THE PEOPLE v. MANUEL AVENDANO (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.

Manuel Avendano appeals from the judgment after a jury convicted him of one count of first degree murder, three counts of attempted premeditated murder and found numerous sentence enhancement allegations to be true.   The court sentenced Avendano to a term of 90 years to life.   We affirm.

FACTS AND PROCEEDINGS BELOW

A. The Murder of Torres and Attempted Murder of His Companions

On the afternoon of September 26, 2007, teenagers Victor Torres and his four companions met at Lynwood Park. They sat on a picnic bench bearing Hoodlum Familia (“HF”) of South Central Los Angeles gang graffiti.   A car pulled into the nearby parking lot, defendant Avendano got out and approached the five teenagers while the driver remained in the car.   Avendano asked Torres and his friends, “Where you from?” and referring to the “HF” graffiti on the bench, asked, “What's up with you writing in my hood?”

Torres said he belonged to HF and asked Avendano, “Where you from?”   Avendano responded:  “Lynwood Barrio Segundos.”   Torres and Avendano got into an argument about whose “hood” the park was in and Avendano punched Torres in the face as he sat on the bench.   Torres then punched Avendano in the face.   Avendano pulled a gun from his waistband, cocked it and pulled the trigger.   Nothing happened.   Avendano cocked the gun a second time, aimed at Torres and fired.   Two bullets struck Torres in the back and he died from his wounds later that day.   After he shot Torres, Avendano ran toward his car while firing several shots at Torres's companions as he fled.   The companions were uninjured.

B. Eyewitness Identification

The police interviewed three of Torres's companions, G, R and S, at the park shortly after the shooting.¹  Each one described the shooter as a light-skinned, bald, male Hispanic.   G and R subsequently picked Avendano out of a photographic lineup consisting of color photographs of six light-skinned, bald, male Hispanics.  (S did not view a photographic or live lineup.   After failing to cooperate with police, S attended a lineup in county jail and did not identify anyone.)   At trial, G and R identified Avendano as the shooter;  S could not say whether or not Avendano was the shooter.

G, R and S all agreed that the shooter had a large letter E and a large letter S tattooed on his forearms.   G testified that the shooter's right forearm displayed a large letter E in outline form.   During the police interview he said that the shooter had “a big ass ‘E” ” and S tattoos.   R remembered a large letter E on one forearm and a large letter S on the other forearm, both written in an “Old English” style.   S too saw the letters E and S on the shooter's forearms in what he described as an “Old English” gang-related style.   At trial, however, he testified that the letters on Avendano's forearms, as displayed during trial, differed from the “Old English” letters tattooed on the shooter.   Avendano admits he has tattoos of the letters E and S on his forearms but argues that the letters are not in “Old English” style.²

The three eyewitnesses disagreed whether the shooter had facial hair.   In their interviews with the police shortly after the murder S said the shooter had no facial hair, R said he had a beard, and G said he did not have a mustache but didn't mention whether he had other facial hair.

RoR testified that she witnessed the shooting from between 50 to 360 feet away.   She said the shooter was a bald, male Hispanic between 18 and 25 years of age.   She did not identify Avendano as the shooter at a live lineup or at trial.

C. Forensic Testimony

The deputy medical examiner who performed the autopsy testified that Torres was shot twice in the back.   The bullet that caused his death penetrated both his lungs and caused internal bleeding.   He testified that assuming Torres remained stationary after he was shot the first time, the position of the wounds was consistent with the shooter moving away from Torres or with Torres leaning forward at the time he was shot.

D. Gang Expert Testimony

The prosecution's gang expert, Detective Fernando Sarti, testified that in 2005 Avendano admitted his membership in the El Segundo 13 gang to the detective.   The gang uses the letters E and S on their graffiti and tattoos.   Of the gang's documented 80 members only Avendano and one other person are known to have the letter E tattooed on one arm and the letter S on the other.   But Sarti testified, the letters on Avendano's arms are outlined capital letters whereas the other person's are filled-in lower case letters.

Sarti stated that the primary activities of the El Segundo gang were sales of narcotics, vandalism, robberies, assaults, shootings, possession of firearms, and murder.   An El Segundo member was convicted of firearm possession in 2005 and another member was convicted of murder in 2006.

The question, “Where you from?” is a gang challenge to a potential rival found in territory claimed by the questioner's gang.   Sarti did not believe that the group Torres belonged to, Hoodlum Familia (HF), was a gang but was more likely a “tagging crew.”   Torres's punching Avendano in the face was a “sign of disrespect.”

The murder of Torres would benefit the El Segundo gang because it “creat[ed] fear within the community as well as rival gang members in the area.   It would elevate the status of that gang because it would show that that gang is willing to commit violent crimes in order to protect what they believe to be their neighborhood.”   Furthermore, committing a daylight murder in the park benefited the gang by publicizing its willingness to do violence in broad daylight in a public place.

E. Threats Against Witnesses

Both G and R testified that they had been threatened with harm.   G told the jury that a few weeks before trial someone called his home and told the person who answered the phone that if he testified “they” were going to “smoke” him.   G believed that the threat was directed at him.   As a result of the threat he was in fear for his and his family's safety, especially his little sisters' safety.

R explained that a stranger approached him as he stood outside a neighbor's house and threatened to “come after” him and his family if he testified.   The threat frightened him and as a result he and his family moved out of state.

F The Verdicts And Sentence

The jury convicted Avendano of the first degree murder of Torres and the attempted premeditated murders of R, G and S. As to each count, the jury found that in committing the crimes “Avendano personally and intentionally discharged a firearm, ․ which proximately caused great bodily injury to Victor Torres, within the meaning of Penal Code Section 12022.53(d)․”  The jury also found as to each count that Avendano committed the crime for the benefit of a criminal street gang “with the specific intent to promote, further or assist in criminal conduct by gang members within the meaning of Penal Code Section 186.22(b)(1)(c)․”

For the first degree murder of Torres (count 1) the court sentenced Avendano to 25 years to life plus a mandatory consecutive sentence of 25 years to life for the firearm enhancement.  (Pen.Code, § 12022.53, subd. (d).)  The court did not impose any additional sentence on the gang enhancement.  (See Pen.Code, § 12022.53, subd. (j).)

For the attempted murder of R (count 2) the court sentenced Avendano to a term, consecutive to count one, of life in prison with a minimum of 15 years based on the gang enhancement (Pen.Code, § 186.22, subd. (b)(5)) and a mandatory consecutive term of 25 years to life for the firearm enhancement under Penal Code section 12022.53, subdivision (d).

For the attempted murders of G (count 3) and S (count 4) the court imposed the same term as for the attempted murder of R (count 2) but imposed the terms concurrently with the sentence for count 2.

DISCUSSION

I. THE PHOTOGRAPHIC LINEUP

Prior to trial, Avendano moved to preclude the prosecution from introducing identification testimony from any witness who identified him in the photographic lineup.   He contended the lineup was unduly suggestive and would taint an in-court identification of him as the shooter.   Following a hearing the court denied the motion finding nothing in the six-pack of color photographs “makes [the defendant] stand out.”   In fact, the court noted, its attention was initially drawn to one of the other photographs.

In reviewing the trial court's decision to admit evidence of an extrajudicial identification upon a claim that the admission violated the defendant's right to due process we independently review the trial court's determination of the issue.   We determine if the identification procedure was unduly suggestive and, if so, “whether the identification was nevertheless reliable under the totality of the circumstances.”  (People v. Gonzalez (2006) 38 Cal.4th 932, 942.)

The photographic lineup consisted of six photographs of young Hispanic men with shaved heads and facial hair, including Avendano in position 1. Avendano argues that the lineup was unduly suggestive because four features immediately draw the viewer's attention to his photograph:  (1) his number one position in the lineup;  (2) only his photograph has a bright blue background;  the others have similar pale backgrounds;  (3) only his photograph appears recent and contemporary;  and (4) he is the only person with a full goatee and some men only have mustaches.

We do not agree that the lineup was unduly suggestive.   Considering the challenges to the lineup individually as well as together, and our own independent consideration of the lineup, we conclude that nothing “caused defendant to ‘stand out’ from the others in a way that would suggest the witness should select him.”  (People v. Carpenter (1997) 15 Cal.4th 312, 367.)   Avendano cites no evidence that witnesses are more likely than not to pick the person whose photograph appears in the number one position in a photographic lineup.   The blue background of Avendano's picture is not jarring given the blue-gray shirt and black undershirt that he is wearing.   All six men have shaved heads, facial hair, wear contemporary clothing and appear to be of similar age.   Two other men have goatees.   Although Avendano's goatee covers a little more of his chin than the other goatees, and some of the men only have mustaches, the differences between the facial hair of the subjects had no tendency to make Avendano stand out.   Because we find the photographs were not unduly suggestive we need not consider whether the identifications were nevertheless reliable under the totality of the circumstances.

II. FAILURE TO INSTRUCT ON SELF-DEFENSE

Avendano contends the trial court erred in refusing to instruct the jury on self-defense and imperfect self-defense.   We find no merit to his contention.

Homicide is justifiable when committed in a reasonable belief for the need to use deadly force in self-defense.  (People v. Randle (2005) 35 Cal.4th 987, 994.)   When, however, a person kills someone based on a genuine but unreasonable belief in the need to use deadly force in self-defense, the doctrine of imperfect self-defense applies to reduce the killing from murder to voluntary manslaughter.  “Imperfect self-defense is the actual, but unreasonable, belief in the need to resort to self-defense to protect oneself from imminent peril.”  (People v. Vasquez (2006) 136 Cal.App.4th 1176, 1178.) ³  A trial court is not required to instruct on a defense unless the defense is supported by substantial evidence.  (People v. Crew (2003) 31 Cal.4th 822, 835.)  “Substantial evidence is evidence of reasonable, credible value.”  (Ibid.) We review a court's refusal to give instructions de novo.   (People v. Waidla (2000) 22 Cal.4th 690, 733.)   In this case substantial evidence did not support giving instructions on either self-defense or imperfect self-defense.

Avendano contends that there was sufficient circumstantial evidence from which the jury could have found that he reasonably believed that he was in imminent danger and that the immediate use of deadly force was necessary.   Alternatively, he contends that, at minimum, the evidence was sufficient to support a jury finding that he actually, if unreasonably, believed he must act in self-defense.   He points to evidence he claims supports that he only fired at Torres and his companions after they threatened him:  (1) Torres asserted his allegiance to HF, a rival of Avendano's gang, challenged Avendano with the question “Where you from?” and struck him in the face;  (2) after Torres hit him, Torres's four companions got up off the bench indicating that they too meant to attack him;  (3) Torres's wounds were consistent with the shooter running away from Torres while firing the shots.   Based on this evidence Avendano maintains that a properly instructed jury could reasonably conclude that he was outnumbered and felt threatened by Torres and his companions and actually, reasonably or unreasonably, believed he needed to shoot at Torres and his companions in self-defense.

We disagree.   As our Supreme Court has explained:  “the ordinary self-defense doctrine-applicable when a defendant reasonably believes that his safety is endangered-may not be invoked by a defendant who, through his own wrongful conduct (e.g. the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified.  [Citations.]  It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances.”   (In re Christian S. (1994) 7 Cal.4th 768, 773, fn.1, italics in original.)   Here, the undisputed testimony showed the victims' conduct that Avendano cites to justify his shootings occurred after Avendano arrived at the park with a loaded gun, went straight to the bench where the youths were sitting, issued the traditional gang challenge, “Where you from?” and announced that the youngsters were in his “hood.”   Perhaps most importantly, the uncontroverted evidence also showed that Avendano was the first to use physical force-punching Torres as he sat on the picnic bench.   Because Avendano was indisputably the aggressor, he cannot invoke either the doctrine of self-defense or imperfect self-defense.

III. DEFENSE COUNSEL'S FAILURE TO REQUEST AN

INSTRUCTION ON PROVOCATION

At defense counsel's request, the court instructed that provocation could reduce murder to voluntary manslaughter and attempted murder to attempted voluntary manslaughter.   Defense counsel, however, did not request an instruction that provocation may also reduce murder from first to second degree or may reduce premeditated attempted murder to attempted murder, and the court did not give such instructions.   Avendano concedes that the court did not have a duty to give a reduction in degree instruction on its own motion (People v. Rogers (2006) 39 Cal.4th 826, 877-878), but argues that his attorney's failure to request the instruction denied him effective assistance of counsel.   We conclude that even if counsel should have requested the instruction, his failure to do so was harmless.

Ineffective assistance of counsel is only prejudicial if it is reasonably probable that the result would have been different absent counsel's error.   (Strickland v. Washington (1984) 466 U.S. 668, 694, 696.)   No such probability exists in this case.

The court instructed the jury “[a] decision to kill made rationally [sic], impulsively, or without careful consideration is not deliberate and premeditated.” ⁴  This instruction permitted the jury to find provocative conduct on the part of the victims precluded deliberation and premeditation on the part of Avendano.  (People v. Rogers, supra, 36 Cal.4th at p. 880.)

Further, the evidence of premeditation and deliberation was strong.   Avendano arrived at the park with an already loaded gun.   He immediately proceeded to verbally provoke the youths sitting on the picnic bench, punched Torres and then shot him.   The gun jammed on his first attempt to shoot Torres, affording him the opportunity to reconsider his intent to commit murder.   Avendano cleared the jam and shot Torres in the back and fired at Torres's companions as they fled.

IV. FAILURE TO INSTRUCT OR REQUEST INSTRUCTION ON

THREATS TO WITNESSES

G and R testified that unknown persons threatened them with death and harm to their families if they testified.   Avendano argues the court erred in not instructing the jury sua sponte on how to assess and apply this testimony and in the alternative that his counsel was inadequate in not requesting such an instruction.⁵  The argument that the court should have given the instruction sua sponte fails because our Supreme Court has held that the trial court has no categorical duty to give such an instruction on its own.   (People v. Najera (2008) 43 Cal.4th 1132, 1139.)   Avendano has not convinced us that the facts of this case fall within any exception.

Even if defense counsel should have requested an instruction on this issue the failure was harmless.   The court instructed the jury during G's testimony that the evidence of a threat against him was not being offered to prove someone would actually harm G if he testified but only “to show any effect [the threat] might have on the listener or their state of mind or any other reason as relates to their testimony.”   Presumably the jury understood this same instruction applied to the evidence of a threat against R. In closing argument, the prosecutor relied on the threat evidence only to explain G's and R's states of mind, not to show that Avendano was responsible for the threats.   Thus, he told the jury that given the threat against G and his family, G would not have testified against Avendano unless he was certain of what he heard and saw.

Furthermore, it is not reasonably probable that Avendano would have obtained a better result had the court given the instruction.  (Strickland v. Washington, supra, 466 U.S. at pp. 694, 696.)   Strong evidence showed that Avendano was the shooter.   G and R identified Avendano in a photographic lineup a month after the shooting and again at trial.   Avendano's physical appearance resembled the description of the shooter given by G, R and S immediately after the event-a bald, light-skinned Hispanic male with a large E tattooed on one forearm and a large S tattooed on his other forearm.   Moreover, Avendano was the only member of the El Segundo 13 gang known to the police who had the capital letters E and S tattooed on his forearms.   Similarly, as discussed in Part III, strong evidence supported the finding of premeditation and deliberation.

V. EVIDENCE OF SPECIFIC INTENT TO PROMOTE, FURTHER

OR ASSIST CRIMINAL CONDUCT BY GANG MEMBERS

Avendano contends insufficient evidence supports the Penal Code section 186.22, subdivision (b)(5) gang enhancements.   He does not challenge the jury's finding that he committed the murder and attempted murders “for the benefit of [a] criminal street gang.”  (Pen.Code, § 186.22, subd. (b)(1).)   Rather, he contends there was insufficient evidence to support the jury's finding that he acted with “the specific intent to promote, further, or assist in any criminal conduct by gang members.”  (Ibid.) We disagree.

The promote/further/assist element of the enhancement is satisfied by proof that the defendant intended to promote, further or assist a gang in its primary activities, including the criminal offenses it customarily engages in.   (People v. Romero (2006) 140 Cal.App.4th 15, 19.)

The prosecution's gang expert testified that the primary activities of the El Segundo 13 gang were sales of narcotics, vandalism, robberies, assaults, shootings, possession of firearms, and murder.   The jury could reasonably infer that by murdering Torres and attempting to murder his companions, Avendano, a member of the gang, assisted the gang in one of its primary activities-committing murders.   The jury could also reasonably infer that by invoking his gang's name and committing the crimes in public in broad daylight in the gang's claimed territory, Avendano specifically intended to “promote, further [and] assist” his gang's future criminal conduct by fostering fear in the community that opposing the gang could result in deadly retribution.⁶

VI. THE FIREARM ENHANCEMENTS FOR THE

ATTEMPTED MURDERS

Avendano contends that the evidence does not support the jury's finding that “in the commission of” the three attempted murders he personally discharged a firearm causing great bodily injury or death.  (Pen.Code, § 12022.53, subd. (d);  hereafter referred to as subdivision (d).)  Alternatively, he argues the court erred in not instructing the jury sua sponte on the proximate cause element of subdivision (d).⁷

It is undisputed that the victims of attempted murder, R, G and S, suffered no injuries.   That does not necessarily mean, however, that the subdivision (d) enhancements cannot apply to the attempted murder sentences.   A firearm is discharged “in the commission of” a felony within the meaning of subdivision (d) “if the underlying felony and the discharge of the firearm are part of one continuous transaction, including flight after the felony to a place of temporary safety.”  (People v. Frausto (2009) 180 Cal.App.4th 890, 902.)

In People v. Frausto, the court held that where a defendant was convicted of one count of murder and two counts of attempted murder, the death of one victim supported imposition of the subdivision (d) enhancement with respect to the attempted murder of the other two victims because “[a] reasonable trier of fact could find that the shootings were part of one continuous transaction.”   (180 Cal.App.4th at p. 903.)   The court relied on People v. Oates (2004) 32 Cal.4th 1048, 1052-1056, which held that a single injury supports multiple subdivision (d) enhancements because the enhancement applies to the great bodily injury or death of “any person” and is not limited to the harm done to a particular victim.

Here the verdict forms with respect to all the subdivision (d) enhancements referred to “great bodily injury to Victor Torres.”   Thus, it was the death of Torres that formed the basis for the enhancements in the attempted murder counts involving victims R, G and S. As in Frausto, the question is whether substantial evidence supported the enhancement on each count of attempted murder based on the death of a single victim.  (People v. Frausto, supra, 180 Cal.App.4th at p. 903.)

The jury heard a recording of R's police interview shortly after the shootings in which he stated that the shooter cocked the gun and “aimed at Victor and he got him in the chest, I think.”   The shooter then “aim[ed]” at R and the others and shot at them but missed.   At trial, R testified that after shooting Torres, the shooter ran back toward his car and as he ran “he stopped, he looked at us, [and] started shooting at us.”

S, who was also questioned by the police shortly after the shootings, stated in an interview presented to the jury that after the perpetrator shot Torres, he and his friends started running and the perpetrator “just started shooting all crazy.”

Thus, contrary to Avendano's contention, the murder of Torres and the attempted murders of his companions were part of one continuous transaction either on the theory that Avendano harbored malice toward them all or that he attempted to murder the companions to eliminate witnesses to the murder of Torres and to assist in his escape.  (Cf. People v. Frausto, supra, 180 Cal.App.4th at pp.   902-903.) ⁸

Avendano contends the jury should have been instructed on “whether the subsequently fired shots at [G, R, and S], which were the subject of the attempted murder counts, proximately caused anyone's great bodily injury.”   The contention is based on the premise that the enhancement does not apply, at least under the facts of this case, unless one of the shots fired at the three victims of the attempted murders caused bodily injury.   Because the contention is based on a premise we have rejected, we do not further discuss it.

DISPOSITION

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. The fourth companion, N, left the park immediately after the shooting.   He did not testify at trial and, although Avendano was charged with attempting to murder N, the jury found Avendano not guilty of that charge..  FN1. The fourth companion, N, left the park immediately after the shooting.   He did not testify at trial and, although Avendano was charged with attempting to murder N, the jury found Avendano not guilty of that charge.

FN2. A picture of Avendano's arms admitted into evidence shows a capital letter E on one forearm and a capital letter S on the other.   The letters are formed by the outline of scimitar-like knife blades running approximately the full length and half the width of each forearm.).  FN2. A picture of Avendano's arms admitted into evidence shows a capital letter E on one forearm and a capital letter S on the other.   The letters are formed by the outline of scimitar-like knife blades running approximately the full length and half the width of each forearm.)

FN3. Likewise, attempted imperfect self-defense is a lesser included offense of attempted murder.  (People v. Villanueva (2008) 169 Cal.App.4th 41, 52-53.).  FN3. Likewise, attempted imperfect self-defense is a lesser included offense of attempted murder.  (People v. Villanueva (2008) 169 Cal.App.4th 41, 52-53.)

FN4. The written version of CALCRIM No. 521 uses the word “rashly” not “rationally” and the jurors took the written version with them to the jury room.   Defense counsel did not object.   Avendano does not contend the court's error was prejudicial and we do not believe that it was..  FN4. The written version of CALCRIM No. 521 uses the word “rashly” not “rationally” and the jurors took the written version with them to the jury room.   Defense counsel did not object.   Avendano does not contend the court's error was prejudicial and we do not believe that it was.

FN5. CALCRIM No. 371 instructs the jury in relevant part that:  “If someone other than the defendant tried to ․ conceal or destroy evidence, that conduct may show the defendant was aware of [his] guilt, but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person's actions.   It is up to you to decide the meaning and importance of this evidence.”.  FN5. CALCRIM No. 371 instructs the jury in relevant part that:  “If someone other than the defendant tried to ․ conceal or destroy evidence, that conduct may show the defendant was aware of [his] guilt, but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person's actions.   It is up to you to decide the meaning and importance of this evidence.”

FN6. We have found no merit in any of defendant's claims of error on the part of the court.   Accordingly, there can be no cumulative effect warranting reversal.  (People v. Lewis (2001) 25 Cal.4th 610, 635.)   Possible errors by defense counsel do not warrant reversal singularly or collectively..  FN6. We have found no merit in any of defendant's claims of error on the part of the court.   Accordingly, there can be no cumulative effect warranting reversal.  (People v. Lewis (2001) 25 Cal.4th 610, 635.)   Possible errors by defense counsel do not warrant reversal singularly or collectively.

FN7. Penal Code section 12022.53, subdivision (d) states in relevant part:  “Notwithstanding any other provision of law, any person who, in the commission of [attempted murder] personally and intentionally discharges a firearm and proximately causes great bodily injury ․ or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.”.  FN7. Penal Code section 12022.53, subdivision (d) states in relevant part:  “Notwithstanding any other provision of law, any person who, in the commission of [attempted murder] personally and intentionally discharges a firearm and proximately causes great bodily injury ․ or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.”

FN8. Avendano argues Frausto was wrongly decided insofar as it held that “one continuous transaction” could include the murderer's escape because murder “is not a continuing offense.”  (People v. Frausto,supra, 180 Cal.App.4th at p. 902.)  Frausto did not hold murder is a continuing offense.   It correctly held that attempted murder in the course of escaping after a murder could be part of “one continuous transaction.”   (Ibid., italics added.).  FN8. Avendano argues Frausto was wrongly decided insofar as it held that “one continuous transaction” could include the murderer's escape because murder “is not a continuing offense.”  (People v. Frausto,supra, 180 Cal.App.4th at p. 902.)  Frausto did not hold murder is a continuing offense.   It correctly held that attempted murder in the course of escaping after a murder could be part of “one continuous transaction.”   (Ibid., italics added.)

CHANEY, J. JOHNSON, J.