional brandishing of a firearm, the Court of Appeal concluded that defendant's conviction of second degree murder must be reversed.

We conclude the Court of Appeal erred in reversing defendant's conviction. Although a jury may determine, under the circumstances of a particular case, that a defendant's brandishing of a firearm did not pose a sufficient danger to human life to establish that the defendant acted with malice, in other circumstances the act of brandishing a firearm may be sufficiently dangerous to human life to support a finding of malice. The Court of Appeal erroneously concluded that the trial court in this case instructed the jury that defendant's brandishing of a firearm was sufficient to constitute malice; however, in fact, the trial court did not improperly remove this issue from the consideration of the jury. Instead, the trial court's instructions left it to the jury to determine whether, under all the circumstances of the case, the natural consequences of defendant's brandishing of the firearm were dangerous to human life, and whether defendant brandished the firearm with knowledge of the danger to, and with conscious disregard for, human life. In our view, the trial court did not err in so instructing the jury, and the Court of Appeal erred in reversing the judgment on this ground.


On July 8, 1989, in the early evening, defendant was at the intersection of Jeffrey Drive and Lynne Avenue in Anaheim, eating his dinner near a catering truck. Defendant was seated on a milk crate, while directly behind him, the victim, known as Guero, 2 and another man, identified only as Caballo, were engaged in horseplay. Guero reached around Caballo and attempted to tip over Caballo's plate. In response, Caballo spun around and threw the entire plate of food at Guero. When Guero ducked, the plate of food struck defendant on the back of his head, the food falling down defendant's back and staining his shirt.

Defendant threw away his plate and took off his shirt. Holding the shirt in his hand, he walked over to where Guero and Caballo stood, and asked, "Who is going to wash my shirt?"

Guero and Caballo feigned ignorance, and Guero then replied, "We're not going to wash your shirt." Defendant insisted that one of them wash his shirt. Guero, who was holding a broomstick, responded, "[N]o way, it was an accident."

An argument ensued. Guero said, "What are you going to do about it? You going to bring a gun or knife or what?" He added, "It was an accident, anyway, so why don't you go ahead and leave?"

Defendant replied, "It's going to be an accident if a bullet goes off and hits one of you, too."

Guero, becoming angry, responded, "Okay, go ahead and bring it. Bring what you want, a knife or a gun." Guero, holding the broomstick, turned and walked away.

Defendant, who lived nearby, went home and told his roommate, Carlos Arreola, 3 that some persons had been playing around near the catering truck, and that one of them had thrown food on his shirt. Defendant's shirt was stained, and he was angry. He told Arreola that he was going to go back and make those "cabrones" 4 wash his shirt. Defendant went to his room, obtained a clean shirt, and then left his apartment , repeating that he was going to make those "cabrones" wash his shirt. The evidence suggested that defendant concealed on his person a handgun and extra ammunition before leaving the apartment.

Defendant returned to the catering truck a few minutes later. Appearing frightened and angry, he walked to within three feet of Guero. Broomstick in hand, Guero stepped closer to defendant. When Guero asked defendant what he wanted, defendant inquired who was going to wash his shirt. Guero replied that no one was. In response, defendant said, "Well, then one of you two is going to leave."

After defendant and Guero argued for two or three minutes, Guero said either "Let's get it on," or "Take out your knife or whatever you have." Guero, dropping the broomstick, lunged toward defendant as if to grab or punch him.

Guero never reached defendant. As Guero lunged forward, defendant drew a firearm from his waistband, his finger on the trigger. The evidence was in conflict as to whether defendant pointed the gun horizontally (toward Guero) or vertically (toward the sky). One witness, Hector Reynoso, testified that defendant pointed the weapon toward Guero. Similarly, another witness, 12-year-old Israel Alvarado, testified that defendant "shot at" Guero. On cross-examination, however, Alvarado testified that defendant "didn't have time to point" the firearm at Guero. On redirect examination, Alvarado denied having seen defendant point it upwards, and denied having so informed the defense investigator, Alfredo Rasch. (Rasch subsequently testified during the defense that, prior to trial, Alvarado told him defendant had pointed the weapon upwards.)

The weapon fired as it was drawn. Guero slumped to the ground, having suffered a mortal bullet wound to the neck. Defendant ran to his apartment, chased by a bottle-throwing crowd of Guero's friends. At his apartment, defendant told his roommate, Carlos Arreola, "I think I killed the 'cabron,' a 'marijuano.' " 5 Defendant paced about the apartment, the weapon in his hand and a box of ammunition in his pocket. He was nervous and sorry, repeatedly asking, "Oh my God, what have I done?" At one point, he attempted to jump from the second-story window of his apartment, but Arreola intervened.

Defendant asked Carlos Arreola for a ride to the bus station, but Arreola indicated that flight only would worsen the situation. Arreola suggested that defendant give himself up. In response to a call from an unidentified person, police officers were dispatched to the scene of the shooting, and then arrived at defendant's apartment, where defendant surrendered without incident.

During their search of the apartment, officers seized a .38-caliber five-shot revolver as well as ammunition found inside a detergent box located in the bathroom. The revolver contained four live rounds and one spent casing. Although the weapon's trigger guard was missing, an expert witness called by the prosecution provided unrefuted testimony at trial that this defect did not affect the operation of the gun. According to the prosecution's expert, the revolver was in good working condition and had a normal "trigger pull."

Guero died at the hospital approximately one hour after the shooting. The cause of death was blood loss from a single gunshot wound to the neck. The path of the bullet was slightly upward (about 10 degrees), perforating the jugular vein. There was stippling around the entrance wound, indicating the bullet was fired from a short distance, probably six inches or less.

Defendant did not testify at trial. Rather, he sought to demonstrate through the testimony of others that he had not pointed the firearm toward Guero, and therefore could not have intended to kill him. Defense witnesses also testified that defendant's actions were taken in response to Guero's aggressive and combative behavior, and that Guero had a reputation in the neighborhood as a short-tempered fighter.

A. The trial court's instructions to the jury

Following the parties' presentation of evidence, the prosecutor, in making his closing argument, asked the jury to return a verdict of first degree murder. Defense counsel, in closing, argued that defendant was, at most, guilty of manslaughter. The trial court instructed the jury consistent with the parties' respective theories. 6 Additionally, and of particular relevance to the present discussion, is the trial court's instruction of the jury pursuant to CALJIC No. 8.31, which provides: "Murder of the second degree is [also] the unlawful killing of a human being when: [p] 1. The killing resulted from an intentional act, [p] 2. The natural consequences of the act are dangerous to human life, and [p] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [p] When the killing is the direct result of such an act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being."

During its deliberations, the jury asked the court to explain the term, "intentional act," as used in CALJIC No. 8.31. 7 The prosecutor requested that the court answer the jury's...

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