P. v. Stanford

Filed 9/10/07 P. v. Stanford CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed.

Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Heather F. Crawford, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Michael Jason Stanford appeals his conviction for second degree murder with a firearm enhancement. Defendant contends the trial court abused its discretion by excluding expert testimony, thereby denying his right to present his self-defense theory based on a panicked response. He also argues the trial court erroneously imposed a consecutive enhancement of 25 years to life to his sentence under Penal Code section 12022.53, subdivision (d).^[1]

FACTUAL AND PROCEDURAL HISTORY

Defendant pled guilty to being a felon in possession of a semiautomatic handgun in violation of section 12021, subdivision (a)(1) (count 2), as well as possession of ammunition by a felon in violation of section 12316, subdivision (b)(1) (count 3). Defendant was then tried before a jury on the remaining count of murder in violation of section 187, subdivision (a), with the further allegation he personally and intentionally discharged a firearm and proximately caused great bodily injury or death within the meaning of sections 12022.53, subdivision (d), and 1192.7, subdivision (c)(8). The jury found defendant guilty of second rather than first degree murder and found the firearm enhancement true. As a result of the conviction, the court sentenced defendant to a term of 15 years to life for the murder (count 1) and added a 25-years-to-life enhancement under section 12022.53 for using a gun to commit the offense, for a total of 40 years to life in prison. The middle term sentences of two years each on counts 2 and 3 were stayed pursuant to section 654.

The murder in this case took place in the parking lot just outside an AM/PM store shortly after 2:00 a.m. The victim was a homeless man who regularly visited the store and who was known by the store clerks, Jean Johnson (Johnson) and Scott Paulson (Paulson). Johnson and Paulson had given the victim food and let him borrow tools. These store clerks were working inside the store when the murder occurred, and both testified at trial as eyewitnesses to events on the night of the murder.

On the evening of the murder, Paulson recalled defendant coming into the store about two hours before the murder to purchase alcohol. Defendant returned to the store with a male friend to purchase beer and cigarettes, but they were only able to purchase cigarettes because it was after 2:00 a.m. While defendant and the friend were in the store, the victim asked defendant if he could borrow a quarter, and defendant responded, No or Hell, no. Paulson later told a detective he heard the victim say to defendant and/or his friend [s]o why you hanging out with this beaner.

After purchasing cigarettes, Paulson said defendant and his friend walked out of the store, and the victim followed them. Based on the words exchanged and the body language, Paulson testified the victim was upset about not getting a quarter, and it appeared there was going to be a fight. As a result, he walked out from behind the counter to look outside. Paulson saw the victim on the sidewalk in front of the door of the store. Defendant was standing about 20 feet away on the drivers side of a car with the car door open, and defendants friend was standing outside the passenger side door, which was closed. At this time, Paulson saw the victim raise his hands to make a gesture which Paulson understood to be a challenge. He immediately went to the back of the store to tell Johnson about the trouble, and he heard six or seven gunshots while standing in the back of the store. Paulson also recalled Johnson dialing 911 and then seeing the victim crawl back into the store.

Johnsons testimony was consistent with Paulsons. She testified the victim came in the store about 10:00 p.m. and borrowed a screwdriver to work on his bicycle. The victim returned a while later and told Johnson he was hungry, so she told him to wait as she was ready to cook some food and would give him the old food that needed to be discarded. She went to the back of the store to start cooking the food. Paulson then came to the back and told Johnson there was trouble, and he thought there was going to be a fight. Johnson went to the front of the store and opened the door. When she heard the victim yelling Jean, help me. Ive been shot, she looked to the right and saw flames coming from the end of a gun on the roof of a car and saw the victim running away towards the left. She could not see who was holding the gun but could see that it was level, as opposed to being aimed in the air. Johnson heard several pops while she had the door open and when she went back inside the store to call 911 for help. The victim then came back inside the store and collapsed just inside the door while Johnson was on the telephone. The 911 tape was played for the jury.

Aaron Horton (Horton), who is the friend defendant was with at the store on the night of the murder, also testified during the prosecutions case-in-chief. He recalls defendant arriving at his house that evening, and they drank a few beers and smoked cigarettes together before going to the store to buy more cigarettes. When they walked into the store, the victim glared at them and said, Whats up, in a tone suggesting the victim was going to start something. Horton did not recall any other conversation with the victim in the store, but he testified the victim followed them outside, where he continued to act aggressively and offensively in an attempt to provoke a fight. Horton then heard gunshots and saw the victim running away toward the store, but does not recall seeing the gun.

After shots were fired, defendant and Horton got into the car, and defendant drove away quickly. They stopped nearby at Hortons house, and Horton told his roommate, Ramon Hadad (Hadad), there had been some trouble at the store. Defendant expressed regret about what occurred and stated he did not want the shooting to happen, but claimed he had been provoked. Hadad agreed to drive Horton to the home of Jesse Tapia (Chuey), who lived in Ontario. Hadad dropped Horton off at Chueys house, and defendant followed them to Chueys in his own car. Chuey testified Horton, Hadad, and defendant arrived at his home in the middle of the night, and he let them inside. Chuey recalled being told defendant shot someone and seeing the gun. Defendant left the following morning and told Horton he was going to get rid of the gun.

As further evidence of flight, the prosecution presented testimony by defendants girlfriend, Sara Perez (Perez), who stated defendant came and stayed at her home for a while after the murder. When defendant arrived, he brought two newspapers with him. The newspapers contained defendants picture and stated he was a suspect in a murder. She and defendant left her home a couple days later and went to a motel, where they were both arrested. While they were together defendant told his girlfriend he was drunk and shot the guy, but would not share any details of the incident with her because he did not want her and his son to be involved. Defendant never told Perez, Horton, Hadad or Chuey he fired the gun out of fear or in self-defense.

The prosecution also presented the testimony of another eyewitness who was a passenger in a car stopped at a red light near the store when the shooting occurred. The passenger testified he and a friend were traveling through the area on their way back to Dana Point from Arizona. When they stopped at the red light near the store, they heard a single pop, and they jokingly said, Get down. Its a gun. However, they heard another popping sound a few seconds later, so the passenger said he looked up and saw two silhouettes in the darkness near the store. The silhouette on his left had his arm extended and was pointing what appeared to be a gun in a level position toward the other person, and the other person on the right was standing five to six feet away. The passenger heard three to five more popping sounds and saw the silhouette on the right run a few feet in the opposite direction. The popping sounds continued while the silhouette ran. The passenger then saw a small dark-colored car with two people inside speed out of the parking lot of the store, run a red light, and make a left turn. The passenger and his friend drove over to the store to see if someone was hurt, and they saw the victim lying inside the store on the floor bleeding.

The forensic pathologist who performed an autopsy on the victims body testified a single bullet hit defendant on the left side of his back about two feet from the top of his head and exited at the left midportion of the chest . . . a little bit higher than the entrance wound. The pathologist also indicated the wound was consistent with someone being shot in the back while running away, but there were other possibilities. A seven-inch-long Phillips head screwdriver was found in the nine-and-a-quarter-inch deep front pocket of the victims cargo style pants.

A diagram was presented to the jury to show the location of evidence found at the scene. The jury was also shown pictures of the scene taken by police, as well as still photographs and a videotape taken from a surveillance camera. Police located eight shell casings in the parking lot of the crime scene, as well as two possible bullet holes on posts near the front entrance of the store. A bullet was also found in one of the posts. There were acceleration tracks leaving the driveway of the store. To explain the random location of the bullets found, the prosecution presented an expert who testified the gun used in the shooting tends to kick or recoil harder as the magazine empties causing a lot more of a jerking movement. The expert also explained approximately where the casing of the bullet would be found after it was fired from the gun about eight feet away.

DISCUSSION

I.

EXCLUSION OF DEFENSE EXPERT TESTIMONY

At trial, defense counsel wanted to present testimony by a qualified expert on police procedures to state that the number of shots fired and the pattern or location of the shells and bullets support an inference the shooting was a normal, panicked response to aggressive behavior in self-defense. The purpose of the testimony was to counteract anticipated argument by the prosecutor that the number of shots fired was indicative of premeditation and deliberation. According to defense counsel, the expert would testify even highly trained police officers who face aggression and fear for their life will typically panic and empty their guns due to the fight or flight reflex. Defendant argues the trial courts exclusion of this evidence was an abuse of discretion and a violation of his right to present a meaningful defense.

The trial court balanced the probative and prejudicial values of the experts testimony pursuant to section 352 and excluded the testimony, finding it would not be probative enough to assist the jury or to take up court time. The trial court commented it was already arguable based on the shooting pattern alone that defendant panicked under the circumstances. The trial court also opined the experts testimony would not help the jury to determine whether the bullets went all over the place because defendant fired the gun eight times out of panic or was just a lousy shot.

Due process guarantees criminal defendants a meaningful opportunity to present a complete defense. (Crane v. Kentucky (1986) 476 U.S. 683, 690, quoting California v. Trombetta (1984) 467 U.S. 479, 485.) However, this does not mean a defendant has an absolute right to present all relevant evidence. Rather, the right is subject to reasonable restrictions by the trial court. (Montana v. Egelhoff (1996) 518 U.S. 37, 42.) The testimony of an expert is limited to an opinion [r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Evid. Code, 801, subd. (a).)

We review the trial courts admission and exclusion of expert testimony for abuse of discretion. (People v. Wells (2004) 118 Cal.App.4th 179, 186.) [T]he trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.] [Citation.] (Ibid., quoting People v. Jordan (1986) 42 Cal.3d 308, 316.)

First degree murder is a willful, deliberate, and premeditated killing. ( 187, subd. (a).) Although defendant argued during trial that the testimony of his expert on police procedure was relevant to the issue of premeditation and deliberation, the verdict of second degree murder necessarily means the jury ruled in defendants favor on this issue without the defense experts testimony. Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements -- i.e., willfulness, premeditation, and deliberation -- that would support a conviction of first degree murder. (People v. Nieto-Benitez (1992) 4 Cal.4th 91, 102.)

Malice can either be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. ( 188.) The concept of implied malice has both a physical and a mental component. [Citation.] The physical component is satisfied by the performance of an act, the natural consequences of which are dangerous to life. [Citations.] The mental component, as set forth earlier, involves an act deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. . . . [Citation.] (People v. Nieto-Benitez, supra, 4 Cal.4th at pp. 106-107.) The jury was thoroughly instructed on these and other concepts relevant to whether the victims death occurred as a result of first or second degree murder, or voluntary or involuntary manslaughter.

In our view, the trial courts ruling did not prevent defendant from presenting a meaningful defense. When viewed as a whole, the record indicates the experts testimony was not critical to or highly probative of the defense theory of the case, and there were other, more significant components to the self-defense theory. Testimony by defendants friend, Horton, who was with defendant when the shooting occurred, was highly probative on this issue during direct examination by the prosecutor, as well as during cross-examination by defense counsel. During direct examination, Horton said the victim glared at them when they entered the store and said, Whats up wood. According to Horton, wood is a common street term for white boy. After further words of this nature were exchanged, the victim asked defendant if he wanted to box, and the victim moved toward the car and stood just outside an arms distance to defendant. Horton testified the victim was acting aggressively, moving around a lot, and throwing up his hands to challenge defendant, and it appeared there was going to be a fistfight. Horton heard the victim say, Why dont you get . . . out of here. This is my town. Defendant responded in a challenging manner and said to the victim something like, Why dont you take off. Although Horton testified defendant did not try to get away or back down, he also stated he would not have been surprised if defendant had taken a step away because the victim was reaching to the back of his Pendleton.

On cross-examination, Horton testified he saw the victim reach back into his waistband before any shots had been fired, and he thought the victim was going to get a weapon. He also said he and defendant were both bigger than the victim, so the victims aggressive behavior was unexpected which suggested to him the victim was armed. However, on redirect, Horton testified he was not frightened by the victim during the incident until he heard gunshots, did not attempt to step in, or even get back in the car to leave until after the shots had been fired. He also conceded defendant had not done anything to avoid a fight, such as just getting in the car and driving away. Thus, Hortons testimony and credibility were the crucial components of the self-defense theory.

In closing arguments, defense counsel skillfully summarized the evidence supporting the theory of self-defense. In addition to the significance of Hortons testimony, counsel cited photographs of the location of shell casings found at the scene and argued defendant was at a disadvantage relative to the victim. He asked the jury to put themselves in defendants position at 2:00 in the morning with the victim acting aggressively, yelling, reaching for something, and advancing toward defendant with a screwdriver in his front pocket. Counsel claimed the placement of some of the shots was indicative of someone firing out of control as a result of panic, and the location of the entry and exit wounds found on the victims body suggested he was shot while turning, not while running away.

Defense counsel also competently challenged the prosecutions case during closing arguments. For example, he offered a reasonable explanation for defendant not telling his girlfriend about the details of the shooting he did not want to get her involved and have to testify. He further argued that defendant acted out of a reasonable fear of great bodily harm based on the victims aggressive behavior and racist comments, that he reasonably believed the victim was armed, tried to avoid the encounter, and was not required by the law to retreat, particularly when it may not have been safe to do so.

Based on our review of the evidence, we agree with the trial courts conclusion that the proposed testimony by an expert on police procedures would not have been very probative, exculpatory, or helpful to the jury. Most importantly, the testimony was based on the experts experience with highly trained police officers who routinely face life threatening circumstances. Without more, it would be unreasonable to predict how others without the same training would react to aggressive behavior while carrying a gun. The experts testimony may have had a tendency to suggest defendant fired eight times in a scattered fashion because he panicked. However, the testimony supports the contrary inference that the bullets and casings were randomly scattered because defendant was not well trained in using a gun and acted recklessly or in conscious disregard for the victims life by pulling the trigger eight times. It is also our view that the jury would have been in a position to intelligently determine without the assistance of the proposed expert testimony whether it was possible bullets and casings were found scattered on the scene because defendant fired the gun as a result of panic rather than deliberately. In other words, the circumstances were not sufficiently beyond common experience that an expert opinion would have been helpful to the jury. (Evid. Code, 801, subd. (a).)

Where the trial courts ruling on the exclusion of evidence does not constitute a refusal to allow defendant to present a defense, but merely rejected certain evidence concerning the defense, the appropriate standard of review is that enunciated in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Bradford (1997) 15 Cal.4th 1229, 1326.) Under People v.Watson, reversal is not warranted based on the exclusion of defense evidence unless it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v.Watson, supra, at p. 836.) Given the prosecutions strong case against defendant, including defendants flight from the scene and his telling failure to confide in those close to him that he fired the gun in self-defense, it is highly unlikely the jury would have reached a more favorable verdict if the expert was permitted to testify as proffered.

II.

SECTION 654

The trial court sentenced defendant to an indeterminate sentence of 15 years to life for second degree murder and enhanced the sentence by adding an indeterminate term of 25 years to life pursuant to section 12022.53, subdivision (d), for the use of a firearm during the commission of the offense (count 1).^[2] Defendant contends that by imposing both a 15-years-to-life term for the murder conviction and a consecutive enhancement of 25 years to life pursuant to section 12022.53, subdivision (d), the trial court punished him twice for the same conduct. As a result, he contends the imposition of the additional 25-years-to-life term pursuant to section 12022.53, subdivision (d), violates section 654.

Section 654, subdivision (a), provides as follows: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although these distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one of the separate offenses arising from the single act or omission -- the offense carrying the highest punishment. [Citations.] (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312 (Hutchins).) The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. [Citations.] (Ibid.)

Section 12022.53, subdivision (d), states as follows: Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life. Murder is one of the felonies listed in section 12022.53, subdivision (a).

As defendant concedes, his argument has already been rejected by the court in Hutchins, supra, 90 Cal.App.4th at page 1312. The plain language of section 12202.53, subdivision (d), clearly states it must be applied [n]otwithstanding any other provision of law and as an additional and consecutive term of imprisonment. In Hutchins, the court reasoned it was apparent that in enacting section 12022.53, subdivision (d), the Legislature intended to mandate the imposition of substantially increased penalties where one of a number of crimes, including homicide, was committed by the use of a firearm. In so doing, the express language of the statute indicates the Legislatures intent that section 654 not apply to suspend or stay execution or imposition of such enhanced penalties. (Hutchins, supra, 90 Cal.App.4th at p. 1313.)

Section 654 is not implicated by the imposition of a sentencing enhancement on a particular manner of committing murder -- with the use of a firearm . . . . (Hutchins, supra, 90 Cal.App.4th at p. 1313.) Here, the jury found defendant was guilty of the underlying felony of second degree murder. Discharging a firearm is not an act as that term is used in section 654. The murder was not charged as more than one distinct crime under more than one statute. Rather, the allegation that defendant discharged a firearm is simply the manner in which defendant committed the crime of murder. By enacting section 12022.53, the Legislature simply determined that a defendant may receive additional punishment for any single crime committed with a firearm. (Hutchins, at p. 1314.) As the court stated in Hutchins, the Legislature has chosen to enhance or expand the punishment imposed on a single underlying crime, where committed by use of a firearm, in order to deter a particular form of violence judged especially threatening to the social fabric. (Ibid.) In sum, we agree with the analysis in Hutchins and therefore conclude the consecutive 25-years-to-life enhancement was properly imposed.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ Richli

J.

/s/ King

J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1]All further statutory references will be to the Penal Code unless otherwise indicated.

^[2]The trial court also imposed the middle term of two years based on defendants guilty plea to being a felon in possession of a semiautomatic handgun in violation of section 12021, subdivision (a)(1), but stayed the sentence pursuant to section 654 (count 2). Based on defendants guilty plea to count 3, possession of ammunition by a felon in violation of section 12316, subdivision (b)(1), the trial court imposed eight months, which is one-third the middle term of two years. However, the sentences on these counts are not relevant to our analysis.