P. v. Brittian
Filed 1/11/13
P. v. Brittian CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH
APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and
Respondent,
v.
ERIC MICHAEL BRITTIAN,
Defendant and
Appellant.
D058372
(Super. Ct. No. SWF013593)
APPEAL from a judgment of the Superior Court of
County, Larrie R. Brainard, Judge. (Retired judge of the San Diego Sup. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.
A jury convicted Eric Michael
Brittian of the first degree murder
of Olivia Avalos and Lori Flores, attempting to murder Jack Ramirez and Joe
Ramirez by personally discharging a firearm, and found true a multiple-murder
special circumstance allegation. (For
clarity and ease of reference, we refer to these individuals and other
witnesses sharing the same last name by their first names.) The trial court sentenced Eric to prison
for life without possibility of parole, to be served consecutively to an
aggregate indeterminate term of 180 years to life.
Eric appeals, contending (1) his
convictions must be reversed because there was no solid, credible evidence that
he was the assailant who committed the crimes, and (2) the trial court
erred and deprived him of his federal constitutional
rights when it instructed the jury with CALCRIM No. 315 regarding Olivia's
purported eyewitness identification. He
also asserts the trial court committed three sentencing errors, namely that the
trial court erred when it (1) set the amount of the restitution fine,
(2) imposed a parole revocation fine, and (3) imposed both an
indeterminate life sentence and a sentence of life without the possibility of
parole for the same conduct and offense.
The Attorney General conceded, and
we agreed that the trial court erred in setting the amount of the restitution
fine and in imposing a parole revocation fine.
We otherwise rejected Eric's arguments and affirmed the judgment.
Our supreme court granted Eric's
petition for review with directions to vacate the opinion and reconsider the
claim of sentencing error regarding the life term in accordance with Penal Code
section 190, subdivision (a).
(Undesignated statutory references are to the Penal Code.) We requested and received supplemental briefs
on this issue. We hereby vacate our
previous decision and reissue our opinion with the exception of the life term
sentencing error issue. We are not
reconsidering the other issues given that the life term sentencing error issue
does not affect them. We discuss them
only because we are vacating our earlier opinion.
FACTUAL AND PROCEDURAL BACKGROUND
The witnesses gave varying testimony and Jack recanted
his earlier statements to police when he testified at trial; however, viewed in
the light most favorable to the judgment, the evidence was as follows:
Eric lived with his parents on the Soboba Indian
Reservation near the town of San
Jacinto, California. Eric frequently drove a 2004 black Chevy
Silverado truck.
Joe
and his brother, Jack, lived with their girlfriends, Olivia and Lori,
respectively, in San Jacinto. Olivia was about the same age as Eric. Olivia was the niece of the longtime
girlfriend of Eric's godfather, Charles Eric Brittian (Charles Sr.), Kathy
Martinez. Martinez and her
family were "Mexicans" and not from Soboba. Charles Sr. knew problems between
"Mexicans" and the people from Soboba had been going on for
years. Joe also knew that Jack had a
possible problem with "people up on the reservation."
Emily Brittian is Eric's second cousin. Emily knew Jack since 2000 or 2001 and had a
romantic relationship with him in late 2005.
However, Jack was also with Lori at the time. In August 2006, Emily had twins fathered by
Jack. Emily used to hang out with Eric.
At about 10:00
p.m., on September
4, 2005, Joe, Lori and Olivia were sitting at a table in
their home eating when someone fired gunshots outside. Jack, who was also inside the house, walked
outside, followed by Lori, Olivia and Joe.
Joe saw a truck parked in the street with a flash coming from it. More than ten shots were fired very
quickly. Joe could not see the shooter
because parts of the screen door shattered by the shots had hit him in the face
and eye. After the shots were fired, Joe
went to Olivia who was lying just inside the door. Lori also ran inside and then collapsed in
the living room. Olivia told Joe that
Eric was the shooter.
Investigator James Campos with the Riverside County
Sheriff's Department was the first to arrive at the shooting scene a few
minutes after receiving the dispatch call.
He contacted Olivia and Joe in the front doorway to the house and saw
that Olivia had suffered multiple gunshot wounds. He also saw Jack and Lori and observed that
Lori had also been shot. Campos testified that after he
asked Olivia who shot her, she responded with the name, "Eric."
Joe told Campos
that he believed Eric was the shooter because he saw Eric's truck; however, he
admitted that he did not see Eric shoot.
Joe told Campos
that he had seen the driver of the truck before, that the driver was Eric and
that Eric had been "mad dogging" Jack because the two men had
problems.
A paramedic responded to the scene and treated
Olivia. The paramedic sat with Olivia in
the ambulance and stated that she was conscious, but very difficult to
understand. He believed that he
"possibly" could have asked Olivia regarding who shot her and that
she responded by shaking her head "yes," and "no" and sometimes
stating a few words.
Senior Investigator Robert Joseph of the Riverside County
Sheriff's Department was in charge of investigating the shooting. Joseph interviewed Joe at the police
station. The interview was audio and
video recorded and a transcript of the interview was created. When he asked Joe whether Olivia had said
anything after the shooting, Joe claimed that Olivia had stated that Eric was
responsible for the shooting.
Joseph also spoke to Jack the day after the
shooting. Jack refused to go to the
police station, so Joseph conducted a lengthy audio recorded interview at the
scene. Jack relayed that he went outside
after hearing shots, that he saw a newer black Chevy Silverado truck in the
street that he had seen previously. A
person got out of the truck and immediately started firing toward them.
Jack stated that he jumped off the porch and had a direct
line of sight from where the person was shooting. Jack described seeing a high powered rifle
and stated that "he let off a clip" or about 15 shots. Jack claimed that he had seen the truck many
times before, knew that the shooter was "Indian," and that the
shooter was not Charlie Boy, the son of Charles Sr. Jack told Joseph that the person who got out
of the truck did the shooting and "I seen him with my own eyes." He then stated that he knew who Eric was, but
that he had never met him. Jack saw the
shooter aim in his direction and described the shooter as about six feet tall,
with a normal-size build and wearing bulky clothes in a dark color.
A couple of days after the search of Eric's home, Joseph had
another conversation with Jack. Joseph
again asked Jack if he could identify the shooter. Jack responded that "[i]t was the person
that drove the black truck that did it."
When Joseph asked for that person's name, Jack responded, "That
same dude." When Joseph asked Jack
if he knew the name of the dude, Jack responded, "Yeah. You said his name just now." Joseph stated that he had previously
mentioned Eric's name to Jack. When
Joseph asked Jack to say the person's name, Jack responded, "Why,
man? Why do you want me to say it?"
After Joseph told Jack that he knew who the shooter was,
Jack responded, "I was standing right there." When Joseph again asked Jack who did the
shooting, Jack stated, "The same person that drives that black
truck." Jack indicated that he had
seen the shooter's face previously about once or twice. When Joseph again asked who did the shooting,
Jack stated, "The person, the driver of that truck." Jack stated that he had seen the individual
driving the truck "a bunch of times" and that "[he was] always
around here." At one point during
the interview, Jack indicated that the dome light inside the truck came on when
the driver's side door opened; however, at that point in the interview, he
claimed that he could not see a head. Jack also confirmed that the streetlight where
the truck was positioned was on.
At trial, Joe testified that about a month before the
shooting, he started to see a dark colored Chevy Silverado king cab truck in
his neighborhood. After seeing the
person driving the truck, he remembered having a conversation with Olivia as to
who it might be. Joe was positive that
on the night of the shooting, he saw the same truck that he had previously had
a conversation with Olivia about. When
asked whether the person inside the truck was in the courtroom, Joe replied,
"I don't know if it's him."
However, Joe described the person driving the truck as a young
medium-sized man with long hair. When
asked whether Olivia mentioned any names after the shooting, Joe testified that
"[s]he seen the truck. She said it
was Eric."
Jack testified that he spoke to detectives at the house
after the shooting, but stated that he did not like speaking to them and did
not like the police because he had suffered convictions for
saw a truck pull up just before the shooting and that he had seen the truck
before. Even after the prosecutor read
from the transcripts of his two police interviews, Jack claimed that he could
not remember anything he said during his interviews. Rather, Jack repeatedly claimed that he could
not remember or did not know.
DISCUSSION
I.
A. General Legal Principles
When a defendant challenges the sufficiency of the
evidence to support his conviction, we examine the entire record in the light
most favorable to the judgment to determine whether it contains substantial
evidence from which the jury could find the defendant guilty beyond a
reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576, 578.) We must presume in support of the judgment
the existence of every fact the trier of fact could reasonably deduce from the
evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Unless it is clearly shown that "on no
hypothesis whatever is there sufficient substantial evidence to support the
verdict," we will not reverse. (
423, 429.) The same standard of review
applies even "when the conviction rests primarily on
at p. 1053.)
"Although we must ensure the
evidence is reasonable, credible, and of solid value, nonetheless it is the
exclusive province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts on which that determination
depends. [Citation.] Thus, if the verdict is supported by
substantial evidence, we must accord due deference to the trier of fact and not
substitute our evaluation of a witness's credibility for that of the fact
finder." (People v. Jones (1990) 51 Cal.3d 294, 314.)
B. Analysis
For purposes of argument, Eric concedes that the truck
used in the shooting was the same truck which he frequently drove. He asserts the entire judgment must be
reversed because the prosecution failed to introduce any solid, credible
evidence to support a finding by a reasonable jury that he was the shooter. We disagree.
Eric first asserts that Olivia's dying declaration to
Campos identifying him as the shooter was incredible because (1) it was clearly
Olivia's deduction based on seeing the truck and not an assertion of percipient
knowledge as none of the other witnesses could see the shooter, (2) Campos's
testimony was impeached, and (3) Olivia told the paramedic that she did
not actually see or identify the shooter.
We examine each contention in turn.
Immediately after the shooting, Joe spoke to Olivia. When asked at trial whether Olivia said any
names, Joe responded, "Yep. [¶] She seen the truck. She said it was Eric." Eric contends that based on Joe's reference
to the truck, the only reasonable conclusion the jurors could draw was that
Olivia merely assumed Eric was the shooter after she saw his truck. We disagree as the totality of the evidence
does not suggest that it was impossible for her to see and recognize Eric.
The evidence presented at trial showed that Olivia
personally knew Eric. Gloria, Olivia's
aunt, testified that Olivia visited Kathy at her home with Charles Sr. Charles Sr. also reluctantly admitted that
Eric and Olivia were at his house at the same time a couple of weeks before the
shooting. On the night of the shooting,
Lori and Olivia followed Jack out the front door. Although Eric argues it was pitch black
outside, there was evidence presented from which the jury could reasonably
infer that Olivia actually saw the driver.
Namely, Joe remembered that the porch light was on when he went outside,
and Jack told Joseph that the truck was parked under a streetlight and that the
dome light inside the truck came on when the driver's side door opened.
We reject Eric's suggestion that Joe's inability to
identify the shooter undermines Olivia's identification. The jurors could have reasonably rejected
this possibility because Joe testified that he was the last person out the
door, that more than ten shots were fired very quickly, and he could not see
the shooter because parts of the screen door shattered by the shots hit him in
the face and eye.
Campos's testimony also supported Olivia's
identification. Campos testified that
Olivia said the name "Eric" after he asked who had shot her. Eric asserts Campos's testimony was
"patently incredible" because Campos admitted that he failed to
record Olivia's statement to him in his police report, he had no explanation
for his failure to do so, it should have been included, and he made a
"mistake" when he failed to do so.
Campos claimed that although he forgot this information, his report was
otherwise accurate. Campos also admitted
that he never documented Olivia's statement, even though Senior Investigator
Joseph asked him to do so in 2008, and the trial prosecutor had asked him to do
so prior to trial, in late 2009. While
these admissions could have impacted Campos's credibility, the believability of
his testimony was a matter for the jury to decide. (CALCRIM No. 226.)
Additionally,
the jury could have reasonably interpreted Jack's statements to Joseph
immediately after the shooting as identifying Eric as the shooter. Despite Jack's claim that he had never met
Eric, the evidence presented at trial suggested that the men knew each
other. Jack dated Eric's second cousin,
Emily, and fathered her twins. Joe knew
that Jack and Eric had "problems" and had seen Eric "mad
dogging" Jack from his truck.
The evidence also suggested that Jack had a clear view of
the shooter, but that he was reluctant to name Eric. Jack was the first person out of the house
after the first round of shots. He
jumped off the porch, observed the shooter exit the truck, stated that the dome
light inside the truck came on when the driver's side door opened, and claimed
that he had a direct line of sight to the shooter. Jack told Joseph that the person who got out
of the truck did the shooting and "I seen him with my own eyes." Although Jack refused to actually name Eric
as the shooter, he told Joseph, "You said his name just
now" after Joseph had mentioned Eric's name. The jury could have considered this evidence
as corroborating Olivia's identification of Eric as the shooter.
Although Eric points out that neighbors Anthony Coaston
and Hayden Jones looked outside during the shooting, but could not identify the
shooter, it was up to the jurors to evaluate this testimony and decide how it
possibly impacted Olivia's identification.
Detective David Josker from the Riverside County Sheriff's Department
interviewed these witnesses. Josker testified
that he had conducted hundreds of interviews and found that some people are
better witnesses than others and it often occurs that people standing next to
each other see things differently.
Moreover, the trial court instructed the jury with CALCRIM No. 226
concerning witness testimony in general.
The instruction directed the jury to consider how well the witness could
see, hear, or otherwise perceive the things about which the witness testified,
how well the witness was able to remember and describe what happened, and that
people witnessing the same event may see the event differently.
Finally, the jury could reasonably have concluded that
the testimony of the paramedic who treated Olivia after the shooting did not
add anything to the decision making process.
A reading of the paramedic's entire testimony reveals that he recalled
the topic of conversation, but could not remember the exact question he asked
Olivia. While he might have asked Olivia
who had shot her, she responded by shaking her head "yes," and
"no" and sometimes stating a few words. The paramedic's statement to Investigator
Josker after the shooting was somewhat more concrete; however, even at that
time, he could not remember his exact question to Olivia. Rather, he stated it was along "the
lines of do you know who did this to you?" and "did you get a good look
at them?" with Olivia responding, "No." The paramedic admitted that he started
"bagging" Olivia immediately after questioning her because she was
becoming hypoxic due to the loss of blood.
He explained that individuals who are hypoxic can become restless,
anxious and confused.
In summary, Eric's arguments ultimately
turn on the credibility of the witnesses and we decline his
invitation to reweigh the evidence.
II.
A. Facts
After the prosecution rested, the court asked counsel
whether it needed to attend to any issue other than the jury instructions. Defense
counsel proceeded to argue its motion for an acquittal, which the court
denied. The court then noted that
counsel would return to discuss the instructions and went off the record. Thereafter, the court discussed the jury
instructions with counsel off the record.
The court then instructed the jury with a number of
instructions, including CALCRIM No. 315 regarding eyewitness identification. CALCRIM No. 315 provided the following: "You have heard eyewitness testimony
identifying the defendant. As with any
other witness, you must decide whether an eyewitness gave truthful and accurate
testimony." The instruction then
listed numerous factors for the jury to consider in evaluating identification
testimony. The instruction concluded by
informing the jury that "[t]he People have the burden of proving beyond a
reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you
must find the defendant not guilty."
B. Analysis
Eric contends the trial court abridged his Sixth
Amendment right to a jury trial and his Fourteenth Amendment right to proof of
guilt beyond any reasonable doubt when it instructed the jury with CALCRIM No.
315, which effectively instructed the jury to consider Olivia's alleged dying
declaration to be an eyewitness identification of him. He complains that the court did not instruct the
jury that it was for them to determine whether or not a statement made by any
particular witness constituted an eyewitness identification and that by giving
CALCRIM No. 315, the trial court usurped the jurors' role of evaluating the
evidence by telling them that they had heard such evidence.
As a threshold issue, the discussion between counsel and
the court regarding jury instructions was not recorded. The record does not show that defense counsel
objected to this procedure, nor does it indicate the instructions requested by
defense counsel. Accordingly, it is
impossible to determine whether defense counsel invited the alleged error or
forfeited the alleged error by failing to object. (People
v. Coddington (2000) 23 Cal.4th 529, 584 [defendant who believes that an
instruction is erroneous or requires clarification must request correction or
clarification of the instruction to avoid waiving the issue on appeal],
overruled on another ground in Price v.
Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) No objection is necessary, however, to
preserve a claim that an instruction violated a defendant's substantial
rights. (§ 1259; People v. Kelly (2007) 42 Cal.4th 763, 791.) Assuming, without deciding, that the
challenged instruction affected Eric's substantial rights, we turn to the
merits of his claims on appeal.
When reviewing a potentially misleading or confusing
instruction for federal constitutional error, the relevant inquiry is " 'whether
there is a reasonable likelihood that the jury misunderstood and misapplied the
instruction.' [Citations.]" (People
v. Young (2005) 34 Cal.4th 1149, 1202.)
"A defendant challenging an instruction as being subject to
erroneous interpretation by the jury must demonstrate a reasonable likelihood
that the jury understood the instruction in the way asserted by the
defendant. [Citations.]" (People
v. Cross (2008) 45 Cal.4th 58, 67–68.)
In deciding whether jury instructions correctly convey the law, we look
to the instructions as a whole to see whether there is a reasonable likelihood
the jury misunderstood the instructions.
(People v. Musselwhite (1998)
17 Cal.4th 1216, 1248.) An instruction
can be found to be ambiguous or misleading only if, in the context of the
entire charge, there is a reasonable likelihood that the jury misconstrued or
misapplied its words. (
957, overruled on other grounds in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) We presume that jurors are intelligent and
capable of understanding and correlating all jury instructions given. (People
v. Carey (2007) 41 Cal.4th 109, 130.)
Applying these principles here, it is clear the challenged instruction
is not objectionable.
Stripped to its essence, Eric contends that CALCRIM No.
315 is an incorrect statement of the law because it erroneously presents the
identification as a fact by providing, "You have heard
defendant." However, this portion
of CALCRIM No. 315 is essentially the same as CALJIC No. 2.92, which states,
"Eyewitness testimony has been received in this trial for the purpose of
identifying the defendant as the perpetrator of the crime[s]
charged." The two instructions
convey the same information to the jury in a different manner. Although our high court has not addressed the
precise issue raised by Eric, it has concluded that CALJIC No. 2.92 is a
correct statement of the law. (
1144 ["CALJIC No. 2.92 or a comparable instruction should be given when
requested in a case in which identification is a crucial issue and there is no
substantial corroborative evidence."].)
Moreover, we must evaluate Eric's claim that CALCRIM No.
315 erroneously usurped the jurors' role of evaluating the evidence by telling
them that they had heard eyewitness testimony, by reviewing the instructions as
a whole. (People v. Musselwhite, supra,
17 Cal.4th at p. 1248.) Notably, the
trial court also instructed the jury "[s]ome of these instructions may not
apply, depending on your findings about the facts of the case. [Do not assume just because I give a
particular instruction that I am suggesting anything about the facts.] After you have decided what the facts are,
follow the instructions that do apply to the facts as you find them." (CALCRIM No. 200.) This same instruction informed the jury that
"[y]ou must decide what the facts are.
It is up to all of you, and you alone to decide what happened, based
only on the evidence that has been presented to you in this trial." Thus, the trial court correctly instructed
the jurors that it was for them to determine whether Olivia or any other person
present during the shooting was or was not an eyewitness.
III.
A. Restitution Fine
The trial court ordered Eric to pay a restitution fine of
$40,000. (§ 1202.4.) The Attorney General concedes, and we agree
that the trial court erred in setting the amount of the restitution fine. Regardless of the number of counts involved,
the maximum restitution fine that may be imposed in a criminal prosecution is
$10,000. (§ 1202.4, subd. (b)(1),
Cal.App.4th 1520, 1534.)
B. Parole Revocation Fine
The trial court sentenced Eric to life without the
possibility of parole and imposed a $40,000 parole revocation fine under
section 1202.45. Eric contends, the
Attorney General concedes, and we agree that the fine must be stricken because
a parole revocation fine is only authorized in a case where the sentence of the
person convicted of a crime includes a period of parole. (People
v. Samaniego (2009) 172 Cal.App.4th 1148, 1184.)
C. Life Sentence
The trial court sentenced Eric to consecutive terms of
(1) 25 years to life on count one, plus 25 years for the firearm enhancement as
to count one (murder of Olivia), (2) 25 years to life on count two, plus 25
years for the firearm enhancement as to count two (murder of Lori), and (3)
life without the possibility of parole for the multiple-murder special
circumstance finding under section 190.2, subdivision (a)(3).
In his opening brief, Eric contended the trial court
erred when it imposed both an indeterminate life sentence and a sentence of
life without the possibility of parole for the same conduct and same
offense. The People disagreed, asserting
the sentence was correct. Relying on the
language of the relevant statutes, Eric now contends the trial court erred by
imposing all three sentences for the two murder convictions. He claims the correct sentence on both murder
convictions is a single sentence of life without the possibility of
parole. The Attorney General concedes
that under subdivision (a) of section 190, it was improper to sentence Eric to
both 25 years to life and life without the possibility of parole, but asserts the
correct sentence is life without the possibility of parole for
General also contends that an additional 25-year term should be added to each
count for the firearm enhancements under section 12022.53. We agree with the Attorney General.
Subdivision (a)(3) of section 190.2, provides for a term
of life without the possibility of parole in a case in which the defendant has
been convicted of first degree murder and has also been convicted in the same
proceeding of more than one offense of murder in the first or second
degree. In People v. Garnica (1994) 29 Cal.App.4th 1558, the court explained
that where a defendant has been convicted of two counts of first degree murder
and one multiple-murder special circumstance allegation has been found true,
that the multiple-murder special circumstance allegation may be used to impose
multiple sentences of life without parole on multiple murder counts in a single
proceeding based on the "remote but real possibility that one or another
of the sentences might be commuted by the governor." (Id.
at p. 1564.) In such a situation, the
trial court can impose either concurrent or consecutive life without parole
sentences for each of the first degree murder convictions based on the single
multiple-murder special circumstance. (
In addition, a firearm enhancement under section 12022.53 is proper even
when the defendant's sentence for the underlying crime is life without the
possibility of parole. (
69 ["[T]he Legislature intended that the enhancements set forth in section
12022.53 be added to a defendant's sentence when the underlying offense is
punishable by death or by life imprisonment without the possibility of
parole."].)
Accordingly, we strike the sentence on count
one, count two, and the sentence of life without the possibility
of parole for the multiple-murder special circumstance finding. The judgment shall be modified to reflect
that Eric's sentence on count one is life without the possibility
of parole, plus 25 years and the sentence on count two is a consecutive term of
life without the possibility of parole, plus 25 years.
DISPOSITION
The judgment is modified to (1) reduce the Penal Code
section 1202.4, subdivision (b), restitution fine to $10,000, (2) strike the
parole revocation fine imposed under Penal Code section 1202.45,
(3) strike the sentence on count one, count two, and the
sentence of life without the possibility of parole for the
multiple-murder special circumstance finding, and (4) reflect that
Eric's sentence on (a) count one is life without the possibility
of parole, plus 25 years and (b) count two is a consecutive term of life
without the possibility of parole, plus 25 years.
As so modified, the judgment is affirmed. The trial court is directed to prepare an
amended abstract of judgment reflecting these modifications and to forward a
certified copy of the amended abstract to the
Rehabilitation.
McINTYRE, J.
WE CONCUR:
McDONALD, Acting P. J.
O'ROURKE, J.
