P. v. Verceles

Filed 2/9/09 P. v. Verceles 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Mark Anthony Verceles guilty of attempted voluntary manslaughter, disobeying a domestic relations order, child endangerment, attempted criminal threats, and two counts of assault with a deadly weapon. The court sentenced defendant to a six-year term in state prison.

On appeal, defendant contends he was denied due process by the courts erroneous answers to questions from the jury regarding proof of intent. Finding the error harmless, we shall affirm.

FACTS

Y.S. was in a relationship with defendant which started in March 2000. They had two children together, a son M. V. and a daughter E. V. Y.S. also had another daughter, E. S.

In 2005, Y.S. and her three children were living with defendant in his Roseville home. On July 5, Y.S. and defendant went to the store to buy groceries, taking the one-and-a-half year old E. V. with them. Y.S. forget the ATM card, angering defendant, who kicked and slapped Y.S. Defendant was arrested and eventually jailed.

Y.S. got a restraining order against defendant while he was in custody. Defendant was released in December 2005, and they lived together for another six months before Y.S. and the children moved to a home in Antelope, five blocks from her parents house on Scotland Drive.

Y.S. had sole custody of the children, with defendant allowed only supervised visitation. Defendant would go to Y.S.s house once a week to visit the children, typically staying overnight against Y.S.s wishes.

On November 29, 2006, defendant spent the night at Y.S.s home. At the time, Y.S. drove a Lexus SUV she jointly owned with defendant and also had a Honda Accord of her own. Defendant was angry, because after telling Y.S. he wanted to come back and make it up to her, she told him it was too late. M. V. was six, E. V. was three, and E. S. was ten at the time.

Y.S. told defendant to leave the next morning, which made him very angry. Y.S. and defendant then took the Lexus to drive their son to school, which was about five blocks away. When they got to the school, defendant exited the SUV with their son to walk him to class. Y.S. drove off and left defendant because she did not want him back at her house.

Sometime later, Y.S. drove to her parents house on Scotland Drive, where she found defendant waiting for her in the Accord. Defendant got out of the Accord, went up to the Lexus SUV, and started banging on the window, screaming and yelling at Y.S. to get out so he could talk to her.

A scared Y.S. drove off. Driving away from her parents house, she next saw defendant when he ran the Accord into the side of her SUV as she was stopping at a stop sign. Y.S. drove away and looked for help, eventually finding a sheriffs patrol car which she flagged down. Defendant, who pursued her in the Accord, pulled up behind her and got out of the car with his hands up. He was then arrested and jailed until December 5, 2006.

Y.S., her children, and defendant had been exposed to tuberculosis from Y.S.s niece, who was living at the Scotland Drive house. Defendant knew this as of November 30, and while he was in jail, Y.S. asked the district attorneys office to tell defendant to get tested for tuberculosis. On December 5 or 6, Y.S. told defendant the children had tested positive for tuberculosis.

According to Y.S., defendant next saw her on December 5 or 6, 2006, when they had a conversation with an employee of a utility company at Y.S.s home and again when defendant went to her parents house to call his uncle. Later on December 6, Y.S. was at her parents house where she saw defendant outside arguing with her mother through the front door.

Defendant screamed, I want my kids. When Y.S.s mother replied he cannot have them, defendant said to Y.S. Open the door. Dont think I cant break this door down. Give me my kids, along with If you are not going to give me my kids, dont think I am not going to drive the car into your house, and I am going to kill you if you dont give me my kids. Defendant never threatened the children.

Y.S. and her mother both called 911. Defendants son then went through the front door with the keys to the SUV and gave them to defendant, who took the boy into the SUV and drove off. Y.S. next exited the house, along with her mother and 10-year-old E. S.

Sacramento Sheriffs Deputy Andrew Croley and his partner Brent Jarvis responded to the incident at around 8:40 p.m. on December 6, 2006. Approaching the Scotland Drive house, their patrol car passed the Lexus SUV driven by defendant. They followed defendant, eventually turning on the emergency lights and sirens as defendant drove back to Scotland Drive.

Driving onto Scotland Drive, Deputy Croley saw Y.S. and E. S. running toward the front door as defendant drove the SUV at the house. Defendant accelerated the Lexus SUV as he drove onto Scotland drive and onto the front lawn. E. S. and Y.S. entered the house [m]ere seconds before the SUV hit the house near the front door. According to Y.S., she was about three to four feet away from the SUV before it hit her parents house.

Deputy Croley estimated the Lexus SUV was being driven between 30 and 40 miles per hour at the time of impact. The deputies exited their car and drew their guns when the SUV struck the home. Defendant then backed the Lexus up and made a sharp left turn. Defendant was ordered out of the vehicle; Deputy Croley opened the door of the SUV and pulled defendant out when he was hesitant in complying. Deputy Jarvis then tasered defendant.

Deputy Croley entered the SUV to secure it because it was still in gear. M. V. was in the front seat without a seatbelt. The airbags did not deploy.

After Deputy Croley struck defendant in the face in an attempt to subdue him, he asked why he was hit. Deputy Croley said it was because defendant had tried to kill his family. Defendant replied, Because she tried to set me up.

Deputy Jervis stayed with defendant in the backseat of the patrol car. Defendant told the deputy that he ran into the house on purpose, trying to hurt someone as he thought Y.S. had set [him] up. Because she tried to get him arrested, defendant was trying to hit Y.S. and everyone else around her. Defendant also said he was trying to rescue his children from Y.S. as she was not getting them medical treatment.

At trial defendant denied ever threatening to kill Y.S. or to drive the SUV into the house and kill her.

Defendant claimed he had previously been given keys to the SUV. He also denied telling the police he tried to kill Y.S., but instead told them it was an accident.

DISCUSSION

Answers To Jury Questions

During deliberations, the jury asked the court, Is intent indicated by ones actions or thought process; or both? The court answered by referring the jury to the instruction entitled Circumstantial Evidence: Intent or Mental State, CALCRIM No. 225.^[1]

Thirty minutes later, the jury asked the court, May we have an example of question 1 regarding intent? We have read and reread [CALCRIM No. 225] and would like an example of illustrating intent through ones actions? The court answered, no. The jury also asked, Do actions imply intent? Yes or No[.] The court again replied no, and referred the jury to instructions on the union of act and intent for general intent, specific intent and criminal negligence (CALCRIM Nos. 250, 251, & 253), direct and circumstantial evidence (CALCRIM No. 223), sufficiency of circumstantial evidence (CALCRIM No. 224), and circumstantial evidence -- intent or mental state (CALCRIM No. 225). Defendant contends and the People concede the courts answer to the last question from the jury was wrong. We agree.

The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under [Penal Code] section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]. . . But a court . . . must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given. (People v. Beardslee (1991) 53 Cal.3d 68, 97.)

Defendant was charged with attempted murder with respect to Y.S. in count one and E. S. in count two, convicted of the lesser included offense of attempted voluntary manslaughter in count one, and acquitted in count two. Attempted voluntary manslaughter requires proof of a specific intent to kill. (People v. Montes (2003) 112 Cal.App.4th 1543, 1549.) Since there is rarely direct evidence of a defendants intent, intent is usually derived from the circumstances of the attempt, including the defendants actions. (People v. Smith (2005) 37 Cal.4th 733, 741.) By erroneously informing the jury it could not infer intent from defendants actions, the court misled the jury rather than clarifying instructions which clearly confused the jury.

Defendants actions -- driving the SUV at E. S. and Y.S. at speeds estimated at over 30 miles per hour, and barely missing them as they ran into the house -- are circumstantial evidence of an intent to kill both of them. While there is evidence defendant expressly stated an intent to kill Y.S., there is no direct evidence he intended to kill anyone else, and Y.S.s testimony stated defendant never expressed an intent to kill or harm the children.

Unsurprisingly, the jury found defendant intended to kill Y.S., but harbored no such intent regarding E. S. Had the court properly answered the jurys question, the jury could have considered defendants actions as circumstantial evidence of his intent and found an intent to kill E. S. This also would have provided support for a finding of an intent to kill Y.S.

By preventing the jury from considering this evidence of defendants intent to kill, the courts erroneous answer gave defendant a windfall. Had the court given the proper answer to the jurys inquiry, the jury still would have convicted defendant of attempted voluntary manslaughter in count one, and might have convicted him of the same offense in count two. The error was thus harmless under any standard.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

BLEASE , Acting P. J.

HULL , J.

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^[1] As provided to the jury, CALCRIM No. 225 read: 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 instructions for each crime explain 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 another 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.