Filed 3/20/13 P. v. Castro CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046176

         v.                                                            (Super. Ct. No. 10CF0902)

JUAN ALBERTO CASTRO,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County,
Patrick Donahue, Judge. Affirmed.
                   John L. Staley, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and
Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
                                      INTRODUCTION
               A jury convicted Juan Alberto Castro of one count (count 2) of attempted
voluntary manslaughter (Pen. Code, §§ 192, subd. (a), 664, subd. (a)) (as a lesser
included offense of the charged crime of attempted murder), one count (count 3) of
shooting at an inhabited dwelling house (id., § 246), and one count (count 4) of assault
with a firearm (id., § 245, subd. (a)(2)). The jury found true the allegations under Penal
Code section 12022.5, subdivision (a) that Castro personally used a firearm in
committing the crimes alleged in counts 2 and 4. The trial court sentenced Castro to a
prison term of nine years, four months.
               Castro argues (1) the evidence was insufficient to support the conviction for
attempted voluntary manslaughter, (2) the trial court erroneously instructed the jury on
the required intent for assault with a firearm, and (3) the evidence was insufficient to
support the conviction for assault with a firearm. We conclude to the contrary on each
argument and therefore affirm.
                                           FACTS
               We view the evidence in the light most favorable to the verdict and resolve
all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes
(1986) 42 Cal.3d 284, 303.)
               Rolando Cabrera and his wife, Maria Guadalupe Hernandez, lived in an
apartment building in Santa Ana. Cabrera was responsible for the building’s
maintenance.
               About 3:00 a.m. on April 12, 2010, Cabrera was pumping water out of the
building, which had flooded during a rainstorm. He placed a pump in the flooded area
and ran a hose from the pump to the second-floor laundry room, which had a window
facing the street. Cabrera ran the hose through the laundry room window so the water
discharged onto the street. As he was pumping water, Cabrera felt the hose being tugged.
He returned the hose to its original position, but the hose moved again. Cabrera looked

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out the laundry room window and saw a man, later identified as Castro, pulling on the
hose. Cabrera told him to let go of the hose. When Castro continued to tug on the hose,
Cabrera told him to let go of the hose or else he would go down and “kick his ass.”
Castro looked up at the laundry room window and said, “come on down, you queer.”
             Cabrera went downstairs and saw that Castro had walked across the street
and was standing in the yard of his house. Cabrera walked into the middle of the street
and argued with Castro. As Cabrera walked back to the apartment building, Castro
chased after him. Cabrera turned just in time to avoid being struck by Castro. The two
exchanged blows until Castro had fallen to the ground.
             Cabrera walked back to the apartment building and told Hernandez to call
the police. Castro got up off the ground and followed Cabrera. The two resumed
fighting until Castro again fell to the ground. Cabrera noticed that Castro was “drunk or
something worse. . . . He was kind of stupid.” Castro indeed had been drinking very
heavily and using cocaine that night. He got up and tried to follow Cabrera as he walked
into the apartment building, but the apartment security guard used pepper spray on Castro
before he could enter.
             Castro went home. Although his eyes were tearing from the pepper spray,
he did not stop in the bathroom to rinse out his eyes: He went directly to his bedroom
and retrieved a loaded handgun from a safe.
             After reentering the apartment building, Cabrera locked the door behind
him and walked up the steps toward the laundry room. Hernandez, who was inside the
laundry room, looked out the window and saw Castro holding a gun and walking toward
the apartment building. Hernandez spoke by telephone with a police officer and said,
“the guy, he’s coming” and “[h]e has a gun, he has a gun, hurry, hurry please.”
             Just as Cabrera was about to step into the laundry room, Hernandez yelled,
“hey, he is bringing a gun. He has got a gun.” At that moment, Castro, who was
standing outside the apartment building, heard two voices coming from the area of the

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laundry room window. He lifted the gun and fired two shots. Cabrera ducked down at
the door to the laundry room. Hernandez and the security guard, who also was inside the
laundry room, lay down on the floor.
              The gunshots left bullet holes in the exterior of the wall of the apartment
building to the left of the laundry room window. A nine-millimeter, semiautomatic
Luger handgun was found buried in the side yard of Castro’s house. The gun belonged to
Castro. Two shell casings and two bullet cores fired by Castro’s gun were found on the
street by his house.
                                        DISCUSSION
                                             I.

                The Evidence Was Sufficient to Support the Conviction
                      for Attempted Voluntary Manslaughter.
              Castro challenges the conviction for attempted voluntary manslaughter on
the ground the evidence was insufficient to prove he acted with the specific intent to kill
Cabrera. Castro argues, “[t]he discharge of two bullets in a random and uncontrolled
manner failed to prove that appellant had the specific intent to kill Cabrera.”
              As applicable here, voluntary manslaughter is the unlawful killing of a
human being “upon a sudden quarrel or heat of passion.” (Pen. Code, § 192, subd. (a).)
“Voluntary manslaughter is a lesser included offense of murder when the requisite mental
element of malice is negated by a sudden quarrel or heat of passion, or by an
unreasonable but good faith belief in the necessity of self-defense.” (People v. Gutierrez
(2003) 112 Cal.App.4th 704, 708.)
              An attempt to commit a crime requires a specific intent to commit the
crime. (Pen. Code, § 21a.) At least one Court of Appeal has held that the crime of
attempted voluntary manslaughter requires a specific intent to kill a human being.
(People v. Montes (2003) 112 Cal.App.4th 1543, 1549-1550.) The jury in this case was



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instructed that an element of attempted voluntary manslaughter was “[t]he defendant
intended to kill that person.” (See CALCRIM No. 603.)
              Intent to kill usually must be inferred from the defendant’s actions and the
circumstances of the crime. (People v. Smith (2005) 37 Cal.4th 733, 741.) From the
evidence at trial of Castro’s actions and the circumstances of the crime, the jury could
draw the inference that Castro intended to kill Cabrera by firing twice toward the laundry
room window. Castro’s altercation with Cabrera and anger at being pepper sprayed
provided a motive for Castro’s actions, and evidence of motive “will usually be probative
of proof of intent to kill.” (Id. at p. 742.) After being pepper sprayed, Castro returned
home and deliberately removed a loaded handgun from a safe. While in the laundry
room, Hernandez told a police officer that Castro was walking toward the building with a
gun. Castro earlier had tried to follow Cabrera into the apartment building and therefore
knew he was inside. Castro fired the gun toward the laundry room window, through
which he earlier had seen Cabrera. Castro testified he fired the gun after hearing a male
voice and a female voice coming from the laundry room window.
              Castro missed, which is why he was charged with attempt, but the inference
could be drawn that he was a bad shot or that his aim had been impaired by intoxication.
A shooter’s poor marksmanship does not necessarily mean the shooter lacked intent to
kill; to the contrary, the very act of firing a gun in a manner that would have been deadly
if on target is sufficient to support an inference of intent to kill. (People v. Smith, supra,
37 Cal.4th at p. 741.)
              Castro argues the evidence of intent to kill in this case comes up short when
compared to such evidence found to be sufficient in other cases. In People v. Smith,
supra, 37 Cal.4th at pages 742-743, 748, the defendant, while standing directly behind an
automobile, fired a single bullet toward the intended victim, who was in the driver’s seat.
The bullet shattered the rear windshield, passed through the driver’s headrest, and lodged
in the driver’s side door. (Id. at p. 743.) The bullet narrowly missed the intended victim

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and her child, who was in the rear passenger seat. (Id. at pp. 742-743.) The California
Supreme Court concluded the evidence was sufficient to support the inference the
defendant intended to kill not only the intended victim, against whom he harbored
animosity, but her child too. (Id. at pp. 742, 748.) Both the intended victim and the child
were in the defendant’s line of fire. The defendant had looked into the car moments
before the shooting and knew the child was in the backseat directly behind the intended
victim. (Id. at p. 748.) In addition, because the defendant viewed the intended victim as
his former girlfriend, the jury could have concluded he harbored animosity toward the
child, whose father was the intended victim’s current boyfriend. (Ibid.)
                In People v. Felix (2009) 172 Cal.App.4th 1618, 1625, the defendant twice
threatened to kill the intended victim within a period of an hour, then armed himself with
a firearm, drove to the intended victim’s house, and parked outside what the defendant
believed to be the master bedroom. From close range, the defendant fired two gunshots
into a master bedroom window. (Id. at pp. 1625-1626.) After fleeing, the defendant
called and asked if he had harmed anyone. (Id. at p. 1626.) The Court of Appeal
concluded this evidence was sufficient to support a finding of specific intent to kill the
intended victim. (Ibid.)
                In In re Sergio R. (1991) 228 Cal.App.3d 588, 593, 601, the evidence
showed the defendant fired a 12-gauge shotgun at close range into a crowd of people in
retaliation against a rival gang. None of the rival gang members was injured but an
innocent bystander was killed and another was seriously injured. (Id. at pp. 593-594.)
The Court of Appeal concluded the evidence was sufficient to prove the element of intent
to inflict great bodily injury that is required to support the enhancements imposed under
Penal Code former sections 12022.55 and 12022.7. (People v. Sergio R., supra, at
pp. 601-602.)
                Castro argues that, in contrast to these cases, he did not fire directly into an
occupied automobile, a crowd of people, or the occupied master bedroom of a home.

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Instead, he argues, he “fired two shots in an indiscriminate manner” toward an apartment
building, and there was no evidence he knew Cabrera or Hernandez was in the laundry
room. The evidence supported an inference, however, that Castro fired his handgun
toward the window of the laundry room of the apartment building and that he missed
because he was a bad shot or was intoxicated. Castro knew that Cabrera had walked back
into the apartment building after their fight, and earlier had seen him inside the laundry
room.
              Castro argues he testified that he fired the gun into the air and he did not
intend to shoot anyone. But Castro testified that as he stood holding the gun outside the
apartment building, he heard a male voice and a female voice coming from the area of the
laundry room window. When Castro heard the voices, he raised his gun and fired.
Although he testified he fired only to scare the security guard, the jury was entitled to
disbelieve that portion of his testimony. (Blank v. Coffin (1942) 20 Cal.2d 457, 461;
Daly v. Wallace (1965) 234 Cal.App.2d 689, 693 [“‘The trier of fact may believe and
accept a portion of the testimony of a witness and disbelieve the remainder’”].)
              Castro equates this case to People v. Leon (2010) 181 Cal.App.4th 452,
465, in which the Court of Appeal held the evidence was insufficient to prove the
defendant intended to kill one out of the three passengers of a car. In People v. Leon, the
defendant fired a single shot toward a car holding three occupants, Jose Blanco, Victor
Hernandez, and Richard Rodriguez. (Id. at pp. 457-458.) The bullet struck the car’s rear
taillight, travelled through the light and the right backseat, and fatally wounded Blanco,
who was seated in the right backseat. (Ibid.) The defendant was convicted of the first
degree murder of Blanco and of the attempted murder of Hernandez, who had been in the
front passenger seat, and Rodriguez, who had been in the driver’s seat. (Id. at
pp. 456-457.) The Court of Appeal concluded the evidence was sufficient to support the
jury’s finding the defendant had the specific intent to kill Blanco and Hernandez and
affirmed the murder conviction and the conviction on one of the two counts of attempted

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murder. (Id. at pp. 463-465.) But the Court of Appeal concluded the evidence was
insufficient to support a finding the defendant had the specific intent to kill Rodriguez,
and reversed the conviction on the other count of attempted murder. (Id. at p. 465.) The
court explained: “[The defendant] fired a single shot from behind the Camry into the
right side of the passenger compartment, endangering the passengers seated in the right
backseat (Blanco) and the front passenger seat (Hernandez). Rodriguez, who was in the
driver’s seat on the left side of the Camry, was out of the line of fire. It was physically
impossible for the single bullet to strike Rodriguez as well as Blanco and Hernandez.”
(Ibid.)
               In this case, Castro fired two shots toward the laundry room window from
where he had heard voices and earlier had seen Cabrera. Here, unlike People v. Leon, a
reasonable inference could be drawn from the evidence that Castro believed Cabrera to
be in the line of fire. This evidence is sufficient to support the jury’s verdict Castro had
the intent to kill.

                                             II.

                      The Trial Court Correctly Instructed the Jury on
                                  Assault with a Firearm.
               Count 4 alleged Castro committed an assault with a firearm on Hernandez
in violation of Penal Code section 245. On that count, the trial court instructed the jury
with CALCRIM No. 875 (assault with a deadly weapon or force likely to produce great
bodily injury), modified to read as follows: “When the defendant acted, he was aware of
facts that would lead a reasonable person to realize that his act by its nature would
directly and probably result in the application of force to someone.”
               Castro argues CALCRIM No. 875 misstates the element of intent required
for assault with a deadly weapon. He argues assault with a deadly weapon is a specific
intent crime and therefore requires that the defendant specifically intended to injure the
victim.

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                In People v. Williams (2001) 26 Cal.4th 779, 790, the California Supreme
Court held assault with a deadly weapon is a general intent crime, does not require
specific intent to cause injury, and requires only “an intentional act and actual knowledge
of those facts sufficient to establish that the act by its nature will probably and directly
result in the application of physical force against another.”
                CALCRIM No. 875 is in accord with People v. Williams, supra, 26 Cal.4th
779. We are bound by decisions of the California Supreme Court (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455) and therefore reject Castro’s claim of
instructional error. Castro concedes CALCRIM No. 875 is correct under People v.
Williams and challenges the instruction to preserve his right to seek California Supreme
Court review.
                                              III.

                 The Evidence Was Sufficient to Support the Conviction
                              for Assault with a Firearm.
                Castro argues the evidence was insufficient to support the conviction for
assault with a firearm because there was no evidence he knew Cabrera and Hernandez
were in the laundry room when he fired the shots.
                In People v. Williams, supra, 26 Cal.4th at page 788, the California
Supreme Court rejected a specific intent requirement and adopted the following
knowledge requirement for assault: “[A] defendant guilty of assault must be aware of the
facts that would lead a reasonable person to realize that a battery would directly, naturally
and probably result from his conduct. He may not be convicted based on facts he did not
know but should have known. He, however, need not be subjectively aware of the risk
that a battery might occur.” In other words, “the prosecution was required to prove the
defendant had actual knowledge his act, by its nature, would probably and directly result
in physical force being applied on another person.” (People v. Riva (2003) 112
Cal.App.4th 981, 997.)


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              As we have explained, the evidence at trial supported an inference that
when Castro fired the shots, he believed Cabrera was inside the laundry room. In
addition, Castro testified that while holding the gun and standing in front of the apartment
building, he heard a male voice and a female voice coming from the direction of the
laundry room window. Castro testified, “I heard the voices I heard them like from the
window or around there.” After hearing the voices, he raised his gun and fired.
              This evidence was sufficient to support a finding that Castro had actual
knowledge of the fact people were in the laundry room. Such knowledge would lead a
reasonable person to realize that firing a gun toward the laundry room window would
“probably and directly result in the application of physical force against another.”
(People v. Williams, supra, 26 Cal.4th at p. 790.)
                                       DISPOSITION
              The judgment is affirmed.




                                                  FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




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