Filed 3/6/13 P. v. Barron CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D061221

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD230124)

LUIS FRANCISCO BARRON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Charles G.

Rogers, Judge. Affirmed.



         A jury convicted defendant Luis Barron of the first degree murder of Joanna

Vargas (Pen. Code, § 187, subd. (a))1 and assault with a firearm against Pierre

Westbrooks (§ 245, subd. (a)(2)), and found true enhancing allegations that Barron

discharged and personally used a firearm in connection with the crimes. The court

sentenced Barron to an indeterminate term of 50 years to life plus a consecutive



1        All further statutory references are to the Penal Code unless otherwise specified.
determinate term of 14 years. Barron contends he was denied effective assistance of

counsel because his attorney did not seek a voluntary intoxication instruction.

                                             I

                                         FACTS

       A. The Assault

       Around 12:30 a.m. on August 27, 2010, Westbrooks and Mr. Pope walked

together to the front gate of their apartment complex on Van Dyke Avenue. Pope noticed

three males standing near a white SUV and, as Pope walked to his car, he heard someone

say, "What's he looking at?" and saw Barron pull out a shotgun. Pope jumped in his car

and sped off. As Pope drove away, the three men approached Westbrooks. Barron

(holding the shotgun) and his companions surrounded Westbrooks and said, "This is

Mission Bay Locos" and called him a "fool." As the men were standing around

Westbrooks, a car drove up and a Hispanic male got out. Barron's companions starting

chasing the Hispanic male on foot, and that group disappeared around a corner as

Westbrooks and Barron watched. A few minutes later, the driver of the SUV (a female )

started the SUV, Barron got into the car and it drove away. Barron did not smell of

alcohol, and did not appear to be intoxicated or impaired.

       B. The Murder

       Around 1:15 a.m. that same morning, a white SUV approached Lindbergh Park.

About 15 seconds later, a gunshot rang out. Joanna Vargas, who was at the park with

Jose Flores and two others (including Mr. Cardenas), fell to the ground; Flores, who had

been dancing with Vargas, felt something strike him. After the shot, Cardenas saw the

                                             2
SUV, with its headlights off and windows open, cruising past slowly. The SUV was

occupied by three or four people.

         By the time paramedics arrived around 1:30, Vargas was dead. She was killed by

a shotgun slug that entered her back and partially exited her right chest wall.

         C. Barron's Companions' Testimony

         Around 8:00 p.m. on August 26, Mr. Zaragosa and Mr. Mendoza met Barron at

the home of Barron's girlfriend (Ms. Ikonen) and the group consumed alcohol. Zaragoza

testified he had four "glasses" of whiskey,2 and also consumed two Xanax pills, and

Barron drank about the same amount of alcohol. Mr. Mendoza testified he drank less

than the others, drinking only two glasses of whiskey and (after the group took a break to

go to the store to buy beer) later drank a beer. Mendoza saw Barron consume one Xanax

pill. The group left the house around 9:30 p.m. because Barron wanted to acquire some

spray cans of paint to go "tagging."

         Mendoza testified the alcohol he consumed did not impair his faculties or

awareness, and Barron did not appear to be falling down drunk or to slur his words

during the course of the evening. Ms. Ikonen also testified Barron was not "particularly

drunk," was not "stumbling over," and was holding a conversation without slurring his

words.

         Ikonen drove the group to Barron's mother's apartment in Ikonen's SUV. Barron

went inside the apartment; Zaragosa and Mendoza got out and waited next to the SUV,


2     Zaragosa stated they drank from oversized coffee mugs, and each of the cups he
drank was filled between half to three-quarters full.
                                              3
and Ikonen remained in the driver's seat. When Barron emerged and came back to the

SUV, he was carrying a shotgun. Ikonen, who had seen two men (Westbrooks and Pope)

watching Barron return to the car, told Barron the two men had seen him. Barron,

Zaragosa and Mendoza then approached the two men and Barron "got into . . . one of the

gentlemen's face" and appeared to be aggressively confronting him. During the

confrontation, Barron pulled out the shotgun and brandished it at one of the men, asking

"Are you talking shit?" causing the man to back away.

       At one point, Zaragosa saw Mendoza chasing another man while Barron remained

standing with the black man. When Mendoza returned, he, Barron and Zaragosa went

back to the car and got in. Barron told Ikonen to drive away, and at some point explained

to her that the reason he had chosen not to "do something" was because the black man

whom Barron was confronting was "an old man."3 Barron put the shotgun down on the

floor of the car as they drove away.

       Mendoza asked to be dropped off at his girlfriend's house, near the site of the

murder. As they drove past the park, Barron asked Ikonen to slow down. Suddenly,

Mendoza saw Barron pointing the shotgun out the window and heard the "boom" when

he fired. The others were startled, and were exclaiming "what the fuck," and "what's

going on," but Barron told Ikonen to shut up and said "I think hit somebody" or "I think I

just hit a girl." Barron instructed Ikonen to stop the car, after which he opened the door,




3      Westbrooks was 49 years old at the time of trial.
                                             4
got out and retrieved the shotgun shell. He then got back into the car and urged Ikonen to

"go, go, go."

       Ikonen drove to Ocean Beach near Sunset Cliffs before finally stopping. They

threw the gloves Barron was wearing over the cliff, Barron hid the shotgun in a bush, and

the group then drove off. After a short stop at an apartment where he conferred with a

friend, Barron announced they were going to drive to Mexico and explained he wanted to

get the car cleaned up to get rid of gunpowder traces. Once there, he let Mendoza and

Zaragosa out to find their own way home, but not without warning them that "snitches

get stitches," to deter them from reporting the incident.

       Barron and Ikonen spent the night at Barron's father's house in Mexico while the

car was being cleaned. Barron told his father that he had shot a girl. The day after the

shooting, Ms. Campbell (who had a child with Barron) confided to a friend that Barron

had phoned her, crying and hysterical, and told her "I didn't mean to shoot the girl. I

meant to hit the boy."

                                             II

                                        ANALYSIS

       Barron argues he was denied effective assistance of counsel because his attorney

did not request a jury instruction on voluntary intoxication (CALCRIM No. 625), and

there was a reasonable probability he would have obtained a more favorable result had

the instruction been given.




                                              5
       A. Legal Framework

       Ineffective Assistance of Counsel

       " 'In assessing claims of ineffective assistance of trial counsel, we consider

whether counsel's representation fell below an objective standard of reasonableness under

prevailing professional norms and whether the defendant suffered prejudice to a

reasonable probability, that is, a probability sufficient to undermine confidence in the

outcome. [Citations.] A reviewing court will indulge in a presumption that counsel's

performance fell within the wide range of professional competence and that counsel's

actions and inactions can be explained as a matter of sound trial strategy. Defendant thus

bears the burden of establishing constitutionally inadequate assistance of counsel.

[Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in

the manner challenged, an appellate claim of ineffective assistance of counsel must be

rejected unless counsel was asked for an explanation and failed to provide one, or there

simply could be no satisfactory explanation. [Citation.]' " (People v. Gamache (2010) 48

Cal.4th 347, 391.)

       Where, as here, the record is silent on whether counsel might have had reasons for

not requesting an instruction on voluntary intoxication, an appellate claim of ineffective

assistance of counsel on direct appeal "must be rejected unless counsel was asked for an

explanation and failed to provide one, or there simply could be no satisfactory

explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition

for writ of habeas corpus." (People v. Carter (2003) 30 Cal.4th 1166, 1211.) "A

reviewing court will indulge in a presumption that counsel's performance fell within the

                                              6
wide range of professional competence and that counsel's actions and inactions can be

explained as a matter of sound trial strategy." (Ibid.)

       Voluntary Intoxication

       "[E]vidence of voluntary intoxication [can be] relevant on the issue of whether the

defendant actually formed any required specific intent." (People v. Pensinger (1991) 52

Cal.3d 1210, 1243.) Thus, in a homicide case, it may be relevant to the issues of

premeditation and deliberation and intent to kill. (§ 29.4.) However, a trial court "has no

duty to instruct sua sponte on voluntary intoxication." (People v. Clark (1993) 5 Cal.4th

950, 1022, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421,

fn. 22.) Rather, " '[a]n instruction on the significance of voluntary intoxication is a

"pinpoint" instruction that the trial court is not required to give unless requested by the

defendant.' " (People v. Verdugo (2010) 50 Cal.4th 263, 295.)

       Importantly, " 'a defendant is entitled to such an instruction only when there is

substantial evidence of the defendant's voluntary intoxication and the intoxication

affected the defendant's "actual formation of specific intent." ' " (People v. Verdugo,

supra, 50 Cal.4th at p. 295.) Substantial evidence of intoxication alone is not enough;

there must also be evidence that the intoxication impaired the defendant's ability to

formulate intent. (People v. Williams (1997) 16 Cal.4th 635, 677-678.) The mere

consumption of alcohol is not enough to warrant the instruction (People v. Miller (1962)

57 Cal.2d 821, 830-831 ["[t]he mere fact that a defendant may have been drinking prior

to the commission of a crime does not establish intoxication"]), and the mere fact there

was some level of inebriation does not warrant the instruction absent some additional

                                              7
evidence the defendant was unaware of what he or she was doing because of intoxication.

(See People v. Carpenter (1997) 15 Cal.4th 312, 395 [testimony that as a result of

drinking alcohol the defendant's speech was " 'weird,' " or he "had 'sort of a dreamy look

in his eyes,' " or he was " 'in a daze, like spaced out' " was insufficient to warrant a

diminished capacity instruction].).)

       B. Analysis

       Here, although there was evidence Barron had been drinking alcohol earlier in the

evening, the defense produced absolutely no evidence, from either lay or expert

witnesses, that his drinking had any effect on his ability to formulate intent at the time of

the shooting. To the contrary, the only evidence was that Barron had stopped drinking

several hours before the shooting, and two of his coparticipants testified Barron did not

appear "particularly drunk," was not "stumbling over," and was holding a conversation

without slurring his words. Moreover, despite the alcohol consumption, Barron

continued to manifest an ability before the shooting both to engage in purposeful and

goal-directed behavior (e.g. by directing Ikonen to drive him to his mother's apartment

where he was able to find and retrieve the shotgun inside the home) and to make

decisions based on discrete and rational criteria (e.g. his decision not to escalate his

assault on Westbrooks because Westbrooks was "an old man"). The evidence also

showed he was able to engage in rational and goal directed-behavior during, and in the

immediate aftermath of, the shooting: he directed Ikonen to "slow down" immediately

before firing the fatal shot; he directed her to stop the car so he could remove evidence of

his crime (the shotgun shell); he told her to "go, go, go" after returning to the car

                                               8
(suggesting he was subjectively able to appreciate the need to escape); he twice stated "I

think I just hit a girl," suggesting he was sufficiently sober that he could accurately

perceive and recollect events; and he was able immediately to begin formulating and

implementing a plan of escape (by ridding himself of the weapon and fleeing to Mexico

to sanitize the escape vehicle). Finally, he admitted to Campbell he "didn't mean to shoot

the girl [but instead] meant to hit the boy," suggesting his ability to engage in intended

behavior was not impaired.

       To establish a claim of ineffective assistance of counsel, Barron must show his

counsel's conduct was deficient--that it fell below an objective standard of reasonableness

under prevailing professional norms--and that he was prejudiced as a result, meaning a

favorable verdict was reasonably probable had the instruction been given. (People v.

Palmer (2005) 133 Cal.App.4th 1141, 1158.) Because there was no substantial evidence

his condition was significantly impaired (People v. Miller, supra, 57 Cal.2d at pp. 830-

831), much less that the level of inebriation made him unaware of what he was doing

(People v. Carpenter, supra, 15 Cal.4th at p. 395), there was insufficient evidence to

support the instruction and therefore Barron's trial counsel did not provide ineffective

assistance of counsel by not requesting the instruction. (See People v. McPeters (1992) 2

Cal.4th 1148, 1173 [defense counsel not required to advance unmeritorious arguments].)

       Separately, and alternatively, we also note the record is silent on why defense

counsel did not pursue a voluntary intoxication defense at trial. When the record on

appeal sheds no light on why counsel acted or failed to act in the manner challenged, a

claim of ineffective assistance of counsel is more appropriately decided in a habeas

                                              9
corpus proceeding, and the claim on appeal must be rejected unless there simply could be

no satisfactory explanation for counsel's conduct. (People v. Mendoza Tello (1997) 15

Cal.4th 264, 266-267.) One plausible explanation for the dearth of lay or expert

testimony to support a defense that Barron's drinking impaired his ability to formulate

intent at the time of the shooting is that defense counsel did investigate that avenue and

could find no testimonial support to undermine the evidence to the contrary. A second

tactical reason for not proffering the defense could have been that counsel believed

proffering an intoxication argument that it perceived to be a weak argument would have

detracted from the defense theory of the case: that Barron specifically intended to shoot

into a park he reasonably believed was empty of people, and it was a tragic accident that

someone was present in a dark park after 1:00 a.m. to be hit by the shot. Because this

theory of accident was the proffered defense, counsel could have reasonably believed that

asserting Barron was too intoxicated to form any intent could have been inconsistent with

this argument.

       In People v. Wader (1993) 5 Cal.4th 610, the court rejected an ineffective

assistance of counsel claim under analogous circumstances. There, defense counsel did

not request the voluntary intoxication instruction, and instead proffered the defense that

his intent when he fired the fatal shot was to scare the victim and nothing more. The

Wader court rejected the ineffective assistance of counsel claim, stating "[a]n instruction

on voluntary intoxication as negating specific intent would have been inconsistent with

defendant's theory of the case. Accordingly, we cannot say that defense counsel had no

rational tactical purpose in not requesting an instruction on intoxication." (Id. at p. 643.)

                                             10
       Because there are reasonable tactical explanations for counsel's decision not to

request a voluntary intoxication instruction, Barron has not shown his counsel was

ineffective on direct appeal and must pursue this claim by petition for writ of habeas

corpus.

                                     DISPOSITION

       The judgment is affirmed.




                                                                          McDONALD, J.

WE CONCUR:


HUFFMAN, Acting P. J.


NARES, J.




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