P. v. Sardin

Filed 1/28/09 P. v. Sardin CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendants Quintaurus Sardin and Stevivon Booker guilty of assault with a semiautomatic firearm (Pen. Code, 245, subd. (b); undesignated references are to this code) and unlawfully discharging a firearm at an inhabited dwelling ( 246), and found true a special allegation that both defendants personally used a firearm in commission of the assault ( 12022.5). The jury also found Sardin guilty of the additional charge of negligent discharge of a firearm ( 246.3). The court sentenced Sardin to an aggregate term of 10 years 8 months in state prison, and Booker to an aggregate term of 7 years in state prison.

On appeal, both defendants contend the evidence was insufficient to support either the jurys verdict or its true finding as to the firearm use enhancement. We disagree and shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 3:30 p.m. on October 5, 2005, Z.K. was looking out the kitchen window of her apartment on Palm Avenue in North Highlands when she saw a blue car pull into the driveway of the apartment complex. Four young African American men jumped out of the car. One of them pointed a gun and fired it at another car driving past on Palm Avenue. The four men jumped back in their car, chasing the target car as they drove away. Z.K. called the police and provided them with the cars description and license plate number.^[1]

Minutes after the 911 call, Sheriffs deputies Jarvis and Croley were dispatched to investigate. They ran the license plate number provided by Z.K. and learned the car was registered to a Quezee Sardin on Lerwick Road.^[2] They went to the Lerwick Road address but were unable to find the car and cleared the call (i.e., they moved on to the next call to be handled).

Sheriffs Deputies French and Harmon also received word of shots fired and were dispatched to Z.K.s residence on Palm Avenue to investigate. When they arrived, there was no sign of Z.K. After a search of the general area turned up nothing, they cleared the call and resumed their duties.

Later that night, at approximately 10:00 p.m., Stephen Moffett pulled up in front of his grandfathers house on A Street in North Highlands. Four young African American men confronted him, talking shit to him and asking, why are you pulling up on me like that? Moffett told them he was just there to do laundry and did not want any trouble. One of the assailants pulled out a gun and told Moffett he was going to put [Moffett] in [his] grave early. Moffett turned and ran towards the side of the house, but stopped when he noticed the four men were heading towards his car. He yelled, Hey, my grandpa already called the cops. Better get away from my car. Four gunshots rang out. Moffett turned and ran into the house and called 911. He was unable to see which of the assailants fired the shots, and was not able to identify any of the suspects in a subsequent field show-up, which included both defendants. He later testified he was 95 percent sure the suspects in the field show-up were not his assailants. When asked if he could identify either of the defendants at trial, Moffett responded, I couldnt tell you either way.

Moffetts grandfather, Ralph Spurgin, was likewise unable to identify the assailants, as he was asleep in bed at the time of the shooting. Police discovered several places in the exterior of Spurgins home that had been hit by bullets, and found several shell casings from a .22-caliber gun and one from a .380-caliber gun near the house.

At approximately 10:15 p.m. that night, Deputies Croley and Jarvis received a call that shots had been fired near A Street and Canary Drive, and that four to five black males

. . . were running eastbound on A Street . . . . As they neared the location, they encountered one of the suspects, later identified as Michael Hanks, walking on Harrison Street. They turned the patrol car around and caught up with Hanks who, by that time, was running with Ralph Gibson up the stairs towards an apartment on Harrison Street occupied by Quezee Sardin and several of her family members. Quezee came out of the apartment and yelled at Hanks and Gibson, telling them to get off her porch and go downstairs and talk to the police. Hanks and Gibson were detained and placed in the back of a patrol car. Both were searched and each had a single batting glove in his pocket.

Quezee next turned her attention to the defendants, who had already run into the apartment, yelling at them that [t]hey were up to no good and whatever they did, she did not want any part of it at her apartment. She told the officers to get them out of the apartment and find out what it was they had done.

Sardin eventually emerged from the apartment and was detained. Quezee told the officers that Booker was still inside and that somebody said . . . he had a gun[.] Jarvis entered the apartment to search. He heard someone moving around in the attic and discovered Booker hiding there. Jarvis and Croley pulled Booker down and detained him along with the other suspects. With Quezees permission, the deputies searched the apartment. In the attic, they found some clothing and two handguns--a .380-caliber semiautomatic and a .22-caliber semiautomatic--secreted under the insulation. Quezee told Croley the defendants ran into the apartment sweaty and excited and out of breath, like they had just done something. Sardins sister, Ashley, who was also home at the time, said her brother was nervous and out of breath when he entered the apartment.^[3] Ashley told officers that Booker ran up the stairs and banged on the door and, when Ashley let him in, he ran through the apartment and into one of the bedrooms.^[4] Sweaty and out of breath, Booker looked nervous and scared and kept walking through the house looking over [the] porch . . . . He told Ashley and Quezee we just got jumped.

Deputies Lopes and Xiong photographed the suspects, as well as Quezees blue sedan parked in the apartment parking lot. Lopes watched as Xiong conducted gunshot residue (GSR) tests on Sardin, Booker, Gibson and Hanks.^[5] The GSR test results showed there were some GSR particles found on both of Sardins hands and on Bookers right hand, but none on either Hanks or Gibson. The handguns found in the attic were matched to the shell casings found outside Spurgins home, but no latent fingerprints were found on either gun.

Deputies Harmon and French returned to Z.K.s residence and interviewed her about the shooting incident earlier that day. When shown the four men detained at Quezees apartment, Z.K. identified Sardin as the shooter and Booker, Hanks and Gibson as participants,^[6]and confirmed that she was one hundred percent positive regarding her identification of all four.

By amended consolidated information, both defendants were charged in the Moffett incident with assault with a semiautomatic firearm ( 245, subd. (b)--count one), negligent discharge of a firearm^[7]( 246.3--count two) and discharge of a firearm at an inhabited dwelling ( 246--count three). With respect to count one, the information also alleged that both defendants used a firearm within the meaning of section 12022.5, subdivisions (a) and (d), and that Sardin personally used a firearm within the meaning of section 12022.5 and was a person 14 years of age or older within the meaning of Welfare and Institutions Code section 707, subdivision (d)(2)(B).

The jury found defendants guilty as charged, and found the firearm use enhancement true. The trial court sentenced Sardin to the middle term of six years as to count one, plus four years for the firearm use enhancement, and eight months (one-third the middle term) as to count two, to be served consecutively to the principal term, for an aggregate sentence of 10 years 8 months in state prison. Count three was stayed pursuant to section 654. The court sentenced Booker to the lower term of three years as to count one, plus four years for the firearm use enhancement, for an aggregate sentence of seven years in state prison. Count three was stayed pursuant to section 654.

Both defendants filed timely notices of appeal.

DISCUSSION

Defendants contend there was no substantial evidence for a reasonable jury to convict them of any of the charges or to find true the firearm use enhancement given the lack of evidence that either defendant was personally at the home of Moffetts grandfather at the time of the incident, or, even assuming so, that either one personally used a firearm. We disagree.

The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible and of solid value--from 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. (People v. Snow (2003) 30 Cal.4th 43, 66.)

We may not reweigh the evidence and substitute our judgment for that of the trier of fact; all conflicts in the evidence and questions of credibility must be resolved in favor of the judgment. (People v. Clark (2000) 82 Cal.App.4th 1072, 1083; People v. Autry (1995) 37 Cal.App.4th 351, 358.)

The evidence, both direct and circumstantial, supported defendants respective convictions for assault with a semiautomatic weapon ( 245, subd. (b)^[8]), shooting at an inhabited dwelling ( 246^[9]), and Sardins negligent discharge of a firearm ( 246.3^[10]), as well as the jurys finding that the firearm enhancement was true ( 12022.5^[11]).

Quezee lent her blue sedan to Sardin on October 5, 2005. At 3:30 p.m. that afternoon, Z.K. saw Sardin, Booker, Hanks and Gibson, pull up in Quezees car, get out, shoot at a passing car, and drive off. Approximately seven hours later, around 10:00 p.m., four men meeting the general description of defendants and their cohorts showed up outside Spurgins home not far from Z.K.s apartment. They approached Moffett, pointed a gun at him and threatened him with it. When he yelled at them to leave his car alone, they fired several shots in his direction, hitting his grandfathers house. Two different types of shell casings were found at the scene indicating that two different weapons were fired at Moffett.

Within minutes of the shooting, the defendants ran into Quezees apartment located just one quarter to one half mile from Spurgins house. Both men were sweaty, excited and out of breath and acting like they had just done something. Sardin came out, but Booker, who reportedly ran into the apartment with gun in hand, remained inside, hiding in the attic. Deputy Jarvis could hear Booker moving around in the attic and, once Booker was detained, the two semiautomatic handguns were found hidden there under the insulation. Those two handguns matched the shell casings found at the Spurgin house. Both defendants tested positive for GSR.

Defendants argue there were no eyewitnesses at Spurgins home to identify them, and the GSR tests were inconclusive; therefore, there is no evidence to place them at Spurgins house, let alone to prove that they fired a weapon.

There is enough circumstantial evidence to infer that defendants were at Spurgins house and that they each fired one of the handguns later found in Quezees attic. [T]he state can rely entirely on circumstantial evidence to connect a defendant with the commission of a crime. (People v. Allen (1985) 165 Cal.App.3d 616, 625.) Where, as here, the jurys findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, but our opinion that the circumstances also might reasonably be reconciled with a contrary finding does not render the evidence insubstantial. [Citation.] (People v. Earp (1999) 20 Cal.4th 826, 887-888.) An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

Moffett reported the shooting sometime between 10:00 p.m. and 10:15 p.m., reporting that four young African American men were involved. Officers were told the suspects . . . were running eastbound on A Street . . . . Deputies Croley and Jarvis responded to the call immediately, and quickly found Hanks and Gibson less than one-half mile away heading up the stairs to Quezees apartment where defendants were already hiding. As Quezee quickly determined, defendants demeanor and the fact that they ran into the apartment, sweaty and excited, supported an inference that they were fleeing from something, a fact that was only confirmed by Bookers attempt to hide himself and the guns in the attic.

Defendants argue the GSR tests are unreliable and inconclusive. They question Deputy Xiongs administration of the test based on the fact that he was a trainee who had collected only two GSR kits prior to the ones related to this case and had not yet taken the formal coursework on GSR testing. Defendants further question the level of supervision by Deputy Lopes, noting he was standing 10 away from Xiong and was talking with other officers while the tests were being conducted.

Deputy Xiong testified as to his experience and background. As of the time of the incident, he had been with the crime scene investigation (CSI) unit for approximately 10 months. His training included working with the training officer in the field, hands-on training, doing CSI work, processing scenes, taking photographs, conducting latent kits, latent lifts, GSR kits. He completed basic CSI and field training and, prior to October 5, 2005, had collected two GSR kits. He had also become familiar with the method by which GSR samples are collected during his 10 years on patrol. That testimony was subject to cross-examination. According to defendants, one could draw the inference that Xiong was incapable of conducting a reliable GSR test given his lack of training and experience, and that Lopes was not properly supervising Xiong during administration of the tests. The jury evidently did not agree, instead drawing the reasonable inference that Xiong had sufficient knowledge and skill to conduct GSR tests and obtain reliable results under Lopess supervision.

Defendants further argue that the conclusions drawn by criminalist Trevor Wilson prohibit a finding that either defendant actually fired a weapon. Again, the jury concluded otherwise. Wilson found GSR particles on Sardins right and left hands and on Bookers right hand, but found none on the hands of either Gibson or Hanks. Wilson explained that the presence of GSR particles indicates the individual either fired a weapon, handled a weapon that has been fired or handled ammunition that has been fired. He explained further that particles can also be transferred if a person touches an object contaminated with gunshot residue, such as a piece of clothing or a vehicle or some other surface that has gunshot residue on it. Wilson concluded there was no way to tell whether either defendant fired a weapon, only that they could have fired, could have been in the vicinity, or could have handled an object contaminated with gunshot residue. The jury weighed Wilsons testimony along with the rest of the evidence at trial and concluded it was defendants who fired the weapons at Moffett.

Defendants argue Hanks and Gibson are just as likely to have fired the guns given that they were each in possession of a glove, and those gloves were not tested for GSR. Wilson testified that the absence of GSR particles on Hanks and Gibson does not indicate that they did fire, and it does not indicate that they did not fire[,] and noted that a glove might have inhibited GSR particles from settling on the skin surface. Again, the jury concluded it was defendants who fired the weapons. The evidence is sufficient to support that conclusion.

An appellate court called upon to review the sufficiency of the evidence supporting a judgment of conviction of a criminal offense must, after a review of the whole record, determine whether the evidence is such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Bean (1988) 46 Cal.3d 919, 932.) Although a jury must acquit a defendant if the circumstantial evidence is susceptible of two interpretations, once the jury is convinced of defendants guilt beyond a reasonable doubt, that the circumstances might also be reconciled with a contrary finding does not warrant a reversal of the judgment. (Id. at pp. 932-933.) There is substantial evidence to support the jurys verdict and findings.

DISPOSITION

The judgment is affirmed.

MORRISON , J.

We concur:

SCOTLAND , P. J.

DAVIS , J.

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^[1] Although Z.K. told police the car was blue, at trial she could not remember the color of the vehicle and thought it might have been white.

^[2] Quezee Sardin is the mother of defendant Quintaurus Sardin.

^[3] Both Ashley and Quezee gave conflicting testimony at trial regarding Sardins demeanor when he came into the apartment, describing him as calm.

^[4] Ashley told her mother that Booker was carrying a gun; however, at trial, she gave conflicting testimony on that point.

^[5] Xiong testified that Lopes stood approximately 10 feet away and occasionally spoke with other officers while Xiong conducted the GSR tests.

^[6] At trial, Z.K. was unable to identify the defendants or recall who the shooter was, but remained confident about her identification at the time of the field show-up.

^[7] Count two was later dismissed as to defendant Booker.

^[8] Section 245, subdivision (b) makes it a felony to commit an assault upon the person of another with a semiautomatic firearm. Assault requires the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act by its nature will probably and directly result in such injury. (People v. Miceli (2002) 104 Cal.App.4th 256, 269.) Thus, point[ing] a loaded gun in a threatening manner at another . . . constitutes an assault, because one who does so has the present ability to inflict a violent injury on the other and the act by its nature will probably and directly result in such injury. (Ibid.) The defendant need not intend to commit violence against a specific victim. (People v. Lee (1994) 28 Cal.App.4th 1724, 1736.)

^[9] Section 246 provides that it is a felony for any person to maliciously and willfully discharge a firearm at an inhabited dwelling house, . . . Section 246 is a general intent crime. [Citation.] As such, the term maliciously in section 246 is defined by [Penal Code] section 7, item 4, as a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law. (People v. Watie (2002) 100 Cal.App.4th 866, 879.)  

^[10] Section 246.3 prohibits willfully discharg[ing] a firearm in a grossly negligent manner which could result in injury or death to a person . . . . This offense thus has three elements: (1) the defendant unlawfully discharged a firearm; (2) the defendant did so intentionally; (3) the defendant did so in a grossly negligent manner which could result in the injury or death of a person. (People v. Alonzo (1993) 13 Cal.App.4th 535, 538.)

^[11] Section 12022.5, subdivision (a), provides that, any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, . . . In order to find true a section 12022(b) allegation, a fact finder must conclude that, during the crime or attempted crime, the defendant himself or herself intentionally displayed in a menacing manner or struck someone with an instrument capable of inflicting great bodily injury or death. [Citations.] (People v. Wims (1995) 10 Cal.4th 293, 302-303; see also People v. Jacobs (1987) 193 Cal.App.3d 375, 381 [firearm is used within meaning of section 12022.5 if victim senses its presence and there is threat of use sufficient to produce fear of harm].)