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Name: People v. Vallejo
Case #: B232609
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 03/21/2013

Jury foreman committed no misconduct by failing to request a “readback” of testimony where only one juror wanted to hear it. Appellant was sentenced to prison for 29 years to life following convictions arising out of his discharge of a firearm from a motor vehicle following a fight. On appeal, Appellant contended that the jury foreman was guilty of misconduct because he refused to honor a juror’s request for a rereading of certain testimony. The appellate court rejected the argument, finding no misconduct. Under Penal Code section 1138, the jury may request a readback of testimony, not an individual juror. Here, one juror requested a readback of approximately 230 pages of testimony, which would have taken several hours. The other jurors said they did not want the readback. It was not misconduct to follow the requests of the other jurors.

The prosecutor did not commit prejudicial misconduct during closing argument. During closing argument, the prosecutor repeatedly stated that appellant had “brought a gun to a fistfight.” On appeal, appellant argued that this was misconduct and that counsel was ineffective for failing to object to this characterization of his conduct. The appellate court disagreed. Prosecutors have wide latitude to vigorously argue his or her case and the statement here was fair comment upon the evidence. Appellant had testified that he saw people beating his companion, Gomez, and grabbed a gun from under his car seat. On cross-examination, the prosecutor asked what the people were doing to Gomez and appellant replied that they were hitting him with their fists and pounding on him. He agreed that the first thing he grabbed when he thought Gomez was being hit with fists was a gun.

The trial court did not have a duty to instruct on transferred self-defense or imperfect self-defense in this case. Appellant also argued that the trial court erroneously failed to instruct sua sponte on transferred self-defense because the defense theory was that the victim had been inadvertently hit by a shot appellant fired in self-defense. The appellate court rejected the argument. The doctrine of transferred self-defense applies where “the act [in self-defense] is directed towards the unlawful aggressor and inadvertently results in the injury of a nonaggressive party.” Here, the evidence did not support the instruction because appellant testified he fired warning shots into the ground, not at an aggressor. Additionally, other instructions made clear that appellant was not guilty if he acted in self-defense. Further, even if the court erroneously failed to instruct on transferred self-defense for the offense of shooting from a vehicle, the error would have been harmless because the jury necessarily rejected the theory of self-defense when it convicted appellant of attempted voluntary manslaughter. The appellate court also rejected appellant’s argument that the court should have instructed on imperfect self-defense. The trial court has no duty to instruct sua sponte that an honest but unreasonable belief in the need for self-defense is a defense to the crime of shooting from a vehicle.

Appellant’s 25-year-to-life consecutive prison term for a Penal Code section 12022.53 enhancement was not unconstitutional. As to the offense of discharging a firearm from a motor vehicle, the jury found true an allegation that appellant had personally and intentionally discharged a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d)). This resulted in a consecutive prison term of 25 years to life. Appellant contended that the enhancement violated substantive due process and equal protection, and that his sentence constituted cruel and unusual punishment. The appellate court rejected appellant’s constitutional challenges. His substantive due process challenge failed because the statute is intended to deter precisely what happened here. The fact that the enhancement does not apply to defendants convicted of attempted voluntary manslaughter who discharged a firearm after exiting a vehicle does not deny appellant equal protection. Such defendants are not similarly situated to appellant, who discharged his firearm while inside his vehicle. Additionally, the Legislature could rationally have determined that firing a gun from a motor vehicle was worthy of such an increased sentence. Appellant forfeited the cruel and unusual punishment issue because he failed to raise it in the trial court. Even if the issue was preserved, appellant’s sentence is not disproportionate to his crime because he caused life threatening injuries when he shot the victim.