P. v. Harris

Filed 4/28/08 P. v. Harris CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment and an order of the Superior Court of Los Angeles County, Craig E. Veals, Judge. Affirmed in part and reversed in part.

James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Nancy G. James, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant Eddie Lee Harris appeals from a judgment of conviction entered after a jury found him guilty of shooting at an occupied vehicle (Pen. Code,  246,[1]count 1), shooting at an inhabited dwelling ( 246, count 2), and permitting someone to shoot from a vehicle ( 12034, subd. (b), count 3). The trial court found true the allegations defendant suffered a prior conviction of a serious felony ( 667, subds. (a), (b)-(i), 1170.12). It sentenced defendant to 15 years in state prison: 10 years on count 1 (double the middle term sentence of 5 years as a second strike), and five years for the prior conviction. It stayed sentence on counts 2 and 3 pursuant to section 654.

On appeal, defendant contends there is insufficient evidence to establish that his federal bank robbery conviction was a serious felony within the meaning of sections 667 and 1170.12. He also claims the trial court erroneously failed to instruct as to a lesser included offense on count 2, erroneously denied his motion to exclude identification evidence, and failed to rule on his new trial motion. We agree that the evidence is insufficient to support the finding defendant previously was convicted of a serious felony. We reject the remainder of defendants contentions.[2]

FACTS

A. Prosecution

Earlean James (James) lived near St. Andrews Park.[3] On the afternoon of July 24, 2005, she heard several gunshots coming from the direction of the park. She went outside and saw people running from the southwest corner of the park. She noticed two young African-American men running east. One of the men was holding something in front of him under his shirt. The two men got into a red, four-door car that was missing its rear license plate. The car sped off in the direction of 92nd Street.

James great grandnephew, 11-year-old Tyrin Tibbs (Tibbs), was playing basketball in a friends backyard, about half a mile from St. Andrews Park, when he heard gunshots. He went to the side gate and saw a red car drive by. He could not tell if there were one or two people in the car.

Yussuf Simmonds (Simmonds) was sitting in his car in front of his house on Haas Avenue near 93rd Street. He saw a car coming up behind him, traveling southbound, and two cars driving north toward him: a late model red Chevrolet with fancy chrome wheels traveling at 40-50 miles per hour, and some distance behind it a light-colored car. As the red car was almost parallel to Simmonds car, the passenger reached his hand out of the car and fired two shots at the southbound car. The red car continued driving north, and the light-colored car turned east on 93rd Street.

Simmonds wife called him on his cell phone and told him that someone had fired shots into the house. He went into the house and discovered bullet holes in the window screen and a wall.

Los Angeles Police Sergeant Ruben Lopez and his partner were on patrol at Western Avenue and 80th Street. They heard a radio broadcast about a shooting at St. Andrews Park and were told to be on the lookout for a red Chevrolet Impala with custom rims. A few seconds later, Sergeant Lopez saw the red car traveling north on Western Avenue. He stopped the red car a couple of blocks away. Defendant was the only one in the car. Sergeant Lopez noted that the car had no exterior license plates. There was a mark on the top of the car that looked as though it had been made by a bullet. He searched the car but did not find any weapons.

Los Angeles Police Officer Everardo Amaral and his partner were on patrol near Haas Avenue and 92nd Street. They spoke to Tibbs, who said he had heard several gunshots. Then he saw a red car driving fast and heading east on 92nd Street. He got a really good look at the driver, an African-American man who was bald and fat.

Officer Amarals partner told Tibbs that the police had stopped someone. That did not mean that he had done anything wrong, but they wanted Tibbs to see him in order to eliminate him as someone who may have committed a crime. Tibbs said he understood. Officer Amaral took Tibbs and his grandfather to Western Avenue and 83rd Street. Defendant was handcuffed and standing by his car, with four uniformed police officers beside him. Tibbs identified both defendant and the car as the ones he had seen earlier.[4]

Officer Amaral noticed that the red car had chipped paint and grooves on the roof. It appeared that these were fresh, in that there was no rust and there were still paint chips attached to the grooves and had been caused by a bullet shot from the passenger side of the car in the direction of the drivers side.

Officers then brought Simmonds to the location. He identified the red car as the one from which the shots had been fired.[5]

B. Defense

Frank Evans (Evans) grew up with defendant and the two formerly were affiliated with the same gang. Evans played in a baseball league at St. Andrews Park every Sunday. After a baseball game on Sunday, July 24, 2005, he and others were having a barbecue at the park. Defendant was with them, although he had not played baseball because he could not run very fast and needed to lose weight. A white car drove down the street and shots were fired from it. He and the others gathered up their things, went to their cars and left the park. Evans was in the pitchers car, which was right behind defendants car. They drove north on St. Andrews Place, turned east on Manchester Avenue, then turned north onto Western Avenue. When the police stopped defendant on Western Avenue, the pitcher also stopped. Evans and others told the police that defendant had been at the park with them and could not have been involved in the shooting at the park. Evans did not believe defendant had time after the shooting to get into his car, drive somewhere else, then return to the park and drive away at the same time Evans and the others left.

Tommy Hall (Hall), vice-president of the St. Andrews Park advisory board, was playing baseball in the park that day. He saw defendant, whom he recognized by sight, at the barbecue. Hall heard gunshots coming from a white car driving west on 89th Street. Then he saw defendants car, a red car with shiny rims, take off. Hall and other members of the advisory board stayed at the park trying to calm people down. Later, he and other board members drove to Western Avenue and 83rd Street, where defendants car was stopped. They explained to police officers that they and defendant had been victims of the shooting at the park.

DISCUSSION

A. Prior Serious Felony Conviction

For purposes of sections 667 and 1170.12, a serious felony is one defined in subdivision (c) of section 1192.7. ( 667, subd. (a)(4), 1170.12, subd. (b)(1).) It includes bank robbery, defined as to take or attempt to take, by force or violence, or by intimidation from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association. ( 1192.7, subds. (c)(19), (d).)

The People presented evidence that defendant previously was convicted in federal court of armed bank robbery, in violation of 18 United States Code section 2113(a) and (d). Defendant contends this evidence is insufficient to establish that he was convicted of bank robbery within the meaning of section 1192.7.

18 United States Code section 2113(a) provides that [w]hoever, by force and violence, or by intimidation, takes or attempts to take from the person or presence of another . . . any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or [] [w]hoever enters or attempts to enter any bank, credit union, or any savings and loan association, . . . with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny is guilty of bank robbery. Subsection (d) of 18 United States Code section 2113 provides punishment for a person who, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device.

It is defendants position that the conduct described in the second part of this statute does not fall within the definition of bank robbery provided in section 1192.7. Therefore, he contends, the evidence is insufficient to establish a prior serious felony conviction.

Where the People introduce no evidence as to the conduct on which a prior foreign conviction was based, the court must presume that the People proved nothing more that the least adjudicated elements of the [alleged prior] offense (People v. Rodriguez (1998) 17 Cal.4th 253, 262), i.e., that the prior conviction was for the least offense punishable under the foreign law (People v. Guerrero (1988) 44 Cal.3d 343, 355). Similarly, if the offense can be committed in multiple ways, not all of which would qualify it as a serious felony the court must presume it was not a serious felony. (People v. Watts (2005) 131 Cal.App.4th 589, 596.)

Bank robbery under federal law may be committed in multiple ways, not all of which would qualify it as a serious felony. (People v. Jones (1999) 75 Cal.App.4th 616, 631-635.) Conduct falling under the second part of the federal bank robbery statute would constitute burglary, which is not a serious felony unless it is a first degree burglary, i.e. residential burglary. ( 460, subd. (a), 1192.7, subd. (c)(18); Jones, supra, at p. 632.)

The People argue that because defendant was convicted of armed bank robbery, it qualifies as a serious felony. However, subsection (d) of title 18 of the United States Code section 2113 also may be violated in a number of ways, not all of which would qualify the offense as a serious felony. The subsection applies if the defendant assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device. A defendant may be convicted under subsection (d) without having personally used a dangerous weapon or device, such as where the defendant is convicted as an aider and abettor. (See, e.g., U. S. v. Wills (9th Cir. 1996) 88 F.3d 704, 719-721; U. S. v. Spinney (1st Cir. 1995) 65 F.3d 231, 236-238; U. S. v. Dinkane (9th Cir. 1994) 17 F.3d 1192, 1196-1197.) Section 1192.7, subdivision (c)(23), provides that personal use of a deadly or dangerous weapon will make any felony a serious felony.

In summary, the least adjudicated elements of defendants prior federal bank robbery conviction do not establish that it was a serious felony within the meaning of section 1192.7 and thus sections 667 and 1170.12. Therefore, the findings under these sections are unsupported by the evidence and must be reversed.

B. Instruction on Negligent Discharge of a Firearm

Defendant was charged in count 2 with shooting at an inhabited dwelling ( 246), and the trial court instructed the jury pursuant to CALJIC No. 9.03 on that offense. Defendant contends the trial court should have instructed the jury sua sponte on grossly negligent discharge of a firearm ( 246.3) as a lesser included offense. We disagree.

The trial court has a duty to instruct on lesser offenses necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citation.] On the other hand, if there is no proof, other than an unexplainable rejection of the prosecutions evidence, that the offense was less than that charged, such instructions shall not be given. [Citations.] (People v. Kraft (2000) 23 Cal.4th 978, 1063-1064.) An offense is a lesser necessarily included offense if the statutory elements of the greater offense include all of the elements of the lesser offense, so that the greater offense cannot be committed without also committing the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 117; see also People v. Reed (2006) 38 Cal.4th 1224, 1230-1231.)

Shooting at an inhabited dwelling in violation of section 246 requires the malicious and willful discharge of a firearm at an inhabited dwelling house. The house need not be occupied at the time of the shooting, just used for dwelling purposes. (Ibid.) Grossly negligent discharge of a firearm in violation of section 246.3 requires the willful discharge of a firearm in a grossly negligent manner which could result in injury or death.

In People v. Overman (2005) 126 Cal.App.4th 1344, the court held that grossly negligent discharge of a firearm is a lesser necessarily included offense of shooting at an inhabited dwelling. The court explained that [w]hen a defendant shoots at an inhabited dwelling house . . . , the defendant discharges a firearm in a manner that has the potential for culminating in personal injury or death. Shooting at an inhabited dwelling house, . . . whether occupied or not, necessarily poses a significant likelihood or high probability that personal injury or death will result, because people are generally in or around the premises. [Citation.] (Id. at pp. 1361-1362, italics omitted.) The court concluded that [t]he only difference between sections 246 and 246.3 is that section 246 requires a specific target . . . be in the defendants firing range. Section 246[.3] does not include this requirement. Both crimes, however, involve the intentional discharge of a firearm in a grossly negligent manner which presents a significant risk that personal injury or death will result. (Overman, supra, at p. 1362.)

The Supreme Court has granted review in two recent cases addressing this issue. In People v. Ramirez (2007) 154 Cal.App.4th 1290, review granted December 12, 2007, S156775, the court concluded Overman was wrongly decided and declined to follow it. The court noted, It is true that people generally are in or around inhabited dwellings, but this does not mean that shooting at one necessarily poses a significant likelihood of injuring or killing a person. It is possible to shoot at an inhabited dwelling within the meaning of the statute without creating any likelihood of injuring or killing a person because sometimes people are not in or around a particular inhabited dwelling. This means that a chance of injuring or killing a person is not an element of the offense and, therefore, it is possible to shoot at an inhabited dwelling within the meaning of section 246 without negligently discharging a firearm within the meaning of section 246.3. (Id. at pp. 1300-1301.)

In People v. Garcia (2007) 155 Cal.App.4th 929, review granted January 3, 2008, S157870, the court agreed with the conclusion in Overman that section 246.3 is a lesser necessarily included offense of section 246. (Id. at p. 943.) It relied on the proposition that people generally are found in the vicinity of dwellings. (Ibid.)

We disagree with Overmans conclusion that section 246.3 is a lesser necessarily included offense of section 246. While people generally are found in or around dwellings, they are not necessarily found there. One could shoot at an isolated dwelling, known to be uninhabited while the residents are on vacation, and run no risk of causing injury or death. This would violate section 246 but not section 246.3. Accordingly, we hold that section 246.3 is not a lesser necessarily included offense of section 246. The trial court therefore did not err in failing to instruct the jury sua sponte on grossly negligent discharge of a firearm as a lesser included offense of shooting at an inhabited dwelling. (People v. Kraft, supra, 23 Cal.4th at pp. 1063-1064.)

C. Denial of Motion to Exclude Tibbs Identification of Defendant

Defendant filed a motion to exclude evidence of Tibbs identification of him under Evidence Code section 352.[6] He claimed the field showup was unduly suggestive. The trial court denied the motion.

On appeal, defendant in essence argues that Tibbs identification evidence should have been suppressed as unduly suggestive. Defendant did not move to suppress the evidence, however. He moved to exclude it under Evidence Code section 352. The question before us thus is whether the trial court abused its discretion in admitting it, in that it was more prejudicial than probative. (People v. Waidla (2000) 22 Cal.4th 690, 717.)

The identification evidence was probative unless it was so impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification (cf. People v. Blair (1979) 25 Cal.3d 640, 659; People v. Wimberly (1992) 5 Cal.App.4th 773, 788). When considering the reliability of identification evidence, the questions are (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witnesss degree of attention, the accuracy of his [or her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. (People v. Ochoa (1998) 19 Cal.4th 353, 412; People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)

While the practice of using a single person showup for identification has been criticized (Stovall v. Denno (1967) 388 U.S. 293, 301-302), a single person showup is not inherently unfair (People v. Ochoa, supra, 19 Cal.4th at p. 413; People v. Hunt (1977) 19 Cal.3d 888, 893). The use of a single person showup has been encouraged for in-field identification because the element of suggestiveness inherent in the procedure is offset by the reliability of an identification made while the events are fresh in the witnesss mind, and because the interests of both the accused and law enforcement are best served by an immediate determination as to whether the correct person has been apprehended. (In re Carlos M. (1990) 220 Cal.App.3d 372, 387.)

There were suggestive elements to Tibbs identification of defendant. Defendant was standing handcuffed, surrounded by police officers, standing next to his automobile. None of these factors necessarily made the identification unreliable, however. (See, e.g., In re Carlos M., supra, 220 Cal.App.3d at p. 386; People v. Craig (1978) 86 Cal.App.3d 905, 913-914; People v. Anthony (1970) 7 Cal.App.3d 751, 764.)

Factors suggesting the reliability of the identification include that prior to the identification, Tibbs told Officer Amaral that he got a really good look at the driver of the red car, and he described the driver. Tibbs and his grandfather were taken to the in-field showup shortly after he saw the red car. Officer Amarals partner told Tibbs that the police had stopped someone; the person stopped had not necessarily done anything wrong, but the police wanted Tibbs to see him in order to eliminate him as someone who may have committed a crime. Tibbs said he understood. At the scene, Tibbs identified both defendant and the car as the ones he had seen earlier.

The totality of the circumstances thus suggest that Tibbs identification of defendant was not so unreliable as to strip it of all probative value. (Cf. People v. Ochoa, supra, 19 Cal.4th at p. 412; People v. DeSantis, supra, 2 Cal.4th at p. 1222.) It was not prejudicial within the meaning of Evidence Code section 352, i.e., it did not uniquely tend[] to evoke an emotional bias against defendant as an individual [while having] very little effect on the issues (Peoplev.Yu (1983) 143 Cal.App.3d 358, 377). The trial court therefore did not abuse its discretion in admitting the evidence. (People v. Waidla, supra, 22 Cal.4th at p. 717.)

D. New Trial Motion

After his conviction, defendants sentencing hearing was calendared for December 11, 2006. Defendant filed a motion for a new trial, to be heard on December 8. No hearing was held on December 8, and the December 11 hearing was continued to December 18. The December 18 hearing was continued to December 19, at which the trial court noted the motion for new trial and continued the hearing to January 5, 2007. On January 5, the trial court sentenced defendant and did not rule on the new trial motion.

Defendant contends the trial courts failure to rule on his new trial motion entitles him to a new trial. He relies on section 1202, which provides in pertinent part: If the court shall refuse to hear a defendants motion for a new trial or when made shall neglect to determine such motion before pronouncing judgment . . . , then the defendant shall be entitled to a new trial.

The language of section 1202 notwithstanding, the Supreme Court has held that a defendant may forfeit the issue for appellate review by failing to press for a hearing or by acquiescing in the courts failure to hear the new trial motion. (People v. Braxton (2004) 34 Cal.4th 798, 814.) If it appears that the trial court has inadvertently failed to hear or rule on the new trial motion, defendant must attempt to obtain a hearing or ruling. (Id. at p. 813.) This is an application of the broader rule that a party may not challenge on appeal a procedural error or omission if the party acquiesced by failing to object or protest under circumstances indicating that the error or omission probably was inadvertent [Citations.] In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judges attention to any infringement of them. [Citations.] (Id. at pp. 813-814.)

On December 19, 2006, the trial court acknowledged defendants motion for new trial and continued the hearing on the motion to January 5, 2007. On January 5, the trial court allowed counsel to be heard on the question of sentencing. When asked, defense counsel stated that there was no reason why sentence should not be pronounced. The trial court then sentenced defendant without ruling on the new trial motion. By failing to remind the court of the new trial motion and seek a ruling on it, defendant waived the right to raise the issue on appeal. (People v. Braxton, supra, 34 Cal.4th at pp. 813-814.)

In any event, defendant was not prejudiced by the trial courts failure to rule on his new trial motion, in that it is not reasonably probable the trial court would have granted a new trial. (People v. Braxton, supra, 34 Cal.4th at p. 818.) Defendant argues that he was entitled to a new trial on two grounds. The first of these is the denial of his motion to exclude Tibbs identification evidence. As discussed above, the trial court did not abuse its discretion in denying this motion.

The second ground is the denial of his motion to suppress evidence of the grooves on the roof of the red car based on the failure of the police to preserve the evidence for his inspection. The car was released to the lienholder and presumably repaired. The prosecutor noted that at no time did counsel for the defense demand that the car be made available for inspection.[7] The prosecutor also stated that he did not see any exculpatory value in the car or evidence of bad faith in the failure to preserve it. The trial court agreed with the prosecutor and found no basis for suppressing the evidence.

Suppression of evidence may be appropriate where the police in bad faith have failed to preserve potentially exculpatory evidence. (People v. Cook (2007) 40 Cal.4th 1334, 1349; People v. Medina (1990) 51 Cal.3d 870, 893.) The trial court correctly found that the red car did not have obvious exculpatory value but was merely evidence which could have been subjected to tests, the results of which might have exonerated defendant. (Arizona v. Youngblood (1988) 488 U.S. 51, 57.) Absent evidence of bad faith in failing to preserve the car, suppression was not required. (Id. at p. 58; Cook, supra, at p. 1349.)

Since the trial court properly denied defendants suppression motion, it is not reasonably likely the trial court would have granted defendants motion for a new trial based on its denial of the motion. Defendant therefore was not prejudiced by the trial courts failure to rule on the new trial motion. (People v. Braxton, supra, 34 Cal.4th at p. 818.)

DISPOSITION

The judgment is affirmed as to defendants convictions but reversed as to the true findings on the prior serious felony conviction allegations ( 667, subds. (a), (b)-(i), 1170.12). The case is remanded for resentencing.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

VOGEL, Acting P. J.

ROTHSCHILD, J.

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[1] Unless otherwise specified, all further section references are to the Penal Code.

[2] Defendant also claimed error in the trial courts calculation of his presentence custody credits, but he notified us that during the pendency of the appeal, the trial court corrected its calculations. The issue is therefore moot.

[3] St. Andrews Park is on St. Andrews Place, a block west of Western Avenue, between Manchester Avenue and 89th Street.

[4] Tibbs was unable to make positive identifications of defendant and the car at trial. When asked if defendant was the man he saw, he could only testify, I think thats him.

[5] Simmonds identified the car at trial.

[6] There is no indication in the record that defendant ever filed a motion to suppress the identification evidence under section 1538.5.

[7] During the course of the trial, defendant was first represented by a deputy public defender, then by private counsel, then by a second deputy public defender. It was the second deputy public defender who made the suppression motion.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.