THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS RODARTE, Defendant and Appellant.
No. B239963
Second Dist., Div. One.
Feb. 13, 2014.
223 Cal. App. 4th 1158
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS RODARTE, Defendant and Appellant.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
JOHNSON, J.—Juan Carlos Rodarte appeals his conviction of one count of attempted murder (
Defendant argues the trial court erred in failing to instruct on the defense of imperfect self-defense on count 2 charging him with shooting from a motor vehicle under
Defendant and the victim, Jesus Ayala, were both involved with Sonia Manzo at different times. Manzo had two children, a son, Raymond, who is defendant‘s child, and a daughter, Maritza, who is Ayala‘s child. On the night of December 23, 2008, defendant shot Ayala from his car, seriously injuring Ayala. Defendant claimed that he was afraid Ayala had a weapon and was going to harm him.
In an information filed November 22, 2010, and amended September 22, 2011, and December 7, 2011, defendant was charged with one count of attempted murder (
1. The Shooting
Alfredo Martinez has known the victim, Ayala, since high school and considered Ayala to be a good friend. Next to Ayala‘s house is an alleyway. At 7:00 p.m. on December 23, 2008, Martinez was with Ayala in Ayala‘s car with Manzo and her sister Ericka. The car had no front passenger seat, so Martinez, Manzo, and Ericka were all in the backseat. Ayala drove his car into the alley and parked it. Ayala went into the house, leaving the three seated in the backseat in the car.
A white car pulled up next to the car. Defendant was the driver. Defendant, who was “furious,” told Manzo to get out of the car. Defendant was waving a gun. Martinez got out of the car. Ayala came out of his house and walked up to defendant‘s car. Ayala did not say anything.3 Ayala‘s hand touched the window. Defendant shot once at Ayala. Ayala fell to the ground, and defendant drove off.
2. Ayala
Ayala testified that he became involved with Manzo in October 2006. He knew Manzo had a baby boy, Raymond, with defendant. He was in a relationship with her until April 2007. They had problems with defendant. During this time, Ayala saw Raymond nearly every day because Raymond would be with Manzo. Defendant told Ayala to “back away” from Manzo because she was the mother of defendant‘s child. Manzo went back and forth between defendant and Ayala. As a result, Ayala ended his relationship with Manzo. Ayala found out that right after they broke up, Manzo was back with defendant.
Ayala was not present for his daughter‘s birth because at the time he did not believe the child was his. Manzo was asking for his help with the child, so he had a paternity test and found out the child was his. As a result, Ayala wanted more visitation with his daughter. On one occasion, he went to defendant‘s house, where Manzo was living, to visit his daughter when she was about four or five months old. Ayala took his grandmother with him to avoid problems. Before this visit, Ayala had not had any in-person contact with defendant. His grandmother got out of the car to speak to defendant. Ayala did not go in to avoid problems with defendant.
In early 2008, he began a “visitation custody battle” with Manzo. From January to May of 2008, Manzo would bring Maritza to Ayala‘s house to visit. Their relationship was friendly, and he also saw Raymond during this time. In July 2008, Manzo brought Maritza to Ayala‘s house and began to stay with him. However, she would go away for a few weeks and then come back. At times, Manzo lived in a domestic violence shelter. When Ayala served Manzo with the custody papers, she did not take it well. She would not let him see Maritza. Ayala obtained visitation rights and visited Maritza during the period she resided at defendant‘s house. Ayala and Manzo would meet in a public place so that Ayala could avoid defendant.
Sometime after Maritza was born, Manzo and Ayala had an argument because she came to his house and told him that defendant had hit her. Manzo wanted to go back to defendant‘s house, and Ayala burned her with an iron. This was the only time Ayala physically attacked Manzo.
On Ayala‘s 21st birthday in October 2008, defendant‘s family (defendant and his aunt and uncle) came to his house and tried to take Raymond, but Ayala told them that Manzo did not want them to take him. Ayala stated it was his birthday and he did not want any problems.
Defendant was “yapping” at Ayala, who “yapp[ed]” back at defendant. Defendant left driving a white car. Usually defendant drove a black Lincoln. Ayala, Martinez, Manzo and Ericka left for Ayala‘s house. Their plan was to smoke some marijuana and get high. Ayala went inside, but the others remained in the car.
Before he went back outside, he heard arguing from afar, but he could not tell who it was. When he reached the alley, he was approached by defendant, who was driving a white car. Defendant put out his arm, said, “What‘s up, homey?,” and pulled the trigger. Ayala was not holding anything, nor was he with anybody. Ayala felt the “life getting sucked out of [him].” Defendant never got out of the vehicle before he drove away. Ayala fell to the ground, but he could not get back up. He denied telling defendant to “get the fuck out of here.” Instead, he said, “What are you doing here?” in a surprised fashion. Ayala denied threatening defendant at any time. The only time he challenged defendant to a fight was when Manzo came to his house “beat up.” Ayala told defendant, “You like to hit girls, you know. Well I‘m not a girl. I‘m a guy. Why don‘t you hit me?”
Ayala denied he used to drive by defendant‘s house “a lot” to see if his daughter was there so he could pick her up. He never went up to defendant‘s front door.
In 2007, he drove on defendant‘s street three times. He was taking Manzo to pick up her clothes and baby things. In 2008, he drove by defendant‘s house once to pick up clothes.
3. Defendant
Defendant testified on his own behalf. Defendant began a relationship with Manzo in October 2004. Raymond was born in March 2006. Around October 2006, Manzo stopped seeing defendant and began to see Ayala. When Ayala‘s daughter was born, defendant was still seeing Manzo. They planned to get married. At first, he thought Maritza was his child.
Defendant did not know Ayala outside of his relationship with Manzo. He learned about Ayala after his parents followed Manzo to Ayala‘s house. Problems began with Ayala when Maritza was born and Ayala came to defendant‘s house with his grandmother. Ayala did not make any threats to defendant at this time. The first time Ayala threatened him was when he went to Ericka‘s house to pick up some clothes. While defendant was waiting outside, Ayala pulled up with a friend and parked right next to defendant. Ayala‘s friend approached defendant with a bat. Ayala said, “B and G gang.” Defendant understood this to mean that Ayala was from a gang. When defendant saw the bat, he left.
The second incident occurred at the burger stand around the corner from Ayala‘s house. Defendant had come to pick up Manzo from a visit with Ayala and Maritza, and after Manzo got in defendant‘s car, Ayala came up to the car and started hitting the window. Defendant drove off. Defendant‘s sister told him Ayala had threatened her and told her he would put a bullet through her head. Ayala told Manzo he wanted to kill defendant. Defendant was scared. Manzo told him Ayala had a gun, although defendant never saw Ayala with a gun. Defendant‘s sister had seen Ayala point a gun at their house.
Manzo told defendant that Ayala had kidnapped her. One time she came back and her hand was burned, she was bruised, and her front hair was cut off. Ayala would drive by defendant‘s house and throw gang signs. As a result of Ayala‘s threats, defendant went and got a gun.
On December 23, 2008, Manzo was living with defendant. Raymond lived with them, but Maritza lived with Ayala. In the evening, defendant was at Ericka‘s house with Manzo. Ayala arrived, but Manzo did not want to see him so they did not let Ayala in. Ayala kept ringing the doorbell, and Manzo went outside to talk to Ayala. When she came back in, defendant told her he was not going to leave. Ericka suggested that defendant leave because it was Ericka‘s foster home and she did not want trouble. Manzo told defendant that Ayala would not let her leave with defendant, and told defendant to take
Defendant decided to return for Manzo. Defendant took his sister‘s car. He was afraid so he took his gun. He went to Ericka‘s house but she was not home. He went to Ayala‘s house and drove through the alley. No one was there, so he drove around and went through the alley again. He saw Ayala pull up in the alley. Earlier that day, Ayala had chased defendant and Manzo for several blocks as they were driving around. Ayala and the friend he was with were throwing gang signs. When he drove through the alley the second time, Ayala was not there. Defendant tried to get Manzo out of the car, and said, “Come on. Let‘s go.” Defendant did not yell at her. Manzo started to get out of the car. Ericka said, “No. I want to smoke weed.” Martinez got out of the car and approached defendant, saying, “What‘s up?” “You going to do something?” Defendant reached for the glove box, which contained his gun. The gun would have been visible to someone outside the car, and Martinez saw the gun and pulled back. Defendant left the gun in the glove box, and did not take it out or wave it around. Defendant asked Martinez who he was and where he was from.
Defendant believed Ayala had gone to get a gun and stated, “Because I knew. Because like I said, when I came back [to the alley again] and I didn‘t see him. . . . I know he [saw] me because I was at the end of the alley. [¶] If I [saw] him through my rearview mirror, I knew he [saw] me coming. He was coming towards me. So I know—he knows all of the cars.” Defendant believed Ayala knew all of the cars that defendant drove. Defendant shook Martinez‘s hand, and heard the door to Ayala‘s home slam. Defendant started driving and by the time he got to the curb Ayala was close by and coming towards defendant with his hands under his shirt and down his pants. Ayala said aggressively, “Oh you and me, homeboy. What‘s up? What‘s up?” Defendant thought Ayala was going to shoot him. When Ayala got close, defendant grabbed the gun and shot him. Ayala fell to the ground, and defendant, who was scared, left.
Defendant denied throwing gang signs at Ayala.
In August or September 2008, Ayala allegedly kidnapped Manzo. At that time, she was living at the domestic violence shelter. Defendant denied hitting Manzo or kicking her. Defendant did not call the police even though
4. Manzo
Manzo met defendant when she was 17. Maritza was born in 2007. Ayala had threatened to kill defendant the time Ayala burned her with the iron. She told defendant almost everything Ayala did to her, and told him about the threat to kill him. Ayala would beat her and have sex with her when she did not want to. When Ayala kidnapped her in 2007, he grabbed her at defendant‘s house, shoved her in the car, and took her to his house. Ayala also cut her hair against her will. Manzo told defendant that Ayala had a gun that she had seen in Ayala‘s closet.
While waiting in the alley for Ayala to come back outside with a joint, she saw defendant‘s sister‘s car pull up. Defendant started talking to Martinez. The two men did not seem angry. Manzo did not see a gun. Ayala came out of the house with his hands in his pants pockets. Ayala said, “What‘s up?” to defendant, but defendant did not respond. She ducked and heard a shot fired. She looked up, defendant drove off, and Ayala was on the ground.
Defendant‘s sisters and brothers also testified concerning threats Ayala made to defendant.
The jury convicted defendant of all three counts, and found the gun use allegations true. The trial court sentenced defendant to 30 years to life, plus life, consisting of life on count 1, plus a 25-year-to-life gun enhancement under
DISCUSSION
Defendant argues the trial court erred in refusing to instruct on imperfect self-defense as a defense to the charges of shooting from a vehicle (
A. Factual Background
Defendant requested a jury instruction on imperfect self-defense as applied to shooting from a motor vehicle (counts 2 and 3). Defendant requested the court to modify CALCRIM No. 968 to include the definition of imperfect self-defense, stating he did not have a lesser included offense instruction to propose. The court denied the request.
The jury was instructed on perfect self-defense and imperfect self-defense on count 1.
During deliberations, the jury asked whether they had to reach a verdict on counts 2 and 3 if they could not reach a verdict on count 1. They also asked for clarification of the difference between perfect and imperfect self-defense. The court referred them to the jury instructions already given, and advised them that imperfect self-defense did not apply to counts 2 and 3. Defendant objected, contending that imperfect self-defense applied to counts 2 and 3.
B. Analysis
The doctrine of self-defense embraces two types: perfect and imperfect. (People v. Randle (2005) 35 Cal.4th 987, 994.) Perfect self-defense requires that a defendant have an honest and reasonable belief in the need to defend himself or herself. (People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1227.) “Imperfect self-defense is the killing of another human being under the actual but unreasonable belief that the killer was in imminent danger of death or great bodily injury.” (People v. Booker (2011) 51 Cal.4th 141, 182.) ” ‘One acting in imperfect self-defense actually believes he must defend himself from imminent danger of death or great bodily injury; however, his belief is unreasonable. [Citations.]’ ” (Randle, at p. 994.) However, the doctrine “requires without exception that the defendant must have had an actual belief in the need for self-defense. . . . Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant‘s fear must be of imminent danger to life or great bodily injury.” (In re Christian S. (1994) 7 Cal.4th 768, 783.) In the case of imperfect self-defense, the killing is without malice and therefore is not murder, but manslaughter. (Randle, at p. 994.) Some courts have described imperfect self-defense as not being a true defense; “rather, it is a shorthand description of one form of voluntary manslaughter. And voluntary manslaughter, whether it arises from unreasonable self-defense or from a killing during a sudden quarrel or heat of passion, is not a defense but a crime; more precisely, it is a lesser offense included in the crime of murder.” (People v. Barton (1995) 12 Cal.4th 186, 200-201; see People v. Michaels (2002) 28 Cal.4th 486, 529 [“imperfect self-defense is not an affirmative defense, but a description of one type of voluntary manslaughter“].)
This doctrine is limited to the negation of the malice element of murder. Thus, for example, imperfect self-defense does not apply to mayhem, a crime
However, People v. McKelvy, supra, 194 Cal.App.3d 694 has been uniformly rejected. In People v. Sekona, supra, 27 Cal.App.4th 443, the court rejected McKelvy‘s analysis as applied to mayhem. (Id. at p. 450.) Primarily, Sekona found the concept of malice under
However, in People v. Quintero (2006) 135 Cal.App.4th 1152, 1167, the court held that imperfect self-defense does not apply to aggravated mayhem, a specific intent crime. “Even though aggravated mayhem requires proof of a specific intent to maim the victim, it still requires proof that the person who had such specific intent to inflict the maiming injury did so ‘maliciously, that is, with an unlawful intent to vex, annoy, or injure another person.’ ” Nonetheless, although the same malice element is required for mayhem and aggravated mayhem, it is “still different from the malice aforethought required for murder.” (Ibid.; see People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836 [doctrine of imperfect self-defense does not apply to aggravated mayhem].)
In People v. Ceja, supra, 26 Cal.App.4th 78, Justice Earl Johnson‘s concurring opinion, relying on a concurring opinion in People v. De Leon (1992) 10 Cal.App.4th 815, stated, “In one sense, imperfect self-defense is a ‘lesser included’ defense of perfect self-defense. They share common elements—the defendant killed because of an ‘actual’ belief he was in imminent danger of death or great bodily injury. Perfect
In People v. Vallejo (2013) 214 Cal.App.4th 1033, the court rejected the reasoning of People v. McKelvy, supra, 194 Cal.App.3d 694 as applied to shooting from a motor vehicle, following People v. Hayes, supra, 120 Cal.App.4th 796 and People v. Sekona, supra, 27 Cal.App.4th 443, stating: “It follows that the trial court had no duty to instruct sua sponte that an honest but unreasonable belief in the need for self-defense is a defense to the crime of shooting from a vehicle.” (Vallejo, at p. 1041.)
We agree with People v. Vallejo, supra, 214 Cal.App.4th 1033. The “malice” required for mayhem as well as a
The judgment is affirmed.
Rothschild, Acting P. J., and Chaney, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied May 21, 2014, S217352.