People v. Moreno CA4/2
E075373
| Cal. Ct. App. | Oct 21, 2021Background
- Defendant David Moreno approached and confronted several men in Ontario parks; he cut A.F.’s neck, slashed J.V.’s throat, and later confronted A.R. while a steak knife was in his right front pocket.
- Officers recovered a steak knife on Moreno and another fixed-blade knife in the girlfriend’s car.
- Moreno was acquitted of attempted murder of A.F., convicted of attempted murder of J.V., two counts of assault with a deadly weapon (A.F. and J.V.), carrying a concealed dirk or dagger, and gang and priors enhancements.
- The jury found the attempted murder of J.V. was willful, deliberate, and premeditated; found weapon and great-bodily-injury enhancements true.
- Moreno testified he acted in response to provocation and disputed victim accounts; he asked for a self-defense instruction as to A.F. but the court refused.
- The trial court instructed the jury with CALCRIM No. 372 (flight); Moreno challenged the refusal to give self-defense, sufficiency of evidence for assault on A.F. with a deadly weapon, and the flight instruction. Judgment (89 years to life) affirmed.
Issues
| Issue | People’s Argument | Moreno’s Argument | Held |
|---|---|---|---|
| Whether the court erred by refusing a self-defense instruction as to count 3 (A.F.) | No—Moreno’s testimony showed he initiated the scuffle, so no substantial evidence of justifiable self-defense. | Moreno requested self-defense instruction; his testimony that he lunged after being belittled supported a reasonable belief of danger. | No error—court properly declined; defendant’s own wrongful initiation of the altercation precluded ordinary self-defense. |
| Whether evidence was sufficient to support assault on A.F. with a deadly weapon (§ 245(a)(1)) | Yes—the object resembled a hatchet/knife, was used in a swinging manner toward the neck, and victim testified he only avoided serious injury by dodging. | Insufficient—victim did not know what the object was and suffered only minor wounds, so it was not shown to be capable of producing great bodily injury or death. | Sufficient—viewing the record in favor of the verdict, the object was used in a manner capable of causing death or great bodily injury; minor injuries do not negate assault with a deadly weapon. |
| Whether CALCRIM No. 372 (flight) was proper and lawful | Proper—flight from scenes was probative of consciousness of guilt and instruction is permissible when supported by evidence. | Improper—CALCRIM No. 372 is argumentative, undermines presumption of innocence, and lessens prosecution’s burden. | No error—flight instruction appropriate here; prior authority rejects Moreno’s attacks on CALCRIM No. 372. |
Key Cases Cited
- People v. Montoya, 7 Cal.4th 1027 (trial courts must instruct on defenses supported by substantial evidence)
- In re Christian S., 7 Cal.4th 768 (aggressor who creates dangerous circumstances cannot invoke ordinary self-defense)
- In re Raymundo M., 52 Cal.App.5th 78 (definition and application of "deadly weapon" for § 245(a)(1))
- In re B.M., 6 Cal.5th 528 (victim’s successful avoidance of harm does not defeat deadly-weapon assault)
- People v. Leon, 61 Cal.4th 569 (flight evidence may show consciousness of guilt; CALCRIM No. 372 proper when supported by facts)
- People v. Lindberg, 45 Cal.4th 1 (standard of review for sufficiency of evidence)
- People v. Conner, 34 Cal.3d 141 (definition of substantial evidence)
- People v. Chance, 44 Cal.4th 1164 (assault can occur even if injury is prevented by victim’s actions or environment)