P. v. Tasker
Filed 9/18/12 P. v.
Tasker 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM JAMES TASKER,
Defendant and Appellant.
C067329
(Super.
Ct. No. 10F01930)
Immediately after
his 21-year-old son, defendant William James Tasker, fired three shots in his
bedroom, another shot at the base of the telephone, and smashed his arm through
a window while holding a rifle, Lawrence Tasker told the responding police
officer that defendant had pointed a gun at him and said, “‘I’m going to
fucking kill you.’” At trial, he recanted
his statement that defendant pointed the gun at him or threatened to kill
him. The father’s credibility was the
focus of the trial.
A jury convicted
defendant of assault with a deadly weapon
with the personal use of a firearm, discharging a firearm with gross
negligence, malicious obstruction or severance of a telephone line with the
personal use of a firearm, making a criminal threat with the personal use of a
firearm, threatening a crime victim/witness, and misdemeanor carrying a loaded
firearm in a prohibited place. On
appeal, he alleges instructional error, prosecutorial misconduct, and
sentencing error. The Attorney General
concedes sentencing error. We accept the
concession and, in all other respects, affirm the judgment.
FACTS
Defendant lived
with his dad rent free, did not work, and did not go to school. He did smoke marijuana and he did own guns,
courtesy of his uncle. Lawrence
drank too much, but he professed his love for his son.
Following a heated
telephone conversation with a friend on March
20, 2010, defendant told his father, “If he ever shows up here and
threatens me, I’m going to shoot him.” Lawrence
admonished his son not to threaten people, which only “set him off.” There is no dispute that defendant went into
his room and fired two shots. Lawrence
told him to “[k]nock it off.” He was on
his way to call the sheriff when defendant fired a third shot.
Defendant came out
of his room and told his father, “Go ahead and call them. I don’t give a fuck.” He fired a fourth shot with his pistol at the
base of the cordless telephone, disabling it.
Lawrence was standing six to ten feet from defendant when he fired the
shot.
Defendant left the
house, only to return to retrieve his rifle.
He smashed the kitchen window with the butt of his rifle before leaving
and lacerated his own hand. He was
bleeding and Lawrence was attempting to bandage the wound when the police
arrived. Defendant admitted he fired
four shots.
The only dispute
at trial was whether defendant pointed the gun at his father and threatened to
kill him. Lawrence told the responding
police officer that after defendant shot the telephone base he pointed the gun
at him and told him he was “going to fucking kill him.” Lawrence reported that he was scared and
wanted defendant to go to jail because he needed help.
Later, however, he
retracted his statements. He wrote a
letter to the district attorney stating that he had embellished the account to
get defendant the help he needed. At
trial, he denied that defendant had threatened him or pointed the gun at
him. Recorded conversations at the jail
between defendant and Lawrence suggested otherwise.
DISCUSSION
I
No one at trial
distinguished any of the shots from the others.
Indeed, defendant himself told the responding police officer that he
fired three shots in his bedroom and another at the base of the telephone. He offered no defense that differentiated the
shots. Nor did the prosecutor elect any
particular shot as the basis for discharging a firearm with gross negligence. (Pen. Code, § 246.3.)
Defendant contends
on appeal that the trial court violated his constitutional
right to a unanimous verdict by failing to give a unanimity
instruction. (CALCRIM No. 3500.) His constitutional right to a unanimous
verdict is undisputed. (
108, 114.) The question is whether the
unanimity instruction was required when the evidence showed that multiple acts
were in a continuous course of conduct.
(People v. Jantz (2006) 137
Cal.App.4th 1283, 1292.) We conclude it
was not.
A continuous
course of conduct exception applies “when the defendant offers essentially the
same defense to each of the acts, and there is no reasonable basis for the jury
to distinguish between them.” (
51 Cal.3d 72, 100.) Defendant
insists that because he changed rooms and shot at the phone rather than the
wall, he broke the continuity of his rampage.
He did not, however, offer any defense consistent with his argument on
appeal that the acts were distinguishable.
For purposes of the unanimity instruction, they were not.
The four shots
were fired in close temporal and physical proximity. Gross negligence is shown by reckless acts
that create a high risk of death or great bodily injury. Defense counsel argued that the risk was mere
speculation despite the fact that Lawrence was in the house and could have
easily been shot by any of the bullets defendant angrily and randomly
fired. Thus, there was no reasonable
basis for the jury to distinguish between defendant’s mental state or the
potential for harm as to each shot he fired.
No one at trial suggested such a potential, and with good reason, the
trial court did not give the unanimity instruction.
II
Defendant contends
it is reasonably probable that the jurors would have acquitted him of
discharging a firearm in a grossly negligent manner, threatening to commit a
crime that would result in death or great bodily injury, and threatening or
dissuading a crime victim if the judge had instructed them on the sufficiency
of circumstantial evidence generally (CALCRIM No. 224) rather than the more
circumscribed instruction on the sufficiency of circumstantial evidence for
intent and mental state (CALCRIM No. 225).
We agree with the Attorney General that the failure to give CALCRIM No.
224 was harmless.
Pursuant to
CALCRIM No. 225, the court instructed the jury:
“The People must prove not only that the defendant did the acts charged,
but also that he acted with a particular intent or mental state. The instruction for each crime and allegation
explains the intent or mental state required.
“An intent or
mental state may be proved by circumstantial evidence.
“Before you may
rely on circumstantial evidence to conclude that a fact necessary to find the
defendant guilty has been proved, you must be convinced that the People have
proved each fact essential to that conclusion beyond a reasonable doubt.
“Also, before you
may rely on circumstantial evidence to conclude that the defendant had the
required intent or mental state, you must be convinced that the only reasonable
conclusion supported by the circumstantial evidence is that the defendant had
the required intent or mental state. If
you can draw two or more reasonable conclusions from the circumstantial
evidence, and one of those reasonable conclusions supports a finding that the
defendant did have the required intent or mental state and anther reasonable
conclusion supports a finding that the defendant did not, you must conclude
that the required intent or mental state was not proved by the circumstantial
evidence. However, when considering
circumstantial evidence, you must accept only reasonable conclusions and reject
any that are unreasonable.”
While very
similar, CALCRIM No. 224 is not limited to circumstantial evidence of intent or
mental state only. Defendant argues that
the prosecution relied on circumstantial evidence to prove that he created a
risk of death or great bodily injury and to impeach his father’s testimony at
trial. We do not believe it reasonably
probable that the additional instruction would have altered, shaped, or
impacted the jury verdict.
After all,
defendant readily admitted firing all four shots knowing that his father was in
the house. There was no dispute as to
where he fired the shots or where his father was. The only real issue at trial was whether he
aimed the gun at his father and threatened to kill him. Thus, the court quite appropriately focused
on the sufficiency of the circumstantial evidence to infer intent, and the jury
was properly instructed in that regard.
Very little circumstantial evidence was needed to conclude that shooting
random shots in an occupied house placed other occupants at grave or mortal
risk. Similarly, little circumstantial
evidence bore on Lawrence’s credibility.
The jurors listened to his testimony, observed his demeanor, listened to
the officer he spoke to immediately following the incident, and listened to the
tapes of his telephone conversations with his son. Circumstantial evidence played a minor, if
not insignificant, role in determining his credibility.
Thus, any error in
failing to instruct generally on the sufficiency of circumstantial evidence was
harmless. Circumstantial evidence
unrelated to intent or mental state played a de minimis role in this
trial. CALCRIM No. 224 would not have
added to the jurors’ evaluation of the evidence or led to a different outcome.
III
Defendant displays
a fine grasp of the law in making his arguments; it is just that the facts do
not support application of the legal principles he cites. He accuses the prosecutor of misconduct and
recognizes that misconduct is judged by an objective standard and requires the
“use of deceptive or reprehensible methods to persuade either the court or the
jury.” (People v. Price (1991) 1 Cal.4th 324, 447, superseded by statute on
other grounds as stated in People v.
Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.) He contends that the prosecutor’s rebuttal
argument was reprehensible and rendered his trial unfair because he
mischaracterized defense counsel’s argument and improperly referred to matters
outside the record.
“If a prosecutorial
misconduct claim is based on the prosecutor’s arguments to the jury, we consider
how the statement would, or could, have been understood by a reasonable juror
in the context of the entire argument.
[Citations.] No misconduct exists
if a juror would have taken the statement to state or imply nothing
harmful.” (People v. Woods (2006) 146 Cal.App.4th 106, 111.)
Defendant does not
cite to a pattern of deceptive or reprehensible conduct. Rather, his sole complaint is the
prosecutor’s rebuttal to defense counsel’s closing argument. In context, we conclude there is no
misconduct because no reasonable juror would have taken the prosecutor’s
comments to state or imply anything harmful.
To the contrary, his response was a measured and appropriate response.
Lawrence Tasker’s
credibility was hotly contested at trial because his trial testimony was at
odds with the statements he gave immediately following the shooting rampage and
in telephone conversations with his son in jail. Defense counsel argued, “Now, counsel
representing the People has said to you in his argument that Mr. Tasker lied
here in this courtroom. . . . [¶] So we have someone who the District
Attorney’s office put on the stand as their witness, their chief and only
eyewitness, who they believe is a perjurer, that they want you to convict his
son based upon a perjurer’s word.” Later
he returned to the same subject, arguing:
“Now, I think the key decision, the first decision you all have to make
is whether or not Mr. Tasker is a perjurer based upon counsel saying he lied
here in court.” And finally, he
added: “Now, what you have before you is
a man, if you believe the District Attorney’s office, he is a perjurer, but he
wants you to believe certain things that he said to an officer and that those
things are absolutely true even though a number of his actions that day are not
consistent with that as I’ve outlined.”
Defendant insists
that these remarks did not disparage the prosecutor because they did not accuse
him of unethical or unlawful conduct. In
rebuttal, the prosecutor responded: “Now
Mr. Borkowski made somewhat of a comment on my ethical conduct, that I put up a witness that I believed was going to
perjure himself. And it makes it sound
like, hey, we’re putting up a liar.
We’re trying to pull the wool over your eyes. And that is absolutely illegal, I will admit
that wholeheartedly. For a prosecutor or
any attorney to put up a witness and allow that witness to lie on the stand is
ethically wrong. It is illegal. [¶]
But that’s not what happened here.
We put up a witness and told him, ‘You’re lying.’ This whole process was trying to find the
truth through Lawrence Tasker’s testimony.
It was cross-examining him. The
judge didn’t stop me when I asked leading questions. It was allowed. Because we were trying to get to the
truth. You were trying -- we were trying
to present the truth to you. We weren’t
presenting perjured testimony as true.
That’s illegal. [¶] To present a witness who is going to lie and
then cross-examined to get to the bottom of the truth is not illegal and it’s
not unethical. If it were, cases would
be very difficult to prosecute because sometimes witnesses are scared.”
Defense counsel
may not have overtly accused the prosecutor of unethical or unlawful conduct,
but the clear implication of his remarks was just that. The prosecutor clarified that he was not
attempting to pass perjury for the truth; rather, he was attempting to uncover
the truth by exposing the father’s deceitfulness on behalf of his son. There is absolutely nothing untoward about
the explanation the prosecutor gave to the allegations lodged at him by defense
counsel during his closing.
Nor do we accept
defendant’s argument that the prosecutor improperly testified or referred to
matters outside the record. Defense
counsel had placed him in a very difficult position by accusing him of relying
on perjured testimony to make his case.
In response, the prosecutor reminded the jurors of aspects of human
nature -- fear and the desire to protect family and friends. The prosecutor continued in his
rebuttal: “It’s very reasonable, common
sense tells you -- I’m not telling you, I won’t testify -- common sense tells
you that when somebody’s been shot at, they might be scared. And they might get on that stand because the
person’s their neighbor or their son and say, ‘No, that didn’t happen.’ Out of fear.
[¶] Does that mean that all of
those cases have to be dismissed All of
those domestic violence cases have to be dismissed because a female may be
scared of her husband Or a man may be
scared of his wife Or a child may be
scared of their parent”
We agree with the
prosecutor that assessing a father’s credibility involves common sense. It is a matter of common knowledge that
victims will testify falsely to protect their loved ones. The prosecutor was simply pointing out that
cases can be prosecuted even when a victim recants. Given that defense counsel had suggested
something nefarious in the use of a witness who would perjure himself, the
prosecutor was at liberty to admonish the jurors to ignore perjured testimony
and to rely on the statements made by a victim at or near the time of the
violent act by a loved one. We can find
no misconduct in this record.
Iv
Defendant was
charged with carrying a loaded firearm in a public place. (Pen. Code, § 12031, subd. (a)(1).) The jury inquired whether a private driveway
could be a public place. Relying on
Cal.App.4th 303 (Yarbrough), the
court instructed the jury: “A private
driveway may be a public place under Penal Code §12031(a)(1) if it is reasonably
accessible to the public without a barrier.”
Defendant contends that Yarbrough
is distinguishable and the court’s response to the jury’s inquiry violated his
right to bear arms under the Second Amendment to the United States
Constitution. Defendant is mistaken.
Defendant insists
that Yarbrough is factually
distinguishable because the accused in that case did not own or reside in the
house, but had merely clustered around a car on a private driveway. Because he was in his own driveway, a mere extension
of his castle, defendant argues he was entitled to greater rights than the mere
interlopers in Yarbrough.
Not so, explained
the court: “We are also persuaded that to limit the definition of ‘public place’ in
Penal Code section 12031 to publicly owned property, as defendant
suggests, would frustrate the purpose of the law, which is to provide
protection from those who carry firearms in areas available or exposed to
public use. A limited bright-line
definition of ‘public place’ that excludes all privately owned property would
allow those who carry firearms to avoid the proscription of the law simply by
moving a few steps off a road or sidewalk onto open, accessible private
property, although they pose as much of a threat to the public there as anywhere
else. [Citations.] We conclude that the trial court properly
advised the jury that a private driveway may be a ‘public place if it is
reasonably accessible to the public without a barrier.’” (Yarbrough,
supra, 169 Cal.App.4th at pp.
318-319.) We agree.
The defendant in
a jury to find that a private driveway constitutes a public space violated his
Second Amendment right to bear arms as embodied in District of Columbia v. Heller (2008) 554 U.S. 570 [171 L.Ed.2d
637]. We cannot improve on the
Second Amendment claim: “[W]e discern
nothing in the decision in Heller
that restricts the permissible scope of Penal Code section 12031 to publicly
owned property or otherwise renders the trial court’s instruction
erroneous. To the contrary, the
‘some statutory restrictions—the types of people who may exercise this freedom;
the places where this freedom may be
exercised; and, the ability to buy and sell the objects of this
freedom—“whose constitutionality under a strict scrutiny standard would be far
from clear.” [Citation.]’ [Citation.]
Found violative of the Second Amendment in Heller was a law that imposed an ‘absolute prohibition of handguns held
and used for self-defense in the home,’ but the court endorsed traditional
regulations restricting firearm possession that are designed to promote and
maintain public safety on government property or in publicly sensitive areas. [Citations.]
Defendant’s act of carrying a loaded firearm while among a group of
people congregated on a residential driveway open and available to public use
in direct violation of Penal Code section 12031 does not find refuge in the
Second Amendment. We conclude that the trial
court’s definition of public place was both a correct statement of law and
constitutionally permissible.” (
v
The Attorney
General concedes that defendant’s sentence for obstruction or severance of a
telephone line should have been stayed pursuant to Penal Code section 654
because the single act of shooting the telephone was the same act by which
defendant dissuaded a witness. The court
should have imposed sentence only on the offense carrying the higher punishment
-- dissuading a witness.
DISPOSITION
The trial court is
directed to stay the sentence imposed on count three, malicious obstruction or
severance of a telephone line with the personal use of a firearm. The court is further directed to amend the
abstract of judgment accordingly and to send a certified copy thereof to the
Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
RAYE , P. J.
We concur:
BUTZ , J.
MURRAY , J.
