P. v. Scott
Filed 6/20/12 P. v. Scott CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ANDRE DEE SCOTT et al.,
Defendants and
Appellants.
H035845
(Santa Clara
County
Super. Ct. Nos. 211269, CC801239)
Defendants
Andre Dee Scott and Larry Douglas were convicted by jury trial of two counts of
attempted murder (Pen. Code, §§ 187,
189, 664) and two counts of assault with
a firearm (Pen. Code, § 245, subd. (a)(2)).
The jury also found true allegations that both defendants acted
willfully, deliberately, and with premeditation in the commission of the
attempted murders (Pen. Code, § 189, 664), personally used a firearm in the
commission of the assaults and the attempted murders (Pen. Code, §§ 12022.5,
subds. (a) & (d), 12022.53, subd. (b)), and personally and intentionally
discharged a firearm in the commission of one of the attempted murders (Pen.
Code, § 12022.53, subds. (b) & (c)), and that Douglas
had personally and intentionally discharged a firearm in the commission of the
other attempted murder. The jury also
convicted Douglas of pimping (Pen. Code, § 266h) and
pandering (Pen. Code, § 266i, subd. (a)(1)), and Scott of misdemeanor
Code, § 135). The court found true
allegations that Douglas had suffered a prior serious
felony strike conviction (Pen. Code, §§ 667, subds. (a) & (b)-(i), 1170.12)
and a prison prior (Pen. Code, § 667.5, subd. (b)). Scott admitted that he had suffered a prior
juvenile adjudication, and the court found that the juvenile adjudication
qualified both as a prior serious felony conviction under Penal Code section
667, subdivision (a) and as a strike under Penal Code sections 667,
subdivisions (b) to (i) and 1170.12. Scott
was committed to state prison for a life term consecutive to a determinate term
of 40 years, and Douglas was committed to state prison
for a life term consecutive to a determinate term of 58 years. Both sentences included consecutive terms for
the two attempted murder counts.
On appeal,
they contend that (1) the trial court prejudicially erred in responding to a
question from the jury regarding the intent element of attempted murder, (2)
the trial court prejudicially erred in failing to instruct the jury that a
prosecution witness was an accomplice, (3) the prosecutor engaged in
prejudicial misconduct, and (4) the trial court failed to exercise its
discretion to impose concurrent terms for the attempted murder counts. In addition, Douglas
contends that his pimping and pandering convictions are not supported by
substantial evidence. Scott contends
that it was unconstitutional to use his prior juvenile adjudication as a strike
and that his juvenile adjudication did not qualify as a prior serious felony
under Penal Code section 667, subdivision (a).
The Attorney General concedes that Scott’s juvenile adjudication did not
qualify as a serious felony under Penal Code section 667, subdivision (a). We conclude that the trial court erred in its
response to the jury’s question about the intent element of attempted murder,
but this error was not prejudicial. We
find no other prejudicial errors.
However, we accept the Attorney General’s concession as a juvenile
adjudication cannot qualify as a prior serious felony conviction under Penal
Code section 667, subdivision (a).
name="_ftnref1" title="">[1] We modify and affirm the judgment.
I. Factual Background
Muhamad
Sagier
and Jason Wilson were friends who lived in a two-bedroom apartment together in
San Jose. The two bedrooms in the
apartment were off of a hallway, with Sagier’s being the first one down the
hallway and Wilson’s being the second one.
On April 8,
2007, Sagier and Wilson discussed “call[ing] some girls to come over.†Wilson had communicated with a woman on
MySpace, and she had told him that she was a prostitute with an advertisement
on Craigslist. She told him that she
would “come hang out after she got off whatever -- her prostitution job or
whatever.†Wilson and Sagier looked at
the woman’s Craigslist ad and saw that it listed prices of “$60 half-hour or
$120 an hour†for prostitution services.
Sagier “had like no cash†and no means to pay a prostitute. Nevertheless, he “wanted to see what was
going to happen†if they called one of these prostitutes. Wilson also had no money.
Sagier
called this woman on his cell phone at about 8:00 p.m. and arranged for her to
come to their apartment. An hour later,
Lalonnie Torres arrived at their apartment.
She “didn’t look like a prostitute or anything†but “like kind of a
regular girl.†Torres had a “friendly
conversation†with them in the living room of the apartment and played with
their dog. The subject of sex never came
up, and Torres left after half an hour without asking for any payment.
About an
hour and a half later, either Sagier or Wilson called a second prostitute,
again using Sagier’s cell phone. One or
both of them texted this woman that they would pay $20 for a “blow job.†Around midnight, Virginia Hildebrand arrived
at their apartment. Sagier invited her
into their apartment, and she came in.
However, she “was very like nervous, like kind of weird.†She seemed “kind of uncomfortable†and looked
“scared.†Hildebrand asked: “ ‘[W]ho
else is here? Who else lives in the
house?’ †Sagier told her that it was just himself and
Wilson. Hildebrand left after about 15
minutes.
Sagier went
into the living room and started watching a movie; Wilson was in his
bedroom. About 15 to 30 minutes after
Hildebrand left, Sagier heard knocking on the front door of the apartment. He opened the door. At the door were two men in their 30’s
standing side by side, close together.
The shorter one had a “very unique hoodie†sweatshirt on and was wearing
a white rubber glove, while the taller one was wearing a “black beanie.†The sweatshirt was “red and yellow and had
like patches or little things†and “designs†on it. The man wearing the sweatshirt was Douglas. The taller one who was wearing a beanie was
Scott. The two men walked into the
apartment, and Scott locked the front door behind them. Douglas said, “ ‘Is there a problem?’ â€
and pulled out a black gun.
Sagier
immediately ran down the hallway to his bedroom, slammed his bedroom door,
jumped on the bed, and tried to escape through the window.
his bedroom, but he was not certain. The
door was kicked open, and Douglas and Scott appeared in the doorway. Douglas pointed a gun at Sagier and started
shooting. Sagier ducked and put an arm
over his face. He felt “bullets going
around me,†and he was struck in the upper right thigh and fell down. After Sagier fell, he heard about four more
shots. Sagier lost consciousness for
about five minutes.
Wilson, who
had heard the knocking at the door, opened his bedroom door and saw Sagier,
with “fear in his eyes,†run into Sagier’s bedroom. Wilson closed and locked the door to his
bedroom. He “heard rounds of gunfireâ€
inside the apartment that sounded to him like a large caliber automatic
handgun. Wilson took up a position
behind his bedroom door with his hand on the doorknob and his foot on the
bottom of the door to prevent it being kicked in. Wilson felt someone trying to turn the
doorknob. A few seconds later, he heard
a gunshot, and a bullet came through his bedroom door about a foot above the
doorknob and struck him in his left shoulder.
Wilson heard another gunshot, and a second bullet came through his
bedroom door at about the same height and struck him in the face and grazed his
hand. Wilson screamed: “ ‘Oh,
shit. I got shot.’ †After he said
that, he heard the sound of footsteps running away. Wilson never saw who had entered the
apartment, but the footsteps sounded like there was more than one person.
When Sagier
came to, he heard footsteps and he heard Wilson say “ ‘Mo, I’ve been shot.’ †Both Sagier and Wilson called the police, and
the police soon arrived. Three .22
caliber shell casings and five .40 caliber shell casings were found in the
apartment. A .40 caliber bullet is about
twice the size of a .22 caliber bullet.
The .40 caliber bullets had been fired from a .40 caliber Smith &
Wesson or Glock semi-automatic handgun, and the bullet fragments recovered
established that the .40 caliber bullets were “
‘jacketed hollow point’ â€
bullets.
.40 caliber casings were found “in the hallway area†outside the door of
Sagier’s bedroom. Another .22 caliber
casing was found just inside Sagier’s bedroom.
Another .40 caliber casing was found in front of the threshold of
Sagier’s bedroom One .40 caliber casing was found in the hallway area in front
of Wilson’s bedroom. One .40 caliber
casing was found in the bathroom, which was at the end of the hallway.
The police
traced the phone numbers for the two prostitutes to a cell phone subscriber
identified as “Slim Williams†with a birthdate of May 29, 1981, and an address
that had previously been Douglas’s home address. Douglas’s birthdate is May 29, 1981, and
he was known to use the name “Slim Williams.â€
A few weeks after the shooting, the police traced Hildebrand to a
Mountain View motel, where they saw her make contact with Douglas. The police saw Hildebrand leave the motel in
a car with Douglas, Torres, and another female, and they stopped the car. The occupants of the car were arrested. Hildebrand had a tattoo on her back that said
“Lotto†and had a dollar sign with the initials “L.D.†on it. Torres had a tattoo on her breasts that said “ ‘Larry aka Lotto.’ †The other female in
the car, Carla Pennix, had tattoos on her stomach of the initials “LD,†the
word “Lotto,†and a representation of “playing cards.†Douglas also goes by his initials,
“L.D.â€
Three cell
phones associated with the two prostitutes and “Slim Williams†were found on
the occupants of the car in addition to three other cell phones. Douglas had three cell phones on his
person. On the screen of one of the
phones in Douglas’s possession, it said “ ‘Money
over bitches.’ †A cell phone on Torres’s person had a picture
of Douglas on it, and the carrying case for that phone bore the word “ ‘Pimp.’
†Torres’s phone was one of those
on the “Slim Williams†account.
A search of
Douglas’s home turned up the distinctive sweatshirt that he had been wearing at
the time of the shooting, a partially used box of white latex gloves, and a
cash box containing $2,400. Gunshot
residue was found on the right wrist area of the sweatshirt.
Douglas
made a series of telephone calls from jail, which were tape-recorded. Shortly after his arrest, Douglas telephoned
his girlfriend, Chante Surrency, who lived with him, and asked her to help
dispose of evidence.
name="_ftnref5" title="">[5] Douglas also telephoned Pennix, with whom he
was also romantically involved, and enlisted her help for the same
purpose. Douglas asked her to “go look
for†the guns in his backyard, but he used the word “plasmas†to refer to the
guns. Douglas also asked Scott, his
close friend since childhood, to go to Douglas’s house “ASAP†and “dig up the
TV’s that were buried in his backyard.â€
Douglas said that there were “[t]wo televisions†buried in his
backyard. Douglas asked Scott and Pennix
to work together in this endeavor.
During a subsequent telephone conversation, Scott told Douglas that he
had disposed of the “TV’s that were buried in the backyard.†Scott subsequently contacted Pennix to let
her know that “he found what he was looking for in the backyard.†Scott gave her a heavy bag to take away. She subsequently gave the bag back to
Scott. After Scott was arrested, he
telephoned Corina Scott, his then-girlfriend and subsequent wife, from jail and
asked her to help destroy evidence.
Sandra (or
Sancia) McNulty, who has an “L.D.†tattoo on her breast, told the police that
Hildebrand and Torres were prostitutes who worked for Douglas.
stayed at hotels rather than at his house “[b]ecause he was pimping
girls.†She knew that these girls were
engaging in prostitution and providing him with some of the proceeds from their
prostitution. Pennix identified Torres
and Hildebrand as two of the prostitutes who worked for Douglas. Pennix sometimes drove Torres and Hildebrand
to their “dates.†Douglas would pay for
the cost of the rental cars that Pennix used to provide this transportation.
Pennix told
the police that she had driven Torres to Sagier and Wilson’s apartment on April
8, 2007. Between 30 minutes and an hour
later, Douglas telephoned Pennix and screamed at her to go back and pick up
Torres. Pennix did so. Torres told Pennix that “the guys, two guys,
had tried to kidnap her, and they had taken her to some abandoned
building.†Pennix took Torres to
Douglas’s house. They did not go into
the house. Douglas and Scott came out of
the house and got into the car. Pennix
drove the four of them to a motel in Mountain View where Hildebrand was
staying. They went up to Hildebrand’s
motel room. Hildebrand told them that
she had received a “call for service†from “the same people†who Torres had
accused of trying to kidnap her. She had
reached this conclusion because the call came from the same telephone
number. Douglas compared the cell phones
of Torres and Hildebrand and confirmed that the two calls had come from the
same number. Douglas was “a little
agitated,†and he said “nobody tries to take one of my bitches.†He told Hildebrand to “make the date.†Hildebrand called and arranged to go to
Sagier and Wilson’s apartment.
Pennix then
drove Hildebrand, Douglas, and Scott back to the apartment building where she
had taken Torres. Pennix parked the car,
and Douglas told Hildebrand to “go inside and leave her phone open and call him
and leave it on speaker so he could hear.â€
Hildebrand did so. She went
toward the apartment building, and the rest of them stayed in the car and
listened to Douglas’s phone. They could
hear Hildebrand go into the apartment and ask how many people were in the house
and “discussing a blow job.†“[T]hey
only had $20, and she couldn’t do it for $20.â€
Hildebrand left the apartment and returned to the car. She complained: “[C]an you believe they wanted me to do a
blow job for $20.†Douglas asked her for
the location of the apartment, and she provided it. Scott and Douglas got out of the car and proceeded
toward the apartment. Hildebrand and
Pennix remained in the car.
About
“seven to ten minutes later,†Pennix heard “[a] lot†of gunshots. Pennix started the car and saw Scott and
Douglas “running out.†Both men were
wearing white latex gloves, and each of them had a gun in his hand. Scott and Douglas “jumped†into the car. Pennix was “in shock,†and Hildebrand was
“hysterically screaming, crying.†Pennix
drove them back to Douglas’s house.
During the drive, both men threw their gloves out of the car’s
windows. The two men went into Douglas’s
house for 15 to 20 minutes, while the women waited in the car. The two men emerged from the house, and Scott
got into another car and drove away.
A couple of
days after the shooting, Douglas and Pennix took Hildebrand and Torres to
Tracy. Douglas and Pennix returned to
San Jose.
II. Procedural Background
Scott was
originally charged by an indictment, while Douglas was charged by an
information. The two cases were joined,
and an amended information was filed.
bifurcate the prior conviction and prison prior allegations. Defendants subsequently waived their rights
to a jury trial on those allegations.
The jury returned guilty verdicts on all counts. It also found all of the allegations true,
except that it found that Scott had not personally and intentionally discharged
a firearm in the commission of the attempted murder of Wilson.
The court
found true the allegations that Douglas had suffered a strike prior, which was
also a serious felony prior, and a prison prior. Scott admitted that he had suffered the prior
juvenile adjudication but not that it constituted a strike. The court found that the adjudication did
constitute a strike and also was a prior serious felony under Penal Code
section 667, subdivision (a).
The court
sentenced Douglas to state prison to serve an indeterminate life term
consecutive to a determinate term of 58 years.
He received consecutive terms for the two attempted murder counts. The court denied Scott’s motion to strike the
strike prior finding under Penal Code section 1385. Scott was committed to state prison to serve
an indeterminate term of life consecutive to a determinate term of 40
years. Ten years of his sentence arose
from the Penal Code section 667, subdivision (a) serious felony enhancements.
His sentence included consecutive terms for the two attempted murder
counts. Both Scott and Douglas timely
filed notices of appeal.
III. Discussion
A. Response To Jury Question
Defendants
argue that the trial court prejudicially erred in responding to a jury question
regarding the intent element of attempted murder.
1. Background
The trial
court instructed the jury on the attempted murder counts as follows. “To prove that the defendants are guilty of
attempted murder, the People must prove that:
[¶] One. The defendant took at least one direct but
ineffective step towards killing another person. [¶]
And two. The defendant intended
to kill that person. [¶] A direct step requires more than merely
planning or preparing to commit murder or obtaining or arranging for something
needed to commit murder. A direct step
is one that goes beyond planning or preparation and shows that a person is
putting his or her plan into action.
[¶] A direct step indicates a
definite and unambiguous intent to kill.
It is a direct movement toward the commission of the crime after
preparations are made. It is an
immediate step that puts the plan in motion so that the plan would have been
completed if some circumstance outside the plan had not interrupted the
attempt.â€
Both
defendants’ trial counsel argued to the jury that the shooters had lacked the
intent to kill because the shots had not been aimed to kill but merely to
injure. The prosecutor responded by
arguing that, if defendants had not intended to kill, they would have called
911 after they realized that they had wounded Sagier and Wilson. “These guys didn’t call 9-1-1. They went running out of that apartment. Because
they didn’t care. I mean, for all
they knew, [Wilson] could have had his face blown off behind that door, because
they did shoot center mass. That’s all
you need to know about what they intended.
[¶] If those guys had bled out
and died, do you think these guys would
care?†(Italics added.)
Jury
deliberations began on the afternoon of February 26, 2010. The jury deliberated for just 47 minutes
before taking its evening recess. The
jury deliberated all day on March 1, the next day of deliberations.
The jury
also deliberated all day on March 2. The
jury submitted inquiries that morning concerning the aiding and abetting
instructions and that afternoon concerning the pandering instructions, and the
court responded to those inquiries.
name="_ftnref9" title="">[9]
The jury
returned to its deliberations on March 3.
That morning, the jury submitted another inquiry: “With reference to CALCRIM 600; it states
that to prove defendant guilty of attempted murde[r], Condition 1 (the
defendant took at least one direct but ineffective step toward killing another
person) is necessary but not sufficient and Condition 2 (the defendant
intended to kill) is necessary but not sufficient. Sentence three of the last paragraph (a
direct step indicates a definite and unambiguous intent to kill) seems to
indicate that Cond 1 is necessary and sufficient by itself and determination
of Cond 2 we need not do.†The
court swiftly and correctly responded:
“You must find both Condition 1 And Condition 2 have been proven
beyond a reasonable doubt before you can find a defendant guilty of attempted
murder.â€
Later that
afternoon, the jury sent another inquiry to the judge: “We have reached a unanimous conclusion on
counts 3, 4, 7, 8, 9, and 10. [¶] We are divided as follows on the remaining
counts: [¶] Counts:
1, 2, 5, and 6 [the attempted murder counts] 11-1 [¶]
Count 10 [the pandering count]:
10-2 [¶] What is our next direction as a jury?†The court sent a note to the jury
asking: “Can you clarify your verdict on
Count 10.†The jury responded that, with
respect to Count 10, it was “10 guilty 2 not guilty.â€
The court
thereafter spoke to the jury in open court.
The court noted that the jury had said it “has arrived at a verdict on
Counts 3, 4, 7, 8, 9 and 10 and you’ve also indicated that the jury is
deadlocked on Counts 1, 2, 5, 6, and 10.â€
The foreperson confirmed that the jury was “hopelessly deadlocked†on
the attempted murder and pandering counts.
The foreperson also confirmed that, while there was a “possibility†that
the jury “might arrive at a verdict†on the deadlocked counts, “[i]t’s not
likely,†as the jury had “discussed this at long length.â€
The court
then engaged the foreperson in a colloquy.
“THE COURT: I will ask you
another question. Mr. Foreperson, is
there anything that the Court can do to assist the jury in arriving at a
verdict on Counts 1, 2, 5, 6 and 10, such as, further jury instructions,
reading of testimony by the court reporter, or anything else? [¶]
THE FOREPERSON: It’s hard to
say. There is certain verbiage in there
which you have done your best to define.
We have difficulty, you know, reaching a conclusion. I think you explained very well, your CalCrim
and what have you. We still have great
difficulty. [¶] THE COURT:
So, it’s some of the wording that’s causing difficulty for the juror,
perhaps? [¶] THE FOREPERSON: Yes.
[¶] THE COURT: Well, if you think there’s something else
that I can do to assist the jury, then I will do it. So I first have to ask you, and depending on
your answer, I will ask the other jurors.
So what is your opinion, do you think there’s anything further the Court
can do to assist the jury in arriving at a verdict on those counts? [¶]
THE FOREPERSON: Yes, I think you
could. [¶] THE COURT:
Do you want to go into the jury room with the other jurors and send me
out another note, and I will do my best to answer your questions? [¶]
THE FOREPERSON: One moment,
please. [¶] (Jurors conferring with each other.) [¶]
THE FOREPERSON: We basically
believe that on Counts 1, 2, 3 [sic],
5, and 6 more discussion may be fruitless.
We have a hung jury on that.
Count 10 is conceivable. We could
use more instructions, and perhaps reach a conclusion.†The court then instructed the jury to return
to the jury room and send the court a “note†indicating what it desired.
The jury
subsequently sent out two more notes that afternoon. The first one concerned the pandering count.
murder counts. It read: “We, as a jury, have found a ‘careless
disregard for lethal consequence’ in regards to counts 1, 2, 5, and 6. We would like to further clarify the phrase
‘intent to kill.’ Does a ‘careless
disregard for lethal consequences’ constitute an ‘intent to kill?’ â€
to this note: “Please refer to
Instruction Numbers 251 and 600.†The
jury deliberated for half an hour more before retiring for the evening.
The next
day, Douglas’s trial counsel put on the record the fact that he had objected to
the court’s response to the note concerning the attempted murder counts. “[M]y suggested response was that [the answer
to] the rather specific question was to say, no, the careless disregard, and
use the same language they have in the question, does not constitute an intent
to kill, because legally it would not, and I don’t believe the response
directing them back to the CalCrim is sufficient because they already have
those instructions, and despite those instructions, they still pose this
question.†Douglas’s trial counsel moved
for a mistrial on the ground that the jury’s note reflected that it was
“disregard[ing]†the court’s instructions.
Scott’s trial counsel joined in the mistrial motion and suggested that
the jury’s use of the words “careless disregard for legal [sic] consequences†reflected that it was engaging in
sources †and failing to follow the court’s instructions. The court denied the mistrial motion without
comment. Later that day, the jury
returned guilty verdicts on all counts, including the attempted murder counts,
and found the premeditation allegations true.
2. Analysis
Defendants
claim that the trial court’s failure to properly respond to the jury’s inquiry
regarding the attempted murder counts violated Penal Code section 1138 and
their rights to due process. They
maintain that the trial court was obligated to respond to the jury’s “careless
disregard†inquiry with “a simple ‘no.’ †Because the jury was deadlocked on the
attempted murder counts after three days of deliberations when it submitted
this inquiry, and it reached a verdict not long after the court’s response,
defendants contend that they were prejudiced by the court’s response.
Penal Code
section 1138 provides: “After the
jur[ors] have retired for deliberation, if there be any disagreement between
them as to the testimony, or if they desire to be informed on any point of law
arising in the case, they must require the officer to conduct them into
court. Upon being brought into court,
the information required must be given in the presence of, or after notice to,
the prosecuting attorney, and the defendant or his counsel, or after they have
been called.†“[T]he statute imposes a
‘mandatory’ duty to clear up any instructional confusion expressed by the
jury.†(People v. Gonzalez (1990) 51 Cal.3d 1179, 1212;
1323, 1331 [court must “help the jury understand the legal principles it is
asked to applyâ€].)
“To perform
their job properly and fairly, jurors must understand
the legal principles they are charged with applying. It is the trial judge’s function to
facilitate such an understanding by any available means. The mere recitation of technically correct
but arcane legal precepts does precious little to insure that jurors can apply
the law to a given set of facts. A
jury’s request for reinstruction or clarification should alert the trial judge
that the jury has focused on what it believes are the critical issues in the
case. The judge must give these
inquiries serious consideration. Why has
the jury focused on this issue? Does it
indicate the jurors by-and-large understand the applicable law or perhaps it
suggests a source of confusion? If
confusion is indicated, is it simply unfamiliarity with legal terms or is it
more basically a misunderstanding of an important legal concept?†(People
v. Thompkins (1987) 195 Cal.App.3d 244, 250.) “It is hardly preferable for a judge to
merely repeat for a jury the text of an instruction it has already indicated it
doesn’t understand. We are convinced
both jurors and the justice system will be well served in the vast majority of
cases if the trial judge thoughtfully considers the jury’s inquiry, clarifies
it if necessary, studies the applicable legal principles, and responds to the
jury in as simple and direct a manner as possible.†(Id.
at p. 253.)
In
(Beardslee), a jury inquired about
the definition of premeditation and deliberation, and the court told the jury
that it would not explain any of the jury instructions. On appeal, the defendant claimed that the
trial court had violated Penal Code section 1138. (Beardslee,
at pp. 96-97.) The California Supreme
Court held that the court’s response was erroneous. “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 section
1138 to determine what additional explanations are sufficient to satisfy the
jury’s request for information. . . . . It 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.†(
that the trial court had erred, it concluded that the error was harmless
because any ambiguity in the instructions would have favored rather than
prejudiced the defendant, and it was mere “speculation†that the court’s
response might have discouraged the jury from asking further questions. (Beardslee,
at pp. 97-98.)
The
Attorney General contends that the trial court did not abuse its discretion in
deciding not to offer the jury any response other than a reference back to the
original jury instructions. However,
none of the cases relied upon by the Attorney General involved a properly
instructed jury that nevertheless sent an inquiry to the court in which it
proposed to use an improper legal standard.
“The mental state required for attempted murder has long differed from
that required for murder itself. Murder
does not require the intent to kill.
Implied malice—a conscious disregard for life—suffices. [Citation.]
But . . . implied malice cannot support a conviction
of an attempt to commit murder.†(People
v. Bland (2002) 28 Cal.4th 313, 327.)
Here, when the jury asked: “Does
a ‘careless disregard for lethal consequences’ constitute an ‘intent to kill?’ â€, it was essentially asking if a
“careless disregard†for life was sufficient to satisfy attempted murder’s
“intent to kill†element. This was a
question of law that the trial court was obligated to affirmatively
resolve. As defendants point out, the
correct answer was “No.†Because,
notwithstanding the fact that the jury had already received accurate
instructions on the “intent to kill†element, the jury had still come to
believe that “careless disregard†might satisfy the “intent to kill†element of
attempted murder, the trial court had an obligation to debunk the jury’s
misapprehension of the jury instructions.
Referring the jury back to instructions that it had clearly
misunderstood was inadequate. We
therefore conclude that the trial court erred in failing to respond “no†to the
jury’s inquiry.
The next
question is whether the trial court’s error was prejudicial. Defendants contend that the trial court’s
error was a violation of the Sixth Amendment because it amounted to an
erroneous instruction on an element of the offense. We disagree with this characterization of the
trial court’s error. Although the court
failed to properly respond “no†to the jury’s inquiry, it did not give any
inaccurate instructions on the elements of the offense. Indeed, the trial court’s response to the
jury’s inquiry was to refer the jury back to accurate instructions on every
element of the offense. Hence, the trial
court’s error was not a violation of the Sixth Amendment.
It follows
that reversal is required only if it is reasonably probable that defendants
would have attained a more favorable verdict if the court had properly
responded “no†to the jury’s inquiry.
v. Ainsworth (1988) 45 Cal.3d 984, 1020.)
The record does not support defendants’ claim that a more favorable
result was reasonably probable in the absence of the court’s error.
The jury
was properly instructed with CALCRIM No. 600, and the trial court referred the
jury back to this correct instruction in response to its inquiry. Although CALCRIM No. 600 does not elaborate
on the meaning of “intended to kill,†it does not in any way suggest that
“careless disregard†is the equivalent of “intended to kill.†The evidence that defendants intended to kill
was also very strong. Defendants kicked
open the door to Sagier’s room, pointed guns at a defenseless Sagier, and fired
at least five shots, at least two of which were hollow point .40 caliber
bullets, a particularly lethal bullet.
Sagier, who was standing on his bed, ducking, with his arm over his
face, was struck in his upper thigh, which, given his position, was close to
his vital organs. Defendants did not
flee after wounding Sagier but continued to Wilson’s bedroom. Wilson was holding the doorknob when
defendants tried to open the door, so they must have known that he was behind
the door when one of them tried to turn the knob. Knowing this, they fired shots through the
door, a foot above the doorknob, where one would expect to find the vital
organs of someone who was holding the doorknob.
Indeed, Wilson was struck by one bullet in the shoulder and by another
in the face. The circumstances under
which defendants fired the many shots they directed at Sagier and Wilson
strongly supported a finding that defendants intended to kill both men.
Nor does
the record suggest that the jury actually rested its verdict on a “careless
disregard†theory rather than a finding that defendants intended to kill. The jury not only found defendants guilty of
attempted murder under CALCRIM No. 600 but also found true allegations that
defendants had acted willfully, deliberately, and with premeditation in the
commission of the attempted murders. It
is practically inconceivable that the jury could have concluded that defendants
willfully, deliberately, and with premeditation acted with “careless
disregard.†Deliberation and
premeditation are the very antithesis of “careless disregard.â€
As the
evidence of intent to kill was very strong, and the jury’s findings on the
premeditation allegations were inconsistent with reliance on a “careless
disregard†theory, the trial court’s error in its response to the jury’s
inquiry was not prejudicial.
B. Absence of Accomplice
Instruction
Defendants
contend that the trial court should have instructed the jury that Pennix was an
accomplice to the attempted murder and assault
with a firearm counts.
name="_ftnref13" title="">[13] The trial court denied Scott’s in limine
request that it find Pennix to be an accomplice.
“When there
is sufficient evidence that a witness is an accomplice, the trial court is
required on its own motion to instruct the jury on the principles governing the
law of accomplices.†(
point in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.) These
principles are “ ‘(1) that the
testimony of the accomplice witness is to be viewed with distrust [citation],
and (2) that the defendant cannot be convicted on the basis of the accomplice’s
testimony unless it is corroborated . . . .’
†(People v. Zapien (1993) 4
Cal.4th 929, 982.) “However, a
conviction will not be reversed for failure to instruct on these principles if
a review of the entire record reveals sufficient evidence of
corroboration.†(People v. Frye,
to little consideration when standing alone.â€
[Citations.] . . . . It is only required that the evidence “ ‘ “tends to connect the defendant with
the commission of the crime in such a way as may reasonably satisfy the jury
that the [accomplice] is telling the truth.â€
’ †[Citation.]’ â€
(People v.
535.)
Even if we
assume that the trial court erred in failing to give accomplice instructions as
to Pennix’s testimony regarding the assault and attempted murder counts, any
error was harmless. Sagier identified
both defendants as the men who had assaulted him and Wilson with firearms. The distinctive sweatshirt that Douglas was
wearing at the time of the shootings was found in Douglas’s residence. The prosecution also presented evidence,
other than Pennix’s testimony, that Scott had participated in disposing of the
guns used in the shootings. While
Pennix’s testimony about the events leading up to the shootings was relevant to
defendants’ intent, evidence of the actual conduct of the shootings was far
more probative of defendants’ intent at that time, and it easily corroborated
Pennix’s testimony in that respect.
Pennix’s testimony merely suggested the reason why defendants were upset
with Wilson and Sagier. The fact that
defendants used two guns, fired multiple shots, and pursued both occupants of
the apartment, all of which was demonstrated by other evidence, was much
stronger support for a finding that they intended to kill than was Pennix’s
testimony. Certainly it provided
sufficient corroboration for her testimony.
As the record contains sufficient evidence corroborating Pennix’s
testimony, any error in failing to give accomplice instructions was harmless.
C. Prosecutorial Misconduct
Defendants
argue that the judgment must be reversed because the prosecutor committed
prejudicial misconduct both in questioning the investigating officer and in
closing argument.
1. Background
When the
prosecutor was questioning the investigating officer, he tried to ask her
questions aimed at showing that, when Pennix was interviewed by the police, the
police previously had no knowledge of her involvement. His attempts were met with repeated
objections, many of which were sustained.
Eventually, a bench conference was held.
The prosecutor explained that he was trying to bolster Pennix’s
credibility by showing that she had inculpated herself at a point when the
police had no knowledge of her involvement.
The court pointed out that many of his questions sought irrelevant
information about when the investigating officer had learned a particular fact
and if she had been “surprised†to learn it.
“It’s not relevant, and you have doggedly continued along this path
despite my sustaining the objections.â€
The prosecutor expressed a lack of understanding of the court’s
rulings. The following colloquy then
occurred.
“MR. CHEN
[the prosecutor]: I don’t understand. [¶]
THE COURT: No, that’s why you are
ignoring my rulings. [¶] MR. CHEN:
I’m not ignoring. [¶] THE COURT:
You are absolutely in contempt of Court for ignoring my rulings. So you can continue on, if you like, and we
will have a hearing later, or you can stop because that is my ruling. [¶]
MR. CHEN: I was trying to ask
whatever type of question gets around whatever issue. [¶]
THE COURT: I just thought you
didn’t understand, but now that I’m explaining them to you. [¶]
MR. CHEN: But I think for you to
accuse me of contempt of court. [¶] THE COURT:
You have just said you were ignoring my rulings. [¶]
MR. CHEN: I didn’t say I ignored
your rulings. I said I didn’t
understand, and that’s why I asked to approach, and now you are telling me what
you are basing on, and I’m trying to convince you it is relevant. I wasn’t ignoring. I’ve practiced before you before. I’m not that type of attorney, [to] just
ignore what you are saying. I might not
understand and try to figure a way around because maybe it’s the way I’m
phrasing it. [¶] THE COURT:
I appreciate that. [¶] MR. CHEN:
But that’s why I was doing -- I thought maybe I should ask it a
different way. That’s all it was. So you are saying all the facts that she
received from Pennix that day which were new to her -- [¶]
THE COURT: I’m saying your line
of questioning as to what this officer felt, was it surprising to her what
Carla Pennix knew is not relevant. Now,
if she did something based on Carla’s statements, that’s different. [¶]
MR. CHEN: She did do
something. Went back and got the
records.
“THE
COURT: Victor [Chen], you are kind of
starting your case all over again. You
are at the end now, okay? [¶] MR. CHEN:
I’m trying to tie it together.
And maybe I don’t practice law the same way you would like. [¶]
THE COURT: There’s no certain way
that I would like. [¶] MR. CHEN:
I’m not trying to be difficult, Your Honor. Your Honor, I’m surprised that you would ever
accuse me of contempt. [¶] THE COURT:
It is my opinion that you said that you were disobeying the order
because you disagreed. [¶] MR. CHEN:
If I said that, that’s not what I meant.
I meant that I didn’t understand why you were doing it this way. I did not say I was going to ignore it. There have been rulings I haven’t agreed
with. [¶] THE COURT:
Believe me, I know that. [¶] MR. CHEN:
But my position whether I agree with the Court or not or a judge or not
is never to purposely flaunt it or go against it. [¶]
THE COURT: And I accept your statement.â€
After the
bench conference, the prosecutor resumed his questioning of the investigating
officer, and he did not return to the objectionable line of questioning.
After the
close of evidence, the court instructed the jury: “Nothing that the attorneys say is
evidence. In their opening statements
and closing arguments, the attorneys discuss the case but their remarks are not
evidence. Their questions are not evidence.†Just before closing arguments began, the
court reminded the jury “that what the attorneys say is not evidence.†“If either attorney misstates the evidence or
the law, you will rely on the evidence as presented in the trial and on the law
as stated by me.â€
Scott’s
trial counsel argued to the jury that “the idea of reasonable doubt is a very
alien concept†and “[y]ou never think in terms of beyond a reasonable
doubt.†He likened the reasonable doubt
standard to the decision whether to take a loved one off of life support. The prosecutor responded in his closing
argument. “They want you to rely on this
onerous burden of proof that they call reasonable doubt and say, you know,
reasonable doubt, nobody --†Douglas’s
trial counsel interjected an objection.
“I object to him labeling as onerous.
That’s improper. That’s the law.†The court stated: “That’s his argument. The objection is overruled.†The prosecutor proceeded to argue: “There are not two reasonable interpretations
of the facts in this case. There just
are not. There is one reasonable
interpretation.â€
The
prosecutor’s closing argument also addressed defendants’ attack on Pennix’s
credibility. “You know why she is my
witness? Because I didn’t pick her. These two guys did back in 2007. They are the ones who were friends with
her. They are the ones who entrusted her
with information such as being the get-away driver. They are the ones -- they are the reasons why
she is testifying in court. [¶] When you are putting the devil on trial, you
don’t go to heaven for your witnesses.
These guys are the reason she is testifying.†At this point, Douglas’s trial counsel
objected. “Your Honor, I’m going to
object if he is remotely suggesting my client is the devil. [¶]
The jury should be admonished, and he needs to be cited for
misconduct.†The trial court immediately
responded: “It did appear he was calling
them, that is, it’s a phrase he used, but your objection is sustained and the
jury is admonished not to consider that for any reason.†The prosecutor then backtracked. “My implication was not to impugn these
people. It’s a phrase. I will try to use that if you are trying to
put someone on trial who is not a good person, the person who is most likely to
be associated with them are people who are like minded. If you are going to commit a crime, you are not
going to go and ask your pastor to be your get-away driver.†Defendants’ trial counsel did not object to
this explanation.
2. Analysis
“Under
California law, a prosecutor commits reversible misconduct if he or she makes
use of ‘deceptive or reprehensible methods’ when attempting to persuade either
the trial court or the jury, and when it is reasonably probable that without
such misconduct, an outcome more favorable to the defendant would have
resulted. [Citation.] Under the federal Constitution, conduct by a
prosecutor that does not result in the denial of the defendant’s specific
constitutional rights—such as a comment upon the defendant’s invocation of the
right to remain silent—but is otherwise worthy of condemnation, is not a
constitutional violation unless the challenged action ‘ “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.â€
’ †(People v. Rundle (2008) 43 Cal.4th 76, 157, disapproved on a
differenct point in People v. Doolin,
supra, 45 Cal.4th at p. 421, fn.
22.)
Defendants
make three complaints about the prosecutor’s conduct. First, they assert that he committed
misconduct when he repeatedly asked questions of the investigating officer in
an attempt to bolster Pennix’s testimony.
These questions were all parried with sustained objections, so no
inadmissible evidence came before the jury, and the trial court properly
instructed the jury that questions by the attorneys were not evidence. “When a trial court sustains defense
objections and admonishes the jury to disregard the comments, we assume the
jury followed the admonition and that prejudice was therefore avoided.†(People
v. Bennett (2009) 45 Cal.4th 577, 595.)
The prosecutor’s failed attempts to adduce evidence could not have prejudiced
defendants as the court sustained the defense objections and instructed the
jury not to consider the prosecutor’s questions.
Second,
defendants point to the prosecutor’s comment:
“When you are putting the devil on trial, you don’t go to heaven for
your witnesses.†Again, the court
sustained the defense objection and admonished the jury to disregard the
prosecutor’s comment, so no prejudice could have occurred. This was not such an inflammatory comment
that the admonition cannot be relied upon.
Third,
defendants identify as misconduct the prosecutor’s assertion that defendants
“want you to rely on this onerous burden
of proof that they call reasonable doubt . . . .†(Italics added.) In this instance, the defense objection was
overruled. Defendants contend that the
prosecutor’s comment “mocked and trivialized†the reasonable doubt
standard. Viewed in context, however,
the prosecutor’s remark was a fair response to the defense argument that the
reasonable doubt standard was “a very alien concept†that jurors would “never
think in terms of†unless they had to decide whether to take a loved one off of
life support. “A prosecutor is given
wide latitude during closing argument.â€
(People v. Harrison (2005) 35
Cal.4th 208, 244 (Harrison).) “When the issue ‘focuses on comments made by
the prosecutor before the jury, the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks
in an objectionable fashion.’ †(Ibid.) It is highly unlikely that the jury construed
the prosecutor’s comment as anything other than a response to the defense
argument that the reasonable doubt standard was “a very alien concept.†The prosecutor did not otherwise misstate the
burden or standard of proof, and the jury was accurately instructed on these
concepts. We decline to find any
prejudicial misconduct in this remark.
D. Substantial Evidence Supports
Pimping and Pandering Counts
Douglas
asserts that his pimping conviction is not supported by substantial evidence
that he was partially supported by Torres’s earnings. He claims that his pandering conviction is
not supported by substantial evidence that he “procured†or “influenced†Torres
to work as a prostitute.
name="_ftnref16" title="">[16]
“ ‘[T]he relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution,
found the essential elements of the crime beyond a reasonable doubt.’ â€
(People v.
quoting Jackson v.
318-319.) “[The] appellate court must
view the evidence in the light most favorable to respondent and presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.†(
(1991) 52 Cal.3d 1210, 1237.) “Evidence
is sufficient to support a conviction only if it is substantial, that is, if it
‘ “reasonably inspires confidence†’ [citation], and is ‘credible and of
solid value.’ †(People
v. Raley (1992) 2 Cal.4th 870,
890-891.)
Pimping is
committed when a person, “knowing another person is a prostitute, lives or
derives support or maintenance in whole or in part from the earnings or
proceeds of the person’s prostitution . . . .†(Pen. Code, § 266h, subd. (a).) Pandering is committed when a person
“[p]rocures another person for the purpose of prostitution.†(Pen. Code, § 266i, subd. (a)(1).) “[T]he term ‘procure’ means assisting,
inducing, persuading or encouraging†a person to engage in prostitution. (People
v. Schultz (1965) 238 Cal.App.2d 804, 812.)
Douglas had
provided Torres with the cell phone that she was using to solicit prostitution
clients. The cell phone found on her
person when she was arrested had a picture of Douglas on it, and the carrying
case for that phone bore the word “Pimp.â€
Torres had a tattoo on her breasts that read: “ ‘Larry
aka Lotto.’ †Douglas’s first name is Larry. McNulty told the police that Torres worked
for Douglas as a prostitute. Pennix
testified that Douglas “was pimping girls,†including Torres, and that these
girls were providing Douglas with some of the proceeds from their
prostitution. Douglas arranged for and
paid for the cost of transporting Torres to and from appointments with her
prostitution clients.
Douglas
argues on appeal that Pennix’s testimony was “speculative at best†and
therefore could not support the pimping count.
We disagree. Pennix testified
that she was romantically involved with Douglas, spent time with him on a daily
basis, and participated in his pimping business by transporting his prostitutes
to their appointments. She also spent
time with Douglas and the prostitutes at the motels where they stayed. Pennix transported Torres and Hildebrand to
their appointments with Wilson and Sagier on the night of the shootings. We see nothing “speculative†about Pennix’s
testimony regarding her personal knowledge of Douglas’s pimping business. Her testimony that Douglas’s prostitutes,
including Torres, were providing Douglas with a portion of their prostitution
earnings was sufficient to support the pimping count.
With
respect to the pandering count, Douglas contends that there was no evidence
that he specifically intended to and did procure or influence Torres to be a
prostitute. We disagree. “It is immaterial whether the female
‘procured’ is an innocent girl or a hardened prostitute of long experience.†(People
v. Montgomery (1941) 47 Cal.App.2d 1, 12, disapproved on other grounds in
981, People v. Dillon (1983) 34
Cal.3d 441, 454, fn. 2, and Murgia v.
Municipal Court (1975) 15 Cal.3d 286, 301, fn. 11.) Douglas provided Torres with a cell phone and
transportation specifically directed at facilitating her prostitution
activities from which he benefitted. (
557, 561 [providing car for prostitution business was sufficient to show
procurement].) He referred to her as
“one of my bitches.†A jury could
reasonably infer that Douglas provided his “bitch[]†with a cell phone and
transportation to encourage and assist her to engage in acts of prostitution
with the specific intent to influence her to engage in prostitution and that he
was successful in doing so.
E. Juvenile Adjudication
Although
Scott challenged the validity of utilizing his prior juvenile adjudication as a
strike and unsuccessfully moved to strike the strike finding under Penal Code
section 1385, he did not challenge below the use of his prior juvenile adjudication
as a prior serious felony conviction within the meaning of Penal Code section
667, subdivision (a).
Scott
contends on appeal that his federal constitutional rights under the Sixth and
Fourteenth Amendments preclude the use of his juvenile adjudication as a strike
to enhance his sentence. He acknowledges
that the California Supreme Court rejected this contention in
1007. We need not analyze this
contention as we are bound by Nguyen. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Scott did
not challenge the use of his juvenile adjudication as the basis for enhancement
of his sentence under Penal Code section 667, subdivision (a). Scott’s determinate term included 10 years
under Penal Code section 667, subdivision (a). We requested supplemental
briefing on this issue. Penal Code
section 667, subdivision (a) plainly does not apply to juvenile adjudications (
100, 106-110), and the Attorney General concedes as much. Hence, Penal Code section 667, subdivision
(a) did not authorize the trial court to enhance Scott’s sentence. We will modify the judgment accordingly.
F. Imposition of Consecutive
Terms
Defendants
challenge the trial court’s imposition of consecutive, rather than concurrent,
terms for the two attempted murder counts.
They claim that the trial court applied the wrong standard in deciding
whether the two attempted murder offenses were “committed on the same occasionâ€
or arose “from the same set of operative facts.â€
Because
both defendants were sentenced under Penal Code section 1170.12, consecutive
sentences were mandatory for the two
attempted murder counts if the court found that the offenses were “not
committed on the same occasion, and [did] not aris[e] from the same set of
operative facts.†(Pen. Code, § 1170.12,
subd. (a)(6).) If consecutive sentences
were not mandatory, the court would
have discretion to impose either consecutive or concurrent terms. The criteria that the court would be required
to consider in making this discretionary decision included: “The crimes involved separate acts of
violence or threats of violence†and “[t]he crimes were committed at different
times or separate places, rather than being committed so closely in time and
place as to indicate a single period of aberrant behavior.†(Cal. Rules of Court, rule 4.425(a).)
The
probation reports recommended consecutive sentences for the attempted murder
counts because each count “involved a separate act of violence.†At the sentencing hearing, the court selected
consecutive terms and explained that it was doing so “because the acts are
separate and involved separate victims in different rooms of the apartment.â€
Defendants
maintain, based solely on the court’s statement of reasons, that the trial
court “misunderstood†and therefore failed to exercise its discretion to impose
concurrent terms. They seek a remand for
the court to exercise its discretion.
“ ‘The general rule is that a trial court
is presumed to have been aware of and followed the applicable law. [Citations.]
These general rules concerning the presumption of regularity of judicial
exercises of discretion apply to sentencing issues.’ †(People v. Martinez (1998) 65 Cal.App.4th 1511, 1517.) Unlike defendants, we see nothing in the
trial court’s statement of its reasons for imposing consecutive sentences to
rebut the presumption that the trial court was aware that it had discretion to
impose concurrent terms.
First, had
the court believed that consecutive terms were mandatory, it would not have
seen any need to make a statement of reasons.
Thus, the fact that the trial court gave reasons for its imposition of
consecutive terms is consistent with a finding that it was exercising its
discretion, not imposing mandatory consecutive terms.
Second, the
fact that the court’s statement of reasons explicitly tracked the criteria set
forth in California Rules of Court, rule 4.425 for making this discretionary
decision confirms that the court exercised its discretion. California Rules of Court, rule 4.425
identifies as an appropriate reason for imposing consecutive rather than
concurrent terms that there were “separate acts of violence.†This was the reason given in the probation
report to support its recommendation of consecutive terms. The trial court adopted this rationale by
explicitly relying on the fact that the “acts are separate.†California Rules of Court, rule 4.425 also
identifies as a lawful basis for imposing a consecutive, rather than a
concurrent, term that the acts “were committed at different times or separate
places.†The trial court’s statement of
reasons explicitly relied on the fact that the acts were “in different rooms of
the apartment.†This record compels a
conclusion that the trial court was aware of, and exercised, its discretion to
impose either consecutive or concurrent terms.
We reject defendants’ challenge to the court’s imposition of consecutive
terms for the attempted murder counts.
IV. Disposition
The
judgment as to Scott is modified to strike the Penal Code section 667,
subdivision (a) enhancements. The trial
court shall prepare an amended abstract of judgment and forward a certified
copy of the abstract to the Department of
Corrections and Rehabilitation. The
modified judgment as to Scott is affirmed.
The judgment as to Douglas is affirmed.
_______________________________
Mihara,
J.
WE CONCUR:
_____________________________
Bamattre-Manoukian,
Acting P. J.
_____________________________
Walsh,
J.
name="_ftn1" title="">[1]
Scott’s determinate term
included 10 years for the erroneous Penal Code section 667, subdivision (a)
finding.
name="_ftn2" title="">[2]
The spelling of Sagier’s first
name varies in the transcript. When he
spelled it for the court reporter, it was Muhamad. However, he later told one of the defense
attorneys: “It’s not Mohamed. Muhanad.â€
We adhere to the spelling that he provided to the court reporter.
