P. v. McPherson

Filed 10/10/06 P. v. McPherson CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County.

George G. Lomeli, Judge. Affirmed.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

LaVonda McPherson appeals from the judgment entered after a jury convicted her of willful, deliberate and premeditated attempted murder. She contends the trial court committed prejudicial error by instructing the jury on implied malice in a prosecution for attempted murder that requires a specific intent to kill. Although we find the court erred by instructing the jury on implied malice, we find the error harmless beyond a reasonable doubt and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

McPherson was charged by information with one count of willful, deliberate and premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664 -- count 1) and assault with a firearm (245, subd. (a)(2) -- count 2). The information further alleged related firearm-use enhancements (Pen. Code, §§ 12022.53, subds. (b)-(d) -- count 1; 12022.5, subd. (a)(1) -- count 2). As to both counts, the information alleged McPherson had committed the offenses for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(A)).

On the morning of July 29, 2004, then 17-year-old Aaron S. was waiting at the corner for the school bus. He looked up and saw McPherson whom he recognized as having seen twice before about two years earlier. On one of those occasions, Aaron S. was at the same bus stop when McPherson displayed a handgun and asked whether Aaron S. belonged to a particular gang. After Aaron S. said “I don’t bang,” McPherson left. This time, she approached Aaron S. to within eight feet and said, “What’s up homie?” Aaron S. did not answer, and McPherson repeated her question pulling a handgun from her jacket pocket. Aaron S. immediately fled between two parked cars in a driveway. McPherson fired a shot at Aaron S., hitting him in the leg. Aaron S. fell under a car and attempted to crawl away. McPherson followed Aaron S. up to a gate that separated the driveway from the sidewalk. She squatted on the sidewalk, placed her gun hand through the gate, and continued shooting. At some point her gun jammed. McPherson cleared the gun, shot at Aaron S. a couple more times, and left.

Aaron S. was admitted to the hospital, suffering from a gunshot wound to his thigh; his femur had been hit. He underwent surgery, was hospitalized for a week, and had physical therapy for several months. There was a stipulation that Aaron S. had suffered great bodily injury. Shortly after the shooting, Aaron S. gave police a description of the shooter and he told officers the shooter’s gang moniker was “Joker.” Aaron S. positively identified McPherson as the shooter from a six-pack photo array prepared by police. Officers recovered five expended .380-caliber shell casings from the scene.[1]

McPherson neither testified nor presented other evidence in her defense at trial.

The jury received the following instructions on premeditated attempted murder: CALJIC No. 3.31 states the crime of attempted murder requires “a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists the crime to which it relates is not committed.“ (Italics added.) CALJIC No. 8.67 defines the terms willful, deliberate and premeditated as they relate to attempted murder.

CALJIC No. 8.66 defines attempted murder as follows: “murder is the unlawful killing of another human being with malice aforethought, and to prove attempted murder there must be a direct but ineffectual act by one person towards killing another human being and the person committing the act ‘harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.’” (Italics added.)

The court also instructed the jury with CALJIC No. 8.11, which defines “malice aforethought,” based on both express and implied malice. “Malice is express when there is manifested an intention unlawfully to kill a human being. Malice is implied when: 1. The killing resulted from an intentional act; 2. The natural consequences of the act are dangerous to human life; and 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. The word ‘aforethought’ does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.”

Arguments to the jury focused on witness credibility. Neither counsel addressed the distinction between express and implied malice. The prosecutor argued the evidence established McPherson acted with express malice, as well as with premeditation and deliberation. McPherson unambiguously intended to kill Aaron S.: McPherson pursued Aaron S. and continued shooting at him even after he was hit; she squatted on the sidewalk and took aim before firing the gun until it jammed; she then cleared the gun to resume firing it at Aaron S.

The defense theory was misidentification; that Aaron S.’s identification of McPherson as the shooter was suspect and his testimony was inconsistent; that the police presumed McPherson was the shooter because of her gang affiliation and therefore failed to investigate other potential suspects; and that at least one percipient witness lacked credibility.

The jury convicted McPherson of willful, deliberate and premeditated attempted murder and assault with a firearm and found true the related firearm and criminal street gang enhancements.

The trial court sentenced McPherson to an indeterminate life term for premeditated attempted murder enhanced by 25 years to life for personally using a firearm and specified that McPherson would not be eligible for parole for 15 years based on the criminal street gang enhancement. (Pen. Code, § 186.22, subd. (b)(5).) Sentencing was stayed for assault with a firearm under Penal Code section 654.

DISCUSSION

McPherson argues the trial court prejudicially erred in instructing the jury it could rely on implied malice when the jury was required to find she specifically intended to kill Aaron S. before returning a guilty verdict on the premeditated attempted murder charge. Aaron S. claims the erroneous instruction had the effect of diluting the prosecutor’s burden of proving intent to kill beyond a reasonable doubt. The People concede the error, acknowledging that an instruction on implied malice should never be given in relation to an attempted murder charge (People v. Carpenter (1997) 15 Cal.4th 312, 391; People v. Lee (1987) 43 Cal.3d 666, 671 (Lee)), but they argue the error was harmless.

The California Supreme Court decision in Lee is instructive on this point. As in the present case, the prosecution in Lee involved a charge of attempted murder. The trial court instructed the jury on the requisite specific intent to kill and express malice, but also gave instructions on implied malice, which would have permitted the jury to find the defendant guilty without an actual, specific intent to kill. (Lee, supra, 43 Cal.3d at pp. 669-771.) Lee held the instructions on implied malice were error. (Id. at p. 670.) “[W]here a specific intent to kill is absolutely required, reliance upon any definition of murder based upon implied malice is logically impossible, for implied malice cannot coexist with express malice. With this fundamental concept to be reckoned with, instructions on the crime of attempt to commit murder, necessarily, when they define the underlying crime of murder, must be limited only to that kind of murder where a specific intent to kill or, in other words, express malice, is one of the elements.” (Id. at pp. 670-671.)

Nevertheless, the Supreme Court held the error was harmless beyond a reasonable doubt in light of several factors. (Lee, supra, 43 Cal.3d at p. 676 [applying the federal constitutional test of Chapman v. California (1967) 386 U.S. 18, 24-25 [87 S.Ct. 824, 17 L.Ed.2d 705]), for harmless error.) The jury was not actually misled because correct instructions were given and argued to the jury, and proper instructions would have yielded the same result due to the strong evidence of intent to kill. (Lee, supra, 43 Cal.3d at pp. 677-679.) In addition to the erroneous instructions, the jury also received CALJIC No. 3.31 as to the necessity of finding a specific intent to kill, and the court instructed “not once but either three or four times that to convict defendant of attempted murder the prosecution was required to prove defendant shot at the officers with the specific intent to kill. . . .” (Lee, at p. 677.)

Lee found there was strong evidence of the defendant’s intent to kill. The defendant carried an automatic pistol, missed his first shot, and attempted to fire a second shot within 15 to 20 feet of the victim but the gun jammed. (Lee, supra, 43 Cal.3d at p. 677.) Lee also held that closing arguments to the jury were a relevant consideration in the prejudice equation, and the closing arguments were specifically directed at the question of whether there was evidence of the specific intent to kill. (Ibid.)

“Although the implied malice instructions were facially in conflict with the specific intent instructions, we are convinced that from the way in which the instructions were given, combined with the closing arguments of counsel, the jury most likely understood it was required to find both specific intent to kill and malice, that it did so find, and that there is no reasonable possibility that absent the error the verdict would have been different.” (Lee, supra, 43 Cal.3d at p. 677; accord, People v. Visciotti (1992) 2 Cal.4th 1, 58-59; People v. Carpenter, supra, 15 Cal.4th at p. 391.)

Here too, the entirety of the record establishes the instructional error was harmless. First, apart from the implied malice language in CALJIC No. 8.11, the balance of the trial court’s instructions told the jury at least three times they were required to find express malice and a specific intent to kill before they could return a guilty verdict. (CALJIC Nos. 3.31, 8.66, 8.11 [express malice].) Second, neither counsel argued implied malice. The prosecutor addressed the express malice issue at length, stressing McPherson intended to kill Aaron S. rather than merely to injure or scare him. Defense counsel argued mistaken identity and addressed witness credibility. Third, there was overwhelming evidence of McPherson’s intent to kill. Without warning and within close range, McPherson pulled a gun on Aaron S., who was unarmed. When he fled, she followed and shot him in the leg. Rather then leave after shooting Aaron S., McPherson took careful aim and continued shooting as Aaron S. attempted to crawl out of range. When her gun jammed, rather than leave the scene, McPherson cleared the gun to continue firing it at Aaron S. Fourth, the jury found McPherson had personally and intentionally discharged a handgun causing Aaron S. great bodily injury when she committed premeditated attempted murder. McPherson’s contentions to the contrary notwithstanding, these factors convince beyond a reasonable doubt the instructional error did not affect the verdict.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P. J.

ZELON, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

[1] Officer Joshua Kniss testified as the prosecution’s gang expert concerning McPherson’s membership in the “51 Trouble Gangster Crips” and the gang’s culture, organization, and activities. Kniss testified McPherson had previously admitted her gang affiliation.