Filed 6/9/16 P. v. Vasquez CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B262832

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA413693)
         v.

JULIO VASQUEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Leslie
Swain, Judge. Affirmed.


      Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.


                                       __________________________
       Julio Vasquez appeals from his conviction of first degree murder, contending there
was insufficient evidence of premeditation and that the trial court erred by refusing to
instruct the jury concerning his contention that he shot his victim accidentally. We
conclude that there was sufficient evidence of premeditation and that even if instructional
error occurred, it was harmless. We therefore affirm the judgment.

                      FACTS AND PROCEDURAL HISTORY1

       Shortly after midnight on July 15, 2013, Julio (Mike) Vasquez shot and killed his
childhood friend, Ricky Torres, inside Vasquez’s house. The shooting occurred at the
end of a party hosted by Vasquez. Torres’s son, Ricky Jr., had been playing a video
game with Vasquez’s son, Brandon, right before the shooting. According to Ricky Jr., as
Vasquez and his wife, Rommy, walked down the hallway outside the room where the
boys were playing, Ricky Jr. heard Vasquez ask Rommy if she was having an affair with
Torres. Vasquez then asked Rommy to summon Torres.
       Ricky Jr. saw Rommy walk into the backyard. He then heard Vasquez’s footsteps
as Vasquez walked into his bedroom. Ricky Jr., who had been shooting with his father
many times and was familiar with the sounds guns make when being loaded, heard a
magazine being inserted into a gun, and then heard the gun being cocked. Ricky Jr. then
saw Vasquez walk back into the hallway, where he was soon joined by Rommy and his
father. Ricky Jr. heard his father loudly say “No, Mike.” The boy then saw a laser
gunsight beam appear on the hallway wall, followed by a single gunshot.
       These events were corroborated in part by video footage from Vasquez’s home
surveillance cameras, which showed the following: At approximately 12:06 a.m.,
Rommy entered the house from the backyard. Right before 12:10 a.m., Rommy returned
to the backyard and summoned Torres, who was outside talking to Renecca Ababneh.
About 30 seconds later, Ababneh, who had been sitting on the backdoor steps with her
back to the house, turned around in an apparent response to the sound of a gunshot. At

1
      In accord with the usual rules on appeal, we state the facts in the manner most
favorable to the judgment. (People v. Acevedo (2003) 105 Cal.App.4th 195, 197, fn. 1.)
                                             2
around 12:17 a.m., Vasquez and Rommy stepped into the backyard, where Vasquez
picked up a towel and wiped off his arms and hands.
       Vasquez called 911 and told the dispatcher that Torres had accidentally shot
himself, stating, “My friend had the gun, he shot, I don’t know [sic] the fucking gun was
off.” The gun was found under Torres’s left leg, near his foot.
       Vasquez was charged with first degree murder and with being a felon in
possession of a firearm. (Pen. Code, § 12022.53, subd. (d).) At trial, in addition to the
evidence set forth above, a coroner testified that Torres had been shot once in the back of
the head at a distance of one inch to three feet away. The bullet exited Torres’s head
above his left eye brow. Torres’s blood tested positive for alcohol and a low level of
cocaine.
       Vasquez testified that the shooting had been an accident. Due to his prior
convictions for felony police evasion (Veh. Code, § 2800.2) and misdemeanor domestic
violence, he had his Glock semiautomatic handgun registered in his wife’s name. During
the day, he kept the gun, fully loaded and with a round chambered, inside a locked
firearms safe. At night, he would keep the gun on his nightstand in order to protect his
home. He had consumed 12 beers throughout the day. He did not suspect his wife and
Torres of having an affair and would not have invited Torres to the party had he felt that
were the case.
       Vasquez testified that as the party ended, he started getting ready for bed.
Vasquez opened his firearms safe and withdrew the gun, as he did every night. He heard
Torres enter the house and then the guest bathroom. Vasquez thought he heard Torres
snort and cough, and when Rommy entered the bedroom, he told her he thought Torres
was snorting cocaine. Rommy said “That’s bullshit” and left to get Torres. Vasquez still
had the gun in his hand when Rommy and Torres entered the bedroom. Vasquez said,
“Hey” and Torres replied, “What’s up?”
       At that point, Rommy was positioned between the two men, blocking Vasquez
from placing the gun on the nightstand. Rommy stepped aside when Vasquez walked
past her, but he still did not place the gun on the nightstand. Vasquez did not say what

                                             3
prompted him to hold on to the gun. Vasquez asked whether Torres had been using drugs
while in the bathroom, but Torres smiled and said “No.” Vasquez walked into the
hallway, still holding the gun. Torres was in front of him. Rommy said, “Give me the
gun” and grabbed for it, apparently causing the weapon’s attached laser sight to turn on.
Vasquez raised the gun to his face and tried to figure out how to turn off the laser sight.
At that point, the gun was cradled in Vasquez’s left hand and he did not have a finger on
the trigger. When someone tugged on his left arm, the gun fired. Vasquez was not angry
at Torres and did not point the gun at him intentionally. He was confused after the
shooting and wiped off his hands and arms because they smelled like burnt hair.
       A police firearms expert testified that the bullet casing had not ejected from the
gun as it should have, a condition referred to as stovepiping. According to the expert,
tests showed the gun worked perfectly, eliminating mechanical issues as the cause of the
stovepiping. Stovepiping could have occurred if the shooter’s arm were knocked away
while firing or if the shooter had a limp wrist or otherwise failed to hold the weapon
firmly while it recoiled. Stovepiping could have also been caused by defects in the
ammunition, the expert testified.
       The trial court refused Vasquez’s request to instruct the jury with CALCRIM
No. 510 that an accidental killing is not homicide. The jury found Vasquez guilty of first
degree murder, and also found true the allegation that he intentionally and personally
discharged a firearm.

                                      DISCUSSION

1.     There Was Sufficient Evidence of Deliberation and Premeditation

       1.1.   Legal Principles of First Degree Murder
       First degree murder is differentiated from second degree murder by the existence
of premeditation and deliberation. (Pen. Code, §§ 187, subd. (a), 189; People v. Nazeri
(2010) 187 Cal.App.4th 1101, 1111 (Nazeri).) Deliberation refers to a careful weighing



                                              4
of considerations in forming a course of action, while premeditation means to think over
in advance. (People v. Mendoza (2011) 52 Cal.4th 1056, 1069 (Mendoza).)
       In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), our Supreme Court
identified three types of evidence that are useful in determining whether there was
sufficient evidence of premeditation and deliberation – planning activity, preexisting
motive, and the manner of killing. (Mendoza, supra, 52 Cal.4th at p. 1069.) These
factors are neither exclusive nor determinative. Instead they simply guide an appellate
court’s assessment of the evidence. (People v. Cage (2015) 62 Cal.4th 256, 276 (Cage).)
       Premeditation and deliberation do not require an extended period of time.
Although they cannot occur in the flicker of an eye, the true test is not the duration of
time as much as it is the extent of reflection. The thought process may occur with great
speed, and a cold, calculated judgment may be arrived at quickly. (Cage, supra,
62 Cal.4th at p. 276; Nazeri, supra, 187 Cal.App.4th at p. 1114.)
       Vasquez contends there was insufficient evidence of premeditation or deliberation.
We therefore review the record in the light most favorable to the judgment to determine
whether it contains substantial evidence from which a rational trier of fact could find him
guilty beyond a reasonable doubt of first degree murder. (Mendoza, supra, 52 Cal.4th at
pp. 1068-1069.)
       1.2.   The Evidence Supports a Finding of Premeditation
       Relying on People v. Boatman (2013) 221 Cal.App.4th 1253 (Boatman), Vasquez
contends the evidence supports a finding of only second degree murder. The defendant
in Boatman shot his girlfriend in the face while they were alone in a bedroom of his
family’s home. Other persons were present but did not witness the shooting. The
defendant gave the police conflicting accounts of the incident: that his girlfriend
accidentally shot herself; that he accidentally shot her thinking the gun was not loaded;
and that he knew the gun was loaded, slapped it away from her, cocked back the hammer
as a joke, and the gun fired when the hammer slipped. At trial, he testified that the
girlfriend pointed the gun at him in jest, and he did the same to her. He cocked the
hammer and the gun fired when the girlfriend slapped the gun.

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       In concluding that there was insufficient evidence of premeditation, the Boatman
court found “little or no relevant motive evidence,” apart from the girlfriend’s text to a
friend that she and the defendant were having a fight. (Boatman, supra, 221 Cal.App.4th
at pp. 1267-1268.) Indications of planning activity were also absent because there was
“no evidence that defendant left the room or the house to get a gun, or that he even
moved from his squatting position on the floor.” (Id. at p. 1267.) Instead, the evidence
showed the defendant was horrified and distraught after the incident, as evidenced by his
efforts to resuscitate the victim and the fact that he could be heard crying in the
background during the 911 call. This not only failed to raise an inference of planning, it
suggested the lack of a plan to kill. (Ibid.)
       Vasquez analogizes to Boatman through evidence that he invited Torres to his
house, that the shooting occurred in a house full of people who knew Vasquez, and that
the incident occurred in under 30 seconds once Torres re-entered the house with Rommy.
Vasquez also contends that Ricky Jr.’s testimony was not credible because the boy was
only 13 and he was playing a shooter video game (Grand Theft Auto) at the time. Any
inference that Vasquez confronted Torres about an alleged affair with Rommy would be
speculative, Vasquez contends. Finally, Vasquez contends that the manner of killing did
not suggest an execution style shot to the back of the head because the autopsy evidence
suggested that Torres had turned his head and ducked to avoid the gunshot. We do not
find Boatman to be particularly helpful.
       First, any weakness or conflicts in the evidence due to Ricky Jr.’s age and possible
distractions from the video game were for the jury to resolve. (People v. Letner and
Tobin (2010) 50 Cal.4th 99, 161-162.) Second, unlike the defendant in Boatman, there
was evidence here of both motive and planning activity.
       Based on Ricky Jr.,’s testimony, Vasquez accused his wife of having an affair with
Torres and asked her to call Torres into the house. While she did that, Vasquez went to
his room to retrieve his gun. If the jury credited his testimony about keeping the gun in a
safe, then it would have also found that Vasquez took time to open the safe. However,
the jury was not required to also believe that Vasquez kept the weapon fully loaded.

                                                6
Instead, it could have accepted Ricky Jr.’s testimony that Vasquez put a magazine into
the gun and activated the cocking mechanism in order to load a bullet in the firing
chamber. The jury might have doubted Vasquez’s statement that he was getting ready for
bed and getting his gun as part of his normal routine given that Torres and other party
guests were still present.
       When Torres entered the house and walked down the hallway, he loudly said, “No,
Mike,” suggesting that he saw Vasquez waiting for him with the gun pointed in his
direction. The laser sighting beam that Ricky Jr. saw play against the wall right before
the gunshot also suggests that Vasquez was taking aim before he fired. That Torres was
shot in the back of the head as a result of his attempt to turn away does not change the
fact that he was shot at close range without provocation or evidence of a struggle, which
also supports an inference of premeditation and deliberation. (People v. Thompson
(2010) 49 Cal.4th 79, 114-115.)
       By contrast, Vasquez’s version of events seems unlikely. The trigger on the gun
had a five-and-a-half pound pull and the gun was one of the safest handguns on the
market according to the firearms expert. The expert also testified that the gun would not
fire without the trigger being pulled, but Vasquez testified that he held the gun in his
partially open palm without a finger on the trigger. In addition, when Vasquez called 911
he falsely reported that Torres had shot himself by accident. The gun was found
underneath Torres’s leg, suggesting that Vasquez had planted it there to support his false
version of events. Taken as a whole, the evidence was more than enough for the jury to
conclude that Vasquez planned to kill Torres because he believed Torres was sleeping
with his wife, and that Vasquez had ample time to premeditate and deliberate on his plan
before carrying it out.

2.     The Trial Court’s Refusal to Instruct on Accidental Killings Was Harmless Error

       In connection with his contention that Torres was shot by accident, Vasquez asked
the trial court to instruct the jury with CALCRIM No. 510, which provides:


                                              7
       “The defendant is not guilty of (murder/ [or] manslaughter) if (he/she) killed
someone as a result of accident or misfortune. Such a killing is excused, and therefore
not unlawful, if:
       1. The defendant was doing a lawful act in a lawful way;
       2. The defendant was acting with usual and ordinary caution;
       AND
       3. The defendant was acting without any unlawful intent.
       A person acts with usual and ordinary caution if he or she acts in a way that a
reasonably careful person would act in the same or similar situation.
       The People have the burden of proving beyond a reasonable doubt that the killing
was not excused. If the People have not met this burden, you must find the defendant not
guilty of (murder/ [or] manslaughter).”
       The trial court refused to give the instruction for two reasons: (1) because it
believed the instruction was unnecessary given instructions requiring the jury to find
Vasquez acted with the requisite mental states of malice (murder charge) or criminal
negligence (lesser included offense of involuntary manslaughter); and (2) because
Vasquez’s status as a felon in possession of the gun eliminated the possibility that the
shooting occurred while Vasquez was performing a lawful act.
       Vasquez contends the trial court erred for two reasons: (1) the instruction was
warranted based on his testimony that the gun fired accidentally; and (2) CALCRIM
No. 510 misstates the applicable law by requiring that the act causing the victim’s death
was both accidental and lawful, making his status as a felon in possession of a firearm
irrelevant. We need not resolve either issue because the error, if any, was harmless.
       Although Vasquez contends that the asserted error falls under the more stringent
federal “harmless beyond a reasonable doubt” standard, our Supreme Court has made
clear that for failure to instruct on lesser included offenses in a noncapital case we apply
the state law standard of review that calls for affirmance unless a more favorable outcome
were reasonably probable absent the error. (People v. Blakeley (2000) 23 Cal.4th 82, 93.)


                                              8
       The failure to give an instruction is harmless error if the factual question addressed
by the omitted instruction was necessarily resolved against the defendant under other,
properly given instructions. (People v. Chaffin (2009) 173 Cal.App.4th 1348, 1353.)
Despite the missing instruction, the case was argued to the jury in light of Vasquez’s
contention that the shooting was accidental. In addition to finding that Vasquez acted
with both malice and premeditation, the jury also found that he intentionally and
personally fired the gun for purposes of the gun use enhancement. As a result, the jury
necessarily determined that the shooting was no accident. Therefore, no other verdict
was reasonably probable. (People v. Mayfield (1997) 14 Cal.4th 668, 779 [failure to give
requested instruction on accidental death harmless error where defendant convicted of
first degree murder], overruled on another ground in People v. Scott (2015) 61 Cal.4th
363, 390.)
       Vasquez relies on two decisions to contend that the purported error was not
harmless: Carter v. Kentucky (1981) 450 U.S. 288, 304, and People v. Mathews (1994)
25 Cal.App.4th 89, 99. Neither is applicable.
       Carter concerned the failure to instruct the jury that it could not presume the
defendant’s guilt from his failure to testify, a core constitutional right. The defendant in
Mathews was charged with exhibiting a firearm in the presence of police officers who
had come to his home to execute a search warrant. (Pen. Code, § 417.) The defendant
was deaf and blind, but the trial court refused his request for a special instruction that the
jury should consider his impairments in determining whether the acted reasonably to
defend himself in light of the officers’ entry into his home. The Mathews court held that
the trial court erred. It also held the error prejudicial because other instructions on self-
defense or the defense of reasonable mistake did not address the defendant’s
circumstances, particularly where the trial court failed to answer a jury inquiry whether
the defendant should have reasonably known that the persons who entered his home were
police officers. (Mathews, supra, 25 Cal.App.4th at p. 100.) We do not find Mathews
particularly on point. As set forth above, there was no doubt that the jury in this case was


                                               9
being asked to determine whether or not the gun fired accidentally, a question it
necessarily resolved against Vasquez.

                                     DISPOSITION

       The judgment is affirmed.



                                                 RUBIN, J.
WE CONCUR:



              BIGELOW, P. J.



              FLIER, J.




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