Filed 10/19/15 P. v. Alamos CA2/6

               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

                                  SECOND APPELLATE DISTRICT

                                                DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B252679
                                                                           (Super. Ct. No. VA102455)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

VICTOR ANTONIO ALAMOS,

     Defendant and Appellant.



                   Appellant was charged with murder. (Pen. Code, § 187, subd. (a).)1
Two weeks after the information was filed, the trial court declared a doubt that he
was competent to stand trial, suspended the criminal proceedings, and appointed
two mental health experts, Dr. Timothy Collister and Dr. Kory Knapke, to examine
him. (§§ 1368, 1369, subd. (a).) Based on their recommendations, the trial court
found him incompetent and committed him to the Department of Mental Health for
treatment. (§ 1370, subd. (a)(1)(B).) After he spent seven months at Patton State
Hospital, the trial court found that his competency had been restored and resumed
the proceedings. (§§ 1370, subd. (b)(1), 1372.)




         1
             All further statutory references are to the Penal Code.
                 A jury convicted appellant of first degree murder and found true
allegations that he personally used a firearm. (§ 12022.53, subds. (b), (c), (d).) The
trial court declared a mistrial on a gang allegation (§ 186.22, subd. (b)(1)(C))
because the jury could not reach a verdict. Appellant was sentenced to 50 years to
life in state prison with 1,026 days of presentence custody credit.
                 Appellant contends that (1) his self-incriminating statements to the
police were involuntary and defense counsel was ineffective for not challenging
their admission; (2) defense counsel was ineffective for not introducing evidence of
his mental condition; (3) the trial court erred by not providing certain instructions
on self-defense sua sponte and defense counsel was ineffective for not requesting
them; and (4) insufficient evidence supports his conviction. We affirm.
                                          FACTS
                 Jesse Garcia, his girlfriend Ana Hernandez, and his brother Abel left
their house to recycle cans. They encountered appellant, who was walking with two
companions. Abel Garcia recognized appellant as "Brownie" from the Morton
Town Stoners gang. He told this to Jesse, who was a member of the Florencia
gang, Morton Town's longtime rival.
                 Appellant and Jesse Garcia "mad-dogged" each other.2 Garcia threw
some gang signs,3 retrieved a crowbar from his house, and chased appellant and his
companions down the street. Afterwards, he rejoined Hernandez and his brother at
home.
                 About an hour later, Garcia and Hernandez left for the store.
Appellant came out of a house across the street. He yelled at Garcia, "Where you
from?" Garcia crossed the street and said, "Don't come to my neighborhood and
disrespect me in front of my girlfriend." Appellant pulled out a gun and pointed it



        2
            According to Abel Garcia, this meant they looked at each other in anger.
        3
            Unless otherwise specified, "Garcia" refers to Jesse Garcia.
                                             2
at Garcia. Garcia said, "Shoot me. If you are going to do it, do it." Appellant shot
him five times and ran off. Garcia died from the gunshot wounds.
                                      DISCUSSION
                         Voluntariness of Statements to the Police
                 In a custodial interview that was played for the jury, appellant
confessed to shooting his gun during the second confrontation with Garcia and
largely corroborated the other witnesses' version of events.4 Appellant contends he
did not validly waive his right to remain silent and that, due to his intellectual and
cognitive deficits, his confession was involuntary. Therefore, he argues, his trial
counsel was ineffective for not challenging the interview's admission.
                 "[N]ormally a claim of ineffective assistance of counsel is
appropriately raised in a petition for writ of habeas corpus [citation], where relevant
facts and circumstances not reflected in the record on appeal, such as counsel's
reasons for pursuing or not pursuing a particular trial strategy, can be brought to
light to inform the two-pronged inquiry of whether counsel's 'representation fell
below an objective standard of reasonableness,' and whether 'there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.' [Citation.]" (People v. Snow (2003) 30 Cal.4th 43,
111.)
                 We cannot evaluate appellant's claim because the record is
inconclusive and incomplete. Appellant argues that he told the police, "No," he did
not understand his Miranda rights,5 "[t]hree separate times . . . until Cochran told
[him] that he had to say 'Yes,'" and thereafter, "following the instruction, [he] said

        4
           Appellant did not actually admit to shooting Garcia. At first, he told the
police he was aiming the gun at Garcia when he heard a gunshot on one side, so he
"turned around and started shooting that way." Later, he told the police that when
Garcia approached him before the shooting, he was "scared" and "lost total control":
"I didn't see nothing no more and then I hear pop and a pop and a pop and that was
it, sir. I don't remember nothing then."
        5
            (Miranda v. Arizona (1966) 384 U.S. 436.)
                                             3
'yes' to everything he was asked." In fact, Sergeant Cochran did not instruct
appellant to say "yes." He told appellant that he had to say "it": "[Y]ou have the
right to remain silent, which means you don't have to talk to me, okay? You
understand that. Yes? I need—I need you to say it." Although appellant's coercive
interpretation of this exchange is possible, respondent's non-coercive
interpretation—that appellant was nodding his head to indicate agreement and
Sergeant Cochran was trying to get him to verbalize his response for the record—is
at least as likely given that Deputy Blagg had already told appellant, "You have to
answer out loud."
              Moreover, we cannot assess the extent to which appellant's claimed
mental deficit impacted his comprehension when the police explained his Miranda
rights because it was never tested in the trial court. Although appellant told Dr.
Collister he did not understand his Miranda rights when given to him by the police
five months earlier, he was merely answering "no" in response to a leading
question. His responses to the open-ended questions that preceded it suggested that
he did have a basic understanding of his rights. He explained that the right to
remain silent means "I'm not suppose[d] to speak," which is important because
"whatever I said . . . they'll bring it up in court" as evidence that "could be against
you." More importantly, the prosecution was never given a chance to challenge Dr.
Collister's conclusion that appellant did not understand the Miranda warnings by
having its own expert examine him or questioning him under oath. Accordingly,
we decline to consider appellant's contention on appeal.
                      Evidence of Appellant's Mental Condition
              Appellant also contends that his trial counsel was ineffective for not
presenting evidence of his mental condition. In particular, he cites evidence from
Dr. Collister's report that he has posttraumatic stress disorder (PTSD) resulting from
a nearly fatal gang shooting when he was 15 years old and other psychosocial
stressors and traumas in his childhood. He reported suffering two to three
flashbacks per day in which he hears the "pop" from the gang shooting. Dr.

                                            4
Collister recommended a second evaluation by Dr. Nora Baladerian "to explore in
greater depth the nature and depth of the [PTSD]."
              It is impossible to determine on this record whether defense counsel
was unreasonable in deciding not to present testimony regarding appellant's mental
condition. We do not know, for instance, whether defense counsel ever followed up
with Dr. Baladerian and, if so, what further evaluation of appellant's potential PTSD
yielded. Neither Dr. Collister nor any of appellant's other evaluators theorized a
linkage between his victimization at age 15 in a gang shooting, his reported
flashbacks, and his statement to the police that he heard a "pop" before he began
shooting, that would support an unreasonable self-defense theory. We are left only
to speculate about the viability of such a defense and counsel's wisdom in not
pursuing it. This we cannot do. When, as here, "a claim of ineffective assistance is
made on direct appeal, and the record does not show the reason for counsel's
challenged actions or omissions, the conviction must be affirmed unless there could
be no satisfactory explanation. [Citation.]" (People v. Anderson (2001) 25 Cal.4th
543, 569.)
                          Jury Instructions on Self Defense
              Appellant contends that the trial court violated his federal and state
due process rights by failing to instruct the jury sua sponte with three jury
instructions on self-defense—CALJIC Nos. 5.50.1 (Prior Threats/Assaults by
Victim), 5.51 (Actual Danger Not Necessary), and 5.15 (Burden of Proof re
Justification or Excuse)—and that defense counsel rendered ineffective assistance
by not requesting them. We review assertions of instructional error de novo.
(People v. Hernandez (2013) 217 Cal.App.4th 559, 568.)




                                           5
                                 CALJIC No. 5.50.16
              The omitted instruction on prior threats is a pinpoint instruction which
the trial court was not required to deliver absent a request by counsel. (People v.
Garvin (2003) 110 Cal.App.4th 484, 488-489.) The trial court was obligated to
instruct only on the basic principles of self-defense, which it did here by using the
standard CALJIC instructions on self-defense, including CALJIC Nos. 5.12
(Justifiable Homicide in Self-Defense) and 5.17 (Actual but Unreasonable Belief in
Necessity to Defend—Manslaughter). (People v. Garvin, at p. 489.)
              Appellant was not prejudiced by defense counsel's claimed failure to
request the pinpoint instruction on prior threats because "[b]oth the defense counsel
and the prosecutor thoroughly aired this subject in argument. Defense counsel
repeatedly argued the prior assault colored [appellant's] perception of the
second . . . ." (People v. Gonzales (1992) 8 Cal.App.4th 1658, 1664.) In response
to this argument, the prosecutor attacked its factual premise, questioning why
appellant did not "corroborate his statement that he was so upset and so in fear for
his life after the crowbar incident." "The concept at issue here is closer to rough
and ready common sense than abstract legal principle. It is also fully consistent
with the otherwise complete self-defense instructions given by the court. [Fn.
omitted.] It is unlikely the jury hearing the evidence, the instructions given and the
argument of counsel would have failed to give the defendant's position full
consideration." (People v. Gonzales, at p. 1665.)

       6
         "Evidence has been presented that on [a] prior occasion[s] the alleged
victim [threatened] [or] [assaulted] [or participated in an assault or threat of
physical harm upon] the defendant. If you find that this evidence is true, you may
consider that evidence on the issues of whether the defendant actually and
reasonably believed [his] [her] life or physical safety was endangered at the time of
the commission of the alleged crime. [¶] In addition, a person whose life or safety
has been previously threatened, or assaulted by [another] [others] is justified in
acting more quickly and taking harsher measures for self protection from an assault
by [that person] [those persons], than would a person who had not received threats
from or previously been assaulted by the same person [or persons]." (CALJIC No.
5.50.1.)
                                           6
                                   CALJIC No. 5.517
              Appellant argues that CALJIC No. 5.51 was necessary because
CALJIC No. 5.12 "does not directly address the concept that actual danger is not
necessary to justify self defense." We disagree. As appellant concedes, the use
note in CALJIC No. 5.51 instructs courts to use CALJIC No. 5.12 "and not this
instruction" when the defense is justifiable homicide. When, as here, CALJIC No.
5.12 is given, CALJIC No. 5.51 is "superfluous." (People v. Mayfield (1997) 14
Cal.4th 668, 781, abrogated on other grounds by People v. Scott (2015) 61 Cal.4th
363.)
                                   CALJIC No. 5.158
              Although the trial court did not instruct with CALJIC No. 5.15, it
provided all of the relevant legal principles in other instructions. In addition to
defining justifiable homicide in CALJIC No. 5.12, the trial court instructed the jury
that (1) justifiable homicide is lawful (CALJIC No. 8.00); (2) one of the elements of
murder is an unlawful killing (CALJIC No. 8.10); (3) the burden is on the People to
prove beyond a reasonable doubt each of the elements of murder (CALJIC No.
8.50); and (4) if there is reasonable doubt about guilt, appellant is entitled to a
verdict of not guilty (CALJIC No. 2.90). In closing argument, defense counsel
reminded the jury that the prosecution has the burden of proof beyond a reasonable

        7
          "Actual danger is not necessary to justify self-defense. If one is confronted
by the appearance of danger which arouses in [his] [her] mind, as a reasonable
person, an actual belief and fear that [he] [she] is about to suffer bodily injury, and
if a reasonable person in a like situation, seeing and knowing the same facts, would
be justified in believing [himself] [herself] in like danger, and if that individual so
confronted acts in self-defense upon these appearances and from that fear and actual
beliefs, the person's right of self-defense is the same whether the danger is real or
merely apparent." (CALJIC No. 5.51.)
        8
         "Upon a trial of a charge of murder, a killing is lawful if it was [justifiable]
[excusable]. The burden is on the prosecution to prove beyond a reasonable doubt
that the homicide was unlawful, that is, not [justifiable] [excusable]. If you have a
reasonable doubt that the homicide was unlawful, you must find the defendant not
guilty." (CALJIC No. 5.15.)
                                            7
doubt and, in rebuttal, the prosecutor stated, "that is absolutely correct." In light of
the trial court's additional instructions and the argument of counsel, any error from
the omission of CALJIC No. 5.15 was harmless and appellant was not prejudiced
by defense counsel's failure to request it. (Cf. People v. Romero (2007) 149
Cal.App.4th 29, 42 ["The trial court properly refused appellant's burden of proof
instruction as duplicative of what was covered in the self-defense and burden of
proof instructions the trial court gave"].)
                  Sufficiency of the Evidence to Negate Self-Defense
              Appellant challenges the sufficiency of the evidence that the homicide
was neither justifiable nor imperfect self-defense. In reviewing claims of
insufficient evidence, we examine the entire record in the light most favorable to the
judgment to determine whether there is substantial evidence—evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. (People v. Maciel (2013) 57
Cal.4th 482, 514-515.) We do not reweigh the evidence or reassess the credibility
of witnesses. (People v. Houston (2012) 54 Cal.4th 1186, 1215.) We accept the
logical inferences that the jury might have drawn from the evidence even if we
would have concluded otherwise. (People v. Streeter (2012) 54 Cal.4th 205, 241.)
If the trier of fact's findings are reasonably justified by the circumstances, the
opinion of the reviewing court that a contrary finding might also reasonably be
reconciled with the circumstances does not warrant reversing the judgment.
(People v. Jones (2013) 57 Cal.4th 899, 961.)
              Overwhelming evidence supports the jury's finding that appellant was
not acting in reasonable or unreasonable self-defense. After being chased by
Garcia, appellant went to his auntie's house, where he was living, and armed himself
with a gun. While this act is by itself consistent with appellant's preparation to
defend himself against an anticipated future attack, his subsequent behavior is
consistent only with a plan to retaliate. In the police interview, appellant's version
of events was far-fetched. He claimed to have been scared, yet he did not stay at his

                                              8
auntie's house or go to his mother's house, his original destination, by another route.
Instead, he went back to the place where he had encountered Garcia in order to talk
with 10 friends living on that block whom he saw every day but none of whose
names he could recall. When he arrived, before he could speak with his friends,
Garcia "[came] out of nowhere."
              The only explanation is that appellant planned to confront Garcia and
waited for him across the street. When Garcia left to go to the store, appellant
yelled at him, "Where you from?" According to the gang expert, this question
indicated that appellant was from a gang and signaled that there was "going to be a
violent encounter because it's a confrontation of sort[s]." When Garcia crossed the
street, appellant did not immediately shoot him. He raised the gun and aimed it at
Garcia long enough for him to say, "Shoot me. If you are going to do it, do it."
This evidence was more than sufficient for the jury to conclude that appellant
deliberately sought out Garcia to kill him rather than acted in self-defense.
                                   DISPOSITION
              The judgment is affirmed.
              NOT TO BE PUBLISHED.




                                           PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.



                                           9
                            Michael A. Cowell, Judge

                      Superior Court County of Los Angeles
                      ______________________________


             Gary V. Crooks, 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, Senior Assistant Attorney General,
Steven D. Matthews, Supervising Deputy Attorney General, and J. Michael
Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
