People v. Santascoy

• Decision Date: 28 March 1984
• Docket Number: Cr. N
• Citation: 153 Cal.App.3d 909,200 Cal.Rptr. 709
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Gilbert SANTASCOY, Defendant and Appellant. o. 14923.

Page 709

200 Cal.Rptr. 709

153 Cal.App.3d 909

PEOPLE of the State of California, Plaintiff and Respondent, v. Gilbert SANTASCOY, Defendant and Appellant.

Cr. No. 14923.

Court of Appeal, Fourth District, Division 2, California.

March 28, 1984.

Certified for Partial Publication.

[153 Cal.App.3d 911] Paul A. Stabile, Pasadena, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., A. Wells Petersen and Raquel M. Gonzalez, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

McDANIEL, Associate Justice.

Defendant Gilbert Santascoy has appealed from a judgment finding him guilty of attempt to commit murder and assault with a deadly weapon.

FACTS

Shortly after 12 o'clock on a late summer's night, Johnny Perez and Eddie Ramirez, both bleeding from stab wounds, ran to a liquor store in the City of Upland for help. They needed medical attention, and they wanted assistance from the police as well because two of their friends were still "back there." The police found the friends, one of whom at least, Michael Artea, had also sustained stab wounds. Perez and Ramirez claimed that they had been attacked and stabbed by Gilbert Santascoy and Vincent Ochoa while they were looking for a friend in the Los Olivios area housing project in the City of Upland. ¹ Santascoy claimed that in fact Perez and Ramirez had attacked him, but he had run away when his friend Vincent Ochoa came to his aid.

Santascoy was charged with two counts of attempt to commit murder, one for Perez and the other for Ramirez. Each of the counts also alleged that Santascoy, with the intent to do so, inflicted great bodily injury upon the victims in violation of Penal Code section 12022.7.

During the jury trial, Perez, Ramirez and Artea testified to essentially the same story. Perez, Ramirez, Artea and Chacon were "partying" at a friend's house on the night of the crime, when Ramirez received an invitation from his uncle to come to a pool party that night at the uncle's house. The four decided to go and left the original party sometime around 10 or 10:30 p.m., in Perez' car, with Perez driving, Ramirez in the passenger seat and the other two in the back.

Ramirez wanted to invite a friend of his along and so asked Perez to drive to the Los Olivios housing project where the friend lived. However, Perez was concerned about how safe it would be for them to go there. Apparently, Ramirez told Perez it would be all right because Ramirez had grown up there. Nevertheless, he directed Perez to park his car in a parking space on the very edge of the project. This precaution was taken because all agreed that driving through this area in Perez' fancy Grand Prix would be asking for trouble.

Once parked, Perez and Ramirez walked along the road to the friend's house. On the way they passed Ochoa and another man (Santascoy) going in the other direction. They greeted each other in passing and continued on. Ramirez' friend was not home, and so he and Perez returned to the car.

Just after they returned to the car and were seated in it, Santascoy appeared at Perez' (the driver's) window, and Ochoa at the passenger window. Santascoy asked Perez who he was and what he was doing there. Perez told him his name and said they were just leaving. Santascoy, with his hand in his coat pocket, told Perez if he tried to leave he would "blow off their heads" with a gun. No one ever saw a gun.

Santascoy then ordered Perez to open his trunk. Perez got out of the car and did so. Santascoy, standing behind Perez at the rear of the car, directed Perez to climb into the trunk. He refused. Immediately thereupon Perez felt a stab in the back, then another. He spun around, and Santascoy then stabbed him in the left breast. While this was occurring, Perez called to Ramirez for help. Ramirez attempted to go to his aid but was attacked and stabbed twice by Ochoa. The two men struggled, and, after Ramirez had managed to knock down Ochoa, he (Ramirez) was stabbed from behind by Santascoy. At this point Perez yelled "Let's get out of here" and the two of them ran to the liquor store down the street for help. Meanwhile, Artea and Chacon climbed out of the car and attempted to flee. They also were each stabbed several times as they fled.

Ochoa testified at trial for the defense. He claimed he had seen Perez and Ramirez (with a knife) attacking Santascoy and had run to Santascoy's aid. Ochoa testified he took Ramirez' knife and then began stabbing at everything. Santascoy testified in his own behalf, claiming that he had no weapon but was attacked by Perez and Ramirez and once Ochoa showed up he ran to his girlfriend's house.

The jury returned a verdict on count 1 finding Santascoy guilty of an attempt to murder Perez and, in doing so, had, with intent, inflicted great bodily injury on Perez.

On count 2, the jury found Santascoy guilty of the necessarily included lesser offense of an assault on Ramirez with a deadly weapon.

Santascoy was sentenced on count 1 to state prison for the aggravated term of nine years, plus a three-year enhancement. His sentence on count 2 was stayed pending appeal.

Santascoy contends on appeal that: (1) the court committed prejudicial error by instructing the jury that it could convict Santascoy of attempted murder if they found implied malice aforethought; (2) the court abused its discretion in denying his 352 motion to exclude all evidence of his gang membership; and (3) he was denied effective assistance of counsel because his attorney failed to make a motion to exclude from the courtroom witnesses who weren't testifying at the time.

Only the discussion which addresses the first assignment of error warrants publication. Accordingly, the discussion under parts II and III will be relegated to an appendix which will be certified for non-publication.

DISCUSSION

I

JURY INSTRUCTIONS

Turning to defendant's first assignment of error, namely that the court instructed the jury that it could convict defendant of attempt to commit murder if it found implied malice, if this was the net legal result of the court's instructions, then defendant is correct in assigning error. This follows, for it has long been conclusively established in this state, beyond the need for citation of authority, that a person to be guilty of the crime of attempt to commit murder must harbor the specific intent to kill at the time of the overt act by which the attempt is manifested. (People v. Miller, 2 Cal.2d 527, 532-533, 42 P.2d 308.)

Otherwise, when instructing on the elements of an attempt to commit any crime, it is always necessary to define the underlying crime. In the instance where, as here, the underlying and unperfected crime is murder, a possible ambiguity, potentially prejudicial, can enter the picture, for, when murder is defined, such definition could, in and of itself, rightly include examples of murder where no specific intent to kill is present, i.e. where malice is implied. However, as to the crime of attempt to commit murder, where a specific intent to kill is absolutely required, reliance upon any definition of murder based upon implied malice is logically impossible, for implied malice cannot coexist with express malice. With this fundamental concept to be reckoned with, instructions on the crime of attempt to commit murder, necessarily, when they define the underlying crime of murder, must be limited only to that kind of murder where a specific intent to kill or, in other words, express malice, is one of the elements.

The task then which we face in assessing defendant's first assignment of error is whether the instructions as given actually afforded the jury the opportunity to convict defendant of the crimes charged on the alternative theory of implied malice. If the instructions really were erroneous in this respect, then the dispositive question becomes whether, on the facts of this case, such error was prejudicial. What then were the relevant instructions given by the trial court?

First, the court gave CALJIC No. 8.10: "Defendant is charged in counts 1 and 2 of the information with the commission of the crime of attempt to commit the crime of murder, ...

"The crime of murder is the unlawful killing of a human being with malice aforethought.

"In order to prove the commission of the crime of murder each of the following elements must be proved: (1) that a human being was killed, (2) that the killing was unlawful, and (3) that the killing was done with malice aforethought."

Next the court gave CALJIC No. 8.11: "Malice may be either express or implied. Malice is express when there is manifested an intention unlawfully to kill a human being. 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 wanton disregard for human life. When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought."

Next the court gave CALJIC No. 6.00: "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....

And then: "An attempt to commit the crime of murder consists of two elements, namely, a specific intent to kill another human being, and a direct, but ineffectual act done towards its commission."

Finally, the court gave CALJIC No. 3.31:

"In the crime charged in counts 1 and 2 of the information, namely, attempt to commit the crime of murder, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator and unless such specific intent exists the crime to which it relates is not committed.

"The specific intent required was included in the definition of the crime charged that I have...