People v. Patino

Decision Date17 February 2021
Docket NumberF077433
CourtCalifornia Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. ERIK CORY PATINO, Defendant and Appellant.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge.

Jennifer A. Mannix, under appointment by the Court of Appeal, Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo- Defendant Erik Cory Patino was convicted by jury trial of murder and possession of a firearm by a felon. On appeal, he contends (1) the trial court erred in permitting the prosecutor's gang expert to directly opine that Patino acted for the benefit of a criminal street gang and did not act in self-defense; (2) the court erred in failing to instruct the jury that the reasonable person standard for self-defense and heat of passion includes consideration of a defendant's age, intelligence, and experience; (3) the court erred in failing to instruct the jury on general and specific intent; and (4) these errors cumulatively violated Patino's right to due process. We affirm.

PROCEDURAL SUMMARY

On September 11, 2017,1 the Kings County District Attorney charged Patino with murder (Pen. Code,2 § 187, subd. (a); count 1) and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2). As to count 1, the information alleged Patino was an active member of a criminal street gang and committed the offense for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(C) & (b)(5), 190.2, subd. (a)(22)), and personally used and intentionally discharged a firearm causing death (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d)).

On March 23, 2018, the jury found Patino not guilty of first degree murder but guilty of second degree murder on count 1 and guilty as charged on count 2. The jury found true the gang and firearm allegations.

On April 24, 2018, the trial court sentenced Patino to 40 years to life in prison as follows: on count 1, 15 years to life, plus an additional term of 25 years to life for intentionally discharging a firearm causing death. The trial court also imposed and then stayed a 10-year gang enhancement, a 10-year personal use of a firearm enhancement, a20-year intentional discharge of a firearm enhancement, and a four-year personal use of a firearm enhancement on count 1, and a two-year term on count 2.

On the same day, Patino filed a notice of appeal.

FACTUAL SUMMARY
Prosecution's Case

Patino was a Sureño gang member. On January 28, he shot and killed the victim, Jonathan Rivas, who was a Norteño gang member.

Confrontation and Shooting

G.K.

On January 28, at roughly 10:00 a.m., G.K. was driving west on Orange Avenue toward Letts Avenue in Corcoran. When he was about 1,000 feet from the intersection, he saw Patino and Rivas. Patino stood on the north side of the street and Rivas stood on the south side. G.K. saw one of the men advance and the other retreat. Then the retreating man advanced and the other man retreated. G.K. testified that this "back and forth [continued] until [he] got closer." G.K. testified that Patino and Rivas were no closer to each other than 30 yards at any point in the conflict that he observed. Neither man appeared to be holding anything, but G.K. noticed that Patino was wearing a grey and white flannel overcoat that appeared not to hang normally because of an item concealed underneath.

G.K. "sped up ... to get out of the area." He looked back after passing Patino and Rivas and saw Patino in the "middle of the westbound lane" where he "raise[d] his arm" parallel to the ground in the direction of Rivas. At that point, Rivas appeared to be retreating. G.K. did not see Patino or Rivas holding a weapon and did not hear a gunshot.

Approximately 10 or 15 minutes later, G.K. drove through the same intersection. He saw police taping off the area and surrounding Rivas's body.

C.C.

C.C. also witnessed the interaction between Patino and Rivas on January 28. She saw Patino and Rivas on the south side of Orange Avenue at Letts Avenue. Rivas walked toward Patino and the men began arguing with, and gesturing at, each other. Both men bent their arms at the elbows and put their hands in the air. At that point, the men were between 12 and 15 yards apart.

The two men began to walk toward each other "like they were about to fistfight" but did not reach each other. Patino then crossed Orange Avenue to the north side of the street, away from Rivas. Rivas ran after Patino but did not move into the street to cross to the north side of the street. C.C. testified "it looked like [Rivas] was going in for a fistfight." She could not tell if Rivas was holding anything because he had his back to her and was running. Patino then revealed what C.C. believed to be a rifle. Patino held the rifle with two hands, kneeled on one knee, and pointed the rifle at Rivas. At that point, Rivas did not appear to be moving toward Patino or trying to hit him.

When C.C. saw the gun, she moved away from the men because she had her child with her. She then heard (but did not see) two gunshots in quick succession. After the gunshots, she heard what sounded like "somebody yell[ing] in pain." "[A] while after [she] heard the shots," C.C. came out from where she was hiding. She saw Rivas on the ground but did not see Patino.

B.D.

B.D. lived in the area of the altercation. He saw Patino and Rivas on opposite sides of Orange Avenue at Letts Avenue. They were about 50 feet apart and never got closer to each other than that. B.D. heard the two men arguing and then heard three gunshots. The shots sounded like they came from a small-caliber weapon. After the first gunshot the men continued to argue. Patino then fired a second shot and Rivas began to run south and east, away from Patino. Patino then fired a third shot. Rivas fell as he continued to try to run away.

B.D. and his friend, R.R., went to Rivas and tried to help him. B.D. saw that Patino was Hispanic but did not notice where he went, what he looked like, or what he was wearing.

R.R.

R.R. lived near the altercation and knew Patino from the neighborhood. R.R. was with B.D. when he heard Patino and Rivas arguing. Patino walked backward, away from Rivas, crossing Orange Avenue to the north where the street intersected with Letts Avenue. Patino and Rivas then stood on either side of Orange Avenue, "arguing [with] each other [and] cussing at each other[;] F this, and F that." "[T]hey were saying f[***] you puto, Sureño, south side. All this gang stuff. You know, Norteño this, and Sureño this, and south side, puto this." Patino "was saying something about south side[; Rivas] was saying Norteño this, Norteño that."

R.R.'s view of Patino was obstructed by a wooden fence, but he heard a small-caliber gunshot from where he believed Patino to be standing—at the telephone pole on the north side of Orange Avenue at Letts Avenue. After the first shot, Rivas began backing away from Patino and said, "You missed puto, try again." Rivas then began to run, and Patino fired two more shots. Rivas fell near a drainage hole southeast of the intersection of Orange and Letts Avenues. After the shooting, R.R. called 911, confirmed that Patino was gone, and ran to Rivas to try to help.

R.R. never saw Rivas holding a screwdriver or any kind of weapon.

Law Enforcement Response

After the shooting, Corcoran Police Sergeant Alex Chavarria found Rivas's body about 100 yards southeast of the intersection of Orange Avenue and Letts Avenue. Rivas was not breathing and appeared to have a wound on his right arm. A pack of cigarettes, a lighter, a book of matches, and a screwdriver were found in his front pocket.

Corcoran Police Property and Evidence Clerk Jimmy Roarke found a .22-caliber bullet casing in a cement gutter near the roadway at the intersection of Letts Avenue and Orange Avenue.

The same day, Kings County Sheriff's Deputy Oscar Torres spoke to Patino's grandmother and father. Patino's grandmother, L.P., told Torres that Patino came from out of town and wanted to "play badass." He bought the rifle a few months before the shooting and sawed off the barrel. When he returned to her house after shooting Rivas "told [her] what he did." She told Torres that Patino "shot that other person" and "took [his] life." After the shooting, Patino asked L.P. to take the rifle, but she refused. She told Torres that the rifle was hidden in the recessed light housing of the china cabinet in her house.

Patino's father, M.P., told Torres that Patino had a sawed-off .22-caliber rifle that he got from a friend. Patino carried the rifle in his pants for protection from the Norteños. On the day of the shooting, M.P. saw Patino wearing a black and white Pendleton jacket and a Cowboys hat. Patino told M.P. about the shooting. Patino did not appear to be scared; "he was laughing about [the shooting]."

That day, Roarke and other officers arrested Patino and searched his grandmother's house. Roarke recovered a loaded .22-caliber semi-automatic tube-fed rifle wrapped in a black T-shirt from a recessed lighting area above a china cabinet. The rifle was sawed off at the barrel, magazine tube, and stock. Roarke also recovered .22-caliber ammunition on the driveway and in the dining room. Finally, Roarke found a "[P]endleton sweater or jacket ... [that] matched the description of the sweater or jacket worn by the subject."

After Patino was arrested, Roarke swabbed Patino's hands for...

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