People v. Lopez

1

THE PEOPLE, Plaintiff and Respondent, v. RODOLFO G. LOPEZ, Defendant and Appellant.

B325419

California Court of Appeals, Second District, Fifth Division

February 1, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. YA104748 Scott T. Millington, Judge. Affirmed.

Edward H. Schulman, under the appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.

MOOR J.

The jury found Rodolfo Gerardo Lopez guilty of three counts of attempted murder (Pen. Code^[1], §§ 187, subd. (a) &664; counts 1, 3 &4), one count of second degree robbery (§ 211; count 2) and one count of first degree murder (§ 187, subd. (a); count 5). The jury found that the attempted murders were willful, premeditated, and deliberate. (§ 664, subd. (a).) As to all counts, the jury found true the allegation that Lopez personally and intentionally used a handgun. (§ 12022.5, subd. (a).) Lopez admitted to suffering two prior strike convictions. (§§ 667, subd. (b)-(j) &1170.12.) The trial court sentenced Lopez to 175 years to life in prison.

On appeal, Lopez argues that there is insufficient evidence to support the jury's special findings that he committed the attempted murders in counts 1, 3, and 4 with premeditation and deliberation, and that the trial court erred by failing to sua sponte instruct the jury on the lesser included offense of attempted voluntary manslaughter with respect to the attempted murder in count 3.

We affirm the trial court's judgment.

FACTS^[2]

Attempted Murder of Richard Holloway (Count 1)

Just after midnight on October 7, 2020, City of Inglewood Police Department Officer Adam Butler and his partner received a report of two men arguing in a liquor store parking lot, with possible shots fired. When the officers arrived, no victim or suspect was present at the scene, and there was no evidence of a shooting in the parking lot. However, a person who lived across the street reported gunshots and directed Officer Butler to a bullet he had discovered in his driveway, which the officer recovered. The bullet appeared distorted, as if it had struck an object.

Later that morning, at around 4:00 a.m., a caller reported that a person had been shot. When Officer Butler and his partner arrived, the caller led them to an apartment building where Richard Holloway stood buckled over clutching his abdomen. Holloway appeared to have sustained a gunshot wound.

Officer Butler suspected that the two incidents were related because Holloway fit the general description of one of the men arguing in the parking lot, and the liquor store was only a mile away from Holloway's apartment.

Surveillance video footage that captured the liquor store incident depicts a man, later identified as Holloway, in the store facing another man who has his back to the camera. The man with his back to the camera can be seen removing an object from his right pocket and placing it in his waistband behind his back. Video of the parking lot depicts the man and Holloway engaged in a verbal exchange. At one point, Holloway holds up his hands, which are empty, in a combative manner. The other man pulls out a gun and shoots at Holloway three times. Holloway doubles over. The shooter then gets into the passenger side of a white SUV, which drives away.

Attempted Murder of John Doe (Count 3)

On June 25, 2021, between 6:00 and 7:00 a.m., Sheryl Kessee was cleaning trash off of the street when she saw a truck hit a man on a bicycle. The man on the bicycle fell over, but the truck did not stop. Kessee went over to ask the man if he was alright. The man jumped up, pulled out a gun, fired about nine or ten shots at the departing truck, and then rode away on the bicycle. Kessee picked up multiple shell casings which she later gave to the police.

Attempted Murder of Christian Mercado (Count 4)

On June 26, 2021, at around 4:00 a.m., Christian Mercado drove his uncle to his grandmother's house. Mercado was sitting in his car, which was parked on the street in the wrong direction. A man in a face mask walked up, looked at him, and said something. Mercado did not respond. Mercado then drove a short distance down the street and made a U-turn. As he drove past, the man said something aggressive and Mercado cursed at him. As Mercado drove away he saw the man reach for his waistband. Someone shot at Mercado. Mercado was not hit by gunfire, but his car was struck on the trunk and rear license plate.

Wilfredo Ortiz was driving with his wife when he saw two vehicles involved in a shooting at the intersection where Mercado's car was shot. Ortiz heard approximately six to seven shots. None of them hit Ortiz, his wife, or their car. Later, Ortiz collected several bullet casings from the intersection and reported the crime to police. When police arrived Ortiz directed them to the intersection, and the officers took possession of the casings he had collected. The officers discovered one additional bullet casing in the same area. A total of seven .45-caliber casings were recovered.

Firearm Evidence

Los Angeles Sheriff's Department Senior Criminalist Tracy Peck analyzed the firearm and ammunition recovered from a home where Lopez lived, and the bullets and casings recovered from the crime scenes. Peck concluded that the casings and bullets in counts 2 through 5 were all fired from the recovered gun. The bullet recovered in connection with count 1 was fired from a different weapon. The recovered gun was a semiautomatic pistol that could fire only one bullet with each pull of the trigger. To load a bullet in the chamber, the shooter would have to first pull back the slide.

DISCUSSION

Sufficiency of the Evidence to Support the Jury's Premeditation Findings

Lopez first contends that the evidence is insufficient to support the jury's special findings that he committed the attempted murders in counts 1, 3, and 4 with premeditation and deliberation. His contention is without merit.

When reviewing for sufficiency of the evidence," '" '[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" '" (People v. Casares (2016) 62 Cal.4th 808, 823, disapproved of on another ground in People v. Dalton (2019) 7 Cal.5th 166, 214; see People v. Clark (2011) 52 Cal.4th 856 942-943; Jackson v. Virginia (1979) 443 U.S. 307 321 [federal due process requires proof "sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt"].)" 'The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence.' [Citation.] '. . . [I]t is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.'" (Casares, at p. 823.)

"An attempted murder is premeditated and deliberate if it occurs '" 'as the result of preexisting thought and reflection rather than unconsidered or rash impulse.'"' (People v. Burney (2009) 47 Cal.4th 203, 235; see People v. Jurado (2006) 38 Cal.4th 72, 118.)' "In this context, 'premeditated' means 'considered beforehand,' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.'"' (Jurado, at p. 118.) 'The process of premeditation and deliberation does not require any extended period of time.' (People v. Mayfield (1997) 14 Cal.4th 668, 767, overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2; People v. Lenart (2004) 32 Cal.4th 1107, 1127 ['We have never required that there be an extensive time to premeditate and deliberate'].) 'A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported-preexisting motive, planning activity, and manner of killing-but "[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation."' (Jurado, at pp. 118-119; see People v. Anderson (1968) 70 Cal.2d 15, 26-27.)" (People v. Cardenas (2020) 53 Cal.App.5th 102, 121.)

With respect to motive, there was evidence that Lopez responded to confrontations with all of the attempted murder victims in counts 1, 3, and 4. (See People v. Cardenas, supra, 53 Cal.App.5th at p. 122 [victim's actions may provide evidence of defendant's motive].) In count 1, video of the liquor store parking lot depicted Lopez and Holloway in a verbal altercation. At one point Holloway raised his hands in a combative manner. In count 3, the driver of the truck struck Lopez on his bicycle, knocking him over, and did not stop to ascertain whether Lopez had been injured. In count 4, after Mercado initially drove away, he made a U-turn and passed by Lopez. The two had another verbal exchange in which Mercado cursed at Lopez. In all three counts, Lopez's interaction with the victim beforehand evinces motive.

With respect to planning, in all three counts Lopez chose to carry a loaded gun. "[T]he act of taking a loaded weapon with him . . . is evidence of preparation and planning for involvement in a violent encounter. (People v Salazar (2016) 63 Cal.4th 214, 245 [the 'defendant brought a loaded gun with him to the [restaurant],...