P. v.
Filed 5/29/13
P. v. Marshall CA2/2
NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
SAMMY MARSHALL,
Defendant and Appellant.
B239874
(Los Angeles County
Super. Ct. No. BA365596)
APPEAL from a judgment of the Superior Court of
County. William C.
Ryan, Judge. Affirmed.
Lynette Gladd Moore, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Steven E.
Mercer and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Sammy Marshall (defendant) appeals from the judgment entered
after a jury convicted him of attempted
first degree murder, in violation of Penal Code
1) and second degree robbery in violation of section 211 (count 2). The jury found as to both counts that
defendant had personally used a firearm, within the meaning of section
12022.53, subdivision (b), and that he personally discharged that firearm
within the meaning of section 12022.53, subdivision (c).
After
the jury returned its verdicts, a court trial was held on allegations that
defendant had suffered two prior strike convictions within the meaning of
section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b)
through (i). The trial court found the
prior conviction allegations to be true and sentenced defendant to 67 years to
life in state prison on count 1 (consisting of 37 years to life, plus 20 years
for the firearm enhancement and 10 years pursuant to section 667, subdivision
(a)). The court imposed the same
sentence for count 2, but stayed the sentence pursuant to section 654. Defendant was accorded 936 days of
presentence custody credit.
Defendant
contends there was insufficient
evidence of premeditation and deliberation to support his attempted murder
conviction. Substantial
evidence supports the conviction, and we therefore affirm the judgment.
Jose
Guadalupe Ayala (Ayala) was working as the night watchman at Roscoe’s Chicken
and Waffles on Pico Boulevard in Los Angeles on February 9, 2009. At approximately 3:30 a.m., he opened the
side door of the restaurant and was confronted by an armed man waiting for
him. The man placed a gun to Ayala’s
forehead, kicked Ayala, pushed him to the floor, and then beat him. Ayala could not see the man’s face, which was
covered by a mask, but he could see that the man was African-American. While Ayala was lying on the ground, the man
took Ayala’s watch, cell phone, and necklaces.
The
assailant then insisted that Ayala open the door to the restaurant office,
which was locked. Ayala did not have the
key to the office, but told the man he would get the key. Ayala began walking backward into the restaurant. The man followed Ayala closely, keeping the
gun to Ayala’s forehead. Ayala backed
into the kitchen, grabbed a nearby knife, feinted to stab the man with it, and
then kicked the man, who fell to the ground.
While lying on the ground approximately two or three feet away from
Ayala, the man pointed the gun at Ayala’s chest and fired. Ayala both saw and heard the explosion from
the gun as it was being discharged, but he was not hit by a bullet. The man then attempted to shoot Ayala again
by repeatedly pulling the trigger, but the gun did not fire because it had
become jammed. When Ayala realized that
the gun had jammed, he threw himself on top of the gunman and wrested the gun
away from him. During the struggle,
Ayala cut his finger on the gun.
After
disarming the intruder, Ayala attempted to take him out to the parking lot. When they left the restaurant, the intruder
grabbed hold of Ayala and would not let go.
Ayala then struck the intruder with the gun Ayala had seized from the
man, and the intruder released him.
Ayala went back inside the restaurant and locked the door. From inside the restaurant, Ayala saw the man
remove and discard the mask he had been wearing, but Ayala was not able to see
the man’s face. Ayala kept the gun and
remained inside the restaurant until the morning employees arrived for
work. He was unable to telephone the
police because the intruder had taken his cell phone and the restaurant phone
could not make outgoing calls.
When
the first employee, Pedro, arrived at 5:45 a.m., Ayala and Pedro went outside
and recovered the mask left by the intruder.
At the trial, Ayala identified the mask and a silver .22-caliber pistol
he had taken from the intruder.
David
Daviston, the restaurant shift leader, arrived at 8:00 a.m. on February 9,
2009. After one of his employees
informed him of the robbery, Daviston checked the restaurant security camera,
which had recorded video of the robbery, and telephoned the police.
Los
Angeles Police Department (LAPD) Officer Bobby Hammers and his partner arrived
at the restaurant in the afternoon of February 9, 2009. They viewed the surveillance video of the
robbery, ascertained that a shot had been fired inside the restaurant, and
searched for a bullet, but could not locate one. The officers recovered a shirt, a gun, and a
mask from the restaurant office. Officer
Hammers saw that the gun was jammed from a misfire. He bagged the gun and each of the recovered
items separately and booked them into evidence.
LAPD
Detective Paul Funicello received the evidence from Officer Hammers. Detective Funicello examined the gun
recovered from the crime scene and observed that the gun was jammed. The gun contained one spent casing and five
live rounds. Two days after the robbery,
Detective Funicello interviewed Ayala and obtained a DNA sample from him.
LAPD
criminalist Angela Zdanowski conducted a DNA analysis in October 2009 on the
evidence booked in the case. She found
the blood on the gun belonged to Ayala.
Zdanowski found DNA from an unknown profile in 15 different places on
the mask. She entered the unknown
profile into the state DNA database, which returned a match.
On
December 1, 2009, LAPD Detective Joe Anaya received notice that the DNA from
the crime scene matched defendant’s DNA in the state database. Defendant was arrested on December 8, 2009,
and Detective Anaya obtained a DNA sample from defendant that day and submitted
it for analysis.
In
January 2010, criminalist Zdanowski received defendant’s DNA sample and found
it to be a match for the unknown profile found on the mask.
I. Standard of review
“‘To
determine the sufficiency of the evidence to support a conviction, an appellate
court reviews the entire record in the light most favorable to the prosecution
to determine whether it contains evidence that is reasonable, credible, and of
solid value, from which a rational trier of fact could find the defendant
guilty beyond a reasonable doubt.’
[Citation.]†(People v. Bolden
(2002) 29 Cal.4th 515, 553, quoting People v. Kipp (2001) 26 Cal.4th
1100, 1128.) The reviewing court must draw all
reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610,
640.) Reversal is not warranted unless
it appears that “‘upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’ [Citation.]â€
(People v. Bolin (1998) 18 Cal.4th 297, 331.)
evidence
Defendant
was charged with attempted murder that was premeditated and deliberate, which
required a finding of premeditation and deliberation. (People
v. Villegas (2001) 92 Cal.App.4th 1217, 1223.) “‘“Deliberation†refers to careful weighing
of considerations in forming a course of action; “premeditation†means thought
over in advance. . . .’ [Citation.]†(People
v. Young (2005) 34 Cal.4th 1149, 1182.)
“The three categories of evidence for a reviewing court to consider with
respect to premeditation and deliberation are:
(1) prior planning activity; (2) motive; and (3) the manner of
killing. ‘The process of premeditation
and deliberation does not require any extended period of time. “The true test is not the duration of time as
much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly . . . .â€
[Citations.]’†(
1223-1224, fns. omitted.)
There
is substantial evidence in the record to support the jury’s finding that the
attempted murder was deliberate and premeditated. Defendant waited outside the side door of the
restaurant for Ayala with a loaded gun. Defendant’s act of arming himself with a
loaded weapon is evidence of planning consistent with a finding of
premeditation and deliberation. (
1081-1082.) The method of the shooting
was also evidence of premeditation and deliberation. After Ayala resisted and knocked defendant to
the ground, defendant aimed the gun at Ayala’s chest and fired from close range
-- a distance of only two to three feet away.
A shooting at close range may establish premeditation and deliberation. (People
v. Vorise (1999) 72 Cal.App.4th 312, 318, 319; People v. Bolin, supra, 18 Cal.4th at pp. 332-333;
Cal.App.4th 400, 412-413.) Defendant
argues there is no evidence that he planned to commit a murder when he entered
Roscoe’s and that he reacted reflexively by firing the gun in order to protect
himself after Ayala forced him to the ground.
Even where the assailant did not initially plan the fatal encounter with
the victim, however, the assailant’s use of a firearm against an unarmed person
may show sufficient deliberation to support a verdict of first degree
murder. (People v. Bolin, supra, at pp. 332-333.) Similarly, firing at the victim’s upper body
may establish preconceived deliberation.
(Ibid.; People v. Thomas (1992) 2 Cal.4th 489, 517-518.) Here, defendant not only aimed his gun at
Ayala’s chest, he continued to pull the trigger after the first shot went
astray. From this evidence, a rational
jury could have found that defendant acted deliberately and with premeditation
in attempting to kill Ayala.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________,
J.
CHAVEZ
We concur:
____________________________,
P. J.
BOREN
_____________________________, J.*
FERNS
________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise indicated.
