Filed 3/6/13 P. v. Marquez CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055899

v.                                                                       (Super.Ct.No. RIF151482)

FILIBERTO MARQUEZ,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge.

Affirmed.

         Brett Harding Duxbury, 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, Melissa Mandel and Charles C.

Ragland, Deputy Attorneys General, for Plaintiff and Respondent.




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       A jury convicted defendant and appellant Filiberto Marquez1 of multiple felonies

and enhancements arising out of a robbery, including attempted murder. He received a

total sentence of 29 years in state prison. On this appeal, his sole contention is that the

evidence was insufficient to show that he had the specific intent to kill. We disagree and

affirm the judgment.

                                 STATEMENT OF FACTS

       Due to the nature of the issues in this case, we limit our recital of the facts to those

relevant to the conviction for attempted murder.

       The victim testified that on July 10, 2009, he was working at a skate and surf store

in Riverside when two men entered the store and began examining the clothing racks.

After a few minutes, the men approached the cash register carrying clothing. Defendant

drew a gun and pointed it at the victim. Defendant then demanded money and warned

the victim not to try and summon help. Defendant also told the victim to give him his

cell phone. When the victim hesitated, defendant fired a shot into the wall.

       As the victim obtained the money from the register, defendant and his

coperpetrator continued to threaten him, for example, saying that they knew where the

victim lived and where his children went to school. After he handed money to the

coperpetrator, the latter ran out the door shouting to defendant, “Blast these fools. Let’s

go.” Meanwhile, defendant was also moving toward the door, still pointing the gun at the

victim. As defendant then ran out after his coperpetrator, the victim followed and jumped


       1   In correspondence to the court, defendant spells his name “Feliberto.”


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into the company van, yelling at a nearby hotdog vendor to call the police. The van was

marked with the store name.

       Shortly thereafter, the victim noticed a white Suburban and saw defendant roll

down the window, with the gun still in his hand. When defendant pointed it at him, the

victim put his vehicle into reverse and began to back up. The Suburban followed and the

victim heard four or five shots, two of which hit his windshield. At this point, the victim

ducked down to protect himself. The Suburban drove past the victim to get out of the

street (which ended in a cul-de-sac) and no further shots were fired.

       A second witness testified that he saw two men running around the corner from

the skate and surf store; one of them was carrying clothing and the other had a gun in his

hand. The man with the gun got into the driver’s seat of a vehicle, but before the vehicle

could drive off, the company van came down the street. It stopped “not exactly nose-to-

nose . . . but they were fairly close to one another.” The witness saw the driver stick his

arm out the window and begin to shoot at the van. The witness also testified that four or

five shots were fired, directly at the van “as near as I could tell.”

                                        DISCUSSION

       Defendant argues that the conviction for attempted murder violated his federal due

process rights because it was not supported by substantial evidence. He asserts that

because he was able to simply drive past the victim, there was no need to kill the latter to

facilitate his escape. Defendant also asserts that because he did not in fact heed his

coperpetrator’s encouragement to “[b]last these fools” as they left the store, there could




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not have been substantial evidence that he intended to kill the victim when he did shoot at

the latter’s vehicle. We disagree.

       First, we note that the fact that one does not have the intent to kill another at

Point A in time is of little, if any, relevance to the question of whether the actor has the

intent to kill at Point B in time. We also note that although defendant argues that he had

the same motive at all times—to dissuade the victim from assisting law enforcement—

this statement is true, but incomplete. By the time defendant actually shot at the victim, it

had become apparent that verbal threats and the mere discharge of the gun were not

sufficient to frighten the victim into silence or inaction. Thus, although his motive may

have remained the same, defendant could well have decided to resort to murder to

accomplish his aims.2

       We are also not persuaded that the fact that defendant did not continue to shoot as

he drove past the company van and came directly alongside is particularly probative. By

that time, the victim had ducked down, and defendant could have believed that the victim

had been hit or might simply have been unable to see him.




       2  Defendant’s argument that he did not need to kill the victim in order to escape
because his route was clear, does not assist him. Under those facts, he did not need to
shoot at all, so his motive for doing so may be inferred to have been more sinister.
       Defendant also complains that the prosecutor suggested to the jury that the victim
only survived because defendant was a bad shot. He points out that there was no
evidence as to his shooting prowess either way. Apparently, he thinks the jury should
have inferred that he was actually a crack shot and intentionally missed the victim. The
position is equally unsupported by direct evidence, and the jury was entitled to choose
between the options based upon all the evidence before it.


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       To this point, we have addressed defendant’s speculations as to what the evidence

could have been interpreted to show. We now turn to a consideration of what the jury

decided it did show and whether the evidence before the jury was legally adequate to

establish that defendant had the specific intent to kill the victim when he fired into the

company van.

       It is undisputed that an element of attempted murder is the specific intent to kill.

(People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7.)3 In other words, in order to

be convicted of attempted murder, a defendant must harbor express malice; implied

malice will not suffice. (People v. Smith (2005) 37 Cal.4th 733, 751.) In this context,

this means that a defendant must at least hope for the result of death. (Ibid., citing People

v. Davenport (1985) 41 Cal.3d 247, 262.)

       Of course, in many or even most cases, a defendant’s intent must be determined

from the circumstances of the attempt, including the defendant’s actions. (People v.

Lashley (1991) 1 Cal.App.4th 938, 946.) It has repeatedly been held that the act of firing

toward a victim at close range, or any act of applying a lethal weapon with lethal force,

will support the jury’s inference of an intent to kill. (People v. Arias (1996) 13 Cal.4th

92, 162; People v. Lashley, at p. 945.)

       In determining whether the conviction should be upheld, our task is to determine

whether any reasonable trier of fact could have decided that defendant intended to kill the

victim. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Gonzalez (2005)


       3   The jury found that the attempt in this case was not premeditated.


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126 Cal.App.4th 1539, 1552.) In other words, the conviction must be based upon

substantial evidence—evidence that is reasonable, credible, and of solid value. (People v.

Cravens (2012) 53 Cal.4th 500, 508; People v. Johnson (1980) 26 Cal.3d 557, 578.) The

fact that the evidence might also reasonably lead to a contrary, or different, conclusion

does not require reversal of the judgment. (Cravens, at p. 508.)

       Although proof of a motive to kill is not required to establish intent to kill, it is

often probative of intent. (People v. Smith, supra, 37 Cal.4th at p. 741.) Here, as we

have discussed, defendant’s conduct throughout the incident constituted clear evidence of

his concern to dissuade the victim from cooperating with law enforcement. He fired his

gun once while inside the store, and then he threatened the victim and the victim’s family

with harm unless the victim kept quiet. A reasonable jury could easily have concluded

that when the victim courageously pursued the robbers, defendant concluded that he

would attempt to eliminate the victim/witness.4

       Furthermore, defendant’s particular conduct in shooting at the victim’s vehicle

was also consistent with intent to kill. In People v. Smith, supra, 37 Cal.4th at page 742,

the defendant fired into the back window of a vehicle in which a woman with whom he

had a dispute was seated. The shooting was at a distance of about one car length. The

Supreme Court found this sufficient to support a conviction of the attempted murder not

only of the woman, but of her boyfriend and child, also known by the defendant to be in


       4 Although another employee was in the store at the time of the robbery,
defendant could have believed that if he shot and killed the victim, she would be
frightened into silence as well.


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the car. In this case, although the two vehicles “were not exactly nose-to-nose” according

to the second witness, they were “fairly close to one another.” While in Smith the

defendant only fired once into the victims’ vehicle (id. at p. 742), in this case, defendant

shot at the company van four or five times, with two of the bullets going directly toward

the victim and penetrating the windshield of the van. Under the rationale of the cases

discussed above, defendant’s use of a lethal weapon, at relatively close range and in a

manner that would have inflicted a fatal injury had the bullet been on target, supported

the jury’s inference of intent to kill. (See also People v. Chinchilla (1997) 52

Cal.App.4th 683, 690.) Taken together, the circumstances of the shooting and the motive

to eliminate the victim/witness constituted constitutionally sufficient evidence to support

the conviction.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                 HOLLENHORST
                                                                           Acting P. J.
We concur:



McKINSTER
                           J.



CODRINGTON
                           J.



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