P. v. Torres

Filed 10/30/06 P. v. Torres CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
JAVIER TORRES,
Defendant and Appellant.
B180930
(Los Angeles County
Super. Ct. No. VA080220)
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J.
Perry, Judge. Affirmed.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell
and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________

-- 1 of 14 --

2
INTRODUCTION
Defendant Javier Torres appeals from a judgment of conviction entered after a jury
trial. The jury found defendant guilty of the willful, deliberate and premeditated
attempted murder of two peace officers, Sheriff’s Deputies Stephanie Patterson and
Manny Avina (Pen. Code, §§ 187, subd. (a), 664,1
counts 1 and 2), during which
defendant personally used and intentionally discharged a firearm (§ 12022.53, subds. (b)
& (c)), proximately causing great bodily injury to Deputy Patterson (id., subd. (d)). The
jury also found defendant guilty of assault with a semiautomatic weapon on the two
peace officers, Deputies Patterson and Avina (§ 245, subd. (d)(2), counts 3 and 4), during
which defendant personally used and intentionally discharged a firearm (§ 12022.53,
subds. (b) & (c)), proximately causing great bodily injury to Deputy Patterson (id.,
subd. (d)). The jury further found defendant guilty of possession of an assault weapon
(§ 12280, subd. (b), count 5); possession of a firearm by a felon (§ 12021, subd. (a)(1),
count 6); carrying a loaded firearm while an active gang member (§ 12031, subds. (a)(1)
& (a)(2)(C), count 7); and possession of a weapon by a person in custody (§ 4502,
subd. (a), count 8).
Following his conviction, defendant admitted that he previously had been
convicted of a serious felony (§§ 667, subds. (a) & (b) - (i), 1170.12).
On counts 1 and 2, the trial court sentenced defendant to life imprisonment with
the possibility of parole plus 25 years to life (§ 12022.53, subd. (d)). It added
consecutive determinate terms of six years for possession of an assault weapon on count
5 and two years for custodial possession of a weapon on count 8. It stayed sentences on
counts 3, 4, 6 and 7 under section 654. Finally, it added a five-year enhancement under
subdivision (a) of section 667.
On appeal, defendant challenges the trial court’s failure to instruct on attempted
voluntary manslaughter as a lesser included offense (counts 1 and 2) and on the definition
1
All further statutory references are to the Penal Code unless otherwise indicated.

-- 2 of 14 --

3
of a criminal street gang (count 7). He challenges the sufficiency of the evidence that he
was a member of a criminal street gang (count 7). He further claims error in the trial
court’s denial of his motion for disclosure of juror information and imposition of the
upper term sentence on count 5. We find no grounds for reversal and affirm the
judgment.
FACTS
On the morning of December 22, 2003, members of the Los Angeles County
Sheriff’s Department’s Fugitive Task Force went to a duplex on Palm Street in
Bellflower. They were looking for defendant, who was wanted on a warrant for parole
violation, and his girlfriend, Sarah T., who had been reported by her father as a runaway.
The task force members, Sergeant Delmese and Deputies Timothy Duerr, Liza
Vera, Patterson and Avina, were in plain clothes, wearing bulletproof vests with a
Sheriff’s star on the front and the word “Sheriffs” written across the back. They were
accompanied by three or four uniformed deputies.
Sergeant Delmese, Deputy Avina, and three or four uniformed patrol officers
approached the front door while Deputies Patterson and Vera went to the back of the
duplex. Deputy Avina knocked on the front door several times with his flashlight.
Receiving no response, he and Deputy Duerr went to a side door. Deputy Avina knocked
and announced, “Sheriff’s Department” in a loud voice. Again, he received no response.
Eventually, the uniformed officers were allowed to return to their regular duties and the
task force members maintained surveillance on the house.
Deputy Patterson saw the vertical blinds on a back window move and radioed to
the task force members that she saw movement in the back. She saw the blinds move a
second time and heard the sound of a pole, which had been wedged in the window, being
removed. She again radioed the others. Deputy Avina got a shotgun from his car and
gave it to Sergeant Delmese, who was by the front door. Deputy Avina then went to join
Deputy Patterson at the back.

-- 3 of 14 --

4
Defendant opened the back window. Deputies Avina and Patterson, who were less
than 10 feet away, stepped out with guns drawn and yelled, “Sheriff’s Department. Let
me see your hands. Get your hands up. Don’t come out of the window. Go show
yourself to the deputies at the front door.” Defendant disappeared back inside, and
Deputies Avina and Patterson stepped away, out of view from the window. When
Deputy Patterson stepped out again, she saw defendant at the window with a nine
millimeter Beretta in his hand. Deputy Patterson fired one shot at defendant, because she
believed he would shoot anybody who got in his way as he tried to escape.
Defendant shot back from inside the house. As Deputy Patterson began running
from the gunfire, a bullet struck her. It entered her left side, broke her pelvic bone, then
ricocheted inside her body, hitting her colon, small intestines and ovaries and severing a
vein in her left leg. She fell to the ground.
Deputy Avina was shot in his right shoulder and struck in the face by stucco flying
off the wall as bullets hit it. He returned fire while backing up and out of the line of fire.
Hearing a noise at the window, he looked around the corner of the house and saw
defendant, gun in hand, coming out of the window and landing on the ground. He shot at
defendant, striking him on the left foot. Defendant began running. Deputy Avina
radioed the other task force members and told them the direction in which defendant was
running.
Sheriff’s deputies eventually found defendant hiding in a storage shed. Defendant
was bleeding from a wound to his left foot. Deputies also found a gray hooded
sweatshirt, a bulletproof vest and pieces of a Beretta handgun in the shed.
Dale Higashi (Higashi), a senior criminalist with the sheriff’s department,
responded to the Palm Street duplex. He found 16 cartridges inside the duplex and one
outside. All were fired from the nine millimeter Beretta which was found in the storage
shed. Two bullets retrieved from the deputies at the hospital were fired by the same gun.
There were numerous bullet holes in the walls and window. Higashi also found a Calico
Model 951 semiautomatic assault rifle under a mattress inside the duplex.

-- 4 of 14 --

5
Deputy Richard Lopez spoke to Anthony Perez (Perez), who was sharing the Palm
Street duplex with defendant. Perez said that defendant was a member of the T-Flats
gang from Compton, and his gang moniker was “Danger.” Perez had observed T-Flats
tattoos on defendant’s chest.
Deputy Lopez also spoke to defendant. Defendant said he had been living at the
Palm Street duplex with Perez and several others for about a month. He explained that
when the deputies arrived, he was asleep. He awoke and looked at a video monitor that
was hooked up to a camera by the front door. He saw someone he did not know at the
front door and thought the person was trying to break into the house. He panicked and
could not remember anything until he was in the hospital. Defendant denied shooting
anyone or even having a gun in the house. He also denied that he was a gang member
and said that he no longer was known as “Danger.”
On April 25, 2004, Deputy Heriberto Fernandez, who was on duty at the Men’s
Central Jail, heard yelling near defendant’s cell. He saw defendant in his cell pick up a
metal object, wrap it, and then pass it to the inmate in the cell next to his. Deputy
Fernandez and additional deputies removed defendant and the inmate in the next cell.
They retrieved a seven and one-half-inch shank, a jail-made stabbing device, wrapped in
a towel.
Defense
Defendant became a member of the Compton Varrio Tortilla Flats “T-Flats” gang
when he was about 13 years old. He quit the gang a few months before December 2003,
after witnessing the murder of his friend Arturo by members of the rival Compton Varrio
Segundo gang. He moved to Bellflower because it was not in T-Flats or Compton Varrio
Segundo gang territory.
On the morning of December 22, 2003, he woke up after someone banged on the
front door. He looked at the video monitor but could not tell that it was a Sheriff’s
deputy at the front door. He then heard someone at the front window. Thinking that
someone was trying to break in, he ran into the bedroom and locked the door.

-- 5 of 14 --

6
Defendant was afraid; he believed that the Compton Varrio Segundo gang had put
out a “green light,” or attack order, on him because he had witnessed Arturo’s murder.
He believed there was a second “green light” on him because his brother was suspected
of killing a Compton Varrio Segundo member. For these reasons, he had purchased a
bulletproof vest, which he wore most of the time.
Defendant removed the metal bar from the bedroom window, intending to go out
the window and confront the person at the front window. As he started to open the
window, but before he removed the window screen or stuck any part of his body out the
window, someone shot into the house.
Defendant thought someone was trying to kill him and panicked. He grabbed his
nine millimeter Beretta from the dresser and fired into the wall, hoping to scare the
intruder away. He then pushed the window screen out and jumped out the window. He
did not see anyone outside, did not shoot anyone, and no one shot at him. He lost his
balance and accidentally shot himself in the foot. Seeing that his gun was empty, he ran
away and hid in a storage shed.
Defendant did not learn that the people outside the house were sheriff’s deputies
until after he was taken to jail. He never heard them announce themselves and did not
see clothing identifying them as deputies. Had he known they were deputies, he would
have felt no need to protect himself and would not have fired his gun.
Defendant admitted possession of the assault weapon found in the bedroom. He
claimed he needed the shank in jail for protection due to the “green lights” against him.

-- 6 of 14 --

7
DISCUSSION
Failure To Instruct on Attempted Voluntary Manslaughter
The trial court and counsel agreed that the jury would be instructed on attempted
voluntary manslaughter as a lesser included offense of attempted murder on counts 1 and
2. The trial court gave a number of instructions regarding attempted voluntary
manslaughter as a lesser offense.
It instructed the jury as to the necessity of a joint operation of act and specific
intent as to the crimes “charged in Counts 1 and 2, and the crime of voluntary
manslaughter, a lesser crime thereto.” (CALJIC Nos. 3.31, 3.31.5.) It instructed the jury
that actual but unreasonable belief in the need to defend oneself against imminent peril is
a defense to attempted murder but not to “the crime of attempted voluntary manslaughter,
a lesser included crime to the crime of attempted murder.” (CALJIC No. 5.17.)
The trial court instructed the jury as to what constitutes an attempt. (CALJIC
No. 6.00.) It defined attempted murder (CALJIC No. 8.66), as well as “willful,
deliberate, and premeditated” as it applies to attempted murder (CALJIC No. 8.67). It
told the jury that if it was not satisfied that defendant was guilty of the crime charged, it
could convict him of a lesser crime, and “[t]he crime of attempted voluntary
manslaughter is lesser to that of attempted murder.” (CALJIC No. 17.10.) It did not
instruct the jury as to the elements of attempted voluntary manslaughter (CALJIC
No. 8.41).
In general, the trial court has the duty to instruct the jury sua sponte as to the
principles of law relevant to the issues raised by the evidence. (People v. Wims (1995)
10 Cal.4th 293, 303; People v. Saddler (1979) 24 Cal.3d 671, 681.) This duty extends
to instructions on lesser included offenses when the evidence raises a question as to
whether all elements of the charged offense have been established, but instructions on
lesser included offenses are not required if there is no evidence that the offense is less
than that charged. (People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Barton
(1995) 12 Cal.4th 186, 200-201.) Instructions on lesser included offenses must be given

-- 7 of 14 --

8
whenever there is “‘“evidence from which a jury composed of reasonable [persons]
could have concluded”’ that the particular facts underlying the instruction did exist.”
(People v. Wickersham (1982) 32 Cal.3d 307, 324, disapproved on other grounds in
Barton, supra, at p. 201; People v. Flannel (1979) 25 Cal.3d 668, 684-685.) In the
absence of such evidence, no instruction on the lesser included offense need be given.
(Wickersham, supra, at pp. 324-325; Flannel, supra, at p. 684.)
Even evidence which is “less than convincing” or subject to justifiable suspicion
may constitute substantial evidence requiring instruction on a lesser included offense.
(People v. Turner (1990) 50 Cal.3d 668, 690; People v. Glenn (1991) 229 Cal.App.3d
1461, 1467.) This includes testimony by the defendant. (Turner, supra, at p. 690; Glenn,
supra, at p. 1467.)
As to the specific crimes at issue here, “[m]urder is the unlawful killing of a
human being . . . with malice aforethought.” (§ 187, subd. (a).) “Such malice may be
express or implied. It is express when there is manifested a deliberate intention
unlawfully to take away the life of a fellow creature. It is implied, when no considerable
provocation appears, or when the circumstances attending the killing show an abandoned
and malignant heart.” (§ 188.) Phrased differently, malice may be implied “‘when a
person does an act, the natural consequences of which are dangerous to life, which act
was deliberately performed by a person who knows that his conduct endangers the life of
another and who acts with conscious disregard for life. . . .’” (People v. Nieto Benitez
(1992) 4 Cal.4th 91, 104.)
Voluntary manslaughter is the “unlawful killing of a human being without malice
. . . [¶] . . . upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).) An unlawful
killing also may be voluntary manslaughter where malice has been negated by an honest
but unreasonable belief the defendant’s life was in imminent danger from the victim.
(People v. Flannel, supra, 25 Cal.3d at p. 675; People v. Aris (1989) 215 Cal.App.3d
1178, 1186, disapproved in part on other grounds in People v. Humphrey (1996) 13
Cal.4th 1073, 1089.) “‘Accordingly, when a defendant is charged with murder the trial
court’s duty is to instruct sua sponte, or on its own initiative, on unreasonable self-

-- 8 of 14 --

9
defense is the same as its duty to instruct on any other lesser included offense: this duty
arises whenever the evidence is such that a jury could reasonably conclude that the
defendant killed the victim in the unreasonable but good faith belief in having to act in
self-defense.’ ([People v.] Barton, supra, 12 Cal.4th [at pp.] 200-201 . . . .)” (People v.
Breverman, supra, 19 Cal.4th at p. 159, italics omitted.)
According to defendant, his testimony provided substantial evidence supporting a
finding that he attempted to kill Deputies Patterson and Avina in the unreasonable but
good faith belief that he had to do so in self-defense: Defendant testified as to his fear of
being killed by the Compton Varrio Segundo gang. On the day in question, he saw
someone whom he could not identify at the front door; then he heard someone trying to
break in the front window. As he opened the back window, someone fired a shot into the
house. Thinking that someone was trying to kill him, he panicked. He grabbed his nine
millimeter Beretta from the dresser and fired into the wall, hoping to scare the intruder
away. He then pushed the window screen out and jumped out the window. At that point,
he did not see anyone outside, did not shoot anyone, and no one shot at him. He lost his
balance, accidentally shot himself in the foot, and then ran away.
The physical evidence was consistent with defendant’s testimony. Bullet casings
were found inside the duplex, and there were numerous bullet holes in the wall and
window. Additionally, the deputies were in plain clothes, wearing bulletproof vests with
a Sheriff’s star on the front and the word “Sheriffs” written across the back; seen briefly
from the front, they might not have been readily identifiable as Sheriff’s deputies.
We agree that there was substantial evidence from which a reasonable jury could
have found that defendant shot the deputies in an unreasonable but good faith belief in
the need for self-defense. That the evidence was, in the People’s words, “his own self-
serving and uncorroborated” testimony does not negate this conclusion. (People v.
Turner, supra, 50 Cal.3d at p. 690; People v. Glenn, supra, 229 Cal.App.3d at p. 1467.)
The question thus becomes whether it is reasonably probable that defendant would
have obtained a more favorable result had the jury been instructed on the definition of
attempted voluntary manslaughter. (People v. Breverman, supra, 19 Cal.4th at p. 178;

-- 9 of 14 --

10
People v. Watson (1956) 46 Cal.2d 818, 836.) We do not believe it is reasonably
probable.
The jury was instructed that it could convict defendant of the lesser crime of
attempted voluntary manslaughter if it was not satisfied that defendant was guilty of the
crime charged, so it knew it had the option of convicting defendant of a lesser crime,
even though it did not have a specific definition of the lesser crime. The jury also was
instructed that defendant was not guilty of attempted murder if he attempted to kill in the
actual but unreasonable belief in the necessity for self-defense. Having been so
instructed, the jury convicted defendant of attempted murder. It additionally found true
the allegations that defendant knew or reasonably should have known that the victims
were peace officers engaged in their duties and, more importantly, that the attempted
murders were willful, deliberate and premeditated. In other words, the jury necessarily
rejected defendant’s testimony which suggested that he shot the deputies believing that it
was necessary for self-defense. There is no reasonable probability of a more favorable
result had the jury received an instruction specifically defining attempted voluntary
manslaughter. Accordingly, reversal of defendant’s attempted murder convictions on
counts 1 and 2 is not required based on instructional error.
Instruction on Carrying a Loaded Firearm While an Active Gang Member
The jury convicted defendant on count 7 of carrying a loaded firearm while an
active gang member in violation of section 12031, subdivisions (a)(1) and (a)(2)(C).2
In
order to convict defendant, the jury was instructed that it must find (1) that defendant
carried a loaded firearm on his person, (2) with knowledge of its presence, (3) at a time
when he was an active participant in a criminal street gang, (4) whose members engaged
in or had engaged in a pattern of criminal gang activity, (5) which he knew about, and
2
Subdivision (a)(1) of section 12031 prohibits carrying a loaded firearm in public.
Subdivision (a)(2)(C) provides that the crime is punishable as a felony “[w]here the
person is an active participant in a criminal street gang, as defined in subdivision (a) of
Section 186.22.”

-- 10 of 14 --

11
(6) which he either directly and actively committed or aided and abetted. (CALJIC
No. 12.54.1.)3
Defendant makes two claims of error relating to his conviction on count 7. First,
he claims that the evidence is insufficient to establish that he was an active member of a
criminal street gang, as that term is defined by statute. Second, he claims the trial court
erred in failing to instruct the jury as to the statutory definition of a criminal street gang.
At trial, the defense stipulated that defendant “is an active member of the Compton
Varrio T-Flats gang and that that is in fact a gang, and he’s an active.” His counsel also
conceded in argument that defendant was guilty of possession of a firearm while an
active gang member. Counsel urged the jury to find defendant guilty of the crimes of
which he was guilty but not guilty of the crimes of which he was not guilty. The
concessions of guilt appear to have been part of a strategy to obtain convictions on the
less serious charges but acquittals on the attempted murder charges.
Where a defendant pursues a trial strategy of conceding guilt on lesser offenses in
order to obtain acquittal on more serious charges, the failure to instruct the jury on
uncontested elements of the lesser offenses is not reversible error. (People v. Flood
(1998) 18 Cal.4th 470, 504, fn. 22; People v. Richie (1994) 28 Cal.App.4th 1347, 1360.)
Inasmuch as defendant conceded guilt of carrying a loaded firearm while an active gang
member, his claims of error with respect thereto are without merit.
3
Section 186.22 defines a “criminal street gang” as “any ongoing organization,
association, or group of three or more persons, whether formal or informal, having as one
of its primary activities the commission of one or more of the criminal acts enumerated in
paragraphs (1) to (25), inclusive, of subdivision (e), having a common name or common
identifying sign or symbol, and whose members individually or collectively engage in or
have engaged in a pattern of criminal gang activity.” (Subd. (f).) A “pattern of criminal
gang activity” is defined as the commission of two or more of the enumerated offenses
within a three-year period. (Id., subd. (e).)

-- 11 of 14 --

12
Motion for Disclosure of Juror Information
After the jury rendered its verdicts, defendant filed a motion pursuant to Code of
Civil Procedure sections 206 and 237 to disclose juror identifying information. The
motion was supported by the declaration of defendant’s attorney, who stated that he
received a telephone call from defendant’s sister, who wanted to continue the sentencing
hearing. She said she had some concerns regarding a potential issue of juror misconduct.
She told the attorney that during jury deliberations, one of the jurors spoke to defendant’s
brother. He told the brother that he “‘didn’t really want to be on this jury. . . [.] I told
them that I had a job, that I had to work, but they chose me anyone [sic].’ The juror then
made a statement to the effect ‘I’m just going to go in there and do what everybody else
wants to do’.” Defendant believed this later statement evidenced an intent by the juror
not to participate fully in deliberations and therefore possible misconduct.
The trial court denied the motion. It explained that the juror’s statement was not
enough to show misconduct “because of Evidence Code [section] 1150 which excludes
evidence of the jurors[’] . . subjective reasoning processes to impeach the verdict.” The
court added that “based on this casual comment by a juror that I’m just going to go in
there and do what everybody else wants to do, that doesn’t strike me as enough to go
through what you want to do, which is to disclose the identifying information” and
“pester[] the jurors.”
Code of Civil Procedure sections 206 and 237 permit a defendant to obtain sealed
juror information upon a showing that such information is necessary for a new trial
motion or other lawful purpose. (Townsel v. Superior Court (1999) 20 Cal.4th 1084,
1087.) A motion for disclosure of juror information must be “supported by a declaration
that includes facts sufficient to establish good cause for the release of the juror’s personal
identifying information. The court shall set the matter for hearing if the [motion] and
supporting declaration establish a prima facie showing of good cause . . . .” (Code Civ.
Proc., § 237, subd. (b).) We review the trial court’s denial of the disclosure motion for
abuse of discretion. (Cf. People v. Jones (1998) 17 Cal.4th 279, 317.)

-- 12 of 14 --

13
In the present case, “[t]o the extent [defendant’s] offer of proof revealed the
thought processes of the juror with whom [defendant’s brother] spoke, it does not
establish a ground for juror misconduct because a verdict may not be impeached by
inquiry into the jurors’ mental or subjective reasoning process.” (People v. Rhodes
(1989) 212 Cal.App.3d 541, 553; see also People v. Jones, supra, 17 Cal.4th at p. 317.)
The offer of proof did not extend to admissible evidence of “statements made, or conduct,
conditions, or events occurring, either within or without the jury room, of such a
character as is likely to have influenced the verdict improperly.” (Evid. Code, § 1150,
subd. (a).) The trial court therefore did not abuse its discretion in denying defendant’s
motion. (Jones, supra, at p. 317; Rhodes, supra, at p. 554.)
Imposition of the Upper Term on Count 5
Defendant challenges the imposition of the upper term sentence on count 5,
possession of an assault weapon, based on an aggravating factor not found by the jury.
Defendant’s challenge is based on the holding of Blakely v. Washington (2004) 542 U.S
296, 303-304, that the maximum sentence a judge may impose is that permitted by the
facts established by the jury verdict or admitted by the defendant. Defendant
acknowledges that the California Supreme Court has held that Blakely does not preclude
exercise of judicial discretion to impose the upper term sentence based on aggravating
factors found by the court. (People v. Black (2005) 35 Cal.4th 1238, 1244.) We are
bound by the California Supreme Court’s decision (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455) and must reject defendant’s contention.4
4
On February 21, 2006, the United States Supreme Court granted certiorari in
People v. Cunningham (Apr. 18, 2005, A103501 [nonpub. opn.]) sub nom. Cunningham
v. California (2006) ___ U.S. ___ [126 S.Ct. 1329, 164 L.Ed.2d 47] to consider whether
this state’s determinate sentencing law unconstitutionally permits trial courts to impose
upper term sentences based on facts not found true by the jury.

-- 13 of 14 --

14
The judgment is affirmed.
NOT TO BE PUBLISHED
JACKSON, J.∗
We concur:
MALLANO, Acting P. J.
VOGEL, J.
∗
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

-- 14 of 14 --