California Court of Appeal Apr 2, 2013 No. E053083Unpublished
Filed 4/2/13 P. v. Chaira CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E053083
v. (Super.Ct.No. RIF151153)
MANUEL CHAIRA, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Sherrill A. Ellsworth,
Judge. Affirmed in part; reversed in part.
Law Offices of E. Thomas Dunn, Jr., and E. Thomas Dunn, Jr., for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
1
I. INTRODUCTION
Defendant and appellant Manuel Chaira, Jr., appeals from his conviction of
He contends his convictions for attempted murder must be reversed, because the evidence
was insufficient to establish an intent to kill, and his sentence of 20 years plus 69 years to
life constituted cruel and unusual punishment. On our own motion, we requested the
parties to provide additional briefing on the following issues: (1) did the trial court err in
imposing 15-year terms for the gang use allegations as to counts 1 and 2 instead of a 15-
year minimum parole eligibility for those counts; (2) was the evidence sufficient to
establish that the attempted murders were deliberate and premeditated; and (3) did the
trial court err in failing to instruct the jury sua sponte on provocation?
We conclude the trial court erred in imposing separate 15-year terms for each of
counts 1 and 2 under section 186.22, subdivision (b)(5), because the statute instead
provides for a minimum parole eligibility term. We find no further prejudicial errors, and
we affirm.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
II. FACTS AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
Edward Inzunza2 testified that he went to Paragon Park in Perris at around 5:00
p.m. on May 11, 2009, when he was 14 years old, to play handball with his cousin. His
good friend, Jahaziel Reyna, was at the park waiting to play handball when Inzunza
arrived. Reyna was associated with a street gang called Brown Pride Criminals (BPC).
At the park, Inzunza saw Robert Ulloa3 walk a few feet in front of him while
moving toward the driver’s door of a white car in the parking lot. Reyna also went
toward the car where three to five of his friends were standing. Defendant stepped out of
the car, and he and Reyna argued. Reyna punched defendant in the jaw and started
running towards the basketball courts.4 Defendant did not have a gun in his hands, but he
then “shuffled his pockets,” although Inzunza could not tell if defendant’s hands were
inside or outside the pockets. Inzunza looked away toward Reyna, and he heard two or
2Inzunza was reluctant to testify and initially refused to answer questions until he was admonished by the trial court. His testimony was contradictory and confusing on many points, and we have not attempted to set forth all the inconsistencies, although some examples are described herein.
3Ulloa was tried as a codefendant in the assault counts and the gang participation count. The jury found him not guilty.
4 At trial, Inzunza first testified Reyna and defendant had not argued before Reyna punched defendant. He then admitted he had told an investigator they had argued first, and his statement to the investigator was true.
3
three shots. He saw defendant with a gun in his hand firing it toward the basketball and
tennis courts where Reyna had gone.5
Inzunza turned and saw defendant pointing a gun three or four inches from his
chest. 6 Inzunza attempted to jump back, and he “hit the gun down.” Right after he hit it,
the gun fired. Inzunza was shot in the right upper thigh and he fell to the ground.
Defendant then fired three more times in the direction Reyna was running.7 Defendant
then got in the white car and left “fast.”
Inzunza was transported to the emergency room, where he received 24 stitches in
his leg; he remained in the hospital for three days. Despite receiving three months of
physical therapy, he was still unable to play the sports he had played before the shooting.
Deputy Dario Hernandez of the Riverside County Sheriff’s Department arrived at
the emergency room to take Inzunza’s statement about 10 minutes after Inzunza’s arrival
there. Inzunza was scared and nervous, but coherent. Inzunza said he had been playing
handball in the park, and at some point Reyna and the suspect began to argue about
something. Reyna punched the suspect in the face, and the suspect pulled out a handgun.
Everyone in the park started running, and the suspect looked around as though he was
5 Inzunza also testified he had not seen defendant shooting in Reyna’s direction.
6 He also testified he saw defendant shooting toward the basketball and tennis courts, and he saw a gun in defendant’s hand. At another point, he testified he never saw defendant pull out a gun or fire any shots and that he had heard the first three shots, but did not see the shooter until the shooter was pointing the gun at him.
7 Inzunza later testified he had heard three more shots but did not see who the shooter was.
4
looking for someone to shoot. The suspect then turned around, pointed the gun at
Inzunza, and shot him. Reyna came up and asked Inzunza if he was okay and then said,
“‘Ambulance is on the way,’” and “‘I have to go.’” Inzunza said there was an “ongoing
issue” between Reyna and the suspect, who were associated with rival gangs or crews.
Inzunza did not tell Deputy Hernandez the gun was pointed at his chest or that he had
swiped at the gun before its discharge. He did not say the suspect had shot at Reyna at
all.
Reyna, who had been deported to Mexico, was found to be unavailable, and his
preliminary hearing testimony was read to the jury. At the preliminary hearing, he
claimed he did not know where Paragon Park was, and he did not know Inzunza. No one
had shot at him; he had been in the restroom when he heard shooting. He had been at the
park when some kid had been shot, but he was just waiting to play basketball. He had not
seen anyone get out of a car, and he was not involved in the incident. No one pointed a
gun at him; he never had to duck; he never saw who was shooting; he never saw who was
involved in the fight; he did not see who was shot. He was not familiar with a group
called Brown Pride, although he had a tattoo of “Brown Pride” on his arm. He did not
belong to a gang and was not familiar with any gangs in Perris. He never had an issue
with anyone in a gang. He never told an officer a man had removed a silver gun from his
belt, and he denied having said the man had started shooting at him. He never said he
thought four shots were fired or that he ran from the park. He had said the kid who was
shot was like family to him because they were related, but he only knew his first name.
5
He had not received any threats warning him not to testify. He did not know defendant or
Ulloa, and he had never seen them before.
Robert Nicklo, an investigator for the Riverside County District Attorney’s office,
interviewed Reyna on May 14, 2009. Investigator Nicklo testified that Reyna said he had
been at the park playing handball when a white car with three men inside pulled up. The
men got out, and the driver approached Reyna and asked him, “‘Who the fuck are you?’”
Reyna described the driver as a light-skinned Hispanic, approximately five feet seven
inches tall, with hair shorter on the sides than on the top, possibly having a mustache, and
with a “S” on each inner forearm. Reyna did not identify anyone in a photographic
lineup, although he stated one person looked similar to the shooter. He was shown a
second photographic lineup two days later, and he identified a person as the shooter.
Reyna initially told Investigator Nicklo he had merely pushed the man before the
man took a gun from his waistband and began shooting. The man fired four shots in
Reyna’s direction while Reyna ran south out of the park. However, Inzunza told the
investigator that Reyna had punched Chaira. About six weeks after the incident, Inzunza
said he had slapped at the gun, causing it to fire.
Deputy Sheriff Brandon Cardinale found four empty .380-caliber casings, three of
which were on the curb near where the white car had been parked. He testified that
semiautomatic firearm casings are ejected from the right side of the weapon up to seven
feet away. He also found a “bullet strike” mark in a skate park about 100 feet from
where Inzunza was found lying. The strike mark was one or two feet from the ground
and about 150 feet from the casings. The deputy saw no blood trail near Inzunza, and it
6
therefore appeared Inzunza may have fallen down where he got shot.. From the location
of the shell casings, the deputy reasoned the shooter had been standing five to 10 feet
away from Inzunza.
Because defendant does not challenge the gang evidence or the gang participation
conviction on appeal, evidence supporting that charge is set forth summarily: A gang
expert testified that defendant was an active gang member in the Perres Maravilla gang
and stated his opinion that defendant’s crimes benefited his gang.
B. Defense Evidence
Defendant testified in his own behalf. He said friends and family members
belonged to a gang, but he denied being a gang member himself. On May 11, 2009, he
drove to the park and sat in his car a few minutes talking to his wife. He called Ulloa and
invited him to play a game of handball. When he got out of his car, “some guys”
approached and “they were saying something” to him that he could not hear. He told
them he did not want any problems, and when he turned around, “they started hitting
[him], jumping [him].” He had his back to them and did not see who hit him first, but it
was more than one punch, “like, getting jumped.” He was carrying a gun for protection
because he had been shot in a drive-by shooting a few months earlier. After he was hit,
he turned around to face the attackers and pulled out the gun. He just pointed the gun to
scare them and someone hit the gun down, and it went off. He testified that Inzunza was
part of the fight. He continued, “Well, when I pulled it out, he hits it. They’re still
hitting me so I just shot three more times.” He shot to the ground, not aiming at anyone,
to scare them away. He did not intend to shot Inzunza. The men who approached him
7
did not appear to be gang members, and he did not know why they confronted him.
Nothing was said about gangs. He did not know Reyna or Inzunza. He visited the park
two or three times a month, and he had never had any problems there before.
Linda Evans, who lived three houses away from the park, had known defendant
for about 10 years. On the day of the shooting, she saw a group of men rushing at
defendant near the parking lot, and a minute or two later, she heard three pops.
C. Verdicts and Sentence
The jury found defendant guilty of attempted deliberate and premeditated murder
(§§ 664, 187, subd. (a); counts 1 & 2); assault with a firearm (§ 245, subd. (a)(2)); counts
3 & 4) and gang participation (§ 186.22, subd. (a); count 5), and found true various
(Pen. Code, § 496, subd. (a)), and a misdemeanor conviction for driving under the
influence (Veh. Code, § 23152, subd. (a).) Two of his offenses were committed while he
was on bail (Pen. Code, § 12022.1), and that year, he also violated probation. He was
sentenced to 40 months in prison.
In 2010, he sustained a felony conviction for receiving stolen property. At the
time he was convicted of the current offenses, he had an open case alleging assault with a
deadly weapon (§ 245, subd. (a)(1) and felony vandalism (§ 594, subd. (b)(1)), although
those charges were dismissed in the interest of justice at defendant’s sentencing hearing.
Defendant’s extensive prior criminal history and the nature of his current offenses
indicate he is unable or unwilling to conform his conduct to social norms and thus poses a
significant danger to society. (In re Lynch, supra, 8 Cal.3d at p. 425.)
17
(b) Comparison with other punishments
Because defendant “does not base his disproportionality contention on a
comparison of punishments, we decline to engage in such a comparison.” (People v.
Szadziewicz (2008) 161 Cal.App.4th 823, 846.)
We conclude that defendant’s corrected sentence, although harsh, passes
constitutional muster.
IV. DISPOSITION
The trial court is ordered to amend the minute order of the sentencing hearing to
reflect that defendant’s sentence for counts 1 and 2 is subject to a 15-year minimum
parole eligibility term rather than a separate determinate enhancement and to prepare an
amended abstract of judgment and forward it to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J. We concur:
RICHLI J.
KING J.
18
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court erred in imposing separate 15-year terms for gang enhancements under Penal Code section 186.22, subdivision (b)(5), as the statute mandates a minimum parole eligibility term rather than a determinate enhancement. The court otherwise affirmed the convictions, finding sufficient evidence of intent, premeditation, and deliberation, and concluding that any error in failing to instruct on provocation was harmless.
Issues
Did the trial court err in imposing 15-year terms for gang enhancements instead of minimum parole eligibility terms?
Was the evidence sufficient to establish that the attempted murders were deliberate and premeditated?
Did the trial court err in failing to instruct the jury sua sponte on provocation?
Disposition. Affirmed in part; reversed in part.
Quotations verified verbatim against the opinion
“We conclude the trial court erred in imposing separate 15-year terms for each of counts 1 and 2 under section 186.22, subdivision (b)(5), because the statute instead provides for a minimum parole eligibility term.”
“Considered in the light most favorable to the verdict, the evidence supports the jury’s finding of premeditation and deliberation.”
“We therefore conclude, as did the Moye court, that even if the trial court erred in failing to instruct on provocation, the error was necessarily harmless.”