P. v. Chessman

Filed 4/4/08 P. v. Chessman CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Kennedy-Powell, Judge. Affirmed.

Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In connection with separate incidents of drive-by shootings, a jury convicted defendant and appellant Kelvin Chessman of one count of murder, five counts of attempted murder, and two counts of possession of a firearm by a felon. On appeal, defendant contends there is insufficient evidence to support his conviction for murder and attempted murder. He also contends that there was prejudicial instructional error. We disagree with these contentions, and we therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

A. The freeway shootings.

Defendant, a convicted felon, is a member of the Lynwood Neighborhood Crips gang. The gangs primary activities are robberies, car thefts, shootings at people, cars and houses, drug sales, and witness intimidation. Defendants nickname is K-9. He drives a green Ford Explorer sports utility vehicle (SUV), which has a punisher logo (skull and crossbones) on it. In a console beneath the SUVs radio, defendant keeps a .40 caliber Glock gun.

Before March 21, 2004the date the first shooting at issue occurredJames Bradley saw defendant with the gun; in fact, Bradley sometimes held the gun for defendant, both before and after March 21. Some of defendants other friends also held the gun for him. Before March 21, defendant told a friend that he had been involved in five or six freeway shootings, including one on the 710 Freeway.^[1]

1. The March 21, 2004 freeway shooting.

On March 21, 2004, defendant was in a motel room with Dontay Holloway, Jeff Basso, Devon Scales, and James Bradley. A friend called them and said she had been in a fight at Arrys Restaurant. Defendant, who drove his green Explorer SUV, and the others went to Arrys. At Arrys, defendant met Cindy Jimenez and Yolanda Delgado, and the three of them, with Holloway, left in defendants SUV to go back to the motel. Defendant was driving.

While en route to the motel, Jimenez saw a red car pass them. Andrew Baltazar was driving that red car; Rosemary Granado, Monica Gabaldon, Jonathan Negrette, and Rafael Rivas were passengers. While on the freeway, the two cars exchanged hard stares. Jimenez, who was in defendants car, heard gunshots, which she thought came from the car she was in, although she did not see either defendant or Holloway holding a gun.^[2] Delgado told detectives that she asked if the other car had shot at them, and defendant said no. Rivas was shot in the back, and he died from his injury.

When defendant, Holloway, Jimenez, and Delgado got back to the motel, James Bradley, who had arrived before them, thought that the group look excited. Holloway looked shocked. Either defendant or Holloway said that they got into a confrontation with some fools on the freeway and we shut them down. One or two weeks after the Arrys incident, Jeff Basso or Devon Scales gave defendants gun to Bradley to hold. Bradley kept the gun, until Basso, secretly acting on behalf of the police, asked for it back in June 2004.

Andrew Baltazar told police that the shots came from a green Ford Explorer, Eddie Bauer edition, with brown bumpers, although at trial he said they came from a black Honda Accord. Baltazar also told police he saw two people in the car and the passenger was an African-American man wearing a white do-rag.

The car in which Rivas had been shot had gunshots to the front passenger door and wheel and three gunshots to the rear. Officers recovered projectiles from the car. Two shell casings were fired from defendants Glock, but other shell casings found in the car were not fired from defendants gun. Seven shell casings were recovered from the 5 Southbound, where the shooting occurred. A projectile was also recovered from Rivass body. It too was fired from the Glock. No fingerprints were recovered from the shell casings, but a fingerprint belonging to James Bradley was found on defendants gun.

In May 2004, potential gunshot residue was collected from defendants SUV. Numerous particles unique to and consistent with gunshot primer residue were found.^[3]

2. The March 23, 2004 freeway shooting.

Just days after Rivas was killed, Efrain Alvarez was driving his car on March 23. He was on the 60 Westbound freeway transitioning to the 710 Southbound. Alvarez saw a green Explorer. He passed the Explorer, but then it passed him. A single shot was fired from the Explorer at Alvarez. Alvarez looked over and, although there was a passenger in the Explorer, it was the driver who was shooting. Alvarezs arm was wounded.

Officers recovered a projectile from Alvarezs car. It was fired from the same gun used to kill Rivas.

3. The March 29, 2004 freeway shooting.

A week after Alvarez was shot, Daniel Lopez was driving his car on the 710 Northbound freeway to the 60 Eastbound freeway. Michael and Candice Casillas and two-year old Jacob R. were also in the car. Michael saw a green or black Blazer, which Candice noticed was following them. They heard gunshots coming from the Blazers direction, but they were not injured. Candice saw five people in the car, including the driver. At trial, she said defendant may have been the driver.

Although projectiles from the Lopez shooting were recovered, testing was inconclusive.

D. Gang evidence.

In the opinion of the prosecutions gang expert, the three shootings were committed for the benefit of or in furtherance of defendants gang. Crimes committed by gang members create fear in and intimidate the community, and they elevate the status of gang members who commit them. Gang members therefore brag about crimes they commit.

II. Procedural background.

A jury found defendant guilty of offenses charged in connection with the March 21 and March 23, 2004 shootings, but not guilty of the offenses charged in connection with the March 29 shooting as follows.

The March 21 shooting: count 1, the special circumstance murder of Rafael Rivas (Pen. Code, 187, 190.2, subd. (a)(21));^[4]count 2, the attempted murder of Andrew Baltazar ( 187, 664); count 3, the attempted murder of Rosemary Granado ( 187, 664); count 4, the attempted murder of Monica Gabaldon ( 187, 664); count 5, the attempted murder of Jonathon Negrete ( 187, 664); count 6, possession of a firearm by a felon ( 12021, subd. (a)(1)). The jury found true firearm enhancement allegations under section 12022.53, subdivisions (b), (c), and (d) as to count 1, but only under subdivisions (b) and (c), as to counts 2, 3, 4, and 5. The jury found that the attempted murders (counts 2, 3, 4, and 5) were committed willfully, deliberately and with premeditation ( 664, subd. (a)). The jury hung on gang enhancement allegations under section 186.22, subdivision (b)(1), attached to counts 1 through 5.^[5]

The March 23 shooting: Count 7, the attempted murder of Efrain Alvarez ( 187, 664); and count 8, possession of a firearm by a felon ( 12021, subd. (a)(1)). The jury found true firearm enhancement allegations under section 12022.53, subdivisions (b), (c), and (d), and allegations that the attempted murder was committed willfully, deliberately and with premeditation ( 664, subd. (a)). The jury found the gang allegation true as to count 7. The jury also found true as to count 7 that defendant inflicted great bodily injury ( 12022.7, subd. (a)).

The March 29 shooting: The jury found defendant not guilty of all offenses charged in connection with the March 29 shooting, namely, the attempted murders of Daniel Lopez (count 9), Jacob R. (count 10), Candice Casillas (count 11) and Michael Casillas (count 12), and possession of a firearm by a felon (count 13).

On August 1, 2006, the trial court sentenced defendant as follows: count 1, life without the possibility of parole plus a consecutive 25 years to life under section 12022.53, subdivision (d); count 2, a consecutive life term plus 20 years under section 12022.53, subdivision (c); counts 3, 4, and 5, concurrent life terms plus three 20-year terms under section 12022.53, subdivision (c); count 7, a consecutive life term plus 25 years to life under section 12022.53, subdivision (d); and counts 6 and 8, concurrent two-year terms. The court stayed the sentences on the remaining true firearm findings.^[6]

This appeal followed.

DISCUSSION

III. Sufficient evidence supports the convictions for murder and attempted murder.

Defendant contends there is insufficient evidence of his intent to kill and, with respect to the attempted murder of Efrain Alvarez, of his identity as the shooter.^[7] We disagree.

Under the substantial evidence standard of review, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible and of solid valuefrom which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]  [I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder.  [Citation.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt.  [Citation.] (People v. Snow (2003) 30 Cal.4th 43, 66; see also People v. Smith (2005) 37 Cal.4th 733, 738-739 (Smith).)

To sustain a conviction for attempted murder, there must be sufficient evidence of the defendants intent to kill: Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 623.) To be guilty of attempted murder, a defendant must harbor express malicea showing the assailant either desires the result or knows to a substantial certainty the result will occur. (Smith, supra, 37 Cal.4th at p. 739.) While reasonable minds may differ on the resolution of whether defendant had the intent to kill, our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Lashley (1991) 1 Cal.App.4th 938, 946.) There is rarely direct evidence of intent, but it may be inferred from all of the circumstances underlying the intent, including the defendants actions. (Smith, supra, at p. 741.)

Defendant here argues that no action on his part evidences an intent to kill. He first points to what he says is the absence of animosity between him and the occupants of Andrew Baltazars car during the March 21 shooting. Evidence of a motive, such as animosity, although not an element of a criminal offense, may be probative of an intent to kill. (Smith, supra, 37 Cal.4th at pp. 740-741.) To the extent motive may be probative of an intent to kill, there was evidence of animosity between the occupants of the two cars, namely, the cars had passed each other and their occupants exchanged hard stares. Also, after the incident, defendant or Holloway said they had encountered some fools on the freeway and shut them down. This too evidences a conscious intent to kill the victims.

Defendant next argues there was no evidence he knew there were five people in Baltazars car; hence, he could not have intended to kill all of them. This is not a correct statement of the reasonable inferences which the jury could have drawn from the evidence. The evidence is the occupants of the two cars exchanged hard stares and passed each other, which may have given defendant the opportunity to see how many people were in Baltazars car. Moreover, that everyone in Baltazars car except Rivas escaped injury does not necessarily establish that defendant lacked an intent to kill each victim. (Smith, supra, 37 Cal.4th at p. 741.)

In any event, defendant may have been unaware of how many people were in Baltazars car, and still have harbored an intent to kill each of them. In People v. Vang (2001) 87 Cal.App.4th 554, the defendant, using high powered, wall piercing weapons, fired at two houses containing a total of 11 people. In upholding the defendants conviction of the attempted murder of all 11 people, the court said, The fact they could not see all of their victims did not somehow negate their express malice or intent to kill as to those victims who were present and in harms way, but fortuitously were not killed. (Id. at pp. 563-564.)

Although not expressly termed as such, Vang employed a kill zone or concurrent intent theory. (Bland, supra, 28 Cal.4th at p. 330.) Bland explained the theory. The defendant in Bland, after exchanging words with the driver of a car, fired multiple shots at the car, killing the driver and wounding two passengers. (Id. at p. 318.) The court concluded that although the intent to kill a primary target does not transfer to a survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within . . . the kill zone. The intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victims vicinity. . . . [C]onsider a defendant who intends to kill A and, in order to ensure As death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire . . . . The defendant has intentionally created a kill zone to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. (Id. at pp. 329-330.) Here too the jury could have reasonably inferred that defendant had an intent to kill everyone in Baltazars car by the fact multiple shots were fired.

But resting an intent to kill on the fact of firing multiple shots does not work, defendant points out, with respect to the March 23 shooting, during which only one shot was fired. Nevertheless, Efrain Alvarez was in fact wounded, and that fact certainly is evidence that defendant intended to kill him. Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositivethe very act of firing a weapon in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill. [Citation.] (Smith, supra, 37 Cal.4th at p. 742.) Indeed, the Smith court upheld the defendants conviction for two counts of attempted murder, even though he fired only one shot, which missed both victims. Firing a single shot at Alvarez and wounding him is therefore certainly sufficient to show defendant intended to kill him.

Defendant, however, suggests that because the Peoples gang expert did not testify that committing murder and attempted murder are primary activities of defendants gang, this undercuts any evidence he had an intent to kill. The expert, however, did testify that shooting at cars, people, and houses is a primary activity of the gang; we therefore disagree that the Peoples expert necessarily excluded murder and attempted murder from the list of activities engaged in by the gang. In any event, defendants intent to kill can exist independently of an intent to further the gangs activities.

In addition to his argument concerning whether there was evidence he intended to kill Alvarez, defendant also argues there is insufficient evidence he was the shooter. Alvarez, however, identified the car who pursued him as a green Explorer SUV. Although Alvarez did not see the shooter, he saw that it was the SUVs driver who shot him. Given that Alvarez identified defendants car, it was reasonable for the jury to infer that defendant was driving it the night Alvarez was shot. Moreover, the projectile recovered from Alvarezs car was fired from the same gun that killed Rivas and that was associated with defendant. This evidence is sufficient to show that defendant was the shooter, notwithstanding evidence that defendants friends also held the gun for him at times.

IV. Failure to instruct on assault with a firearm as a lesser included offense of attempted murder.

In connection with counts 2, 3, 4, 5, and 7 for attempted murder, the information alleged firearm enhancements under section 12022.53, subdivisions (b) and (c).^[8] Based on these allegations, defendant contends that, where, as here, a defendant is charged with attempted murder and with firearm enhancements, the trial court should sua sponte instruct the jury on assault with a firearm as a lesser included offense of attempted murder.^[9] This contention has been repeatedly rejected.

Assault with a firearm is not a lesser included offense of attempted murder, because violence is not an element of murder. (People v. Cook (2001) 91 Cal.App.4th 910, 918-919.) Even if the charging document alleges gun enhancements, those

enhancements cannot be considered to determine what are lesser included offenses. (Cf. People v. Wolcott (1983) 34 Cal.3d 92, 101 [an allegation of firearm use under section 12022.5 should not be considered in determining lesser included offense].) Our California Supreme Court has recently reaffirmed principles underlying Wolcott. It has said that the allegation of an enhancement by use of a deadly weapon is irrelevant to a multiple conviction analysis: [E]nhancements are neither recognized nor considered in determining whether the defendant can be convicted of multiple charged crimes based on necessarily included offenses. (People v. Sloan (2007) 42 Cal.4th 110, 114; accord, People v. Izaguirre (2007) 42 Cal.4th 126, 133.) We are bound by Wolcott, Sloan, and Izaguirre. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

We therefore conclude that trial court did not err in refusing to instruct the jury on assault with a deadly weapon as a lesser included offense to the attempted murder charges.

V. CALJIC No. 8.66.

Defendant next contends that the trial court erred in failing to modify CALJIC No. 8.66 to state that where, as here, there are multiple attempted murder victims, the jury must find individualized intent to kill each victim. We disagree.

The jury was instructed with CALJIC No. 8.66 as follows: Defendant is accused in Counts 2, 3, 4, 5, 7, 9, 10, 11 and 12 of having committed the crime of attempted murder, in violation of [sections] 664 and 187 of the Penal Code. [] . . . [] Murder is the unlawful killing of a human being with malice aforethought. [] In order to prove attempted murder, each of the following elements must be proved[:] [] (1) A direct but ineffectual act was done by one person towards killing another human being; and [] (2) The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being. (Italics added.)

Focusing on the italicized portion of the instruction, defendant argues that the jury was allowed to convict him of the attempted murder of all nine victims, even if it found he intended only to kill one of them. When such a claim is raised, we must consider whether there is a reasonable likelihood the jury construed or applied the instruction in the manner urged. (People v. Osband (1996) 13 Cal.4th 622, 679.) There is no reasonable likelihood here that the jurors construed or applied CALJIC No. 8.66 in the manner defendant suggests. The jurors were given separate verdict forms for each of the victims. The jury was also instructed, under CALJIC No. 17.02, that each [c]ount charges a distinct crime and that the jury had to decide each [c]ount separately. Therefore, viewing the instructions as a whole, as we must do (People v. Davis (1995) 10 Cal.4th 463, 521), and presuming that the jury understood and followed those instructions (People v. Holt (1997) 15 Cal.4th 619, 662), no error occurred.

In addition, although defendant does not directly argue that the trial court should have instructed the jury with CALJIC No. 8.66.1^[10]regarding concurrent intent, to the extent defendant indirectly makes that argument, we reject it. Bland does not require a trial court to give special kill zone instructions. (Smith, supra, 37 Cal.4th at p. 746; see also People v. Anzalone (2006) 141 Cal.App.4th 380, 392-393 [it was not error to fail to instruct the jury it was necessary to find that as to each victim the defendant harbored the specific intent to kill, but prosecutor did err by misstating the law on attempted murder].)^[11]

VI.CALJIC No. 2.11.

Defendants final instructional error claim is it was error to instruct the jury with CALJIC No. 2.11, which provides, Neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events. [] Neither side is required to produce all objects or documents mentioned or suggested by the evidence. Instructing the jury with CALJIC No. 2.11, defendant argues, left the jury with the belief he was required to produce some evidence.

The instruction, however, is a correct statement of law. (People v. Simms (1970) 10 Cal.App.3d 299, 313; People v. Wein (1958) 50 Cal.2d 383, 402-403, disapproved on other grounds in People v. Green (1980) 27 Cal.3d 1, 32-34 and overruled on other grounds in People v. Daniels (1969) 71 Cal.2d 1119, 1140.) Also, the parties do not point us to any objection to the instruction below, and therefore defendants contention is waived. (People v. Guiuan (1998) 18 Cal.4th 558, 570 [ Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.]]; People v. Geier (2007) 41 Cal.4th 555, 579.)

Notwithstanding the waiver, defendants contention is unpersuasive. Even if we assumed that the jury believed that defendant had to produce some evidence, he in fact did. He presented alibi evidence. For example, Edwin Perza testified that on Mondays in March 2004 (March 29 was a Monday) defendant was coaching basketball. Moreover, the jury was correctly instructed on the Peoples burden of proof (CALJIC No. 2.90). Accordingly, there is no likelihood the jury would have drawn any improper inferences from CALJIC No. 2.11.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

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^[1] Defendant was not charged with these five or six other shootings.

^[2] When interviewed by police, Jimenez said she saw defendant and Holloway with guns, but, at trial, she said she was pressured to say that.

^[3] For particles to be unique to gunshot primer residue, they must have lead, barium and antimony present, whereas particles having a combination of those elements are consistent with gunshot primer residue.

^[4] All further undesignated statutory references are to the Penal Code.

^[5] The trial court dismissed these gang enhancement allegations.

^[6] In a bifurcated proceeding, the court found true a prior conviction allegation, but later struck it for the purposes of sentencing.

^[7] Although defendant includes the murder of Rafael Rivas in his argument there is insufficient evidence of intent to kill, he concedes that murder does not require an intent to kill. (See generally, People v. Bland (2002) 28 Cal.4th 313, 327 (Bland).) Implied malice suffices. (Ibid.) Because defendant makes no other argument specific to why there is insufficient evidence to support count 1 for Rivass murder, we do not address whether there is sufficient evidence to support defendants conviction for that count.

^[8] The information also alleged a firearm enhancement under subdivision (d) of section 12022.53 as to count 7.

^[9] Defendant asked the trial court to instruct the jury on a 245, to which the court responded that assault with a deadly weapon is not a lesser included offense of attempted murder. The prosecutor refused to stipulate, as assault was not a charged crime, and therefore the instruction was refused.

^[10] CALJIC No. 8.66.1 provides: A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. [This zone of risk is termed the kill zone.] The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victims vicinity. [] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a [kill zone] [zone of risk] is an issue to be decided by you.

^[11] A trial court may be well-advised to instruct the jury with CALJIC No. 8.66.1, especially where, as in People v. Anzalone, the prosecutor misstates the law. There is no argument or suggestion here, however, that any such misstatements were made.