People v. Torres CA2/8

Filed 5/19/15 P. v. Torres CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B252919

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA077728) v.

HECTOR JAVIER TORRES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. Kim, Judge. Affirmed with directions.

Jennifer A. Mannix, 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, William H. Shin and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

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After one jury deadlocked, a second jury convicted defendant Hector Javier Torres of two counts of attempted premeditated murder and one count of first degree murder. All of the crimes followed a fight at a restaurant, and defendant vigorously argued that he acted in self-defense. On appeal, he argues that the court erred in instructing jurors. We find no prejudicial error and affirm the judgment. We remand the case to the superior court to correct the abstract of judgment. FACTS AND PROCEDURE Early in the morning on March 16, 2008, defendant was at a restaurant in Wilmington with his son and niece. The victims—Thomas Rodriguez, Ruben Saucedo, and Victor Saucedo—also were at the restaurant along with their family and friends including Antonio Saucedo. Victor Saucedo and Antonio Saucedo were cousins, and Ruben Saucedo was their friend. A bloody fight started about 2:00 a.m.; the participants hit each other with bottles. Defendant did not fight with anyone inside the restaurant. Victor Saucedo and Rodriguez fought with another party inside the restaurant. In an effort to stop the fighting, Juan Caballero, one of the restaurant owners, forced everyone outside the restaurant. Defendant went outside, holding the door open for the others to exit. Once outside, Antonio Saucedo punched defendant because he thought defendant was reaching for something. Defendant fell to the ground. Rodriguez may have challenged defendant by putting his hands out suggesting he wanted to fight. Victor Saucedo may have kicked defendant, but Victor testified that although he appeared in a videotape to be kicking defendant he believed he was falling. When defendant and the victims were outside the restaurant, defendant did not heed Caballero’s request that he stop fighting. Defendant shot Ruben Saucedo first, then Rodriguez, and then Victor Saucedo. Ruben Saucedo suffered a broken collarbone and a perforated lung. Rodriguez died of a gunshot wound to the chest. Victor Saucedo suffered a gunshot wound in his back, and was paralyzed. There was no evidence any of the victims, their family members, or friends had weapons. Defendant did not testify. Dr. John Treuting, a toxicologist, testified that Rodriguez’s toxicology report at the time of his death showed that he was under the