P. v. Swanigan

Filed 10/2/09 P. v. Swanigan 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 defendant William Swanigan guilty of murder (Pen. Code,  187, subd. (a))^[1]and attempted robbery ( 211/664), and further found he personally discharged a firearm causing great bodily injury during the commission of both offenses ( 12022.53, subd. (d)), and that the murder was committed during the commission of the attempted robbery ( 190.2, subd. (a)(17)). The court sentenced defendant to life in prison without the possibility of parole, plus 25 years to life, and imposed various fees and fines.

On appeal, defendant contends (1) there was insufficient evidence to support the attempted robbery conviction, (2) the courts admission of evidence of defendants prior uncharged conduct prejudiced defendant and violated his right to due process, (3) the life sentence without the possibility of parole based on the attempted robbery-murder special circumstance violated defendants rights under the Eighth and Fourteenth Amendments of the United States Constitution, (4) the $200 parole revocation fine ( 1202.45) was improper given the life sentence without the possibility of parole, and (5) the $10 local crime prevention program fee ( 1202.5) is not applicable for attempted crimes and is therefore improper. We shall strike the parole revocation fine and the local crime prevention fine and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On July 16, 2006, Jose Salas was standing in the second-floor bedroom of his home on 11th Avenue in Sacramento when he heard some yelling outside that sounded like two people cursing at each other and possibly yelling about money or something. He later told police he saw an older gray car, with an older white Ford two-door, soft-top convertible Mustang parked in front of it. The driver of the Mustang was a Black male in his early 20s. Salas heard someone say, Give me back my money. He reported seeing the passenger from the Mustang get out and go to the passenger side of the gray car, open the passenger side door and get in. The driver of the gray car started to get out, but the passenger pulled him back in. The driver of the Mustang got out, walked over to the passenger side of the gray car and said something to the passenger like, Come on, lets go. Salas reported he then heard a pop, but was unsure what it was. The driver of the Mustang ran back behind the gray car and ducked down. Salas decided to call 911. As he walked downstairs, he heard another pop. This time, he was certain it was a gunshot. Salas walked outside into his front yard. The Mustang was gone, but the gray car was still there with someone lying on the ground next to it. Salas could not definitively identify anyone involved in the crime.

Martin Hawkins also lived on 11th Avenue and was sweeping his driveway on July 16, 2006, when he heard two shots go off. He then heard a car revving up and speeding in his direction. The car, a white 1964 Mustang convertible with an off-color top drove past him and sped through the intersection, tires squealing, without stopping or slowing down. There were two Black men in the car, both in their 20s. Hawkins went down to his girlfriends house several houses down to make sure everything was okay. He saw a car in the middle of the street in front of her house, and someone slumped outside the drivers side door. The police were already there.

Officer James Harrington was the first to arrive on the scene. A gray Chevrolet Impala was parked on 11th Avenue. Both front doors of the car were open and the victim, a Hispanic male, was lying on the ground next to the drivers door.^[2] Harrington found the victims wallet lying on the center console. The wallet contained, among other things, the victims drivers license, his credit cards, and his social security card. Police found crinkled up money lying near the victims crotch area, in his pocket, and in the front drivers area, and found marijuana in the victims pocket. A spent shell casing was also found at the scene.

Simone Montgomery considered defendant her best friend and spent a good deal of time hanging out and smoking marijuana with him. Montgomery never saw defendant sell marijuana, but he told her he did. Defendant called her and told her he was trying to get some money because he was going to go hang out or go do something. Later, after the shooting, defendant called Montgomery again and told her he went to go sell some weed to a Mexican who was looking for weed to buy. He took him to go get some weed. They ended up getting into a little tussle and the pistol had went off. Defendant told Montgomery he kicked the victim and hit him in the face several times with a gun because the victim refused to give up his wallet. Defendant said he eventually popped^[3]the victim. Montgomery later told police that defendant said, I had to pop this nigger^[[4]] because he would not give me no money.

Several hours after the telephone conversation, defendant picked Montgomery and her daughter up in a blue convertible old school Mustang (i.e., an older model, maybe 60s) and headed to go visit a friend, then on to Oakland to drop her off and continue out of town to visit his father. They made it as far as the friends house in Sacramento, where Montgomery smoked some marijuana and then took a bus home. Defendant did not leave town that night as previously discussed.

Montgomery testified defendant always drove Mustangs, older and newer both, because that was his preference. He often bought them cheap and sold them for parts. He told Montgomery he also stole them on occasion. Defendant worked on Mustangs with his friends.

Detective Ashley Englefield was dispatched to the crime scene and was told police were looking for a white, older Ford Mustang. Englefield recalled having seen a Ford Mustang inside the garage of Tobias Thomas and Jameelah Jones several months prior. Thomas and Jones had both previously been arrested, and Thomas convicted, when a stolen police bait car turned up in their garage. Englefield recalled having driven by Thomass and Joness house sometime in April 2006 to do a probation/parole check. Neither Thomas nor Jones was home, but Englefield found two Black male adults in the garage working on an older white Mustang.

Englefield contacted Jones by telephone to investigate whether there was any possible connection between the white Mustang Englefield had seen several months prior and the one involved in the present crime. Jones agreed to an interview. She was brought to the police station, where she first spoke with Detective Ike Jason. Jason left the room, leaving Jones alone for approximately 30 minutes. As she waited in the interview room, she happened to receive a call on her cell phone from the defendant, who said he wanted to see her and asked if she could get a few bags [of heroin]. Defendant told Jones he had to get away and that he was still driving the car that I did the thing in. Not telling defendant she was at the police station, Jones asked him what he was talking about. Defendant said he smacked a nigger on Eleventh Avenue.

When Jason returned to the interview room, he asked Jones if she knew anything about the murder. Jason repeated portions of Joness telephone conversation with defendant which had, unbeknownst to Jones, been recorded. Jason asked Jones to call the defendant back so the police could record the telephone conversation. Jones agreed.

Jones called the defendant back and asked him what happened. Defendant said, Well, the nigger, the nigger didnt want to give up the motherfucking money. When Jones inquired further, defendant told her, Nah its just a little lick.^[[5]] . . . He didnt want to give up the money, and he started trying to fight me back and shit, after I slapped him with the gun fifteen thousand times and he wasnt going out. Nigga, just, I bam. Thats all I could put it for the . . . , and he just wanted to--he just wanted to die for his shit. So I popped his motherfucking ass. Defendant told Jones he was in a Mustang on the freeway on his way to the Bay Area.

Jones also testified a man named Kevin Kemp worked on Mustangs at her house many times in the past, sometimes with the defendant.

Detective Darrin Reese and his partner went to Kemps home to conduct a probation search, looking for information related to the white Mustang defendant was seen in after the murder. Kemp was not home; however, they found a number of Mustang parts scattered about his property, some of which turned out to be stolen. During the search, Kemps uncle, Thomas Hill, rode up on a bicycle. Hill invited them inside the house, where they found paperwork which led them to two storage units in a storage facility. A search of those storage units revealed stolen Mustang parts, including a front end to a 1966 white Mustang. Kemp was arrested, prosecuted, and convicted of running the stolen car operation. Defendants name was not found on any of the paperwork found at Kemps house, nor was there any evidence to connect defendant to anything found at Kemps home or in the storage units. At trial, Hill testified that sometime after the murder, he overheard the defendant tell Kemp, I just hurt somebody, man. I got into a hassle, . . . I need to leave.

Defendant was arrested in October 2006. The information charged defendant with first degree murder and alleged the special circumstance that defendant committed the murder while engaged in the commission of attempted robbery. ( 187, subd. (a), 190.2, subd. (a)(17).) It also alleged defendant intentionally and personally discharged a firearm within the meaning of section 12022.53, subdivision (d).

At the outset of trial, defendant made a motion in limine to exclude all evidence that defendant was a car thief as unduly prejudicial. The court denied the motion, finding the circumstantial evidence had probative value that was not outweighed by undue prejudice pursuant to section 352.

The jury found defendant guilty on both counts, and found the enhancements and the special circumstance true. On count one, the court sentenced defendant to life in state prison without the possibility of parole, plus 25 years to life for the firearm enhancement. On count two, the court sentenced defendant to two years, plus 25 years to life for the firearm enhancement, both stayed pursuant to section 654. The court imposed fees and fines, including a $200 parole revocation fine ( 1202.45) and a $10 local crime prevention program fine.

Defendant filed a timely notice of appeal.

DISCUSSION

I.

Sufficiency of Evidence of Attempted Robbery

Defendant contends the evidence was insufficient to convict him of attempted robbery, and thus insufficient to convict him of attempted robbery-felony murder. Specifically, defendant claims the evidence did not show he had the intent to rob the victim, only that there was a dispute about money during an illicit drug transaction. We disagree.

In reviewing a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence. Substantial evidence consists of evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hinton (2006) 37 Cal.4th 839, 884.)

To establish the crime of attempted robbery, the prosecution must prove a specific intent to commit robbery and a direct overt act toward its commission. (People v. Medina (2007) 41 Cal.4th 685, 692; People v. Dillon (1983) 34 Cal.3d 441, 455-456, abrogated as stated in People v. Chun (2009) 45 Cal.4th 1172, 1186.) Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. ( 211.)

Defendant argues Salass testimony that he heard two people arguing shows, at most, that the shooting arose out of an argument over money during a drug deal. He notes that Montgomerys testimony and the physical evidence support that theory. Montgomery testified defendant told her he was going to sell some weed to a Mexican and, after they got into it, the gun went off. Police found crumpled up cash lying on the victim, in the car, and in his pocket, and found marijuana in the victims pockets. The pretextual telephone calls wherein defendant stated the victim did not want to give up his money, and Salass testimony that he heard someone say, Give me back my money, are logically inconsistent with an attempted taking. We disagree.

Defendant told Jones he needed money and went to go get a lick, a term which Jones, Montgomery and Jason all understood to be street slang for robbery. Indeed, Jones told police defendant told her he went to go rob the nigger and eventually shot the victim for refusing to give up the money.

Defendant argues the term lick could be interpreted to mean any number of things and where, as here, the money and drugs were left at the scene, it is inconsistent with an attempted robbery. We are not persuaded. As the People correctly point out, the fact that money and drugs were left at the scene does not render the evidence of defendants intent to rob the victim insufficient. It is certainly possible that once defendant fired the gun, he feared detection and fled the scene, not wanting to risk taking the time to search the victims pockets or the car for money or drugs. The jury could also have inferred from the circumstances that defendant indeed intended to rob the victim but changed his mind once the situation escalated and he shot the victim. According to the witness testimony, the driver of the Mustang had already attempted to convince defendant to leave the scene, suggesting that more attention brought in a residential neighborhood would likely lead to detection.

We conclude the evidence was sufficient to support defendants conviction for attempted robbery and thus was sufficient to support the special circumstance finding based on attempted robbery.

II.

Evidence of Previous Conduct

Defendant contends the trial courts admission of evidence that defendant was a car thief was prejudicial and denied him his constitutional right to due process.

Testimony Regarding Prior Uncharged Conduct

Officer Robert Quinn testified that, in April 2006, prior to the murder, he was on patrol when he noticed a blue 1960s Mustang pull to the curb and stop. He ran the license plate and learned the car was stolen. Quinn pulled behind the car and the driver, defendant, immediately got out and was detained at gunpoint. Defendant told Quinn he was driving the car to a repair shop for a friend and did not know the car was stolen.

Detective Reese testified that, in April 2006, prior to the murder, he conducted a search of Kevin Kemps home based on information that Kemp and his associates were selling stolen parts at the Sacramento Raceway. Reese found cars and parts of classic Mustangs which were not identified as having been stolen. No arrests were made at that time and nothing was found to connect the parts to the defendant.

In denying defendants motion to exclude the evidence, the court concluded as follows: I think this is circumstantial evidence to show what is at issue, and that is his [defendants] access to not just any Mustangs but 60s-era Mustangs . . . . [] . . . [] The issue is not whether [defendant] was involved in any illegal activity of the chop shop or whether he stole Mustangs, but that he did have access to 60s-era Mustangs and he has been seen in different 60s-era Mustangs. [] I guess the stealing, the willingness to steal and that thats his favor[ite] car, this particular type of car goes to access. The only prejudice is the theft part, if it comes up that he has stolen cars. [] Given the nature of the charges, the seriousness of which is far greater than car theft, I find under [section] 352 that the probative value is not substantially outweighed by undue prejudice or undue risk of confusion or time consumption, so I would admit this evidence.

Analysis

Even if evidence is otherwise admissible, the trial court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code,  352.)

We review the trial courts rulings under Evidence Code section 352 for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 636-637.) A court abuses its discretion only when its ruling exceeds the bounds of reason. (People v. Kipp (1998) 18 Cal.4th 349, 371.)

Here, the prosecution offered Quinns and Reeses testimony, in conjunction with the testimony of the other witnesses, to show that [the defendant] has access to Mustangs in order to prove that he was the passenger in the white Mustang that was used during the killing.

The People argue the probative value of the evidence was very high because witnesses could only identify the car, not the shooter, and evidence linking the shooter to the vehicle was significant in establishing the identity of the shooter.

Defendant urges evidence of his access to Mustangs is irrelevant to the issue of whether or not he was the shooter, and that the evidence was prejudicial in part because it was cumulative, i.e., Montgomery and Jones had already testified that defendant preferred Mustangs, and Mustangs are ubiquitous. Therefore, he argues any probative value was minimal as compared to the undue prejudice caused by admission of the evidence.

We disagree. The car that sped away from the shooting was identified by witness Hawkins as a 1964 Mustang convertible. The evidence of defendants penchant for 60s-era Mustangs, his preference for driving these types of cars and his working on them with his friends, as testified to by Montgomery, and his friend Richard Kemps access to classic Mustangs was, when considered with defendants admissions to Montgomery and Jones, instrumental in identifying defendant as the killer. Given the relevance of this evidence, any prejudice that might have arisen from evidence that defendant also stole these types of cars on occasion was minimal.^[6] We find no abuse of discretion.

III.

Life Sentence Without Possibility of Parole

Defendant contends that the offense of special circumstance felony-murder (LWOP sentence) is unconstitutional under the Eighth Amendment (cruel and unusual punishment) and Fourteenth Amendment (due process) to the United States Constitution because the offense fails to rationally narrow the class of persons subject to it in contrast to those subject to simple first degree felony murder.

Assuming defendant has not forfeited his claim for failure to raise it below (People v. Scott (1994) 9 Cal.4th 331, 354-356), his claim lacks merit. As defendant properly concedes, our state Supreme Court has rejected similar contentions. (See, e.g., People v. Pollock (2004) 32 Cal.4th 1153, 1195.) Moreover, the Eighth Amendments narrowing requirement applies only to death sentences. (Harmelin v. Michigan (1991) 501 U.S. 957, 995-996 [115 L.Ed.2d 836, 864-865].)

Defendant also urges that the California cases rejecting the argument that a felony-murder special circumstance that merely repeats the elements of a first degree felony murder fails adequately to narrow the class of persons eligible for the death penalty (e.g., People v. Catlin (2001) 26 Cal.4th 81, 158, People v. Webster (1991) 54 Cal.3d 411, 456, and People v. Marshall (1990) 50 Cal.3d 907, 945-946) have been wrongly decided. However, we are bound by these decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

IV.

Parole Revocation Fine Must Be Stricken

Defendant contends, and the People concede, that the $200 parole revocation fine imposed pursuant to section 1202.45 must be stricken in light of defendants life sentence without the possibility of parole. We accept the Peoples concession and will strike the fine accordingly.

V.

Local Crime Prevention Fine Must Be Stricken

The People also concede defendants contention that the $10 local crime prevention fine imposed pursuant to section 1202.5 is improper and must be stricken. Attempted crimes are not among the enumerated offenses to which section 1202.5 applies. We accept the Peoples concession in this regard and will strike that fine as well.

DISPOSITION

The judgment is hereby modified to strike the $200 parole revocation fine ( 1202.45), and to strike the $10 local crime prevention program fine. The judgment as modified is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting those modifications, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

CANTIL-SAKAUYE , J.

We concur:

SIMS , Acting P. J.

RAYE , J.

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^[1]Hereafter, undesignated statutory references are to the Penal Code.

^[2] The victim was pronounced dead at the scene.

^[3] Montgomery understood the term popped to mean he shot the victim.

^[4] Montgomery clarified that she had not used the racial term nigger when talking to police, but rather nigga, a general, nonracial slang term.

^[5] Montgomery, Jones and Detective Jason all understood the word lick to be street slang for robbery.

^[6]Defendant also contends the evidence is inadmissible under Evidence Code section 1101, a claim he did not raise below. Given our determination regarding the relevance of this evidence, an objection would have been futile, thereby vitiating any failure to object or claim of ineffective assistance of counsel.