This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO
3 Plaintiff-Appellee,
4 v. NO. 34,708
5 EUGENE E. GONZALES,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY 8 John M. Paternoster, Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 John Kloss, Assistant Attorney General 12 Albuquerque, NM
13 for Appellee
14 Bennett J. Baur, Chief Public Defender 15 Tania Shahani, Assistant Appellate Defender 16 Santa Fe, NM
17 for Appellant
18 MEMORANDUM OPINION
19 VIGIL, Judge.
20 {1} Defendant Eugene Gonzales appeals from his conviction of voluntary 1 manslaughter contrary to NMSA 1978, Section 30-2-3(A) (1994). Defendant argues
2 that the district court erred when it denied Defendant’s proffered jury instructions for
3 self-defense and defense of another. We affirm.
4 BACKGROUND
5 {2} Defendant raised his daughter, Selina, from a young age. When Selina was
6 nineteen years old, she began to use methamphetamine and started dating Augustine
7 Grano (Victim), a sixty-one year old man. Victim had a reputation in the community
8 as a drug dealer with a violent past, and it was rumored that Victim also carried a gun.
9 Defendant did not approve of Selina dating Victim, which he made known to Victim.
10 However, there was no indication that Selina was in the relationship with Victim
11 involuntarily, or that Victim abused Selina.
12 {3} Defendant and Victim had multiple encounters that Defendant considered
13 threatening. On one occasion, Victim rode his bicycle around Defendant on his way
14 to the post office. Defendant contends that when he told Victim that Victim would
15 date Selina “over [his] dead body,” Victim suggested “that could be done, something
16 like that.” However, as the State points out, Defendant stated that he only speculated
17 that Victim said something to this effect. On multiple occasions, when Defendant saw
18 Victim in public, Victim would yell obscenities at Defendant, grab his genitals, and
19 “flip the birdie” at Defendant.
2 1 {4} After Selina failed to return home one evening, Defendant had a bout of anxiety
2 and “couldn’t take it anymore.” Defendant was worried for Selina’s safety, feared that
3 she would overdose, and decided to go to Victim’s house to bring her home.
4 Defendant armed himself with a .22 caliber revolver before he went to Victim’s home
5 in light of the rumors that Victim carried a gun. When he arrived at Victim’s
6 residence, Victim, who was unarmed, stepped in Defendant’s direction, and asked
7 Defendant “What are you going to do now old man, shoot me?” Defendant then shot
8 Victim.
9 {5} Selina was inside the Victim’s residence, and after she heard the shot, she ran
10 to the back of the house where Defendant yelled for her to call 911. When Selina
11 asked Defendant what had happened to Victim, he stated “I told him not to f**k with
12 me Selina.” Selina left the scene and Defendant called 911. Defendant told the 911
13 operator “I just shot a man dead in the head . . . I’m guilty . . . I’m guilty of it because
14 I told him I was gonna kill him . . . I just want to be picked up cause I’m guilty of it.”
15 Defendant put his gun in his vehicle and waited for law enforcement to arrive. At the
16 scene, Defendant voluntarily told an EMT that “he did what he had to do” and also
17 told an officer that “I shot the son of a bitch.”
18 {6} After both parties rested, Defendant requested that the jury be instructed on
19 self-defense under UJI 14-5171 NMRA. Defendant also requested a separate
20 instruction for defense of another under UJI 14-5172 NMRA. The district court
3 1 rejected giving both instructions. The jury convicted Defendant of voluntary
2 manslaughter as a lesser included offense to the charge of second degree murder.
3 Defendant appeals.
4 DISCUSSION
5 {7} Defendant argues that the district court erred when it rejected giving
6 Defendant’s requested instructions on self-defense and defense of another. We
7 disagree and therefore affirm the district court.
8 Standard of Review
9 {8} A defendant is entitled to a jury instruction on his theory of the case if there is
10 evidence to support the instruction. The failure to give a requested instruction which
11 the evidence supports constitutes reversible error. State v. Brown, 1996-NMSC-073,
12 ¶ 34, 122 N.M. 724, 931 P.2d 69. “The propriety of jury instructions given or denied
13 is a mixed question of law and fact. Mixed questions of law and fact are reviewed de
14 novo.” State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. This
15 Court reviews a defendant’s requested instruction in a light most favorable to the
16 giving of the requested instruction. State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M.
17 184, 185 P.3d 355. Therefore, in our analysis, “we review the evidence in the light
18 most favorable to the giving of the self-defense or defense of another instruction.”
19 State v. Sandoval, 2011-NMSC-022, ¶ 2, 150 N.M. 224, 258 P.3d 1016 (alteration,
20 internal quotation marks, and citation omitted).
4 1 A. Self-Defense
2 {9} We first turn to Defendant’s argument that he was entitled to a self-defense
3 instruction. Defendant was entitled to this instruction if there was evidence that
4 showed: “(1) [D]efendant was put in fear by an apparent danger of immediate death
5 or great bodily harm, (2) the killing resulted from that fear, and (3) [D]efendant acted
6 reasonably when he or she killed.” Id. ¶ 17 (internal quotation marks and citation
7 omitted); see UJI 14-5171. “The first two requirements, the appearance of immediate
8 danger and actual fear, are subjective in that they focus on the perception of the
9 defendant at the time of the incident. By contrast, the third requirement is objective
10 in that it focuses on the hypothetical behavior of a reasonable person acting under the
11 same circumstances as the defendant.” State v. Rudolfo, 2008-NMSC-036, ¶ 17, 144
12 N.M. 305, 187 P.3d 170 (internal quotation marks and citation omitted).
13 1. Defendant’s Fear
14 {10} We first examine whether the evidence is sufficient to cause “reasonable minds
15 [to] differ,” about whether Victim caused Defendant to be put in fear of an apparent
16 danger of immediate death or great bodily harm. Sandoval, 2011-NMSC-022, ¶ 17.
17 Defendant contends that he was in fear for his life since he heard Victim had a
18 reputation for carrying a weapon, that Victim had a violent reputation, and that Victim
19 had harassed Defendant in the past.
20 {11} “It is important to view the circumstances at the time the deadly force was used
5 1 by the defendant and not at some earlier point.” Rudolfo, 2008-NMSC-036, ¶ 18. As
2 such, we look to the circumstances at the time Defendant confronted Victim at his
3 home. When Defendant went to Victim’s home, Victim was unarmed and took a step
4 toward Defendant who reacted with gunfire.
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO
3 Plaintiff-Appellee,
4 v. NO. 34,708
5 EUGENE E. GONZALES,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY 8 John M. Paternoster, Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 John Kloss, Assistant Attorney General 12 Albuquerque, NM
13 for Appellee
14 Bennett J. Baur, Chief Public Defender 15 Tania Shahani, Assistant Appellate Defender 16 Santa Fe, NM
17 for Appellant
18 MEMORANDUM OPINION
19 VIGIL, Judge.
20 {1} Defendant Eugene Gonzales appeals from his conviction of voluntary 1 manslaughter contrary to NMSA 1978, Section 30-2-3(A) (1994). Defendant argues
2 that the district court erred when it denied Defendant’s proffered jury instructions for
3 self-defense and defense of another. We affirm.
4 BACKGROUND
5 {2} Defendant raised his daughter, Selina, from a young age. When Selina was
6 nineteen years old, she began to use methamphetamine and started dating Augustine
7 Grano (Victim), a sixty-one year old man. Victim had a reputation in the community
8 as a drug dealer with a violent past, and it was rumored that Victim also carried a gun.
9 Defendant did not approve of Selina dating Victim, which he made known to Victim.
10 However, there was no indication that Selina was in the relationship with Victim
11 involuntarily, or that Victim abused Selina.
12 {3} Defendant and Victim had multiple encounters that Defendant considered
13 threatening. On one occasion, Victim rode his bicycle around Defendant on his way
14 to the post office. Defendant contends that when he told Victim that Victim would
15 date Selina “over [his] dead body,” Victim suggested “that could be done, something
16 like that.” However, as the State points out, Defendant stated that he only speculated
17 that Victim said something to this effect. On multiple occasions, when Defendant saw
18 Victim in public, Victim would yell obscenities at Defendant, grab his genitals, and
19 “flip the birdie” at Defendant.
2 1 {4} After Selina failed to return home one evening, Defendant had a bout of anxiety
2 and “couldn’t take it anymore.” Defendant was worried for Selina’s safety, feared that
3 she would overdose, and decided to go to Victim’s house to bring her home.
4 Defendant armed himself with a .22 caliber revolver before he went to Victim’s home
5 in light of the rumors that Victim carried a gun. When he arrived at Victim’s
6 residence, Victim, who was unarmed, stepped in Defendant’s direction, and asked
7 Defendant “What are you going to do now old man, shoot me?” Defendant then shot
8 Victim.
9 {5} Selina was inside the Victim’s residence, and after she heard the shot, she ran
10 to the back of the house where Defendant yelled for her to call 911. When Selina
11 asked Defendant what had happened to Victim, he stated “I told him not to f**k with
12 me Selina.” Selina left the scene and Defendant called 911. Defendant told the 911
13 operator “I just shot a man dead in the head . . . I’m guilty . . . I’m guilty of it because
14 I told him I was gonna kill him . . . I just want to be picked up cause I’m guilty of it.”
15 Defendant put his gun in his vehicle and waited for law enforcement to arrive. At the
16 scene, Defendant voluntarily told an EMT that “he did what he had to do” and also
17 told an officer that “I shot the son of a bitch.”
18 {6} After both parties rested, Defendant requested that the jury be instructed on
19 self-defense under UJI 14-5171 NMRA. Defendant also requested a separate
20 instruction for defense of another under UJI 14-5172 NMRA. The district court
3 1 rejected giving both instructions. The jury convicted Defendant of voluntary
2 manslaughter as a lesser included offense to the charge of second degree murder.
3 Defendant appeals.
4 DISCUSSION
5 {7} Defendant argues that the district court erred when it rejected giving
6 Defendant’s requested instructions on self-defense and defense of another. We
7 disagree and therefore affirm the district court.
8 Standard of Review
9 {8} A defendant is entitled to a jury instruction on his theory of the case if there is
10 evidence to support the instruction. The failure to give a requested instruction which
11 the evidence supports constitutes reversible error. State v. Brown, 1996-NMSC-073,
12 ¶ 34, 122 N.M. 724, 931 P.2d 69. “The propriety of jury instructions given or denied
13 is a mixed question of law and fact. Mixed questions of law and fact are reviewed de
14 novo.” State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. This
15 Court reviews a defendant’s requested instruction in a light most favorable to the
16 giving of the requested instruction. State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M.
17 184, 185 P.3d 355. Therefore, in our analysis, “we review the evidence in the light
18 most favorable to the giving of the self-defense or defense of another instruction.”
19 State v. Sandoval, 2011-NMSC-022, ¶ 2, 150 N.M. 224, 258 P.3d 1016 (alteration,
20 internal quotation marks, and citation omitted).
4 1 A. Self-Defense
2 {9} We first turn to Defendant’s argument that he was entitled to a self-defense
3 instruction. Defendant was entitled to this instruction if there was evidence that
4 showed: “(1) [D]efendant was put in fear by an apparent danger of immediate death
5 or great bodily harm, (2) the killing resulted from that fear, and (3) [D]efendant acted
6 reasonably when he or she killed.” Id. ¶ 17 (internal quotation marks and citation
7 omitted); see UJI 14-5171. “The first two requirements, the appearance of immediate
8 danger and actual fear, are subjective in that they focus on the perception of the
9 defendant at the time of the incident. By contrast, the third requirement is objective
10 in that it focuses on the hypothetical behavior of a reasonable person acting under the
11 same circumstances as the defendant.” State v. Rudolfo, 2008-NMSC-036, ¶ 17, 144
12 N.M. 305, 187 P.3d 170 (internal quotation marks and citation omitted).
13 1. Defendant’s Fear
14 {10} We first examine whether the evidence is sufficient to cause “reasonable minds
15 [to] differ,” about whether Victim caused Defendant to be put in fear of an apparent
16 danger of immediate death or great bodily harm. Sandoval, 2011-NMSC-022, ¶ 17.
17 Defendant contends that he was in fear for his life since he heard Victim had a
18 reputation for carrying a weapon, that Victim had a violent reputation, and that Victim
19 had harassed Defendant in the past.
20 {11} “It is important to view the circumstances at the time the deadly force was used
5 1 by the defendant and not at some earlier point.” Rudolfo, 2008-NMSC-036, ¶ 18. As
2 such, we look to the circumstances at the time Defendant confronted Victim at his
3 home. When Defendant went to Victim’s home, Victim was unarmed and took a step
4 toward Defendant who reacted with gunfire. Moreover, after the shooting, Defendant
5 told Selina, “I told him not to f**k with me Selina” and confessed that he had shot
6 Victim to police and emergency personnel, without mentioning any perception of
7 danger of death, or great bodily harm arising from Victim’s behavior. Thus, the
8 evidence fails to raise an issue as to whether Defendant believed he was in “apparent
9 danger of immediate death or great bodily harm” from Victim’s behavior at the time
10 of the shooting. State v. Gonzales, 2007-NMSC-059, ¶ 20, 143 N.M. 25, 172 P.3d
11 162.
12 2. Shooting of Victim Resulting From Fear
13 {12} Next, we examine whether Victim’s shooting resulted from Defendant’s fear
14 of an apparent danger of immediate death or great bodily harm. We recognize that “[a]
15 defendant’s knowledge or intent generally presents a question of fact for a jury to
16 decide.” State v. Wasson, 1998-NMCA-087, ¶ 12, 125 N.M. 656, 964 P.2d 820.
17 Further, “[i]ntent is subjective and is almost always inferred from other facts in the
18 case.” State v. Frank, 1979-NMSC-012, ¶ 11, 92 N.M. 456, 589 P.2d 1047. Finally,
19 conflicts in the testimony are for the fact-finder to weigh and resolve. See State v.
20 Rivera, 2010-NMCA-109, ¶ 16, 149 N.M. 406, 249 P.3d 944 (“Conflicts in the
6 1 evidence, even within the testimony of a witness, are to be resolved by the fact[-]
2 finder at trial.” (internal quotation marks and citation omitted)), aff’d in part, rev’d in
3 part on other grounds, 2012-NMSC-003, 268 P.3d 40.
4 {13} Here, however, Defendant stated to the 911 operator, law enforcement, and
5 emergency personnel that he shot Victim. At no time, did Defendant mention, nor
6 does the evidence support a finding, that Defendant shot Victim because of fear for
7 his own safety, and Defendant’s own testimony contravenes any assertion that he shot
8 Victim as a result of a fear of immediate death or great bodily harm. As such, we
9 conclude the evidence is insufficient to raise a question on the second element of the
10 instruction.
11 3. Reasonableness of Defendant’s Actions
12 {14} Because the evidence fails to raise a question as to whether (1) Defendant was
13 put in fear of an apparent danger of immediate death or great bodily harm; and (2)
14 killing Victim resulted from that fear, we conclude that a reasonable person in the
15 same circumstances would not have acted as Defendant did.
16 {15} In summary, although “there need be only enough evidence to raise a
17 reasonable doubt in the mind of a juror about whether the defendant lawfully acted in
18 self-defense[,]” Rudolfo, 2008-NMSC-036, ¶ 27, we conclude that the evidence here
19 fails to meet that standard. In addition, Defendant was the original aggressor of the
20 interaction, and as such, he is not necessarily entitled to a self-defense instruction.
7 1 “The rule is well established in this jurisdiction that a defendant who provokes an
2 encounter, as a result of which he [or she] finds it necessary to use deadly force to
3 defend himself [or herself], is guilty of an unlawful homicide and cannot avail himself
4 [or herself] of the claim that he [or she] was acting in self-defense.” State v. Lucero,
5 1998-NMSC-044, ¶ 7, 126 N.M. 552, 972 P.2d 1143 (alteration in original) (internal
6 quotation marks and citation omitted).
7 {16} For all the foregoing reasons, we conclude that Defendant was not entitled to
8 a self-defense instruction. See Rudolfo, 2008-NMSC-036, ¶ 17 (“A defendant is not
9 entitled to a self-defense instruction unless it is justified by sufficient evidence on
10 every element of self-defense.”).
11 B. Defense of Another
12 {17} Next, Defendant argues that the district court erred when it denied his
13 instruction on defense of another under UJI 14-5172. Defendant was entitled to the
14 instruction if there was evidence that: “(1) there was an appearance of death or great
15 bodily harm to a person; (2) [D]efendant believed the person was in immediate danger
16 of death or great bodily harm . . . ; and (3) the apparent danger would have caused a
17 reasonable person in the same circumstances to act as [D]efendant did.” Sandoval,
18 2011-NMSC-022, ¶ 17 (internal quotation marks and citation omitted); see UJI 14-
19 5172.
20 1. Appearance of Immediate Danger of Death or Great Bodily Harm To
8 1 Selina
2 {18} The evidence presented at trial fails to raise a question on this element as there
3 was no appearance of an immediate danger of death or great bodily harm to Selina
4 resulting from Victim’s acts. Therefore, there was insufficient evidence as to this
5 element.
6 2. Shooting Victim as a Result of Belief that Selina Was in Immediate Danger 7 of Death or Great Bodily Harm
8 {19} The evidence is likewise insufficient to cause reasonable minds to differ as to
9 whether Defendant believed Selina was in immediate danger of death or great bodily
10 harm when Defendant shot Victim.
11 {20} Defendant stated that he had an anxiety attack and “couldn’t take it anymore”
12 when Selina left his home, voluntarily, and did not return as planned. In his brief,
13 Defendant states that “Selina’s . . . prolonged absence meant that she might have
14 overdosed . . . at [Victim’s] home.” Although these beliefs are understandable given
15 the circumstances, there is no indication that Defendant shot Victim believing that
16 Selina was in immediate danger of death or great bodily harm from Victim. In short,
17 there was no evidence that Victim was causing an immediate danger of death or great
18 bodily harm to Selina and that Defendant shot Victim to prevent that harm.
19 3. Reasonableness of Defendant’s Actions
20 {21} Because the evidence fails to raise a question as to whether (1) there was an
9 1 appearance of immediate danger of death or great bodily harm to Selina; or (2) that
2 Defendant believed there was an immediate danger of death or great bodily harm to
3 Selina when Defendant shot Victim, we conclude that reasonable minds would not
4 differ as to whether a reasonable person would have acted in the same manner as
5 Defendant. See Sandoval, 2011-NMSC-022, ¶ 17, (citing to UJI 14-5171 and noting
6 the requirement that the “apparent danger would have caused a reasonable person in
7 the same circumstances to act as the defendant did” (internal quotation marks and
8 citation omitted)).
9 {22} Defendant was not entitled to his requested instruction on defense of another
10 under UJI 14-5172. See Rudolfo, 2008-NMSC-036, ¶ 17 (“A defendant is not entitled
11 to a self-defense instruction unless it is justified by sufficient evidence on every
12 element of self-defense.”); see also Sandoval, 2011-NMSC-022, ¶ 16 (stating that
13 because self-defense and defense of another are treated virtually identically for
14 purposes of analysis, “assertions made regarding self-defense instructions are also
15 assumed to apply to defense of another instructions”).
16 CONCLUSION
17 {23} The judgment and sentence is affirmed.
18 {24} IT IS SO ORDERED.
19 __________________________________ 20 MICHAEL E. VIGIL, Judge
10 1 WE CONCUR:
2 ___________________________ 3 JAMES J. WECHSLER, Judge
4 ___________________________ 5 TIMOTHY L. GARCIA, Judge