THE PEOPLE v. EDUARDO MOSQUEDA

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. EDUARDO MOSQUEDA, Defendant and Appellant.

2d Crim. No. B222225

Decided: August 23, 2011

Eduardo Mosqueda appeals the judgment entered after a jury convicted him of attempted murder (Pen.Code,1 §§ 664, 187, subd. (a)).  The jury also found true allegations that the crime was committed willfully, deliberately, and with premeditation (§ 664, subd. (a)) and that appellant personally used a deadly weapon, i.e., a knife (§ 12022, subd. (b)(1)).   Appellant was sentenced to life in state prison with the possibility of parole, plus one year.   Appellant contends the trial court erred by giving CALCRIM No. 600, the pattern jury instruction for attempted murder.   We shall order the abstract of judgment corrected to reflect that a one-year enhancement for appellant's use of a deadly weapon was imposed under section 12022, subdivision (b)(1), and not section 12022.7, subdivision (e).   Otherwise, we affirm.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STATEMENT OF FACTS

In January 2008, appellant was living in Oxnard with his wife Maria Sandoval.   Sandoval, who had been married to appellant for 42 years, discovered that he had been involved with another woman while Sandoval was living in Mexico.   When Sandoval confronted appellant, he pushed and hit her and told her to leave.   Sandoval went to a neighbor's house and asked him to call 911.2  When the police arrived, Sandoval said that appellant had only pushed her.   She did not tell the police that appellant had hit her because she feared what appellant would do to her if she told the truth.

In early February 2008, Sandoval moved into another house in Oxnard.   On the morning of February 26, Sandoval was exiting the post office when she saw appellant approaching her.   Appellant yelled at Sandoval to give him what she had picked up from the post office.   After Sandoval responded that she did not have anything, appellant threw two envelopes at her and said, “It's all going to end here.”   Appellant then came toward Sandoval with a knife in his hand and stabbed her in the chest.   Sandoval tried to grab the knife by the blade and cut her fingers before the knife fell to the ground.   Appellant picked up the knife and cut his own throat.

Felipe Veronica was sitting in his car across the street from the post office when he heard a woman screaming.   Veronica got out of his car and saw appellant “poking” Sandoval in the chest with a knife.   Appellant and Sandoval both fell to the ground.   When appellant got up, Veronica grabbed him and pulled him to the ground to prevent him from retrieving the knife.   While Veronica had appellant pinned to the ground, appellant looked toward Sandoval and said, “I told you I was going to kill you” and added, “I told you you were going to pay.”   Appellant told Veronica that he “was doing this because [Sandoval] wanted to leave him because she was with someone else.”   Veronica continued to restrain appellant until the police arrived.

Carol Green witnessed the incident while sitting in her car in front of the post office.   Green saw appellant approach Sandoval from behind and push her, which led to a scuffle.   Green got out of her car and yelled at appellant, then saw him cut his own throat with a knife.   After Green called 911, she noticed that Sandoval's hands were bleeding and that she had a stab wound in her chest.

Elidea Lopez was about to enter the post office when she saw appellant and Sandoval “c[o]me face to face” near the entrance.   Appellant was yelling as he approached Sandoval and grabbed her arm.   As Lopez was leaving the post office, she saw appellant remove a knife from his pants and stab Sandoval in the chest.   Lopez also saw Sandoval grab the knife and cut her fingers before appellant picked up the knife and cut his own throat.

After appellant was arrested, a piece of paper that appeared to have been shaped into a sheath was found in his waistband.   Appellant also had two small lacerations on his neck.   Sandoval was transported to the hospital by ambulance.   The wound to her chest was approximately one inch deep and required three stitches.   Sandoval also received stitches on her hands and arm.   According to the physician who treated Sandoval, the wound could have been fatal if the knife had not been stopped by Sandoval's ribs.

Appellant was transported to a hospital by Oxnard Police Officer Kevin Thompson.   At the hospital, appellant gave a tape-recorded interview in Spanish that was translated for Officer Thompson by Officer Alejandro Rangel, who was also present.   Appellant said that Sandoval had left him about two weeks before the incident after another woman told Sandoval that she had “gone out” with appellant.   About a week later, appellant saw Sandoval and asked her if she had another man.   Sandoval said that she did.   Ever since then, appellant had been carrying a knife because he “felt jealousy.”   Appellant believed that “[s]omething was going to happen” if he saw Sandoval with another man, and thought he might use the knife to stab the man.

On the day of the incident, appellant drank two large beers and a small amount of alcohol.   When he saw Sandoval coming out of the post office, he followed her and yelled at her to “go home.”   Sandoval responded, “No. I am not going․  I have someone else” and said that she had been with the other man for a month.   At that point, appellant “blew it” and “just stabbed her a little.”   Sandoval subsequently grabbed the knife and cut appellant's neck.   Appellant stated:  “I am very sorry, but oh well now.   I am already here and ․ with the intent of homicide.   That is already known.”   When Officer Rangel asked appellant if he had tried to kill Sandoval, appellant replied “[y]es” and added that he had done so “[b]ecause of what she was telling [him]” about the other man she was purportedly seeing.

DISCUSSION

I.CALCRIM No. 600

Appellant contends that his conviction must be reversed because the pattern jury instruction on attempted murder, CALCRIM No. 600, incorrectly states the law and effectively lessens the prosecution's burden of proof by conflating two distinct elements of the crime that must be proven beyond a reasonable doubt.   We disagree.

The jury was instructed with the standard CALCRIM No. 600 as follows:  “The defendant is charged in Count 1 with attempted murder.  [¶] To prove that the defendant is guilty of attempted murder, the People must prove that:  [¶] 1. The defendant took at least one direct but ineffective step toward killing another person;  [¶] AND [¶] 2. The defendant intended to kill that person.   [¶] A direct step requires more than merely planning or preparing to commit murder or ․ arranging for something needed to commit murder.   A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action.   A direct step indicates a definite and unambiguous intent to kill.   It is a direct movement toward the commission of the crime after preparations are made.   It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.  [¶] A person who attempts to commit murder is guilty of attempted murder even if, after taking a direct step toward killing, he or she abandons further efforts to complete the crime, or his or her attempt fails or is interrupted by someone or something beyond his or her control.”

Appellant argues that the statement, “[a] direct step indicates a definite and unambiguous intent to kill,” improperly suggested to the jurors that they could find he harbored the requisite intent for attempted murder merely by finding that he took a direct step toward the commission of that offense.   According to appellant, a reasonable juror would have construed the challenged statement to mean “that a direct step demonstrates intent as a matter of law.”   This claim was rejected in People v. Lawrence (2009) 177 Cal.App.4th 547, 556–557.   In Lawrence, our colleagues in the Fifth District held, “We conclude CALCRIM No. 600 correctly states the law.   The challenged language is virtually identical in meaning to the analogous portion of CALJIC No. 8.66 (attempted murder), which states:  ‘However, acts of a person who intends to kill another person will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to kill.’  ․ That portion of CALJIC No. 8.66 was derived from the more general attempt instruction, CALJIC No. 6.00 (attempt-defined).  [Citation.]   The California Supreme Court has held that former CALJIC No. 6.00, which instructed in pertinent part that acts are sufficient when they ‘ “clearly indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design,” ’ correctly stated the law.  [Citation.]  We see no substantive difference between the language of CALCRIM No. 600 and the language approved [by the California Supreme Court].”  (Id. at p. 557, italics omitted.)

The Lawrence court continued, “When the challenged portion of CALCRIM No. 600 is considered in context, it is clear there is no reasonable likelihood jurors understood it as appellant asserts.  [Citations.]  The instruction as a whole makes it clear that in order to find an attempt, the jury must find two distinct elements:  an act and an intent.   These elements are related;  usually, whether a defendant harbored the required intent to kill must be inferred from the circumstances of the act.  [Citation.]  Read in context, it is readily apparent the challenged language refers to the act that must be found, and is part of an explanation of how jurors are to determine whether the accused's conduct constituted the requisite direct step or merely insufficient planning or preparation.”  (People v. Lawrence, supra, 177 Cal.App.4th at p. 557.)

We recently cited Lawrence with approval (People v. Ramos (2011) 193 Cal.App.4th 43, 47), and follow it here.3  Appellant fails to persuade us that Lawrence was wrongly decided.

Appellant's claim also fails when CALCRIM No. 600 is viewed in light of the other instructions that were given.  “In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys.   The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights.”  (People v. Andrade (2000) 85 Cal.App.4th 579, 585.)  “ ‘ “[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” ’  [Citations.]”  (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)

Viewing the instructions that were given as a whole, it is clear that the jury would not have construed CALCRIM No. 600 in a manner that violated appellant's rights.   CALCRIM No. 225 instructed the jurors that they must find the defendant not only committed the acts with which he was charged, but also did so with the requisite intent to kill.   They were also instructed with CALCRIM No. 251 that there must be a union of act and intent.   That instruction stated:  “For you to find a person guilty of any crime[s] in this case that person must not only intentionally commit the prohibited act but must do so with a specific intent.”   Although appellant correctly notes that both of these instructions referred the jury back to CALCRIM No. 600, the latter instruction emphasized that the jury had to find not only that appellant took a “direct but ineffective step toward killing another person,” but also that the nature of that act and the attendant circumstances demonstrated an intent to kill.   The prosecutor's closing argument to the jury made this distinction clear.4  Appellant's claim of instructional error thus fails.5  In any event, appellant's two confessions that he harbored the very intent at issue render any possible error harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24;  People v. Mayfield (1997) 14 Cal.4th 668, 774.)

II.

Correction of the Abstract of JudgmentDISPOSITION

The judgment is modified to reflect that a one-year enhancement was imposed under section 12022, subdivision (b), and not section 12022.7, subdivision (e).   The trial court is ordered to amend the abstract of judgment accordingly and forward it to the Department of Corrections and Rehabilitation.   As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Patricia M. Murphy, Judge

Superior Court County of Ventura

Lisa M.J. Spillman, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson, Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

FOOTNOTES

FN2. Sandoval testified that she told the neighbor, Edward Espinoza, that appellant was hitting her.   Espinoza later testified that he had asked Sandoval if she had been hit and she responded, “no, but he's about ready to.”.  FN2. Sandoval testified that she told the neighbor, Edward Espinoza, that appellant was hitting her.   Espinoza later testified that he had asked Sandoval if she had been hit and she responded, “no, but he's about ready to.”

FN3. Appellant asserts that our citation to Lawrence is essentially meaningless in this context because Ramos did not involve a determination whether CALCRIM No. 600 effectively eliminates the intent element of attempted murder.   Our citation to Lawrence, however, was immediately followed by a citation to a California Supreme Court case for the proposition that “[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.  [Citation.]”  (Ramos, supra, 193 Cal.App.4th at p. 47, italics added, citing People v. Smith (2005) 37 Cal.4th 733, 739.).  FN3. Appellant asserts that our citation to Lawrence is essentially meaningless in this context because Ramos did not involve a determination whether CALCRIM No. 600 effectively eliminates the intent element of attempted murder.   Our citation to Lawrence, however, was immediately followed by a citation to a California Supreme Court case for the proposition that “[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.  [Citation.]”  (Ramos, supra, 193 Cal.App.4th at p. 47, italics added, citing People v. Smith (2005) 37 Cal.4th 733, 739.)

FN4. As the prosecutor explained, CALCRIM No. 600 “describe[s] that a direct step is one that indicates an unambiguous intent․  [W]hen the instruction further defines it that way, it says the direct step indicates the unambiguous intent.   It doesn't say the direct step has to prove it by itself.   It just has to demonstrate the intent.”.  FN4. As the prosecutor explained, CALCRIM No. 600 “describe[s] that a direct step is one that indicates an unambiguous intent․  [W]hen the instruction further defines it that way, it says the direct step indicates the unambiguous intent.   It doesn't say the direct step has to prove it by itself.   It just has to demonstrate the intent.”

FN5. In asserting that the jury may have construed CALCRIM No. 600 in the manner of which he complains, appellant contends that the prosecutor argued an improper legal theory of “transferred intent” during closing argument.   The record belies this claim.   The doctrine of transferred intent, which arises when a defendant intends to kill one person but mistakenly kills another, does not apply to attempted murder.  (People v. Stone (2009) 46 Cal.4th 131, 140.)   The prosecutor did not argue otherwise, but rather relied on the legal principle that “[a] cold, calculated decision to kill can be reached quickly, and the test is the extent of the reflection, not the length of time.”   After stating that principle, the prosecutor argued that “[e]ven if you accept the defendant's claim that he was carrying the knife for another man, he already had done all of the thinking about killing someone that a person can do.   And applying that to his action to killing Ms. Sandoval would take no time at all.”   Nothing about this argument would have led the jury to conclude that a direct step toward killing Sandoval was enough to convict appellant of attempted murder, even if that step and the circumstances in which it was made did not evince an actual intent to kill..  FN5. In asserting that the jury may have construed CALCRIM No. 600 in the manner of which he complains, appellant contends that the prosecutor argued an improper legal theory of “transferred intent” during closing argument.   The record belies this claim.   The doctrine of transferred intent, which arises when a defendant intends to kill one person but mistakenly kills another, does not apply to attempted murder.  (People v. Stone (2009) 46 Cal.4th 131, 140.)   The prosecutor did not argue otherwise, but rather relied on the legal principle that “[a] cold, calculated decision to kill can be reached quickly, and the test is the extent of the reflection, not the length of time.”   After stating that principle, the prosecutor argued that “[e]ven if you accept the defendant's claim that he was carrying the knife for another man, he already had done all of the thinking about killing someone that a person can do.   And applying that to his action to killing Ms. Sandoval would take no time at all.”   Nothing about this argument would have led the jury to conclude that a direct step toward killing Sandoval was enough to convict appellant of attempted murder, even if that step and the circumstances in which it was made did not evince an actual intent to kill.

FN6. The great bodily injury allegation was charged, but it was found not true by the jury..  FN6. The great bodily injury allegation was charged, but it was found not true by the jury.