PEOPLE v. BORBON (1993)

Delma Delia Borbon (Delma) appeals following a jury trial which convicted her of murder in the second degree.   She argues on appeal that in addition to the six theories of homicide upon which the jury was instructed, the court was also obliged to instruct on two additional theories never raised below.   We reject these contentions, and affirm.

BACKGROUND

1. ARIZPE AND SONOYTA—A TALE OF TWO SONORAN TOWNS

Arizpe is a small colonial town high up in the Sonora mountains, about half way between Hermosillo and the border crossing at Douglas, Arizona.   In the past, when the gold mines were still working, it has twice been the capital of Sonora.   Today only about 3,000 people live in Arizpe.

Delma was born in Arizpe in 1960.   Jose Velarde (Jose), Delma's mother's brother, has lived in Escondido, California for 30 years.   In 1977 Delma came to Escondido from Arizpe to live with her uncle, becoming also his lover.   In 1991 they lived in Jose's house at 1233 Rock Springs Road.

For some time the two had problems in their relationship.   On a car trip back to Arizpe in August 1991, matters came to a head when Delma ignored Jose's directions not to dance with others at a party.   They quarreled.   Delma flew back to Tijuana, and then drove to Escondido.

Sonoyta (sometimes spelled Sonoita) is a small town in the Sonoran desert just below the border with Arizona, on the road between Mexicali and Hermosillo.   On August 12 Jose left Hermosillo to drive back to San Diego.   He stopped for breakfast in Sonoyta at the “Loncheria Mena,” a food stand operated by 20–year–old Manuela Rodriguez (Manuela).  (“Mena” is a diminutive of “Manuela”.)

Jose remained with Manuela and her family for the day, taking them to the beach at Puerto Penasco, on the Sea of Cortez.   Manuela had never visited the United States, and wanted very much to see Disneyland.   Her father gave Manuela permission to go to the United States with Jose for a couple of weeks.   Jose and Manuela drove to Tecate.   They spent the night in a motel (and had sex) before going to the Escondido home where Jose had lived with Delma.¹

2. DEATH ON AN ESCONDIDO AFTERNOON

On August 11 Delma moved most of her belongings out of the house she had shared with Jose.   Manuela and Jose came back on the morning of August 13.   Jose showed Manuela his house, including a shotgun under a bed in a bedroom.   (Jose testified he kept the shotgun unloaded.)   Jose went to work about three o'clock in the afternoon.   Sometime shortly after Jose left the house, Delma entered, using her own key.   There she encountered Manuela.

The only witness to the events which followed is Delma.   According to her, Manuela began to yell at her and tore her blouse.  (In a photograph of Delma taken later, there was no visible damage to her blouse.)   Delma claimed that Manuela struck her.  (Although Manuela's body had abrasions apart from those inflicted by the shotgun, there were no visible injuries to Delma a few hours later.)

The heart of Delma's defense was the assertion Manuela also stated, “I'll kill you” and went into the kitchen, from where Delma feared she obtained a knife, although admitting that when Manuela confronted her in the bedroom, she held a plastic glass of water, not a weapon.

Delma also claimed she went to retrieve the shotgun in fear for her life, Manuela jumped on her back, Delma threw her off, grabbed the shotgun, and fired, hitting Manuela in the back.  (This wound, which shattered several ribs, would not have been fatal.)

In a revealing phrase, Delma told police that Manuela was trying to rise “to defend herself,” and she fired again.  (A second non-lethal shotgun blast hit Manuela in the left hip, but did not penetrate vital organs.)   As Manuela still kept on moving, Delma fired a third round at point-blank range into Manuela's throat, essentially destroying it.   This wound caused Manuela's death.

In all versions of her story, Delma insisted that she had acted in fear for her life, that is, that her firing of three shotgun blasts into her unarmed victim was an act of self-defense.   The jury did not agree, returning a verdict that Delma was guilty of second degree murder, and also making a true finding of firearms use.

DISCUSSION

Delma shot Manuela three times with a shotgun.   She first shot her victim in the back, then her left hip, and Delma's third blast tore her unarmed victim's throat open.   Delma now first contends that shooting at another person with a shotgun is not “inherently dangerous.”   She next argues there was evidence from which a properly instructed jury could have found she was merely overreacting, rather than acting with the intent to kill.   We disagree.

I. INHERENT DANGER

 Counsel for Delma maintains the conviction should be reversed because the trial court should have instructed sua sponte that the killing could be found to be no more the involuntary manslaughter, that is, a homicide occurring in the commission of the non-inherently dangerous felony of assault with a firearm.   This argument presumes, of course, that assault with a firearm is not inherently dangerous, or “an offense carrying ‘a high probability’ that death will result.”  (People v. Patterson (1989) 49 Cal.3d 615, 627, 262 Cal.Rptr. 195, 778 P.2d 549.)   This foundational assumption is incorrect.

Counsel's argument is that an assault with a firearm could be committed by merely beginning to draw a pistol, for example.   Because beginning to draw a pistol does not carry a high probability death will ensue, under the reasoning of a sharply divided court in Patterson, we may not find assault with a firearm to be an inherently dangerous felony.   The argument may not be sustained, whether we reason from simple observation or statutory analysis.

The vast majority of homicide victims (as in this case) die from the effects of gunshot wounds.²  That is, death is a result of the (successful) attempt to inflict violent injury with a firearm.   Statistically, no other felony has such “ ‘a high probability’ that death will result” as this.   (People v. Patterson, supra, 49 Cal.3d at p. 627, 262 Cal.Rptr. 195, 778 P.2d 549.)

Thus, as a matter of principle, because assault with a firearm is a part of the great majority of homicides, it must necessarily be inherently dangerous, or the term has no meaning whatsoever.   In essence, Borbon argues that the particular felony which is (among all others) most highly associated with homicide is not inherently dangerous.   To state the argument thus, obviously, is to refute it.

We reach the same result from consideration of the statutory language defining the offense.   An “assault” is “an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another.”  (Pen.Code, § 240.)   Assault with a firearm thus inherently involves using a firearm to attempt infliction of a “violent injury” upon another, that is, shooting at another.   Using a firearm to inflict a “violent injury” is thus necessarily inherently dangerous, that is, it is (in the abstract) a felony with a sufficiently high risk that death will result.

Previous (post-Patterson ) cases from this court also support, if they do not mandate, this conclusion.   In People v. Pearch (1991) 229 Cal.App.3d 1282, 1297–1299, 280 Cal.Rptr. 584, we held kidnapping to be such an “inherently dangerous felony” as would support a conviction of second degree felony murder.   There we stated that kidnapping is “fraught with violence—either the actual use of physical force or the threat of physical harm.”   (Id. at p. 1297, 280 Cal.Rptr. 584.)

Pearch referred only to the “threat of physical harm,” a point we recognized in People v. Johnson (1993) 15 Cal.App.4th 169, 173–174, 18 Cal.Rptr.2d 650, where we held that a violation of Vehicle Code section 2800.2 (fleeing from police with wanton disregard for safety of others) was an inherently dangerous felony.   We noted there that while a kidnapping presents a threat of such harm to the victim, “fleeing from police in wanton disregard of others carries with it as a likely consequence the possibility of massive physical harm, albeit to an as-yet unidentified victim.   Like discharging a firearm at random in a crowd, an evasion of arrest by use of a vehicle in wanton disregard for others is ‘fraught with violence.’ ”  (Id. at p. 174, 18 Cal.Rptr.2d 650, italics added.)

While our reference to discharging a firearm at random is admittedly dicta, today we hold directly that an assault with a firearm is “fraught with violence,” and in a far more immediate sense.   Even when considered in the abstract, it is difficult to conceive of any act more likely to present a danger to life than assault with a firearm.   Thus the felony committed by Delma was inherently dangerous.³

Because the basis for Delma's argument is incorrect, we reject the assertion on which it is premised.   There was no legal basis for the suggested instruction, and thus there was no error in failure to instruct sua sponte as suggested.

II. EXCESSIVE FORCE

 Delma next argues there was substantial evidence from which a properly instructed jury could have found that she merely overreacted to the perceived threat, and thus she could be found to have committed only manslaughter rather than murder.   Specifically, Delma argues the jury should have been instructed that if it found she used excessive force in self-defense, the resulting homicide was only a manslaughter.   The contention is without merit.

The problem here is that no such defense was offered at trial,⁴ and thus there was no such evidence before the jury.   The evidence offered by Delma at trial was that she acted in fear for her life, believing that Manuela was armed with a knife (although Delma didn't see it).   In other words, the asserted justification was total, not partial.

At no point did Delma suggest she might have acted in an injudicious or excessive fashion by pumping the second or third shotgun blasts into her unarmed victim's body.   Delma insisted throughout that her acts constituted justifiable self-defense, whether reasonable or not.   Indeed, the jury instruction now requested would have undermined the defense offered at trial.   The trial court had no sua sponte duty to instruct on a theory which was unsupported by any evidence, and was also inconsistent with the offered defense.  (See, e.g., People v. Schultz (1987) 192 Cal.App.3d 535, 539, 237 Cal.Rptr. 513;  People v. Callan (1985) 174 Cal.App.3d 1101, 1112, 220 Cal.Rptr. 339.)

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Jose later told Delma that he had brought Manuela into his house because Delma had left him, and he needed someone to take care of him, and to take care of the house.

2.   Over the six-year period from 1987 to 1992, the proportion of homicides committed by use of a firearm increased from 59.5 percent (1987) to 72.9 percent (1992), while the percentage of homicides using knives decreased from 20.4 (1987) to 14.0 (1992).   In general, the use of firearms in homicide has steadily increased, while the use of all other weapons in homicide has steadily declined.  (Crime & Delinquency in Cal.—Cal. Crime Index, 1987–1992, Cal.Dept. of Justice, Refer. Table 3, p. 108.)

3.   We must also note that a seminal case in this area, People v. Ireland (1969) 70 Cal.2d 522, 538, 75 Cal.Rptr. 188, 450 P.2d 580, found no error in instructing that assault with a firearm was an inherently dangerous felony, and subsequent cases citing and explaining Ireland (see, e.g., People v. Smith (1984) 35 Cal.3d 798, 802–808, 201 Cal.Rptr. 311, 678 P.2d 886) have reiterated this assumption.   Also, even were assault with a firearm somehow deemed to be not inherently dangerous, for all of the reasons set forth in People v. Ireland, supra, 70 Cal.2d at pp. 538–539, 75 Cal.Rptr. 188, 450 P.2d 580, because the conduct in point was an integral part of the homicide, any instruction thereon as an alternate basis for liability would be improper.

4.   The legal premise is also incorrect.   If Delma had testified, for example, that she merely feared an assault with fists by Manuela, then her shooting Manuela three times with a shotgun would necessarily have been a wholly unjustified but intentional use of deadly force.   Another view might have excused the first shot, but not the second and third rounds.   These are simply other ways of saying the resulting offense constitutes a murder, not a manslaughter.   For the reasons which follow, however, we need not and do not resolve the question on this ground.

NARES, Associate Justice.

KREMER, P.J., and BENKE, J., concur.