P. v. Thompson





Filed 4/14/11 P. v. Thompson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. STEVEN DAVID THOMPSON, Defendant and Appellant.

D057601 (Super. Ct. No. RIF147869)

APPEAL from a judgment of the Superior Court of Riverside County, Christian F. Thierbach, Judge. Affirmed.

Steven Thompson appeals from a judgment convicting him of first degree murder. He argues (1) there is insufficient evidence to support the jury's finding of premeditation and deliberation, and (2) the jury was improperly instructed that it was required to acquit him of first degree murder before it could return a verdict on second degree murder. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At about 5:00 a.m. on May 27, 2007, defendant walked up to a car on El Rio Avenue, confronted one of its occupants (Lisa Ward), and fatally shot Ward. At trial, several witnesses described their observations at the time of the shooting. These witnesses included two other occupants of the car (Bryant Byrd and Tashiana Kuyateh) and two individuals who were outside (Harvey Lenoir and Toni Graham).
Just before the shooting, Graham and defendant were on a porch outside a house on El Rio Avenue. Lenoir, who worked on the street as a middleman for drug dealers, was outside on the street. Byrd, victim Ward, and Willie Meadows arrived in a car to purchase cocaine. Kuyateh, who knew Ward and Meadows, joined them in the car because she needed a ride. Byrd was in the driver's seat of the car; Ward was in the front passenger seat; and Kuyateh and Meadows were in the back seat. Lenoir approached the passenger's side of the car to see what they wanted. Another man (later identified as defendant) also came up to the car. Defendant first looked in the driver's side window, and then walked over to the passenger side and pushed Lenoir out of the way.
Defendant confronted Ward about having set him up to be stabbed. Graham heard defendant state, "[B]itch, remember me‌ I told you where ever I saw you at I was going to blast you." Kuyateh heard him say, "[Y]ou're the bitch that got me beat up and . . . stabbed up and almost killed. Bitch, get the fuck out of the car before I kill you in the car." Ward responded, "You got me mixed up with somebody else. I'm the wrong person"; "I didn't do it. I didn't do it."[1]
As defendant confronted Ward, Ward reached back with her hand to Meadows to signal him to help her, and Meadows interjected, "Hey, man, she said you got her mixed up, man." Defendant pulled out a gun and pointed it at Meadows, telling him to "stay out of it." Defendant opened the passenger car door and again told Ward, "Get out before I shoot you in the car." Defendant and Ward continued arguing, "yelling back and forth" at each other. Defendant was pointing the gun at Ward and repeatedly accusing her of setting him up, and Ward was backing up in her seat and saying, "You got the wrong person. It wasn't me. It wasn't me." As they were arguing, Ward was trying to squeeze between the two front seats to climb to the back seat, and defendant was trying to grab her.
Byrd opened his car door and asked what was going on. Defendant pointed the gun at Byrd. Byrd ducked down, got back in the car, and tried to start the car. Defendant reached into the car from the passenger's side to the driver's side, put a gun to Byrd's head, and told Byrd not to start the car. Byrd lifted his hands up and said, "All right."
As defendant and Ward continued arguing, Byrd tried to start the car again, but defendant turned the gun back on him. Byrd jumped out of the car, stood up, and tried to talk to defendant, stating " 'Hey, man, this is a female. If anything, you know, you ain't got to shoot her, man. Nobody deserve to get shot up, no matter what happened. . . . If this really happened, beat her tail instead of shootin' her, you know. Ain't nobody got to die.' " Byrd's plea had no impact on defendant; defendant merely pointed the gun at Byrd across the top of the car. Byrd started running away down the street. Because Ward was not able to get into the back seat, she was trying to crawl over to the driver's seat to get away from the gun pointed at her. Byrd then changed his mind about leaving; he returned to the car with the intention of starting the car and "tak[ing] off."
When Byrd returned to the car, defendant was bending into the car with the gun. As Byrd was reaching to put the keys in the ignition, defendant shot Ward. Kuyateh testified that after firing the gun, defendant was staring at Ward "like it felt good to him." Byrd jumped out of the car and ran a few steps away. Defendant told Byrd, "Get that F . . . in' car out of here." Byrd drove away and took Ward to the hospital.
Graham (who had stayed on the porch of a nearby residence) heard gunshots but did not see who fired the gun. After the shooting, defendant asked Graham for a ride. When they arrived at a home and defendant took his coat off, Graham saw a gun tucked into his pants. Defendant told Graham that "he had got stabbed a long time ago . . . and that [Ward] was the reason . . . [¶] . . . [¶] . . . [and] he almost died from getting stabbed . . . ." When Graham asked defendant if he had shot her, defendant responded, "fuck the bitch."
Ward sustained one gunshot wound from a bullet that entered the outer portion of her left arm, went through her arm, and reentered at her chest. The bullet hit her lungs, heart, and liver. The heart injury likely caused death within seconds.
To support its case against defendant, the prosecution introduced evidence showing that defendant had previously been stabbed at the instigation of a female. Officer Erich Feimer testified that on December 12, 2006, he responded to a report of a stabbing during a robbery. Defendant told Officer Feimer that he was in a verbal argument with a female; the woman called three men to come over; and he was stabbed and robbed by the men. Defendant did not want to cooperate with the investigation; did not provide any further information to the police; and at one point told the officer he would "handle the problem himself."
Jury Verdict and Sentence
The jury found defendant guilty of (1) first degree murder with a true finding on an enhancement for personal discharge of a firearm causing death, and (2) possession of a firearm by a felon. Defendant admitted he had sustained a strike prior conviction. He was sentenced to 75 years to life, consisting of a 50-years-to-life doubled sentence for first degree murder and 25 years to life for the firearm enhancement. Sentence on the firearm possession count was stayed.
DISCUSSION
Substantial Evidence of Premeditation
Defendant argues there is insufficient evidence to support the finding of premeditation, and that his conviction should be reduced to second degree murder.
In evaluating a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Nelson (2011) 51 Cal.4th 198, 210.) We presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (Ibid.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.)
First degree murder is an unlawful killing with malice aforethought and premeditation and deliberation. (People v. Romero (2008) 44 Cal.4th 386, 402.) Premeditation and deliberation require more than a showing of intent to kill. (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) Deliberation refers to careful weighing of considerations in forming a course of action; premeditation means thought over in advance. (Ibid.) "An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse." (People v. Stitely (2005) 35 Cal.4th 514, 543.) Premeditation and deliberation do not require an extended period of time, merely an opportunity for reflection. (People v. Cook (2006) 39 Cal.4th 566, 603.) Premeditation and deliberation can occur in a brief interval; the "true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly [distinguishing] those homicides . . . which are the result of mere unconsidered or rash impulse hastily executed." (People v. Thomas (1945) 25 Cal.2d 880, 900-901; People v. Solomon (2010) 49 Cal.4th 792, 813.)
Here, the circumstances show that defendant had the opportunity to reflect between the time he recognized Ward and made the decision to pull the trigger. Defendant did not just see Ward and instantaneously shoot her. Rather, he verbally confronted her; heard her repeated responses that he had the wrong person; opened the passenger door and ordered her out of the car; heard separate pleas from Meadows and Byrd to believe her and not to shoot her; turned the gun on Meadows; twice turned the gun on Byrd, including bending into the car far enough to reach Byrd's head; and tried to grab Ward as she backed away from the gun. From these facts, the jury could reasonably infer that defendant had time to weigh his options (including considering whether to be persuaded by the pleas not to shoot her) and that he affirmatively decided to shoot in retaliation for Ward's perceived role in his prior stabbing.
To support his challenge to the first degree murder verdict, defendant asserts there was no evidence that he stalked or planned to kill Ward; the evidence showed he "came upon Ward by happenstance"; and the facts (including the manner of killing) reflected an intent to kill but not a premeditated killing. Factors such as planning and manner of killing are matters that can assist in the assessment of premeditation and deliberation, but they are not required. (People v. Halvorsen (2007) 42 Cal.4th 379, 419-420.) It was not necessary for defendant to plan the killing prior to encountering Ward; it was sufficient if he reflected upon the decision whether to kill her once he encountered her and before killing her. Because the circumstances before his act of pulling the trigger showed that he had the opportunity to reflect, weigh his choices, and decide whether to shoot the gun, the record supports an inference that he premeditated and deliberated prior to killing Ward. (See, e.g., People v. Nelson, supra, 51 Cal.4th at p. 213 [evidence showed ample time to premeditate and deliberate based on steps taken by defendant prior to firing gun, including climbing out of moving car, sitting on window frame, reaching across roof, bracing himself, and aiming at victim].)
Defendant also asserts that the evidence of motive to kill was weak. Again, although motive is a relevant consideration, it is not required to show a premeditated murder. (People v. Halvorsen, supra, 42 Cal.4th at p. 421.) In any event, the evidence of motive to kill was strong, as shown by defendant's statement to Ward that he had told her he was going to "blast" her wherever he saw her.
The record supports the jury's finding of premeditation and deliberation.
No Instructional Error
The jury was instructed that it had the discretion to choose the order in which it evaluated the greater and lesser crimes (i.e., first degree murder, second degree murder, or voluntary manslaughter), but the court could "accept a verdict of guilty of a lesser crime only if [the jury had] unanimously found the defendant not guilty of the charged or greater crime." (See CALCRIM No. 3518.) Defendant asserts this "acquittal-first" instruction violates his constitutional rights because it could encourage minority jurors favoring the lesser offense to vote for the greater offense to avoid a mistrial.
In People v. Kurtzman (1988) 46 Cal.3d 322, 324-325, 329, our high court authorized an acquittal-first instruction that states the jury may consider or discuss a lesser included offense before returning a verdict on the greater offense, but it should not return a verdict on the lesser offense unless it agreed the defendant was not guilty of the greater offense. Kurtzman concluded that this procedure was "an appropriate balancing" of "the defendant's interest in not improperly restricting the jury's deliberations and the People's interest in requiring the jury to grapple with the prospect of defendant's guilt of the greatest offense charged." (Id. at pp. 333-334; accord People v. Fields (1996) 13 Cal.4th 289, 304, 309.) In subsequent decisions, the California Supreme Court has repeatedly rejected constitutional challenges to the use of an acquittal-first instruction. (People v. Jurado (2006) 38 Cal.4th 72, 125; People v. Nakahara (2003) 30 Cal.4th 705, 715; People v. Riel (2000) 22 Cal.4th 1153, 1200-1201.)
As defendant recognizes, we are bound by our high court's holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Nevertheless, he requests that we urge the California Supreme Court to reconsider its approval of the instruction, citing decisions from other jurisdictions that have evaluated the acquittal-first principle or variations thereof, and contending that the California Supreme Court has not considered this decisional authority. He points to language in these cases that raise the concern that if "the jury is heavily for conviction on the greater offense, dissenters favoring the lesser may throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all, although the jury might have reached sincere and unanimous agreement with respect to the lesser charge." (United States v. Tsanas (2d Cir. 1978) 572 F.2d 340, 346; State v. LeBlanc (Az. 1996) 924 P.2d 441, 442; Cantrell v. State (Ga. 1996) 469 S.E.2d 660, 662; Jones v. United States (D.C. 1988) 544 A.2d 1250, 1253; United States v. Jackson (9th Cir. 1984) 726 F.2d 1466, 1469-1470.)[2]
This concern was evaluated at length in People v. Zwiers (1987) 191 Cal.App.3d 1498, 1501-1506, in which the court rejected the defendant's contention that the acquittal-first procedure violates due process because it effectively limits a jury's ability to convict on a lesser offense and encourages conviction on the greater offense. The Zwiers court examined the differing analyses and holdings of numerous courts in other jurisdictions; set forth the pros and cons of an acquittal-first instruction (including the concern described by defendant); and noted that the instruction might also benefit the defense because " 'it may prevent any conviction at all; a jury unable either to convict or acquit on the greater charge will not be able to reach a lesser charge on which it might have been able to agree.' " (Id. at p. 1503-1506.) The California Supreme Court cited Zwiers when selecting the procedure it found best balanced the competing interests; thus it was no doubt aware of the concern raised by defendant. (See People v. Kurtzman, supra, 46 Cal.3d at p. 331.) There is no basis for us to deviate from our high court precedent.
For the first time in his reply brief, defendant also argues that the instruction was incorrect because it failed to inform the jury that the court could accept a verdict on the lesser offense even without an acquittal on the greater offense, if the jury reported itself as deadlocked on the greater offense and the prosecutor elected to dismiss the greater offense to permit further deliberations on the lesser offense and potentially avoid a mistrial. (See People v. Fields, supra, 13 Cal.4th at p. 311.) An argument raised for the first time in a reply brief may be deemed waived. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) In any event, the contention fails on its merits. The prosecutor is not required to dismiss the greater offense, and the trial court need not instruct the jury on this speculative possibility.
There was no instructional error.
DISPOSITION
Judgment is affirmed.


HALLER, J.

WE CONCUR:



HUFFMAN, Acting P. J.



O'ROURKE, J.

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