P. v. Williams
Filed 1/23/13 P. v. Williams CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
JAMES BURTON WILLIAMS,
Defendant and
Appellant.
2d Crim. No.
B232001
(Super. Ct.
No. YA067398)
(Los
Angeles County)
James Burton Williams
appeals the judgment entered after a jury convicted him of
subd. (a), 189), three counts of attempted willful, deliberate, and
premeditated murder (§§ 664/187, subd. (a)), and assault with a firearm
(§ 245, subd. (a)(2)). The jury
also found true allegations that appellant personally and intentionally
discharged a firearm in committing the murder (§ 12022.53, subds.
(b)-(d)), and personally used a firearm in committing the attempted murders
(§ 12022.53, subd. (b)), as well as allegations that all of the crimes
were committed for the benefit of a criminal
street gang (§ 186.22, subd. (b)).
The trial court sentenced him to an aggregate prison term of 50 years to
life plus 59 years, plus three consecutive terms of life with the possibility
of parole.
misconduct, instructional error, and juror misconduct
compel reversal of the judgment. He also
challenges two of his attempted murder convictions on grounds of insufficient
evidence, and claims the court erroneously failed to award presentence custody
credit.
We shall strike the
consecutive 10-year gang enhancements imposed on each of the three attempted
murder counts, and order the sentences on each of those counts modified to
reflect a 15-year minimum parole eligibility term. We also order the judgment modified to
reflect an award of 1,180 days of presentence custody credit, and to correct a
clerical error in the abstract of judgment.
In all other respects, we affirm.
STATEMENT OF FACTS
On the night of August 22, 2006, Queens Street Bloods
(QSB) gang members Terreal Reid and Terry Webbs were in Reid's Jeep along with
Tiya Rutledge and Karla Anderson. As the
Jeep was stopped at the intersection of Manchester
and Crenshaw Boulevards in Inglewood,
Rutledge and Anderson saw
appellant, a member of the rival Inglewood Family Bloods (IFB) gang known as
"Jimbo," in a Dodge Durango along with several other men at the
corner Shell gas station. Appellant and
his companions pointed at the Jeep and yelled, "I-F" and "We're
going to kill you." When the Jeep
turned left onto Manchester, the Durango
followed them as appellant and his companions hung out of the windows and continued
to scream and yell.
After the Jeep made
several turns, it appeared to Rutledge that the Durango
was no longer following them. Reid
continued to their destination at the intersection of Inglewood
Avenue and Queen Street,
where Khia Eaton was waiting for them.
As Eaton was standing near the Jeep talking to Reid, the Durango
slowly pulled up alongside the driver's side of the Jeep with its headlights
dimmed. Appellant fired several shots at
the Jeep from the Durango's front
passenger seat, hitting Reid in the chest, right upper arm, and right upper
back. Webbs was sitting next to Reid and
escaped being hit by bending down in his seat.
Anderson, who was sitting directly behind Reid, sat up during a pause in
the shooting and saw appellant hand the gun to the passenger sitting behind
him. The rear passenger then pointed the
gun at Anderson's head and fired,
hitting her in the left temple.
Rutledge, who was sitting next to Anderson
directly behind Webbs, got out of the Jeep through the right rear passenger
door and crawled under the vehicle to avoid being hit. After Anderson
was shot, the Durango drove
away.
Reid was pronounced dead
after being transported to the hospital.
Anderson was in a coma for a
few days and underwent surgeries on her face and neck. As a result of her injuries, she is
permanently blind in her left eye.
Eight expended shell
casings were found at the scene and expended bullets were recovered from the
Jeep's driver seat and within the driver-side door. There were seven bullet holes and two bullet
strikes in and on the Jeep. Two bullet
holes and strikes were on the driver-side door and one bullet hole was in the
door's window. There were also bullet
holes in the driver and front passenger seats, the driver's side mirror, and
the left rear bumper. Forensic testing
verified that an expended bullet recovered from Reid's body and those found at
the scene were all fired from the same .45-caliber firearm.
Rutledge was interviewed
by Inglewood Police Officer Peter Lopresti at the scene of the shooting. She identified appellant as the shooter
sitting in the Durango's front
passenger seat and said he was wearing a white t-shirt and a green baseball cap
with a white "I" on it.
name="_ftnref3" title="">[3] As the officer was interviewing Rutledge,
Webbs and Eaton became upset with her and said, "Don't tell him
anything" and "We'll handle it."
Rutledge identified
appellant again when she was interviewed several hours later by Inglewood
Police Detective Jeff Steinhoff.
name="_ftnref5" title="">[5] Rutledge was shown a six-pack lineup and
immediately pointed to appellant's photograph and said, "That's
him." Rutledge also told the
detective she had first seen the Durango
that night when the Jeep was stopped at the intersection of Manchester
and Crenshaw Boulevards. Rutledge identified
"E Mac" and "J Stone" as the Durango's
rear-right and rear-middle seat passengers.
The day after the
shooting, Detective Steinhoff went to the Shell gas station at the intersection
of Crenshaw and Manchester and
viewed surveillance video recorded the previous night during the time Rutledge
said appellant had been in there. The
video was of poor quality and was recorded on a camera placed approximately 40
to 50 feet away from the gas pumps.
Although the detective could not make out any facial features, he was
able to see four black men in a "grayish"-looking Durango
pull up and stop at a gas pump. The men,
three of whom were wearing white t-shirts, got out of the Durango
and intermingled as another car pulled up on the other side of the pump. After the Durango
was fueled, the four men got in the vehicle and drove away. Detective Steinhoff did not notice whether
any of the suspects was wearing a hat.
The detective attempted to download the video recording but was unable
to do so. The video was taped over a
week or two later by the gas station, before the police had obtained a
copy.
Rutledge identified
appellant for a third time during a recorded interview conducted by Detective
Steinhoff on August 25, 2006. She also reiterated having seen appellant in
the Durango at the Shell gas
station before the shootings. Rutledge
recounted the same information yet again during an interview conducted by
Deputy District Attorney Warren Kato on July
28, 2008.
name="_ftnref6" title="">[6] She also recalled that Reid's last words
after being shot were, "J Stone and Jimbo." She was sure that Reid was hit by the bullets
fired by appellant, who was "grinning" when he started shooting.
Anderson
was interviewed by Detective Steinhoff on August 30, 2006, shortly after she regained consciousness.
identified appellant from a six-pack lineup as one of the men in the Durango
and said, "I think he was driving."
She refused to circle and initial the photograph because she was
scared. Anderson
reported seeing appellant in the Durango
at the Shell gas station while the Jeep was stopped at the intersection of Manchester
and Crenshaw. She knew some of the other
suspects in the Durango as
"Tape-off" and "J Stone."
During a subsequent interview with Kato, Anderson
clarified that the photograph of appellant she had identified in the six-pack
lineup was of the shooter sitting in the front passenger seat of the Durango.
Both Rutledge and
Anderson recanted their identifications of appellant when they testified at
trial. Rutledge also denied seeing
appellant and the other occupants of the Durango
prior to the shooting when the Jeep was stopped at the intersection. Rutledge testified that she was concerned for
her safety, while Anderson said she
was aware she could be assaulted or murdered in retaliation for testifying
against an IFB member. Rutledge also
testified to receiving a telephone call from appellant two weeks prior to her
testimony. A recording of the call was
played for the jury. Rutledge was
"shocked" to receive the call because she had never given appellant
her telephone number and had not spoken to him for several years. When appellant said "Jimbo" was
calling to speak to Rutledge, she pretended to be someone else and said she
would have her call him back. Appellant,
who had a third party make the call while appellant stayed on the line,
replied, "Just tell her I'll try to call her back." Rutledge was "panicked" by the call
and later reported it to the police.
Inglewood Police
Detective Kerry Tripp testified as the prosecution's gang expert. At the time of the crimes, the rival IFB and
QSB gangs were engaged in a shooting war.
When a gang member calls from custody to a witness against him in a
murder trial and identifies himself by his gang moniker, there need not be an
overt threat in order for the witness to be intimidated. In this case, the mere fact that appellant
called Rutledge was enough to cause her to be upset and frightened. Moreover, a witness who testifies against an
IFB member is subject to being killed as a "snitch." Based on a hypothetical question, Detective
Tripp opined that appellant committed the charged crimes for the benefit of his
gang.
Webbs testified for the
defense. Although he and appellant were
members of rival gangs, they were friends and remained friends at the time of
trial. Webbs denied that appellant was
the shooter and denied ever telling anyone otherwise. Even if appellant was the perpetrator, he
would not say so. As an active QSB
member, he would never cooperate with or seek help from law enforcement. He did not recall speaking to an officer at
the scene of the shooting, nor did he see Rutledge do so. Although he would not want to rely on the
police to arrest the shooter and would want to take care of it himself, he
denied telling Rutledge, "We will take care of this ourselves."
Webbs told Detective
Steinhoff what had happened when the detective interviewed him on the night of
the shooting. When shown a six-pack of
potential subjects, he placed a date underneath appellant's photograph. He denied, however, that the accompanying
signature was his. He also denied
telling the detective that he recognized the front seat passenger of the
pursuing vehicle as "Jimbo."
Webbs would be considered a "snitch" if he identified the
shooter.
On rebuttal, Detective
Steinhoff testified regarding his interview of Webbs a few hours after the
shooting, a recording of which was lost when the hard drive on the detective's
computer was inadvertently erased by the police department's IT department. During that interview, Webbs identified
appellant as the shooter from a six-pack lineup by circling his photo and
signing and dating it. Webbs also
recounted seeing appellant shortly before the shooting at the Shell gas station
at the corner of Crenshaw and Manchester. Appellant and his companions followed the
Jeep in a gray Dodge SUV and yelled, "I'm going to get you two
niggers." The jury also heard
Detective Tripp's testimony that he was at the scene of the shooting when he overheard Webbs and Eaton say that "J
Stone," "E-Mac," and "Jimbo" were the
perpetrators. The detective could not
recall whether he told this to Deputy District Attorney Kato.
On surrebuttal, Officer
Lopresti testified that when he interviewed Webbs at the scene Webbs identified
the perpetrators' vehicle as a silver Grand Am.
Webbs also said he could not identify any of the suspects because he was
busy trying to regain control of the Jeep after Reid was shot.
DISCUSSION
I.
New
Trial Motion
Appellant moved for a
new trial alleging prosecutorial misconduct and appeals its denial. He asserts that misconduct was established by
the prosecution's failure to (1) preserve the surveillance video from the Shell
gas station and the audio recordings of the interviews Detective Steinhoff
conducted several hours after the shootings; and (2) provide the defense with
certain statements that would have provided the basis for bringing a pretrial
We reject these claims.
"'We review a trial
court's ruling on a motion for a new trial under a deferential
abuse-of-discretion standard.'
[Citations.] '"A trial
court's ruling on a motion for new trial is so completely within that court's
discretion that a reviewing court will not disturb the ruling absent a manifest
and unmistakable abuse of that discretion."' [Citations.]" (People
v. Thompson (2010) 49 Cal.4th 79, 140.)
Appellant fails to
demonstrate any error in the denial of his motion on the ground the prosecution
failed to either obtain a copy or prevent destruction of the Shell gas station
video. "Whatever duty the
Constitution imposes on the States to preserve evidence, that duty must be
limited to evidence that might be expected to play a significant role in the
suspect's defense. To meet this standard
of constitutional materiality, [citation], evidence must both possess an
exculpatory value that was apparent before the evidence was destroyed, and be
of such a nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means." (California
v. Trombetta (1984) 467 U.S. 479, 488-489, fn. omitted (
must demonstrate bad faith on the part of the police in order to establish that
the failure to preserve the evidence constitutes a violation of his or her due
process rights. (Arizona v. Youngblood (1988) 488 U.S. 51, 58.)
Appellant argues that
the video was exculpatory because (1) Detective Steinhoff described the Durango
depicted in the video as gray or "grayish," while Rutledge described it as silver or
champagne-colored and Anderson also described it as champagne-colored; and (2)
the detective did not notice whether any of the subjects was wearing a hat,
while Rutledge said appellant was wearing a green baseball cap with a white
"I" on it.
We are not
persuaded. Considering the video as a
whole, its apparent exculpatory value is questionable at best. Indeed, the video is at least as
Durango as "grayish" corroborates Webbs' statement that appellant was
in a gray Dodge SUV. Detective
Steinhoff's stated observations also support Rutledge and Anderson's statements
that appellant was with several other men in a Dodge Durango, as well as
Rutledge's statement that appellant was wearing a white t-shirt. Moreover, Detective Steinhoff viewed the
Durango on video of "poor" quality recorded on a camera mounted
approximately 40 to 50 feet away. Given
the quality of the image and the distance from which it was shot, it may simply
have been impossible to distinguish between the relatively similar colors of
gray, silver, and champagne.
With regard to the hat
Rutledge said appellant was wearing, the detective did not definitively state
that none of the men were wearing a hat.
Rather, he merely said he had not "notice[d]" any hats. Appellant also fails to account for the
possibility that Rutledge and Anderson would have identified appellant as one
of the men depicted in the video if the video had been preserved for their
viewing.
Even if the video had
apparent exculpatory value, appellant was able to obtain comparable evidence in
the form of Detective Steinhoff's testimony.
In arguing to the contrary, appellant asserts that "the videotape
was sui generis since it provided a
contemporaneous visual record of the persons and vehicles present at the
station at the time specified in Rutledge's account of events." Appellant offers no authority for this
position. Detective Steinhoff gave a
thorough description of the visual record to which appellant refers. Moreover, appellant does not suggest that the
detective gave an inaccurate description of what he saw. Given the poor quality of the video and
Detective Steinhoff's ability to report his observations, the trial court could
reasonably find that the detective's testimony was sufficiently comparable to
the lost video such that its absence did not warrant a new trial. (Trombetta,
supra, 467 U.S. at pp. 488-489.)
In any event, an error
in the prosecution's failure to preserve the video would be harmless under any
was overwhelming. All three surviving
victims identified appellant, an individual they all knew, as one of the
shooters. (People v. Alvarez (1996) 14 Cal.4th 155, 224.) Although those identifications were recanted
at trial, their motives for doing so were patently evident.
Appellant fares no
better in claiming the prosecution withheld statements that would have provided
the basis for bringing a Pitchess motion. The statements at issue are (1) Officer
Lopresti's previously undisclosed statements that the crime scene was
"large" and "angry" and that Webbs and Eaton attempted to
prevent Rutledge from cooperating with the police; and (2) Detective Tripp's
undisclosed statement that he overheard Webbs and Eaton at the crime scene
identifying appellant as one of the shooters.
According to appellant, these statements demonstrate dishonesty such
that appellant could have brought a meritorious Pitchess motion for discovery of reports of dishonesty in their
personnel files. We disagree. In order to prevail on a Pitchess motion, appellant would have needed to make a showing of
good cause by providing a "specific factual scenario" establishing a
"plausible factual foundation" for his allegation that Officer
Lopresti and Detective Tripp were dishonest.
(City of Santa Cruz v. Municipal
Court (1989) 49 Cal.3d 74, 85-86.) Appellant
contends he could have made this showing by offering that Webbs would give
testimony contrary to the officers' statements.
The prosecution, however, had no reason to know that Webbs would take
the stand and contradict the undisclosed statements. Indeed, Webbs identified appellant as one of
the shooters when he was interviewed by the police. In any event, appellant made no effort to
seek discovery of either Officer Lopresti or Detective Tripp's personnel files
after their statements were disclosed at trial.
Having failed to do so, he cannot now be heard to claim he was deprived
of the opportunity to do so. Appellant's
perfunctory claim that the court's denial of his new trial motion amounts to a
violation of his constitutional rights was not raised below and is thus
forfeited. (People v. Romero (2008) 44 Cal.4th 386, 411.)
II.
CALJIC
No. 2.06
Over appellant's
objection, the jury was instructed pursuant to CALJIC No. 2.06 that it would
consider appellant's telephone call to Rutledge as a means of intimidation that
reflected a consciousness of his guilt.
The court also rejected appellant's request for an instruction based on
CALJIC No. 2.06 providing that the jury could "view
. . . with caution" any testimony
regarding the Shell gas station video and the audio-recorded interviews
Detective Steinhoff conducted several hours after the shootings on the ground
that the prosecution had failed to preserve the video and audio tapes. Appellant claims the court erred in both
giving CALJIC No. 2.06 and in denying his own proffered instruction. We conclude that both rulings were
proper.
A.
The
Prosecution's Instruction
The jury was instructed
pursuant to CALJIC No. 2.06 as follows:
"If you find that a defendant attempted to suppress evidence
against himself in any manner, such as by the intimidation of a witness by
placing a telephone call to Tiya Rutledge on September 29, 2010, this attempt
may be considered by you as a circumstance tending to show a consciousness of
guilt. However, this conduct is not
sufficient by itself to prove guilt, and its weight and significance, if any,
are for you to decide." Appellant
reiterates his claim below that the evidence is insufficient to support the
instruction. We reject this claim.
"'"[I]n order
for a jury to be instructed that it can infer a consciousness of guilt from
suppression of adverse evidence by a defendant, there must be some evidence in
the record which, if believed by the jury, will sufficiently support the
suggested inference."
[Citation.]'" (
330; see also People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 102 [before CALJIC No. 2.06 may be given,
"there need only be some evidence in the record that, if believed by the
jury, would sufficiently support the suggested inference"].) Here, there is some evidence from which the
jury could have inferred that appellant called Rutledge with the intent to
dissuade her from testifying against him and thereby displayed a consciousness
of his guilt. Although appellant characterizes
the call as "entirely innocuous," the jury was free to infer
otherwise. Appellant, who had not spoken
to Rutledge for several years, made the call two weeks before she was scheduled
to testify against him. He had never
called Rutledge before, nor had she ever given him her telephone number. Instead of placing the call directly,
appellant had a third party make the call while he stayed on the line. When Rutledge asked who was calling,
appellant identified himself by his gang moniker "Jimbo." To the extent there may have been an innocent
motive for the call, "that was a matter properly left for argument and for
determination by the jury." (
164.) Given the overwhelming evidence of
appellant's guilt, any error in giving the instruction was in any event
harmless. (People v. Breverman (1998) 19 Cal.4th 142, 178.)
B.
Appellant's
Proffered Instruction
Appellant submitted
three different instructions standing for the proposition that the jury should
view with caution any testimony regarding documentary evidence the prosecution
had failed to preserve, i.e., the Shell gas station video and the
audio-recorded interviews Detective Steinhoff conducted of all three surviving
victims several hours after the shootings.
The instructions were not marked and are not included in the record on
appeal, and appellate counsel's attempts to include them have been
unsuccessful. In discussing one of the
instructions, however, the court asked whether the prosecution would object to
language stating, "If you find the prosecution or the Inglewood Police
Department had failed to preserve evidence such as, the tape of Tiya Rutledge
and Carla Anderson [and Terry Webbs], you should view the testimony regarding
such evidence with caution. You may or
may not choose to accept or reject any or all of this evidence." In submitting the proposed instructions,
appellant's trial counsel also stated they were "pretty much based on
Evidence Code section 412 and Arizona
[v.] Youngblood."
name="_ftnref10" title="">[10] The court declined the proposed instructions
but emphasized that the defense was free to argue that the evidence should be
viewed with caution in his closing argument.
Counsel did so.
Appellant contends the
court abused its discretion in refusing to instruct the jury as requested. We disagree.
Trial courts have broad discretion to determine whether sanctions are
proper when material evidence has been lost or destroyed. (People
v. Sassounian (1986) 182 Cal.App.3d 361, 395.) As we have explained, the Shell gas station
video was of limited material value to appellant and evidence of the same facts
was presented at trial. The audio
recordings of Detective Steinhoff's initial interviews were entirely
him. Accordingly, the court did not
abuse its discretion in denying appellant's requested sanction
instruction. (People v. Farnam, supra, 28 Cal.4th at pp. 166-167.) The cases appellant cites in which similar
sanctions instructions have been given are inapposite. (Sassounian,
at pp. 394-395 [jury instructed to presume that the defendant's lost or
destroyed jail record would be unfavorable to the People if it believed the
record had been willfully suppressed]; People
v. Wimberly (1992) 5 Cal.App.4th 773, 793 [police destroyed potentially
exculpatory physical evidence]; People v.
Zamora (1980) 28 Cal.3d 88, 99-103 [city's destruction of police files
prevented the defendant from obtaining Pitchess
discovery].) As the court in
enjoy a large measure of discretion in determining the appropriate sanction
that should be imposed because of the destruction of discoverable records and
evidence." (Id. at p. 99.) Pursuant to
this large measure of discretion, the court in this case determined that
allowing appellant to argue that the jury would view any testimony relating to
the lost evidence with caution was the appropriate sanction and that no
instruction was warranted. Appellant
fails to demonstrate the court abused its discretion in so finding. Moreover, in light of the overwhelming
evidence of appellant's guilt that is independent of the evidence and testimony
at issue, any error in declining to give appellant's instruction was
harmless. (People v. Earp (1999) 20 Cal.4th 826, 887; People v. Watson (1956) 46 Cal.2d 818, 836.)
III.
Sufficiency
of the Evidence - Attempted Murder
Appellant contends the
evidence is insufficient to sustain his convictions for the attempted murders
of Rutledge and Webbs. We conclude
otherwise.
In reviewing a
sufficiency of the evidence claim, we consider the entire record in the light
most favorable to the judgment to determine whether it contains evidence that
is reasonable, credible, and of solid value, from which a rational trier of
fact could find the defendant guilty beyond a reasonable doubt. (People
v. Gonzales (2012) 54 Cal.4th 1234, 1273.)
We presume the existence of facts favorable to the judgment that could
reasonably be deduced from the evidence, and will uphold a conviction if a
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. (
pp. 142-143.)
"'[A]ttempted
murder requires the specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing.' [Citations.]" (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).) "[I]t is well
settled that intent to kill or express malice, the mental state required to
convict a defendant of attempted murder, may in many cases be inferred from the
defendant's acts and the circumstances of the crime. [Citation.]
'There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all
the circumstances of the attempt, including the defendant's actions. [Citation.]
The act of firing toward a victim at a close, but not point blank, range
"in a manner that could have inflicted a mortal wound had the bullet been
on target is sufficient to support an inference of intent to kill. . .
." [Citation.]' [Citations.]
'"The fact that the shooter may have fired only once and then
abandoned his efforts out of necessity or fear does not compel the conclusion
that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have
escaped death because of the shooter's poor marksmanship necessarily establish
a less culpable state of mind."
[Citation.]'
[Citation.]" (
A defendant can also be
convicted of attempted murder under the "kill zone" theory, i.e.,
"where the evidence establishes that the shooter used lethal force
designed and intended to kill everyone in an area around the targeted victim
(i.e., the 'kill zone') as the means of accomplishing the killing of that
victim. Under such circumstances, a
rational jury could conclude beyond a reasonable doubt that the shooter
intended to kill not only his targeted victim, but also all others he knew were
in the zone of fatal harm." (
745-746.) "This concurrent intent
theory . . . is simply a reasonable inference the jury may draw in a given
case: a primary intent to kill a specific target does not rule out a concurrent
intent to kill others." (
331, fn. 6 (Bland).)
Appellant claims the
evidence is insufficient to support his convictions for the attempted murders
of Rutledge and Webbs under either theory of criminal liability because the
evidence shows that all but two of the bullets fired at the vehicle in which
they were sitting appear to have been aimed at the driver's side door. According to appellant, "th[is] evidence
indicates that the shooters were gunning specifically for Reid, whom they
succeeded in killing, and no one else in the car, except perhaps for Anderson, who drew their
attention and apparently was then targeted because she had the misfortune of
raising her head after the first pause in the shooting."
We conclude that the
evidence, viewed in the light most favorable to the judgment, supports the
jury's findings that appellant had the specific intent to kill not only Reid
but everyone in the Jeep he was driving.
Although appellant characterizes the bullets as being aimed exclusively
at Reid, Webbs was sitting right next to him in the direct line of fire of
bullets that were fired at close range. This fact is sufficient to support the
finding that appellant intended to kill both men. (Smith,
supra, 37 Cal.4th at p. 743 ["evidence that defendant purposefully
discharged a lethal firearm at the victims, both of whom were seated in the
vehicle, one behind the other, with each directly in his line of fire, can
support an inference that he acted with intent to kill both"].) Indeed, Webbs would have been hit by one of
the bullets, which passed through the center of the front passenger seat, had
he not ducked down when the firing began.
Rutledge, who was sitting in the direct line of fire of the bullet fired at
Anderson close enough for Anderson's blood to spatter onto her clothing.
The evidence is also
sufficient to support appellant's convictions for the attempted murders of
Rutledge and Webbs on the ground that he intended to create a "kill
zone" around Reid. Appellant and
his accomplice fired at least eight close-range rounds at a stopped vehicle in
which all three victims were sitting.
Given the relatively confined space of a vehicle, appellant's position
is not aided by the fact that most of the bullets appeared to have been
directed at the driver's seat.
"When the defendant escalated his mode of attack from a single
bullet aimed at A's head to a hail of bullets . . . , the factfinder can infer
that, whether or not the defendant succeeded in killing A, the defendant
concurrently intended to kill everyone in A's immediate vicinity to ensure A's
death." (Bland, supra, 28 Cal.4th at p. 330.) Appellant's attempt to characterize the
shooting as something less than a "hail" or "flurry" of
bullets essentially disregards the applicable standard of review. Given the manner and circumstances in which the
multiple shots were fired at Reid's Jeep, the jury could reasonably infer that
appellant and his accomplice intended to kill every occupant of the vehicle,
notwithstanding the fact that Reid was their primary target. Appellant's claim of insufficient evidence
thus fails.
IV.
Juror
Misconduct
Appellant asserts the
court denied his constitutional right
to an unbiased jury by denying his motion to excuse Juror No. 2 for
misconduct. We disagree.
A.
Background
After the jury had been
excused one afternoon during a break in Rutledge's testimony, the court was
notified that Detective Tripp had been approached by Juror No. 2. The detective said the juror had approached
him and asked if he could ask a question.
The detective responded, "No, we can't talk." The juror replied, "It's not about this
case. It's personal." Detective Tripp told the juror, "We
can't talk about anything, period," and the encounter was terminated.
Juror No. 2 was then
brought into the courtroom. The court
asked the juror whether he had attempted to talk to any of the parties that
afternoon, and the juror responded, "With all due respect, your Honor,
yes. I was just asking a
question." The court asked the
juror why he had disregarded its repeated admonitions not to have any contact
with the parties. Juror No. 2 said it
was a mistake and that he was not trying to approach the detective about
anything regarding the case. Rather, he
simply wanted to ask the detective if he knew him because he thought he may
have seen him before at a family get-together.
After once again
reminding Juror No. 2 about its numerous admonitions, the court ordered the
juror to pay a $200 fine and added, "If you have any further contact
again, I will put you in jail for 15 days." The court also told him, "Do not have
any conversation or discuss or repeat anything I've said with your fellow
jurors. Go on back and join the
crowd."
After Juror No. 2 left
the courtroom, appellant's attorney asked that the juror be excused. Although the prosecutor stated his concern
that the court's sanctions might undermine the juror's ability to deliberate,
he ultimately opposed appellant's request and the court proceeded to deny it. The following day, the court indicated it
would not be sanctioning Juror No. 2 so that the juror could completely focus
on the proceedings without fear of reprisal.
Appellant's renewed motion to dismiss the juror was denied.
B.
Analysis
Section 1089 provides in
part: "If at any time, whether
before or after the final submission of the case to the jury, a juror dies or
becomes ill, or upon other good cause shown to the court is found to be unable
to perform his or her duty, . . . the court may order the juror to be
discharged . . . ." A decision
whether to discharge a juror for cause and substitute an alternate lies within
the broad discretion of the trial court and is rarely disturbed on appeal. (People
v. Lomax (2010) 49 Cal.4th 530, 565.)
"'"Before an appellate court will find error in failing to
excuse a seated juror, the juror's inability to perform a juror's functions
must be shown by the record to be a 'demonstrable reality.' The court will not presume bias, and will
uphold the trial court's exercise of discretion on whether a seated juror
should be discharged for good cause under section 1089 if supported by
substantial evidence."'" (
911, 943.)
Substantial evidence
supports the court's denial of appellant's motion to dismiss Juror No. 2. Although the juror violated the court's
admonitions to refrain from speaking to any witnesses, the encounter was brief,
innocuous, and completely unrelated to the case. Contrary to appellant's claim, the mere fact
that Juror No. 2 engaged in a prohibited communication does not give rise to a
presumption of prejudice where, as here, the content of the communication was
unrelated to the case. (
20, 38 ["[W]hen the alleged misconduct involves an unauthorized
communication with or by a juror, the presumption [of prejudice] does not arise
unless there is a showing that the content of the communication was about the
matter pending before the jury, i.e., the guilt or innocence of the
defendant"].) To the extent
appellant purports to find contrary authority in People v. Ryner (1985) 164 Cal.App.3d 1075 (Ryner), that case has been criticized on that point as contrary to
controlling Supreme Court precedent (People
v. Chavez (1991) 213 Cal.App.3d 1471, 1485, citing People v. Cobb (1955) 45 Cal.2d 158, 161 (Cobb) [unauthorized conversation between juror and defendant's
relative raised no presumption of prejudice where the subject of conversation
did not relate to the trial]). We are,
of course, bound to follow that precedent.
(Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
demonstrable reality that Juror No. 2 was biased or otherwise unable to fulfill
his duties as a juror, the court did not abuse its discretion in denying
appellant's motion to dismiss the juror for good cause as contemplated in
section 1089.
V.
Presentence
Custody Credit
Appellant contends he is
entitled to 1,543 days of presentence custody credit. He claims the court erroneously found he is
not entitled to any credit under section 2933.2. The People agree that appellant is entitled
to credit for his time spent in actual custody, and dispute his claim that the
court found otherwise. They assert,
however, that appellant is only entitled to 1,180 days of credit, which
represents the amount of time he spent in actual custody prior to sentencing.
The People's position is
well taken. The abstract of judgment
reflects that appellant was awarded 1,543 days of presentence custody credit,
although it fails to specify whether those credits were awarded for time spent
in actual custody or work/conduct. The
court simply misspoke when it said appellant was "not entitled to
presentence custody credits" under section 2933.2. It is clear the court meant to state that
appellant is not entitled to any conduct
credits because he was convicted of murder.
(§ 2933.2.) In calculating
appellant's actual custody credits, however, the court made a computational
error. Appellant was arrested on
November 18, 2007, and sentenced on February 9, 2011. Including the dates of his arrest and
sentencing (see People v. Downey (2000)
82 Cal.App.4th 899, 921), appellant is thus entitled to 1,180 days of
presentence custody credit. We shall
order the abstract modified accordingly.
VI.
Sentencing
and Clerical Errors
The People ask us to
correct sentencing and clerical errors
with regard to appellant's sentencing for attempted murder on counts 2 through
4. First, they correctly note that consecutive
10-year enhancements were imposed on each count under subdivision (b) of
section 12022.53, and not subdivision (d) as indicated in the abstract of
judgment. They also accurately note that
instead of imposing a consecutive 10-year gang enhancement as to each count
under subdivision (b) of section 186.22, the court should have imposed a
15-year minimum parole eligibility term as to each count. (§ 186.22, subd. (b)(5).) We shall order the judgment so modified in
both respects.
DISPOSITION
The judgment is modified
as to counts 2 through 4 as follows: (1)
the 10-year gang enhancements imposed on each count under section 186.22,
subdivision (b), are stricken; (2) a minimum parole eligibility term of 15
years is imposed on each count under section 186.22, subdivision (b)(5); (3)
the 10-year firearm enhancements are imposed under subdivision (b) of section
12022.53, and not subdivision (d). The
judgment is further modified to reflect that appellant is entitled to 1,180
days of presentence custody credit, all of which are for days spent in actual
custody. The clerk shall prepare an
amended abstract of judgment incorporating these changes and forward a
certified copy to the Department of
Corrections and Rehabilitation. As
so modified, the judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
>
Vincent H. Okamoto, Judge
Superior Court County of Los Angeles
______________________________
Steven Schorr, under appointment
by the Court of Appeal, for Defendant
and
Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Russell A. Lehman, Deputy Attorney General, for Plaintiff and
Respondent.
name="_ftn1" title="">[1] All undesignated statutory references are to
the Penal Code.
to 25 years to life plus a consecutive 25 years to life under section 12022.53,
subdivision (d), plus a consecutive 10-year enhancement under section
186.22. On each of the attempted murder
counts, the court imposed a consecutive term of life with the possibility of
parole plus two consecutive 10-year enhancements under former section 12022.53,
subdivision (b), and section 186.22.
Appellant was sentenced to a total of nine years on the assault count,
consisting of a consecutive four-year upper term plus a consecutive 5-year
enhancement under section 186.22.
